27
The consequences of the loss of an administrative file may be considered from two
angles: first, if the file is being processed and second, if it has already been closed.
In the latter case, there is an administrative act that enjoys the presumption of
legality and right of execution and all the other classic presumptions that
administrative law recognizes; therefore, reconstructing it cannot generate any great
consequences. The Administrative Procedures Law establishes sanctions for the loss
of files, although none were ordered in this case.
On April 24, 1998, the Constitutional Court concluded that the complaint filed by Mr.
Ivcher was inadmissible, because the administrative remedies had not been
exhausted. The “directorial resolution” that annulled the nationality title was the
way to annul an administrative act and, in accordance with the law, when an
administrative act is annulled, the administrative remedy is exhausted.
On June 24, 1997, Resolution No. 399 of the Judiciary’s Executive Committee was
published; it granted the Constitutional and Social Chamber of the Supreme Court
the power to remove and appoint the judges of the public law chambers. This meant
that, as of that time, jurisprudence was absolutely questionable, because there was
no guarantee of effective legal protection. Owing to these appointments, the right to
a natural judge was affected, because some of the competencies of the different
courts were altered. In this context, it is important to remember that the resolution
that annulled Mr. Ivcher’s nationality title was dated July 13, 1997.
The Office of the Ombudsman published a report in which it concluded that the
“directorial resolution” was null de jure, because it contradicted the Constitution and
affected the right to nationality, inasmuch as there had not been any renunciation;
therefore, it violated the principle of legality and generated legal uncertainty. This
report was transmitted to the Ministry of the Interior, but had no effect other than
providing information on the antecedents to the case.
Moreover, the precautionary measure issued in favor of the Winter brothers granted
them the administration of Channel 2, and, thereby, gave greater weight to the case.
There was a legal excess, because, basically, the precautionary measure constituted
a judgment.
The legal provision that reserves the ownership of shares in television companies to
nationals appears in Legislative Decree No. 702, in the context of the 1979
Constitution. Today, the 1993 Constitution is based on another conception; its
article 63, places the investments and properties of foreigners and nationals in the
same conditions.
However, the previous norm subsists, because it has been
recognized by a judgment of the Supreme Court, issued as a result of a popular
action. This is not coherent with the Constitution in force.
VII
EVIDENCE ASSESSMENT
63.
Before examining the evidence it has received, the Court will define its
general criteria for the evaluation of evidence and will make some observations that
are applicable to this specific case, most of which have been developed previously in
the Court’s jurisprudence.
64.
Article 43 of the Rules of Procedure of the Court stipulates that