any of the additional sanctions - suspension, removal, and disqualification,- once the
declaration is final of administrative responsibility of the public official, to which, in
principle, the official that has been found responsible can foresee that any such sanction
could be imposed. Thus, in an initial analysis, the specific notice of the situation in
question does not seem necessary, provided that the person has had the procedural
opportunity to present arguments and specific evidence related to the possible sanctions
and that the administrative decision that has been imposed had proper cause.
139. Now, in regard to the procedural opportunity to present arguments and specific
evidence related to the possible sanctions, Article 105 of the LOCGRSNCF states that “the
Comptroller shall [...] in an exclusive and excluding manner, without there being any
other proceeding” impose additional sanctions. In this regard, the Constitutional Chamber
of the Supreme Tribunal has noted that this implies that the imposition of sanctions shall
be done as a result of a “complex proceeding” in the following terms:
"The tagline: ‘without there being any other proceeding,’ as in the previous laws, refers to the power
to declare the administrative responsibility of an official through a process of a complex nature,
given that the power to declare the administrative responsibility comes from the power to impose
sanctions that result from such declaration. [Thus], the establishment of administrative
responsibility does not require a new proceeding, as it entails establishing the sanction derived from
administrative responsibility declared by the Comptroller General of the Republic, as stipulated in the
previous proceeding established by the law. [...] Thus, it is the manifestation of two administrative
acts of the same sanctioning power, making up what the doctrine calls "a complex process.
[...]
[T]he complex proceeding establishes the manifestation of the power to impose sanctions in two
interrelated phases, in which the declaration of administrative responsibility is a necessary
requirement for imposition of the sanction of suspension, removal, or disqualification; all processed
in a single proceeding [...] because each of these phases are independently and effectively satisfied
before bodies that, as a whole, form part of the National Fiscal Oversight System. [Thus,] the
Chamber considers that [...] there is no violation to the constitutional right to due process, which
necessarily must be met to establish the administrative responsibility. The sanctions that correspond
to the designation of administrative responsibility do not merit a new proceeding because these are
consequences of the declaration of administrative responsibility.” 235
140. In this regard, the Court stresses that there is an important difference between
the sanction of a fine and the additional sanction of disqualification, which, as noted,
implies a limitation to stand for election (supra para. 108). Now, although the Court notes
that Mr. López Mendoza did not have a procedural period between the declaration of
responsibility and the imposition of the disqualification in any of the administrative
proceedings that were carried out against him in which he could present arguments and
specific evidence regarding the possible additional sanctions that could be imposed, the
foregoing does not imply a violation of his right to defense by that fact alone, since Mr.
López Mendoza had the opportunity to challenge the magnitude of the administrative
235
Judgment No. 1.266 of August 6, 2008, of the Constitutional Chamber of the Supreme Tribunal of
Justice supra note 31, folios 623 and 624. Moreover, in a prior judgment, said Chamber indicated that “the
establishment […] of a distinct proceeding is not necessary for the application of the additional sanction, given
that the principle sanction as well as the additional sanction arise from the same unlawful act demonstrated
during the proceeding of the declaration of responsibility and the sanctioning entity is always the Comptroller
General of the Republic. The situation would be different if the sanctioning entity invoked a distinct unlawful
action to sustain or apply the additional sanction, given that in this case the installation of a new proceeding
would result indispensible for the sanctioning body, one in which the the official under investigation is
guaranteed his right to due process and a defense.” Judgment No. 1.265 of August 5, 2008, of the
Constitutional Chamber of the Supreme Tribunal of Justice supra note 187, folio 5279. Some of these standards
were reitereated in the decision rendered by the Constitutional Chamber of the Supreme Tribunal of Justice on
August 12, 2008. Cf. Judgment N° 1.270 of August 12, 2008, of the Constitutional Chamber of the Supreme
Tribunal of Justice supra note 188, folio 1421.
57
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos