Indeed, the judgment indicates that, since the Contentious-Administrative Tribunal did
not analyze the defects that, in some cases, impaired the granting of the consent
envisaged in the said article 31, the appeal filed before it was not an “effective
remedy,” because, ultimately, it could not protect those prejudiced by the decisions of
the Bank that (since the latter had not made the said analysis) violated the substantial
sphere of the right “to be heard by an administrative body, for the determination of
the rights granted in article 31 of Law 17,613.” Consequently, the judgment finds that,
regarding the said cases, Article 25(1) had been violated.53
Since, as stated above, this dissenting opinion considers that Article 8(1) is not
applicable to the Bank’s decisions, logically it is unable to agree with the ruling as
regards Article 25(1). To the contrary, this opinion considers that, according to the
above, that norm was fully applicable to the ruling of the Contentious-Administrative
Tribunal and, consequently, it was before that instance that the right to be heard
stipulated in Article 8(1) should have been exercised in relation to the Bank’s decisions
and, if its exercise had been prevented, it would have been possible to file an appeal to
safeguard that right before the corresponding instance, under the provisions of Article
25(1).
Hence, it can be said that what the Court should have done in relation to the rulings of
the Contentious-Administrative Tribunal was determine whether or not they conformed
to the provisions of Article 8(1) rather than Article 25(1). But, it did not do this and,
for the reasons stated, I cannot agree with the decision it took in this regard either.
2. Remedies before ordinary justice
a. Facts and/or background information
In this regard, it should be recalled that the Court stated that, once the administrative
decision had been annulled by the Contentious-Administrative Tribunal, “the interested
party can have recourse to the courts to claim reparation for the damage that the said
act, which has been declared illegal, may have caused him”; but that, “under article
312 of the Constitution, the interested party may also resort directly to the competent
courts to claim reparation for the damage caused by “acts or omission of the
administration,” without the need to apply previously to the ContentiousAdministrative Tribunal.”54
With regard to the remedies filed before the ordinary system of justice by some of the
victims of the situation that befell the Banco de Montevideo and the Banco La Caja
Obrera, the judgment takes into account that “the body of evidence does not show
that the remedies available under the ordinary justice system, which decided the
actions against the Banco de Montevideo, could apply article 31 of Law 17,613 and
determine the rights established therein.”55 In the same way it “underlines that the
body of evidence does not show that the use of these remedies, which decided the
actions against the Banco de Montevideo, allowed application of article 31 of Law
17,613 and making the determinations that the article established, or review of the
53
Para. 220.
54
Para. 102
55
Para. 128.
15