News

The recent entry into force of the Law of Administrative Procedures in El Salvador has brought with it numerous innovations that are drastically changing the schemes that for years have governed the Salvadoran public administration. One of these changes is the regulation of the state liability of the public administration and public servants, which we briefly discuss with the reader below.

Before the entry into force of the law in question, it was already possible to claim patrimonial liability from the public administration. However, now the law enables that can be done when the injury suffered in the goods and rights is the result of normal or abnormal activity of the Public Administration. This is certainly a novelty, because the main reason why someone usually thinks that the actions of the public administration can injure their assets or rights, is when their actions are not attached to law. However, it is possible that by acting in accordance with the Law, the Administration may injure the property or rights of a private individual or another public entity.

Another novelty introduced by the Law of Administrative Procedures in El Salvador is the issue of compensable damage. The legislator establishes that damages of any kind may be compensated. Since the claimant has the burden of proving the damage claimed, he will see the success of his claim, as long as he can prove in the corresponding procedure that the damage he is claiming is real and effective, that it can be economically evaluated and that it can be individualized.

The Law in commentary indicates the administrative procedure by means of which whoever considers that his goods or rights have been damaged by the public administration, has to claim compensation. This procedure is the general administrative procedure established by the law in question, the legislator designating the following particularities: 1. The procedure shall be instructed and resolved by the highest authority of the institution against which it is claimed, unless a law establishes something different. 2. The unit, department, area or official of the administrative action indicated as having caused the alleged injury shall submit a report. 3. The resolution shall establish whether the injury is due to the administrative action, its assessment, the amount of compensation, and indicate the criteria used.

With only a little more than a month of the Administrative Procedures Law in force in El Salvador, we still do not know of cases of claims of patrimonial responsibility, or of the results of the administrative procedure instructed in any case. However, the changes introduced to claim compensation for injuries that the normal and abnormal activity of public administration can cause to the rights and property of individuals are extremely useful.

Fermina Bolaños Meardi
Senior Associate
García & Bodán
El Salvador