In general terms, doctrine tends to define expiration as "(...) the period that produces the termination of a thing or a right," or as "the loss of force and effect of a power upon expiration of the term for its execution."
In the field of administrative law, an adequate doctrinal definition would be: "Expiration of a lawsuit constitutes an abnormal mode of termination thereof resulting from expiration of the maximum term established by law without the competent government body having issued any express resolution."
Ecuadorian administrative law refers to expiration, particularly in the Law of the Office of the Comptroller General (hereinafter "LOCGE," from its Spanish acronym), as analyzed in this article.
Article 71 of the LOCGE provides for the Office of the Comptroller General's power to issue orders related to government activities and actions by persons subject to said law, also establishing its power to determine liabilities. This power expires seven years after the date in which such activities were carried out.
Other than the above, articles 26 and 56 of the LOCGE provide for two special types of expiration:
- Article 26 provides that government audit reports, whatever their type or modality, must be conducted in a maximum and unextendible term of one hundred eighty days from the time the audit work order is issued until the final report is approved; this includes a 30-day period that the Comptroller General has to issue its approval.
The legal consequence of the report not being approved within said unextendible period is that the authority loses its power to continue with the audit process.
- Article 56 of LOCGE provides that the resolution determining civil liability for negligence must be issued within a 180-day term counted from the business day following notification of the initial determination.
Failure to do so within the indicated period results in expiration of the Comptroller's power on the matter. As a result, the Comptroller shall not issue a resolution confirming or eliminating the fines determined within the special audit.
The expiration set out in the LOCGE occurs ipso jure, by operation of law, and results in the Comptroller losing its power to issue a resolution, which must be formally ratified and certified by the Comptroller itself as required under article 72 of the LOCGE, in accordance with the rules of due process set out in the Constitution of the Republic of Ecuador (hereinafter, the "Constitution") and the administrative principles of the Organic Administrative Code.
Consequently, the lack of competence of the Comptroller's Office on the grounds of expiration of the term, leads to absolute and irremediable nullity of everything performed outside of the established term. This means that any actions, decisions, or issue of determinations or fines within the special audit must be subject to the deadlines and unextendible terms set out in articles 26, 56, and 71 of LOCGE.
Turning to the expiration provided for in articles 26 and 56 of the LOCGE, the Plenary Session of the National Court of Justice issued Resolutions Nos. 10-2021 and 12-2021, dated September 29 and October 25, 2021, respectively. Through these, and by virtue of a judicial ruling repeated on three occasions in reference to application of expiration set out in the abovementioned laws, mandatory jurisprudential precedents were established, as follows:
". HEREBY RESOLVES: . Art.- 3. Declare the point of law that contains the following rule to become MANDATORY JURISPRUDENTIAL PRECEDENT: "Article 26 of the Organic Law of the Comptroller General of the State establishes a deadline or term, as appropriate, which is mandatory for the control entity. After said time period, said office's power to exercise control expires, and the government audit report's approval becomes completely null and void because the public official approving it loses all of its power due to the passage of time. As a result, the Office of the Comptroller General, whether through an administrative procedure, or Contentious Administrative Courts, as the case may be, are required to declare it to be as such, whether ex officio or at the request of one of the parties, applying the guarantee of expiration of a legal right and the principle of legal certainty."
". HEREBY RESOLVES: Art. 1.- Declare the following point of law to be mandatory jurisprudential precedent: The one hundred eighty-day term set out in Article 56 of the Organic Law of the Office of the Comptroller General is a mandatory deadline that establishes expiration of the Office of the Comptroller General's power to make determinations regarding civil liability for negligence. As a result, if it issues resolutions after said deadline has passed, the procedure becomes null and void, as does the resulting administrative act. To this effect, once the abovementioned deadline has passed, the Office of the Comptroller General, whether through an administrative procedure or the Contentious Administrative courts, either ex officio or at the request of one of the parties, must declare expiration of the Office of the Comptroller General's power to issue determinations. This is consistent with safeguarding the principles of legality and legal certainty set out in Articles 226 and 82 of Ecuador's Constitution."
In conclusion, the rules and principles that govern administrative procedures require that all public officials act with valid jurisdictional power, defined as the extent to which the Constitution and the law enable a government body to act and fulfill their mandate, whether based on the subject matter, territory, term, or level. Doing so without having the due jurisdictional power negatively affects the constitutional rights of due process and legal certainty, both set out in the Constitution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.