Voie de Fait: Limits of Self-Remedy in Public Administration
Voie de Fait: A Limit to Public Administration’s Self-Remedy
The voie de fait limits the self-remedy privilege of Public Administration. This comes into force when the Administrative Organ acts outside of its competences or without following the corresponding administrative measure. The Public Administration (PA) must follow procedures. Voie de fait is when the public administration acts with a different aim, not following the general interest, so that citizens can go to the Courts and ask for a review of the activity.
The concept of voie de fait is a construction of French Administrative Law that distinguishes two types:
- Manque de droit: The Public Administration uses a power that it does not legally have.
- Manque de procédure: The Public Administration does something without observing the procedure that the rule establishes for that power.
Before the LJCA (Jurisdiction of Contentious Administrative) of 1998, civil injunctions were the only way to react to a possible voie de fait on the part of the Administration. However, with the entry into force of the mentioned law, this has changed. Some authors, such as Leguina Villa, consider that the possibility of judicial civil organs controlling administrative action across injunctions no longer exists, provided that the aforementioned competition would not now find coverage in the residual clause of article 9.2 LOPJ (Organic Law of Judicial Procedure), precisely because the knowledge of the voie de fait is expressly attributed to the Contentious-Administrative Jurisdiction by article 25.2 LJCA.
Contentious Administrative Appeal Procedure
The contentious administrative appeal must be preceded by an administrative action, which constitutes the object of the contest. Mediation is the technical name given to the initiation of the procedure started by the plaintiff. Mediation can be interposed according to two different manners:
- By means of a writing that only has to stipulate which is the disposition.
- As an exception, the mediation of the appeal can be made through the direct presentation of the demand. This form of lodging or mediation is compulsory in the recurso de lesividad and the summary procedure.
Time Limits for Lodging Appeals
The general term for the lodging of the appeal is two months. There is also a special counting for the lodging of appeals of the supposed acts. The period, in this case, is six months, counting down from the day after the supposed act took place.
Finally, the periods established for the contesting of the vías de hecho are also different. It depends on whether the plaintiff had previously formulated the requirement to the Administration or not. If there was a previous requirement, the period is only ten days. If there was no previous requirement, the term would be twenty days.
Publishing, Calling Together, and Admission
- First, the judge of the Tribunal must verify the correction of the formal aspects of the appeal. If the appeal itself has any vice, this must be rectified within ten days; otherwise, the process would be ended.
- After this, the appeal will be published in the corresponding journal according to the territorial scope of the competence.
- Finally, the Tribunal must require the Administration to send the administrative file relating to the act or disposition contested. This is an essential part of the process because only through this act or disposition can the Tribunal reach a decision regarding its possible vices.