The Council of State (“Consejo de Estado”) declared the annulment of a decision of the environmental authority of Atlántico (“Corporación Autónoma Regional del Atlántico”) in an environmental sanction proceeding against the Aqueduct, Sanitation and Sewage Company in Barranquilla (”Sociedad de Acueducto, Alcantarillado y Aseo de Barranquilla”). The latter, for infringing the Company’s right to due process, by issuing a single administrative act to initiate the environmental sanction proceeding and to file charges against the infringer.

Null environmental sanction proceeding for breaching procedural stages

By means decision dated  August 15  2019, the Council of State declared void the administrative act through which the environmental authority of Atlántico (“Corporación Autónoma Regional del Atlántico”) imposed an environmental sanction against the Aqueduct, Sanitation and Sewage Company of Barranquilla (”Sociedad de Acueducto, Alcantarillado y Aseo de Barranquilla”). The above since issuing a single administrative act to initiate and file charges violates the Company’s due process. 

According to the Council of State, the regulations that establish the rules for sanction proceedings have legal reserve. Thus, the issuance of said regulations is of the legislator’s exclusive competence. Therefore, the sanction proceedings correspond to regulated actions of public order that imply the protection of constitutional rights, such as due process, contradiction and defense. 

Law 1333 of 2009, which contains Colombian environmental sanction procedure, establishes the following procedural stages: (i) preliminary investigation; (ii) initiation of environmental sanctioning proceeding; (iii) filing of charges; (iv) evidentiary phase; and (v) responsibility declaration and sanction imposition. The Council of State identified that the preliminary inquiry stage is optional, as it only aims to determine the existence of the fact that might lead to an environmental sanction, however, the other stages are essential to guarantee due process protection. 

Between the initiation of the proceeding and the filing of charges, the alleged infringer has the possibility to request the early termination of the proceeding according to the grounds established by law, exercising its defense right. 

Article 23 of Law 1333 establishes that the early termination of the proceeding is only able to be declared before the  stage to file charges against the alleged infringer. According to the latter, issuing a single administrative act to initiate the environmental sanction proceeding and to file charges eliminates the possibility for the alleged infringer to exercise its defense right by requesting the early termination of the proceeding. 

In conclusion, the Council of State considers the environmental sanction proceedings null: (i) in which all the applicable procedural stages are not conducted; and (ii) in which several different procedural stages are established in a single administrative act. 
 

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