The Administrative Procedures Law (hereinafter "APL") is valid in El Salvador since February 13 of this year, after a period of vacatio legis (period between the promulgation of a law and the time the law takes legal effect) of one year. This period was occupied to instruct and prepare the administrative institutions in the adaptation process that they had to do internally in order to be in harmony with the new provisions, principles, requirements and obligations dictated by the APL, changes that ultimately give a turn of 180 degrees to the way in which civil society or the administered related to Public Administration in recent decades.
It is important to start from the idea that APL is a law that can be qualified as pro-administered, because the main purpose of the principles and rights that govern it are in favor of the users of the Public Administration, through the regulation of the activity of the state, the rights of the citizens before the Public Administration, the regime of patrimonial responsibility of the Public Administration and its officials and the limit in the exercise of the normative and sanctioning power of the Administration.
In this context, and having as main objective the benefit of the administered, the APL gives several legal tools so that they can enforce their rights and interact with the administration in a way that efficiently fulfills their obligations. In the present we will analyze one of those tools, specifically, the Administrative Silence, being understood as; the legal figure through which, in the absence of an express resolution of the administration within the period stipulated by the APL, it is presumed that the request made by the administered is accepted (positive silence) or denied (negative silence).
Currently, there are many cases in which the term for obtaining a response to requests from the Public Administration are quite wide, especially those related to simple or mere processing requests that should not take more than 20 days. A novelty in this issue is that specific and general terms are now stipulated, that must be met by the Public Administration, which are 20 days for simple requests and 9 months for procedures (art. 89 APL); likewise, consequences are stipulated for the Public Administration in case of non-compliance with these deadlines, such as the administrative silence.
What is the importance of administrative silence? We assume that the worst possible scenario for the administered when making a request to the Public Administration is the lack of response and that this lack of response does not generate any effects. This is due to the fact that the administered is left without any tools to proceed further with his request; since the lack of an express resolution, the administered does not obtain what he has requested and also he cannot challenge the administration's resolution since there is no resolution to challenge, at last he is left at the administrative institution's will of when to obtain response.
How does administrative silence operate in El Salvador? It must be taken into account that in order for the administrative silence to make effects, it must be expressly in the law. In our country, as a general rule, it used to operate the Negative Administrative Silence or alleged denial by the Public Administration to the request made by the administered, so that he could challenge said alleged resolution.
Now, thanks to the validity of the APL in its article 113, the Positive Administrative Silence is stipulated as a general rule; that is to say, it is presumed as a general rule the approval of the request made by the administered when there is no response from the Public Administration. In other words, in case the Public Administration has not resolved and notified the administered in relation to his request within the term established by law, then a favorable resolution for the administered will be presumed, becoming a substantive right for this. We have to take into account that although Positive Silence is the general rule, there are exceptions to this in which the Negative Silence operates which are expressly mentioned in the same article 113.
To exemplify the materialization of the Administrative Silence with positive effects in very simple terms, imagine that a company requests a permit, the term of the administrative procedure ends and the administration has not resolved, the company can then understand its request approved, and that it has the right to deploy the requested activity. On the other hand, unlike the procedures initiated by the request of the interested party, the effect of the maximum period to resolve the sanctioning procedures entails expiration. For example, suppose that there is a sanction procedure against a company by the General Directorate of Internal Taxes, and the tax administration resolves in 8 months and 29 days but is delayed in its notification of the resolution after the 9 months of term of the APL, then said procedure is considered expired, must be filed and the resolution will not make effects.
In conclusion, the LPA provides tools to the administered to enforce their rights against the Public Administration, one of the most novels being the change from general effects of Administrative Silence to a positive effect. Likewise, the APL provides other legal avenues such as the simplification of the resource regime that will help to have a higher quality public administration and facilitates the administered to interact with the Public Administration in order to protect their rights.