The activity carried out by the State is aimed at the fulfillment of the State’s purposes, which may be understood as the due and optimal provision of public services to the social conglomerate or, at least, the guarantee of the provision of such services.

In its daily actions, the Administration manifests itself through acts or deeds, which are subject to the constitutional and legal provisions that regulate each particular matter.

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Among the many functions performed by the different state entities, we find those related to the inspection, surveillance and control of issues considered of general interest, a function performed by state entities specialized in each particular matter.

For example, sanitary regime (Invima), consumer protection, personal data protection, legal metrology, drug price control, restrictive competition practices (Superintendence of Industry and Commerce), labor compliance (Ministry of Health and Social Protection) and tax and tariff regime (DIAN), among many others.

In the performance of the inspection, surveillance and control functions, the different administrative authorities are empowered to initiate sanctioning processes against individuals – natural or legal persons. The purpose of these proceedings is to establish whether their action or omission has infringed regulatory standards and, consequently, to determine whether or not it is appropriate to impose the penalties contemplated for the respective infringement.

These sanctions may consist of a simple warning or the imposition of monetary fines, or even, in cases of violation of health or consumer protection regulations, the closure of the business establishment.

In this area, it is common for businessmen to be surprised with administrative processes of a sanctioning nature, processes in which the administration must, at all times, respect the due process of the investigated party.

Next, we will see what due process consists of and how it must be respected by the administrative authorities, especially if the purpose of such action is to impose a sanction on the individual under investigation.

What is due process

Our Political Constitution, in its Article 29, establishes the right to due process -which has been extended by the Constitutional Court as fundamental for legal persons-, which must be applied to all kinds of judicial and administrative actions.

Due process can be understood as the respect by the judicial and administrative authorities to the constitutional and legal guarantees, as well as to the forms and procedures of each type of procedural action.

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The aforementioned Article 29, in general terms, establishes in favor of citizens different guarantees, which are nothing more than the principles from which due process emerges. These are:

(i) To be judged in accordance with the laws preexisting the act with which he is charged (principle of legality);

(ii) To be tried before the competent judge or court;

(iii) Observance of the fullness of the forms proper to the corresponding trial;

(iv) Application of the law most favorable to the accused;

(v) Presumption of innocence,

(vi) Right to defense and contradiction;

(vii) Right to a public due process without unjustified delays;

(viii) To present evidence and controvert the evidence presented against him/her;

(ix) Double instance;

(x) The right not to be tried twice for the same act or omission;

(xi) Legality in the gathering of evidence, with evidence obtained in violation of due process being null and void.

What are administrative proceedings?

Administrative sanctioning processes are a manifestation of the Ius Puniendi of the State or, in other words, of the power of the administrative authorities to impose penalties.

In this specific case, it is a matter of penalties to individuals who violate the regulations governing the exercise of certain activities or obligations under their charge, and must be covered by the minimum guarantees derived from due process.

On the other hand, since they are administrative sanctioning processes, carried out by administrative authorities, such actions must also be subject to the provisions of our current Code of Administrative Procedure and Administrative Disputes (Law 1437 of 2011).

This, in its Article 3°, when enshrining the principles that regulate administrative actions, emphasizes respect for due process and, specifically in sanctioning matters, brings up the principle of legality of misdemeanors and sanctions, presumption of innocence, no aggravation of sanctions in double instance and not to impose double punishment for the same facts.

How is due process respected?

In practice, due process is applied when the Administration:

• Initiates an investigation only and exclusively for actions or omissions taxatively contemplated in the Law. That is to say, if there is no law sanctioning the action or omission of the individual, it is not possible to initiate the same.
• Notifies the individual of the initiation of the sanctioning process in due form and allows him to exercise his right of defense.
• Decree and practice the evidence requested by the individual in his defense brief, as long as they are relevant and conducive to the case under investigation.
• Resolves the process in accordance with the applicable law.
• Gives the individual the opportunity to present the legal remedies and resolves them according to law.
• Notifies in due form all rulings issued in the administrative sanctioning process.
• Imposes sanctions according to the seriousness of the offense committed, that is, when there is a true analysis of the proportionality of the sanction imposed.
• Ceases the sanctioning process when the subject under investigation is a different person from the one who incurred in the conduct susceptible of being sanctioned.
• It refrains from initiating the process or sanctioning in cases in which the legal phenomenon of the expiration of the sanctioning power of the state has operated. That is, when by virtue of the passage of the maximum period of time, established by the applicable regulations to investigate and impose a sanction, the respective administrative authority has lost the power to sanction.
• It respects the terms for the submission of pleadings, filing of appeals, evidence and, in general, adheres to the procedure established to carry out the process.
• Refrains from initiating administrative sanctioning proceedings for actions or omissions already sanctioned or investigated.
• It refrains from making the sanction imposed more burdensome when resolving appeals.

But what happens if the administration violates due process?

The sanctioning administrative act is vitiated by nullity and, through the courts, the competent judge may be asked to declare it null and void. The consequence of this is that the act is no longer within the legal orbit, and the administration cannot enforce it.

In other words, the administration cannot require the individual to pay the penalty imposed and, in cases where the individual has already made the respective payment, the administration must reimburse the amount paid, duly indexed to the date on which such reimbursement becomes effective.

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