Safar, M.
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130
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
Public budget and fiscal impact of convictions
against the state
Presupuesto público e impacto fiscal de las condenas
contra el estado
Mónica Sofía Safar Díaz
Universidad Externado de Colombia
City:
Bogotá
Country:
Colombia
Original article (research note)
RFJ, No. 12, 2022, pp. 130 - 137, ISSN 2588-0837
ABSTRACT:
The administration of justice has the essential task
of ensuring the proper functioning of the State, and its role is
fundamental to its maintenance, permanence, and credibility.
This has a direct impact on the consolidation of its development,
mainly through efficient markets. Furthermore, this article
explores some preliminary legal-economic considerations
when studying the interactions between the public budget,
fiscal impact, and convictions against the State.
KEYWORDS:
public budget, fiscal impact, state management,
public policy, Law and Economics.
RESUMEN:
La administración de justicia tiene la tarea
esencial de garantizar el buen funcionamiento del Estado,
y su papel es fundamental para su mantenimiento,
permanencia y credibilidad. Esto tiene un impacto directo en
la consolidación de su desarrollo, principalmente a través de
mercados eficientes. Además, este artículo explora algunas
consideraciones jurídico-económicas preliminares al estudiar
DOI 10.26807/rfj.vi.456
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Public budget and fiscal impact
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Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
las interacciones entre el presupuesto público, el impacto
fiscal y las condenas contra el Estado.
PALABRAS CLAVE:
presupuesto público, impacto fiscal,
gestión del Estado, política pública, derecho y economía.
JEL CODE:
G31, G38.
INTRODUCTION
It is evident that the administration of justice has the
essential task of ensuring the proper functioning of the State,
and its role is fundamental in its maintenance, permanence,
and credibility, which, of course, has a direct impact on the
consolidation of its development, mainly through efficient
markets (Yamada, 1997); and precisely for this reason, this
activity can and should be studied as a market, within which the
plaintiffs or consumers are all those who seek the protection of
a right under the legitimacy of the State through the delivery
of the dispute to a third party who must be impartial and settle
it following the legal provisions in force, and the providers are
the judges, who are part of the structure of the State as a basic
pillar for its functioning as they are responsible for safeguarding
the legal order and protecting the rights of citizens with their
binding, executive and enforceable power. Of course, then,
it becomes necessary that this market of the administration
of justice has a direct and vital impact on the economic
organization of a State.
As the failure to protect and guarantee the rights legally
and constitutionally enshrined as part of the legal system, as
well as the rules themselves, have an economically devastating
effect, it is clear that if the judicial system does not work or does
so incorrectly, and the judges do not enforce the Constitution,
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laws, regulations, administrative acts and contracts as required,
uncertainty and anarchy will be generated, preventing the
State and society from flourishing, Therefore, its role in the
attribution of responsibility to all agents and the respect for the
allocation of property and markets, as well as in the protection
of the most fundamental aspects of people, all as an essential and
fundamental part of the economy of a country, is indispensable.
It is clear, then, that without the real and efficient protection
of human and property rights under the provisions of the legal
system, and a sufficiently comprehensive legal framework, no
equitable development will be possible. Thus, this introductory
article presents some preliminary legal-economic considerations
to be considered by social planners, academia, and civil society.
1. JUDGES, JUDICIAL DECISIONS, AND STATE ACTION
In this order of ideas, it becomes evident that within the
agents covered by the decision of the judges is the State itself, in
all its orders and levels, as a subject responsible for its actions
and omissions that must repair the ant juridical damages caused
to all persons, natural and legal, in a comprehensive manner,
but, above all, timely, and only up to the limit of the damages
that have been caused, or at least demonstrated by the victims,
since it is so enshrined in Article 90 of our Political Charter; but
for this it must be borne in mind that all state action involves
the use of monetary resources, so that this issue, for state
entities as entities condemned to give, do or not do something,
is subsumed in the rules and principles of public spending,
whose one of its main pillars is the efficient distribution of
resources, which by default are scarce, in order to better meet
and prioritize the needs generated by the objectives derived
from the constitutional and legal functions of the State, all of
them framed in the development of the Social State of Law
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model, that is, the search for the satisfaction of minimum needs
of citizens in conditions of equality, freedom and security, and
in favor of the general interest.
2. INTERACTIONS BETWEEN ANTIJURIDICAL DAMAGE
AND THE STATE’S BUDGET
The problem underlying this premise comprises two
interdependent variants: the first one, that the concept of ant
juridical damage, that is, that which the victim is not obliged
to bear, implies that not only the tortfeasor, which is the State
in this context, is obliged to carry out actions or refrain from
conduct, under the classic conception of tort law in which
reparation
in natura
must be sought, and in its absence the
pecuniary subrogation; and the second, that under the scheme
of judicial orders that frame the recognition and protection of
rights in specific situations, and which of course also oblige the
development of concrete material actions by the State, present
and future, a budget for their development and materialization
is inevitably required. Thus, between repairing damages caused
by the common actions of the State and protecting rights by
judicial order, a large part of the public resources, initially
destined to materialize the projects that allow the development
of the plans and programs of the governments within the
framework of the Social State of Law, is not available for the
achievement of the coverage of the basic needs of all the
associates in conditions of equality, paradoxically because it is
required to correct inequalities through the recognition of an
individual or minority situations, especially if it is taken into
account that under this model of State, material justice and
solutions for concrete cases prevail over the importance of legal
norms (Constitutional Court, 1992).
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In turn, this mechanism has often led state entities
to prefer to wait for a court order to give, do or refrain from
doing, and based on such coercive mandate to start redirecting
the budget for spending, even at the expense of duly planned
projects whose execution was requested and authorized
through the approval of resources for that purpose.
These situations have generated in our country, to
date, a very critical problem in terms of both the delay in the
compliance with the sentences condemning the State to material
and monetary obligations. Also, as the defunding in general
terms of the State expenses destined to investment and operation
projected in the plans, programs, and projects devised by the
governments to comply with the primary objectives of each one
of the entities. It is a vicious circle, and it seems never-ending,
because the correct application of the law to a specific case
without consideration of the costs and time involved in macro
terms and of the general interest, very relevant in the public
sphere, constitutes, in the end, and inadequate management of
resources that in turn harms development, because the degree
of socially optimal certainty that the administration of justice
must provide in all areas, including the state, should depend
on the exchange between social cost and social value resulting
in the best cost-benefit ratio, which means being the most
efficient, so that, past a certain point, the marginal gain given
by certainty is less than the costs involved in obtaining it, i.e.,
individual recognition may be irrelevant to the social benefit in
terms of income redistribution as an essential objective for the
reduction of real inequality.
Thus, we will study in this paper, first, the existing
budgetary regulations in the Colombian legal system regarding
compliance with court judgments, to determine whether this
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is sufficient to enforce in the present and avoid the future
the delay in its materialization, now to analyze, secondly,
the existing disincentives for the compliance of judicial
decisions by the State caused in its agents based on the rules
of property, responsibility, and inalienability, thirdly, propose
based on them some measures optimize this behavior in relief
of public finances and, finally, to draw some conclusions and
recommendations.
3. CONSIDERATIONS ON CURRENT REGULATIONS
The first thing to remember is that the Code of
Administrative Procedure and Administrative Disputes
establishes specific rules for the enforcement of court rulings
that involve sentences to state entities that are not found in the
General Code of Procedure, which leads to a major drawback,
since by mandate of Article 105 of the CPACA some matters and
state entities are excluded from the scope of the jurisdiction of
administrative disputes, and therefore these provisions do not
apply to them.
In effect, the first thing that should be noted is
that article 192 of the CPACA expressly establishes, for the
enforcement of judgments or conciliations (which, it is recalled,
require judicial approval) , that “When the judgment imposes a
sentence that does not involve the payment or return of a liquid
amount of money, the authority responsible for its execution
within a term of thirty (30) days from its communication, shall
adopt the necessary measures for its compliance”, that “The
sentences imposed on public entities consisting in the payment
or return of a sum of money shall be complied with within a
maximum term of ten (10) months, counted from the date of
execution of the sentence”, that “The liquid amounts recognized
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in orders imposing or settling a sentence or approving a
conciliation shall accrue moratory interest as from the date of
execution of the respective sentence or order”, that “Three (3)
months after the execution of the order imposing or settling a
sentence or approving a conciliation, without the beneficiaries
having gone to the responsible entity to enforce it, In labor
matters, when the reinstatement is ordered, if within three (3)
months following the execution of the ruling so ordering, the
reinstatement cannot be carried out due to causes attributable
to the interested party, from then on the accrual of all kinds of
emoluments shall cease”.
Thus, the rules set forth herein establish a difference
between the enforcement of monetary and non-monetary
obligations, but it must be remembered that the latter may
also involve expenses, although the creditor will not receive a
monetary amount.
CONCLUSIONS
Whenever a society chooses an initial allocation of
rights, it must also determine whether to protect them by rules
of ownership, liability, or inalienability. In our context, much of
what we commonly call private property can be seen as a right
that is protected by a property rule. No one can appropriate a
private property right unless the owner voluntarily sells it at
the price at which he values that property. However, a
nuisance
activity, from which sufficient public utility is derived so as
not to be prohibited, involves, in practice, the power to take
property with due compensation. Under such a circumstance,
the property right is only protected by what we call the liability
rule: an external and objective parameter of value is used to
facilitate the transfer of the right from its holder to those who
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carry out the nuisance activity. Finally, in some instances we
will not allow the sale of the property at all, i.e., sometimes we
will make the right inalienable.
REFERENCES
Yamada Noda
, R. (1997)
. El Estado y la Modernización de
la Administración de Justicia en una Economía de
Mercado.
Derecho PUCP
, 51, pp. 553-582.
Constitutional Court. (1992). Sentence T-406 of 1992.
Received:
28/03/2021
Approved:
25/02/2022
Mónica Sofía Safar Díaz:
Professor of Law at Universidad
Externado de Colombia, Department of Administrative Law.
Email:
msafar@uexternado.edu.co
City:
Bogotá
Country:
Colombia
ORCID:
https://orcid.org/0000-0003-2287-3606