Once this phenomenon is detected, a procedure is immediately initiated to compensate for the damage suffered by the citizen, also known as the procedure for annulment of the material act constituting the de facto procedure. Other authors, such as García and Fernández, point out that the administrative act would be “the declaration of will, judgment, knowledge or desire of the administration in the exercise of an administrative power other than the regulatory power”[9]. In addition, they consider that the administrative act consists of some subjective elements (administration, body, competence, appointment of the head of the institution); objectives (factual budget, purpose, cause, reason, purpose); and formally (procedure, form of declaration). This means that when the public administration, through its public officials, issues administrative acts in which they can act “de facto” when fundamental rights are violated; and therefore it will be possible to resort to the constitutional action of the Tutela. This mechanism is much faster and faster than the procedures provided for in the Code of Administrative Procedures and Administrative Litigation, using the grounds set out in Article 137. On the basis of the evolution of the case-law of the Constitutional Court, it has been explained in detail which general and specific causes must be taken into account when bringing an action for effective protection against a sanction or administrative act that violates fundamental rights, given that both the judge and the official belong to the same welfare state. In the context of administrative law, this French figure of jurisprudential origin has been revealed, quoted and commented on by Professor De Laubedére de Libardo Rodríguez, where he states that the “de facto manner” is presented “when the administration, in the exercise of a material enforcement activity, commits a flagrant irregularity that violates the right to property or against a public freedom”[3]. That the “gross” irregularity is due to the fact that it is a “manifest” or “manifest” irregularity or a “flagrant” aggravation or exaggeration, either because he did not have the authority to act, or because he applied manifestly irregular procedures. Santofimio expresses that this concept is situated: the way is in fact the action of the administration in a context outside its sphere of competence. They say it`s easy, but on the ground and in the bag full of hooks, it`s our reality, it`s not easy.
Many communities have actually come to the fore after©years of knocking on the doors of institutions designed to solve problems and ± not. An example: the streets of Guavio. It was only when the operation of the hydroelectric plant©was checked that it became clear long ago that the roads needed to be treated urgently. This does not justify that some blockades have endangered energy supplies©, but it only explains why© it goes to extremes. If the state does not respond, the demands fall through the cracks of its inefficiency, and it ends badly because the rights of others are violated. Let us hope that they will now respect what has been agreed, because it usually happens that solutions are postponed with the promise to protest and everything remains the same. That fact militates in favour of an examination of the injunction as to its content or form, which contains an error liable to render the lawfulness of the measure disproportionate where it is manifestly and manifestly arbitrary. To review the “de facto route”, constitutional judges must assess the arbitrator`s performance through a “rigorous examination of the facts” so that, if review of the judgment is not permitted, it must be qualified as a judicial act or a “legal act”. It is important to emphasize that this “Vía de Hecho”, as the jurisprudential creation of the Constitutional Court, is very different from the one we know in the field of administrative law.
Some authors[2] have indicated that there are “de facto” means when the administration exercises a so-called right that the law does not grant it or when it acts without following the established procedure, which implies in both cases an obvious arbitrariness in the action of the administration as well as a failure of service. 2.)- Judgments T-949 of 2003 and T-462 of 2003: The content of the “de facto route” is no longer the act of arbitrariness, but requires harmonization between extremes when fundamental rights are violated. In our country, a political constitution was imposed under the postulate of a State governed by the rule of law, drafted on the basis of the existence of three branches of public authority (legislative, judicial and administrative), as well as the principle of legality was established to support the actions of the authorities, by which the actions of officials enjoyed the presumption of legality. That is, they corresponded to the established legal order; Nevertheless, it should be noted that this essential postulate of a genuine rule of law has not been fulfilled since the Constitution of 1821, but until the constitutional reform of 1913, when judicial review of administrative acts was first introduced. This means that during this period, the administration had no legal control over the acts it published, so the Colombian state was a formal democracy during this period, in which arbitrariness was the constant behavior of officials. (ii) the application of legislation whose normative content has been deemed unconstitutional. (c) The existence of several convictions in agricultural claims proceedings before the civil courts arose from the occupation of private property between 1970 and 1976 by the now defunct National Neighbourhood Roads Fund in connection with the construction of public works dealt with in various offices in the judicial district of Sincelejo (Sucre). Decision T-696 of 2010. It is important to note that the “de facto route” to which we refer is completely different from that which occurs when the public administration, by administrative act or omission, establishes non-contractual liability of the State for the absence or failure of service or for having caused unlawful damage (article 90 of the Political Constitution) and whose means of control is always direct reparation. The admissibility of the Tutela action against “judicial injunctions” is based “de facto” on the violation of fundamental rights, a first route that leads to the thesis that it is also appropriate against administrative acts and that, therefore, its treatment must be similar.
The foregoing is due to the fact that both the decision taken by one or other civil servant is integrated into the civil service and his acts belong to the same type of `legal acts` and are based on the same social rule of law.