Responsabilidad patrimonial del Estado por actos del legislador en virtud de leyes declaradas inexequibles

Abstract

The Council of State has become reiterative in the aspects that deal with the unlawful damage that can be generated from the Congress, on occasion, of the issuance of laws that subsequently are declared unenforceable. In this sense, it is pertinent to carry out an analysis of the patrimonial responsibility of the State in the light of Article 90 of the Constitution, as it is a patrimonial responsibility of the State by virtue of the actions or omissions of the Legislative Power. This is how Article 90 of the Political Constitution of Colombia begins by recognizing the patrimonial responsibility of the State when there is an unlawful damage attributable to the nation, due to the actions or omissions of its state agents. In this regard, the jurisprudence issued within the Contentious Administrative Jurisdiction, and even the jurisprudence issued within the Inter-American Human Rights System, through the Inter-American Court of Human Rights, have reiterated the obligation of the State to adapt its legislation in the field national, without the creation of these laws generate a loss for the partners of the national territory. Therefore, it should be emphatic to point out that in those cases in which unlawful damage is caused as a consequence of the actions or omissions that are configured in the actions of the branches of public power (legislative, executive and judicial) they must be compensated by virtue of the provisions of Article 90 of the Constitution and of the provisions of Articles 1.1 and 2 of the American Convention on Human Rights.