Faced with the silence of public institutions, citizens can appeal administratively or before the courts of Justice.
If it has been a long time since you filed a claim with any government agency and you have not yet received a response, what can you do? What should you interpret? The first thing you should check is if the maximum period established for responding to you has passed (it is usually six months). If so, you are facing what is known as administrative silence, unfortunately the usual legal interpretation for silence is to be negative; that is to say, that they reject what you requested. In this case, if you are not satisfied, you should know that you have the right to appeal to the Administration, first exhausting the administrative means, or file an appeal before the courts of Justice.
What is understood as administrative silence?
When a citizen makes a claim or defends their rights in front of any government body and, “after the established deadlines, they do not receive an express reply to their claim, we can speak of administrative silence,” This period to respond to the citizen is usually six months.
As established in article 21 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, local authorities are always obliged to resolve the requests and resources of citizens within the times established by the applicable regulations. In other words, technically the Administration should never respond with administrative silence. When it happens, it is usually due to non-compliance with the deadlines, “but it is a practice that should not be applied by the Administration.
However, administrative silence can be appealed, thereby “preventing the citizen from being defenseless in the face of having obtained silence by response from the Administration.
Positive administrative silence: in very rare occasions
If the Administration does not answer me, How would I interpret it? Has my application been accepted or not? The public institutions silence can be positive (they accept your claim) or negative (they deny your request).
In the procedures initiated at the request of the interested party, as a general rule and as established by the regulations, the administrative silence will be positive and, therefore, all your claims will be understood as being upheld. But there are nuances, They will be understood as accepted, unless an official norm , an European Union or International law establishes otherwise.
In this way, in practice on rare occasions it can be understood as positive, That is, the lack of an express resolution rarely means that they estimate your claims and agree with you.
There has been a lot lately with the Furloughs presented by companies and after the regulated legal term has elapsed: if the Furloughs were not expressly challenged by the Spanish Labor Inspection, it was understood as approved.
Negative administrative silence: usual practice
Normally administrative silence is negative i.e. it is considered not accepted and even it is customary to expressly establish it in the regulations, Benítez points out. This means that what the citizen requested or claimed from the Administration is rejected.
So in the majority administrative procedures initiated by citizens, silence is noemally accepted to be negative if the absence of a response can lead to the recognition, constitution of rights or other favorable legal situations.
Can I complain if I am not satisfied?
How should I act if the Administration does not respond to me and my problem remains unresolved? Should we sue the institution or are there other solutions? If this occurs the administrative procedure should always be followed to its final repercussions, then, the final venue is the judicial procedure. Filing a lawsuit for administrative silence,
How to follow it up in case of a possitive silence?
In the event of positive silence due to lack of resolution from the local authorities, the acknowledgment of the claim does not require you to approach the local authorities again to issue a written resolution, This is a mechanism that seeks to provide greater security to the citizens,
Faced with negative silence.
It is necessary to file an appeal (because it is necessary to exhaust the administrative procedure). In this case, it is mandatory to file it within a month, against the local authorities having the duty to resolve it also in a month. If it is dismissed or if it simply does not resolve it within said period, the judicial process remains open.
n the event that the appeal does not proceed, the interested party may choose between filing an appeal for reconsideration (within a month) or go directly to the Courts of Justice.