Procedencia del silencio administrativo en el recurso de apelación administrativa en Ecuador.

Abstract

The public administration’s failure to issue and notify decisions within the legally prescribed time limits directly affects the individual’s legal certainty. To address such inaction, Ecuadorian law recognizes administrative silence as a legal technique that assigns consequences to the lack of an express decision, mainly within the sphere of the right to petition. The Organic Administrative Code generally establishes a positive effect for administrative silence in relation to claims, requests, or petitions. The discussion changes, however, when time limits are breached at the review stage, specifically in the administrative appeal, where the right to challenge decisions as a component of due process is engaged and a reasoned review decision is required. Under the principle of legality, administrative silence can operate only if the law expressly attributes effects to the omission. In this regard, although Article 230 of the Organic Administrative Code sets a maximum period to decide and notify the appeal, it does not specify the legal consequence of non-compliance, which prevents extending Article 207 by interpretation to administrative remedies. Article 209 is examined as a narrow exception that assigns a presumed effect within the appeal context. Finally, a legislative reform is proposed to amend Article 230 by expressly providing that failure to decide and notify within the statutory period constitutes negative administrative silence, thereby reducing uncertainty and strengthening effective protection of the right to appeal within administrative proceedings