Responsabilidad patrimonial de servidores públicos y derecho de repetición estatal.

Abstract

With the entry into force of the 2008 Constitution, the State’s duty to bring a recourse action against those who, as public servants, caused harm to an individual and in respect of which the injured party was indemnified by a public institution with funds from the national treasury pursuant to a judicial ruling was elevated to a constitutional mandate of supreme rank. The principle of State liability is a cornerstone of sound public administration; accordingly, the State must answer citizens for the acts of public officials who form and express the will of the State as a legal person. However, the regulatory framework governing the exercise of this right of repetition is dispersed across several instruments within the Ecuadorian legal system. These rules consistently provide that a threshold prerequisite to initiating the contentious-administrative proceedings aimed at recovering sums disbursed by the State is the prior determination of the public servant’s liability for intent or gross negligence, in relation to the conduct that violated rights, gave rise to the State’s non-contractual liability, and/or resulted in the nullity or unlawfulness of a public servant’s suspension or dismissal typically established through an administrative process, as confirmed by case law.