Correlation between administrative and contentious-administrative appeals. Commentary to Supreme Court Ruling Rol Nº 42.004-2017 and subsequent jurisprudential development

Abstract

The purpose of this commentary is to review the criteria emanating from the judgment of the Supreme Court Nº 42.004-2017 in relation to the application of the theory of procedural deviation in the field of administrative litigation. Likewise, and considering that the judgment in question was issued some years ago, subsequent jurisprudence will also be reviewed in order to try to elucidate whether what was sustained by the judgment that is the subject of this comment has remained in force or whether new criteria have been added. In particular, reference will be made to the theory of procedural deviation and its facets; the determination of the concurrence of the theory of procedural deviation; the relevance of the characteristics of the administrative appeal and in particular the time limit element; the distinction between optional appeals and cases of exhaustion of administrative remedies; and finally, the link between administrative appeal and administrative litigation.