In view of the information received and in use of the powers vested in him by Article 54 of the Constitution and Article 30 of Organic Law 3/1981, of April 6, the Ombudsman has resolved to formulate to that City Council the following:
Pursuant to Article 31 of Organic Law 3/1981, of April 6, 1981, of the Ombudsman, the interested party is hereby informed of the communication received from said City Hall and of the result of the present proceedings, which are hereby considered FINISHED.
Patrimonial claim form to the city council
The adaptation of property legislation to this new scenario has been attempted through partial amendments to Decree 1022/1964, of April 15, 1964, approving the text of the Law of Bases of State Property and the enactment of rules that have regulated specific aspects of the administration of state property.
From this initial approach, it has been understood that the patrimonial policy must be defined by the globality of its scope, its centralized coordination and its support in some basic principles made explicit by the law itself.
Thus, the global or all-encompassing nature of the approach, which is one of the basic features of the law, has been extended both to the subjective delimitation of its scope of application and to the treatment given to its object of regulation.
As an organic transcript of these statements, a Sectorial Conference of Patrimonial Policy is institutionalized, with the mission of channeling the relations of coordination and cooperation between the General Administration of the State and the autonomous communities in this matter.
Therefore, administrative acts that impose non-tax penalties (in matters of transport, health, consumption, etc.) cannot be subject to economic-administrative claims, although those issued in the collection management followed for the collection in the enforcement period of the debts derived from such penalties can be subject to economic-administrative claims.
On the other hand, an appeal for reconsideration and an economic-administrative claim cannot be filed simultaneously against the same act. If this were to happen, the claim would be inadmissible, and the file would be returned to the office of origin, where the resolution of the appeal for reconsideration is pending. This will not be an obstacle so that, in the subsequent claim and once the appeal for reconsideration has been completed, a decision can be made on the merits of the same matter.
Damage to property – statute of limitations
Before giving some brief guidelines on how to channel a request for liability to the Administration, it is convenient to frame the regime of the patrimonial liability of the Administration.
The first thing to point out is the impossibility of going directly to the Courts, since it is unavoidable to exhaust a prior administrative remedy and, only if this fails, can we seek judicial protection (by the way, from the organs of the contentious-administrative jurisdiction).
In this sense, we can cite the Judgment of the Audiencia Nacional, Sala de lo Contencioso-Administrativo, Sec. 8.ª, of March 2, 2009 (SP/SENT/494425), or of the TSJ Canarias, Santa Cruz de Tenerife, Sala de lo Contencioso-Administrativo, Sec. 1.ª, of November 30, 2007 (SP/SENT/494413).
Regarding this specific content, the requirement to specify the economic evaluation stands out; that is, the interested party, whenever possible (see Sepín Legal Survey on this issue – SP/DOCT/20182-, must already quantify what he/she is claiming from the Administration. For the calculation of the compensation, Law 40/2015 gives us some guidelines: “The compensation will be calculated in accordance with the valuation criteria established in the tax legislation, forced expropriation and other applicable rules, weighing, where appropriate, the prevailing valuations in the market. In cases of death or bodily injury, the valuation included in the scales of the current legislation on compulsory insurance and Social Security may be taken as a reference” (art. 34.2).