¿Cuáles son las dos dimensiones de la legitimación en la causa en materia contencioso administrativa?

¿Cuáles son las dos dimensiones de la legitimación en la causa en materia contencioso administrativa?

En el marco de un proceso de responsabilidad extracontractual, la Sección Tercera del Consejo de Estado tuvo oportunidad de recordar las dos dimensiones que reviste la legitimación en la causa en procesos adelantados ante la jurisdicción de lo contencioso administrativo.

Consideraciones del Consejo de Estado

La Sala inició su análisis recordando que “la legitimación en la causa es un presupuesto procesal derivado de la capacidad para ser parte”. A renglón seguido la Sección Tercera destacó lo siguiente:

La jurisprudencia de esta Corporación ha analizado dicho elemento desde dos dimensiones: la de hecho y la material. La primera, surge de la formulación fáctica y de la imputación presentada en la demanda, mientras que la segunda se deriva del análisis probatorio y pretende acreditar o desvirtuar la configuración de la responsabilidad atribuida a la parte demandada. El estudio de la legitimación material por pasiva tiene lugar en la sentencia.

La legitimación de hecho “se refiere a la relación procesal que se deriva de la pretensión formulada por el demandante respecto del demandado, es decir, se trata de una relación jurídica nacida de la atribución de una conducta en la demanda y de la notificación del libelo inicial al demandado, de manera que quien cita a otro y le endilga la conducta, activa u omisiva, que da lugar a que se incoe la pretensión, está legitimado de hecho por activa, y a quien se cita y se le atribuye la referida acción u omisión resulta legitimado de hecho por pasiva, claro está, después de la notificación del auto admisorio de la demanda”.

Por su parte, la legitimación material alude a la participación real de las personas en el hecho que origina la presentación de la demanda y/o a la titularidad del derecho reclamado, independientemente de que dichas personas hayan demandado o hayan sido demandadas, razón por la cual debe estudiarse en la sentencia”.

De conformidad con lo anterior, y citando a la doctrina, la Sala señaló que

si se trata de falta de legitimación “material”, la misma no es posible decidirla y menos declararla en la audiencia inicial si lo que se pretende es que se exonere de responsabilidad a alguno de los demandados, siendo un asunto que debe resolverse en la sentencia, una vez recaudadas y estudiadas las pruebas solicitadas. La única ausencia de legitimación posible de resolver en la audiencia inicial es la de hecho.

Consulte aquí el documento: CE-SEC3-EXP2020-N63062_01399-01_ARD-_20200115

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