Effective jurisdictional protection and the right to a contentious administrative annulling judgement

Under the new conception of law, within the framework of neo-constitutionalism and from the perspective of human rights, the right to effective judicial protection, which begins with access to the process, should specially be considered. Subjective right, legitimate interest, diffuse interest, when rigidly interpreted, configure a true fence, preventing access to the annulment litigation process (as well as the action of unconstitutionality of the law). Hence, this new approach seeks to give a different scope to those terms, admitting an evolutive interpretation for the sake of the right to effective judicial protection, thus facilitating access to the process. Likewise, the right to effective judicial protection precludes the existence of acts excluded from the annulment jurisdictional control. On the other hand, requiring prior exhaustion of the administrative procedure to initiate a property reparation action constitutes a real deprivation of access to justice. Given the short period for filing administrative appeals (10 calendar days), in the case of omission, if the thesis of the prior exhaustion of administrative remedy were accepted, the remedial actions would be lost, undermining the rule of law and, especially, the right to effective judicial protection. Finally, the modern doctrine favors attributing positive effect to the silence of the Administration. This position, which does not collide with current regulations, strengthens compliance with the general principles that inform the administrative procedure as a projection of the right to effective administrative protection.