La dificultad de condenar en costas en la jurisdicción de lo contencioso administrativo

Abstract

The imposition of costs in the contentious-administrative jurisdiction presents several problems in its application, ranging from the conceptualization of the same figure, the definition of the elements that make it up, the use of criteria for its imposition (objective and subjective), the reference to different normative bodies, the legal culture consisting of not condemning the State, the presence of indeterminate concepts such as public interest; circumstances that, overall, hinder its practical application in the judicial field. To identify the problems associated with the issue from the legislation, we started from the analysis of the regulations prior to Law 1437 of 2011, until reaching the recent reform introduced by Law 2080 of 2021, different pronouncements of the High Court of the Administrative Litigation in reference to the subject matter of this study and went to the doctrine to understand the impact of introducing the concept of public interest as an exception general so that there is no place for costs to be awarded, especially since this is one of the concepts that in the law are called indeterminate and because of the challenges that this same situation imposes when applied in a specific case. Finally, a conclusion was reached associated with the difficulty of imposing legal costs. in the contentious-administrative jurisdiction, and it is that both in the law and in the jurisprudence Efforts are directed not to condemn the State within the judicial processes, for which came perfect for this purpose, the inclusion of the concept of public interest provided for in article 188 of Law 1437 of 2011, a concept that, since it is not determined in any regulatory body, it gives a wide margin of interpretation to the judicial operator to achieve this task. It above, constitutes a sort of modern lag in the application of the theory of public prerogatives.