The “Cosani” Judgment and a Reassessment of the Scope of the Principle of Administrative Legality

Abstract

This commentary does not seek -nor could it seek- to establish any definitive truth. Its sole purpose is to encourage reflection on certain aspects that may prompt a reassessment of positions traditionally regarded as settled, thereby fostering a more comprehensive analysis of administrative and judicial decisions in light of society’s demand for greater effectiveness and the effective protection of the rights and interests of individuals subject to administrative action. The proposal is limited to those cases involving violations of fundamental rights of natural persons, as it entails a reinterpretation of the principle of legality in light of the rights recognized by the National Constitution and by the human rights treaties incorporated with constitutional hierarchy pursuant to Article 75 (22), taking into account the obligation to adopt affirmative action measures established in Article 75 (23). This interpretation is consistent with the approach adopted by the Inter-American Court of Human Rights (IACtHR), which has held that, the obligation to respect, protect, and guarantee the human right to equality and non-discrimination extends to all branches of government as well as to private individuals. Accordingly, this obligation applies both to discriminatory situations arising from actions or omissions by public authorities and to those originating in the conduct of private individuals.