Omisión inconstitucional: Una ampliación conceptual en el ámbito de las políticas públicas

Abstract

The article attempts to discuss the possibility of a reinterpretation of the conception of unconstitutional omission in the light of the fundamental rights and of the constitutional principles, especially the principle of sustainability. For it, we analyze the issue of State's objective liability for unconstitutional omissions, describing its main characteristics, implementation modalities, and some possibilities from the perspectives presented in this study. In this sense, we propose the inversion of the burden of proof, in benefit of the citizen, always that we must discuss if the damage was caused for an unfair conduct of the Public Administration. The principle of proportionality and the reserve of possible (Vorbehalt des finanziell Möglichen) are concepts studied in order to produce conclusions argumentatively solid in the defense of the Constitution against iniquitous, insufficient or disproportionate public policies.