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Dagoberto Bohórquez Forero c/ EAAB Empresa de Acueducto y Alcantarillado de Bogotá y Otros (2012)
Court Rationale
The Court in first instance dismissed the claims . Regarding non-legalised settlements, it held that the respondents had no obligation to expand public services to these areas. Regarding legalised settlements, the Court concluded that their recognition by the district did not imply a guarantee of satisfactory provision of residential public services and that the respondents had devised plans and technical studies for future water service provision and therefore, had not neglected the rights of residents. On appeal, the Administrative Court of Cundinamarca, based its ruling on Article 365 of the Constitution, whereby public services are an inherent social purpose of the State and the State is obliged to ensure the efficient delivery of public services to every inhabitant. In this respect the Court referred that the provision of public services is conditioned by the assumptions of efficiency and opportunity, which were not complied with by the public company. The Court found that ‘irrespective of the action taken to study the area and develop technical designs, the fact remains that the water services do not meet the needs of the community and sanitation services are non-existent; therefore, the collective rights invoked by the community are currently being violated’. The Court concluded that, based on consistent adjudication, the municipalities are constitutionally obliged to guarantee and secure the delivery of public services, as part of the social purposes of the State. (pp. 44-46) Regarding the settlements that had already been legalised (mostly by the Capital District), the Court found that the Capital District has the responsibility to mitigate the violation of the collective rights of the inhabitants and therefore must, in collaboration with the public service provider and the inhabitants, take the necessary steps to deliver services efficiently and in a timely manner. The Court ruled that the Department of Cundinamarca (CAR) in turn was obliged to issue the necessary permits and licenses, based on environmental legislation concerned with the use of natural resources. (pp. 47-48) Regarding the non-legalised settlements, the Court found that while citizens had rights to public services, these services must be provided on the basis of legality, including principles of planning, programming and budgeting that are indispensible to ensure that the State can deliver its functions. The Court reasoned that the administration has discretion to arrive at those planning decisions. On the basis of a popular action, the judiciary could not intervene in such executive decisions unless there was evidence of arbitrariness, unreasonableness, disproportionality or neglect of principles that guide public expenditure. The Court found no evidence to that effect. The Court therefore ruled that the non-legalised settlements could not invoke collective rights to public services. (pp. 48-49)
e.g. http://www.unece.org/fileadmin/DAM/env/water/pdf/watercon.pdf
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