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New year, new book

The new book already has form! Here I show the cover, presentation and the summary index.

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Guardianship urgent, preventive and proactive

is a book coming out soon entitled "Studies on protective measures. Tutela precautionary, anticipatory and urgent" that I was lucky to coordinate and, in turn, translate more articles of ten Brazilian teachers mentioned therein, with the invaluable help of my Christian friends and Yolanda Tito Delgado . The book is available with the subscription campaign of Legal Standards 2011.

Les advance the index:

ARIANO Dého

Eugenia, "The protective custody between certainty and doubt. Reflections on the timing of production of its effects."

Marianella LEDESMA NARVAEZ, "Contradictions, mazes and more: About the new text of Article 608 of the CPC ".

Maria Elena

WAR Cerrone," open protective system failure ".

ALFARO Luis Genaro Valverde," Redemption of the principle of contradiction in the interim process. Proposal for a balanced model.

Enrique GONZALES VALVERDE, "Precautionary measures as a means of securing effective protection. Some thoughts from the contentious-administrative activity.

Veramendi Erick Flores, "Restrictions on effective judicial protection and compensation for implementation of precautionary measures unnecessary or malicious."

TITO PUCA

Yolanda, "The interim protection in the process under the Constitution."

Ada Pellegrini Grinover, "Anticipating the protection of freedom in Brazil."

BEDAQUE José Roberto dos Santos, "Stabilization of the early tutelage"

Carlos Alberto ALVARO DE OLIVEIRA, "Notes on the protection of urgency."

Luiz Guilherme Marinoni, "In the interim protection for anticipatory guidance."

Fredie DIDIER JR., Paula Sarno and Rafael de OLIVEIRA BRAGA, "Still on the distinction between early and interim protection protection.

Daniel MITIDIERO, "Ward anticipatory and inconsistent defense."

Darci Ribeiro Guimaraes, "The constitutional guarantee of contradictory and assumptions contained in § 6, Article 273 of the CPC ".

Daisson FLACH," Stability and control decisions based on credibility. "

Pray

Guilherme Costa," The structure and function: Past, present and future of emergency protection in Brazil. "

Artur

CARPE Thompsen, "the fundamental right to fair trial and finding patterns in the introductory decisions."

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procedural invalidity Is a penalty?

Then I authored an article that appears in the journal Dialogue with the European Court in November, where they try to sustain the refusal of the question in the title. Hope will be of some use, and invite you to discuss this exciting topic.

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process

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The TC is spraying the justice system ... and arbitration is paying the price

This case is unusual: our honorable TC believes that when a tribunal decides on a matter not submitted to arbitration, the court assumes jurisdiction as the end is ... Superior Room that settled the suit for annulment of the award! Here I show the statement (which fortunately has a single vote of the judge successful Vergara), a brief comment on it and some consequences that occurred.

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I. Commenting on the (disastrous) decision

The first point to analyze is to determine the scope of the rule contained in Article 78 paragraph 6 of the Arbitration Act repealed. Thus, a satisfactory explanation of this point are peculiarly in the excerpt from the ruling of the Supreme defendant, transcribed by the same majority vote of the Constitutional Court (foundation fourth): "(...) when the Arbitration Act states that a restored the competence of the judiciary (Article 78 paragraph 6), refers to the jurisdiction of the matter in litigation is restored so that individuals submit their dispute to the courts, [and] not to continue with the arbitration award which has been declared invalid invalid. "

This is clear. The restoration of the competence of the judiciary simply means that the parties need not submit to arbitration the matter to be decided in the award but was not under a decision of the arbitrators (unless there is an agreement, as the standard). And the only way to appeal to the jurisdiction is through a judicial process, according to the procedure established by law. Exactly the same is provided for in Article 65, subsection 1, paragraph "d" of the new Arbitration Act (Legislative Decree No. 1071), but with a clearer version: "d. If the award or part thereof, is canceled out in the grounds provided in subsection d. of paragraph 1 of Article 63, the matter is not subject to arbitration is subject to a new arbitration, if provided in the arbitration agreement. Otherwise, the matter may be sued in court, unless otherwise agreed by the parties. " No doubt, therefore, that if it is a claim that was submitted to arbitration, the parties have every right to resort to the judiciary.

However, as usual, the TC got it all wrong. In the eleventh foundation ventured to "interpret" the law in question and this was what he said: "the competent body to hear the claim defendant in the arbitration whose award was declared void is the judiciary, through the Chamber annulling the award. " What? Does the room that meets the award, which is the organ which is expressly forbidden to rule on the merits of the arbitration tribunal must impersonate? Oddly enough, Mesia and ordered that board company to resolve the merits of the claim defendant should not be known by the Arbitral Tribunal. So, he ordered that a court violates the law. This demonstrated the disastrous criteria for deciding who are these judges. So tremendous tremendous court judge would have done better.

And to disguise their legal aberration, go novelty, the TC based its decision on the right to a reasonable duration of process (8 years had elapsed since the applicant began the process of cancellation), to an effective remedy, motivation and effectiveness of judgments. So what the TC was worried that the matter on which the Arbitral Tribunal has decided to be dealt with in a judicial proceeding, so opted for the "solution" to order the Superior Room which settled the suit for annulment of the award, to decide on this matter, ie, to rule on the merits.

However, it appears that TC ignores that demand (and non-use, please) to override the court should be limited only to rescind the arbitration decision and forward to issue a new one. This was a clear difference in the Arbitration Act repealed, as this includes the use appeal. Thus, through this action, the Board issued a ruling on the merits of the dispute, while the action for annulment ( rectius: demand), merely to cancel. Conclusion: TC completely distorted the institution of the annulment of an arbitral award.

But there is something much more serious. The TC sprayed all the rules of procedure before the court (competition, demand, etc..) And even the due process of the passive part of the arbitration process, as the Upper Chamber is not the court should resolve the matter which the Tribunal Arbitration ruled wrong. How is it possible that the Upper Chamber which annulled the award may be substituted to the Arbitral Tribunal and issue a decision? The restoration of jurisdiction refers to a lawsuit can be filed with the court, but following the proceedings. Is there any need to say this? It seems that in order to avoid the follow deciding TC nonsense, the law should cover up the obvious.

The TC maintains its decision on the supposed involvement of fundamental rights, but ignores its mandate simply sprayed due process by violating the minimum guarantees of the right of defense of the defendant, as well as double jeopardy, because the Board Superior had set aside the award, so that the Arbitral Tribunal had to rule again. This being so, how is it possible to re-issue a decision? And not to mention the way the TC understands the theory of nullity procedures on recursive: the figure prevents an "aside" and at the same time, "replace" and resolve the credit.

The invalidity challenge always requires recursive forwarding, with few exceptions, but this case is not one of them. On the other hand, the TC said that there was a poor motivation of the Upper Chamber, but this is pure invention. If this court has already decided the controversy, noting that its decision became res judicata, how you should react if the winner of the reversal process again asked to solve? The mere act of invoking Article 78 paragraph 6 is enough to motivate why you can not access requested by the appellant (who plays bad that rule), although it is a "paraphrase." It is clear that the plaintiff has no reason.

On the other hand, it is false that says the TC when he said that the decision of the Supreme Court has not defined the scope of the phrase "restoration of the competence of Judicial Power "just because it has. This makes the need for motivation has been fully satisfied, except for those judges who have committed countless constitutional violations against the law.

And the story is for invoking the right to effective judicial decisions into question, as it has nothing to do with this case. By chance, was there anything that the Board has to "run"?

Finally, much more sensible is the singular vote Gotelli Judge Vergara (which is understandable because this was an ordinary judge.) That court says that: "I believe that the analysis making the majority decision is erroneous in that (...) when it is understood that the rejection of the request, it is precisely because the Fourth Civil Court of Lima believes that should not arrogate to the cause but the article states that the jurisdiction of the Judiciary which is restored is not interpreted in any way implying that it therefore has to resolve its claim (...) This is why in this case did not find grounds to consider the request for defense, much less when one realizes that that strictly speaking the appellant is seeking the Fourth Civil Court of Lima avoque knowledge of his case before the arbitral tribunal and the ruling as court of first instance, something that the law can not say for obvious reasons. " And then he dismisses the argument used by the majority vote on the reasonable duration of the process is finding that the appellant, with its fanciful interpretation of the law, who underwent the process of protection. In conclusion, this single vote makes it clear that the TC directed the Civil Court to violate the law. Neither more nor less.

II. The Lima Chamber of Commerce reacts and responds TC

against this disastrous decision, the Lima Chamber of Commerce (CCL) made public their disagreements. Thus, a statement appeared on Wednesday in Trade and Management . Here the publication in the latter half of the press:

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The FTC says it clearly: TC expressly contravenes a rule of the Arbitration Act, deflects the jurisdiction predetermined by law, violates the right to due process, beyond their duties, threatening legal certainty and the institutionalization of arbitration in the country, giving negative signals to economic agents . Ie that the negative consequences This failure highlighted by the FTC are most correct, though, the truth, the TC used to do all this.

And against this statement as clear-cut, the TC responds through a press release posted on its corporate site . There are reaffirmed in its discretion, noting that judges of the judiciary had "abdicated" in its interpretative function for not giving the meaning of the rule contained in Article 78 paragraph 6 of the Arbitration Act repealed, which is totally false as we have seen. And this is how the TC gives an "interpretation" that considers "constitutional" (which links to all legal, of course). Finally, if I may use a common expression: What does the donkey alfajores? The TC has again pontificate on a subject that is not its task and, moreover, do not know, because your trip is abominable.

But the last paragraph reveals something unexpected: it maintains that it has a support of a lawyer known in the trade.

III. The "letter" of Dr. Marcial Rubio Correa

Curious, very curious. The TC uses Dr. Marcial Rubio Correa, to give more weight to his infamous decision. Why curious? Because this respectable lawyer is rector of the PUCP, who not long ago was the victim of a terrible injustice, as usual, by the TC, which has prompted a few weeks ago the university community of the house of studies, led by Rubio, of course, raised a petition with the Inter- Human Rights, with the intention to void the ruling of the TC. This being so, it is amazing at least aproye in the opinion of one of the biggest critics of this body today.

The "letter" (which is not so, but probably a part report) can be read here .

Beyond the TC-PUCP-Marcial Rubio, is need to save some points in this report that, indeed, served as a basis for the statement said. Logically therefore, the opinion of Dr. Rubio is quite unfortunate. The main points are:

1. The text says that "the competence of the judiciary will be restored" should be interpreted, and for that we must resort to various methods of interpretation. In fact, "the law does not say that overrides any arbitration proceedings or that it should initiate a new process."

2. "The arbitration process to the state prior to the issuance of the award retains full validity in not being subjected to cancellation declared, "for which, relying on the principle of expeditiousness, states that" no procedural steps must be repeated the arbitration process which is perfectly valid. "

developed

There is another point but the argument is so elementary that it is trivial reference here (see question 2 in the "letter").

arguments already raised about, for it may be short in order to disagree on those points:

1. It clear that the law does not expressly state that should start a new process (judicial or arbitral), because it uses the figure of the re-establishment of competition Judiciary. The conclusion that Dr. Rubio drawn from this phrase so puzzling to him and the TC is not correct because hermeneutics made useless activity: the answer was there, to the surface.

2. If an arbitration is pending a claim that was submitted to arbitration then the procedure itself is flawed, but the healthy parts are preserved (ie, the claims themselves were raised in the arbitration agreement). Another course would be if the arbitrator or tribunal dealt with the proceedings but in the end, fail on a matter not submitted to arbitration. Here only the award is flawed and, contrary to the view Dr. Rubio, the principle of elasticity has nothing to do with this issue, but the rule of conservation of process.

But whether either case, the restoration means that, unless otherwise agreed (which is obviously an exception rule), the parties are empowered to initiate legal proceedings regarding this matter poorly resolved.

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A book on the consumer ... that the consumer fraud

law say that everything is debatable. May be true, may not. If someone writes a legal evil thing must face the consequences, that is, critical articles, reviews, more or lower level of sales, and even concepts that every reader is about the author.

However, this is a bit different to offer a book that seeks to discuss or analyze an entire legislative body and, finally, practice is limited to play the legal text in the commentary. It appears that the softness in researching and writing and is very common in the law books. In this respect, is known for an author who has the largest number of books published on civil procedural law, but that 90% of the text across all books come to be textual references.

For example, if I buy a book that promises to analyze the new Code and Consumer Protection, I hope to find reflections with a minimum quality that can properly illustrate the complex issues that regulates the new rules. Sure, I can not be so demanding: how is it possible that in less than two months displayed a good book on the subject (the Code was published in early September)? Still, I decided to browse the book "Analysis of the Code of Consumer Protection and Defense", authored by Steven Carbonell O'Brien, with the firm conviction alas! buy.

But great was my surprise when I place the issue of unfair terms (Art. 49 to 52) and note how the author, the commentary of the article, reproduced in full the text and then ... Paraphrases! But come, I thought, must be given another chance. I checked the index and went to page 150 to read what they had developed on the issue of GMOs (especially on a recent and widely criticized Indecopi jurisprudence on the subject), but my indignation was greater: the approach to the issue is totally insecure, lacking in support and above, it appears that the author wants to make fun of readers. I transcribe the beginning of the commentary on Article 37 on the labeling of genetically modified foods, which literally says

"foods that include genetically modified components should be labeled."

Okay. And the commentary says

"The review article states that incorporating foods genetically modified components should indicate on their labels.

is, food that has been genetically modified must be indicated on product labels. To prevent consumers from being misled.

However, it How can you ask convincingly demonstrate that a product incorporating such an element?

Proving it would be very difficult because the country does not exist or laboratory tools to establish and certify whether a product is trnasgénico or not.

Therefore, we can only rely on the good faith and loyalty providers believe in the product labeling and marking, as we established the good faith belief consumers

(...)" (sic) .

This was too much for me. How is it possible that someone could seriously publish this? It's a joke, is an insult to the reader who has already gone through the primary of any school. It is indeed a book about the consumer but the consumer fraud that is acquired. And the editorial (which is Legal Publishers) is not saved. Could it be that can publish a monumental book of Guido Alpa and at the same time, this manual as primary? What do you want? Is it any wonder consumers before anyone else publishing a book on the new Code? Lords of Legal Editors: No pass, then. Law is good that everything is debatable, but with a minimum quality please. Below that level can not get something to market.

Well, fortunately I did not pay the 70 soles that might be the worst spent my entire life.

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Open Letter to Mr. Carlos Mesia Ramírez

Lima, October 20, 2010

Ramírez Carlos Mesia

President of the Constitutional Court of Peru

Lord Messiah:

I have read your release published today on the website of the Constitutional Court, in which answers some questions made by the Institute of Defense Legal (IDL). After reflecting on his position, I decided to write a short letter is not intended that you read it, much less bother to answer, but with the sole purpose of saying what I think and feel that has left me with attitude, not only now but for several years, a view which is based in my capacity as a citizen and expressed in the exercise of my constitutional rights.

First Lord Messiah, I must say that I share with many of the legal criteria nor with what he thinks of the Court presiding. For example, I do not think a penalty of $ 36 million would affect the right to property This was an argument for invalidating his award. I do not think it can be argued that judicial decisions that deviate from precedents of the Court are null and void, because such invalidity shall not exist in public law.

Fewer still believe it is legally correct to argue that the precedent of mandatory binding on judges to the point that they have no chance to depart, as there is the figure of Distinguishing , which is part of the theory of stare decisis which was incorporated in the Code of the Constitution. Also, I think you are wrong in a serious way when both constitutional norms unknown as infra to assert the will of the Tribunal, as is the case of this law that the Court should be pronounced only in respect of the decisions rejecting the habeas corpus, amparo, habeas data and compliance and not of estimatory . I totally disagree when you said that the Court's judgments are equivalent to the Constitution because concretize its precepts, this implies a destruction of the sources in Peru. Nor, Mr Mesia, I think it is appropriate that the Tribunal is engaged in interpreting wills, since this is the work of the jurisdiction (the real), and fewer still to ignore the res judicata, noting that procedural issues are Finding no merit to the school that includes you. Lord Messiah, the jeopardy is a constitutional principle. Do not forget it.

Similarly, I disagree strongly with you in the role to be assumed by the Constitutional Court in our legal system. You have said, very loose bones, which the Court directs economic policy, health, social ( Act, No. 30). This is reflected in the judgments on the morning after pill, first, and the tariff on cement, then both with their vote counting. This reflects that you are consistent with what he says and does. Personally, I would congratulate this attitude because not many people have, but I think this is a wrong approach and harmful to our rule of law. If the Constitutional Court decides on government policy, what is the role of the executive branch, Mr. Messiah? Could it be that, on the grounds of protection of fundamental rights, the Collegiate will be performing functions that is not theirs? Unfortunately, It occurs when an organ skills that do not belong, which creates a lack of distortion that must be repaired.

But the Court over which you preside is the final word in almost all disputes that arise when product nor its constituent power, the Constitution, entrusted that mission. The Court must represent a balance, not imbalance, should promote the order, not chaos. Lord Messiah, I can state unequivocally that the Court is on the verge of a coup, if you have not already given. This is the result of thinking like you do.

Finally, you may disagree with everything I have been saying so far. What surprised me and reveal otherwise you would not have played well the charge was granted. However, I do not think the solution to defend his person is the press release published today on page Constitutional Court's web. His descriptions are unconscionable and excessive unworthy of his office and are not consistent with a discussion of height, even when you perceive that the criticisms are excessive. Ad hominem arguments abound and only reflect an alarming level of arrogance and little tolerance for criticism. Professionals to brand IDL "parrots" that have an "intellectual mediocrity" or that nature has given them intelligence, or even say that there are professional enough to train judges and prosecutors, are absolutely unacceptable phrases. You say that "criticism is welcome as long as they do with decency, respect and above all, intelligence, but curiously you are the first not to do so. As for the forms, it is evident that his statement is very far from the IDL statement was the cause, and that's unfortunate.

I know it's too much to ask to change your way of thinking and acting. However, I think so I am allowed to ask for his duties as a judge of the Constitutional Court falls short of the circumstances and no longer continue to deepen the schism that has developed in the legal system. Although I have my own idea of \u200b\u200bwhat should be the future of their school (limited to constitutional and jurisdictional processes and nothing more), until the desired time is only may ask for peace and quiet.

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Constitutional Court: everything has its end

The previous post on the commission of the crime of malfeasance by part of three judges of the TC, beyond which is unacceptable that people who hold the judicial function in this way are wrong, move to some reflections on the future of this school.

First, it is clear that situation can not continue. The TC has gone beyond any kind of control and its role in our legal system in recent years, has acquired overtones that are not exactly that interfere with the democratic and constitutional order, such as spraying the res judicata claim to control the tariff policy Executive or interpret a will, it is a matter entirely unrelated to their work. A sponsored impeachment by Congress can be an effective remedy, and, at this time, absolutely necessary, but it would be just to weather the storm and not to prevent future storms.

must restore balance in the legal system and, today, this can be achieved only looking for solutions that the law provides. The radical reaction would be to remove the TC off the map through a constitutional reform, but the short history of this body has shown it can become key issues of great importance, as was the case of those courageous judges who denied the constitutionality of the "law of authentic interpretation" which in the end, served to perpetuate the dictatorship of Fujimori. At that time and, especially, when those judges were reinstated years later, played TC a responsible role because its members were aware that there are powers and limits that respect. Now we are in a situation diametrically opposed.

So what to do with the TC? Here's a suggestion: restrict his powers by limiting it to be a real negative legislator (and not positive, as has been proclaimed, which is supported by some doctrine) which deals only constitutional processes and competence, all other constitutional processes must return to the exclusive jurisdiction of the Judiciary and the Supreme Court. But the essential TC is to remove the amparo, which has become a perverse mechanism by which it has made and unmade at will, a veritable sword of Damocles for the executive, the judiciary itself, Congress, arbitration courts, universities and especially individuals.

Furthermore, it has been a dramatic situation where all disputes resolved in the CT end (this place because everything is "constitutionalized"), where the binding precedent established in Constitutional Procedural Code is used as a weapon which compels judges to the judiciary to apply to exactly what it says the TC (not knowing that the figure of Distinguishing allows the judge to depart from the precedent for justifiable reasons) and, last but not least, which has promoted the destruction of any system of sources of law, the rarely argued that the judgments of the TC equivalent to the Constitution because they concretize its precepts. This being so, it is not surprising that members of this body have said that this judge to depart from its decisions, commits malfeasance (STC Exp No. 00001-2010-CC/TC, the foundation 27).

But back to our proposal. Against it may be argued, quite rightly, that the Supreme Court, as it is now, is not capable of successfully dealing with the delivery of constitutional justice. Certainly, this body has had very large declines in its history, from an almost total submission to the dictatorship in power, until the first full casatorio, in which he demonstrated how through the application of the law with impunity can also devote discrimination and injustice . However, despite all its problems, we believe that our Supreme Court is not able to create such deep cracks in the legal system such as that created the TC.

reform the justice delivery system, which should include a renewal of many Supreme Court justices, is a process that is underway and it needs to implement the necessary mechanisms to that end, the court (the real) re- acquire the prestige and legitimacy long lost. An efficient and independent judiciary, with judges trained and committed to society and the protection of the rights of individuals and, above all, a Supreme Court at the height of the circumstances, may well protect the Constitution as it should. Do not forget that a country can live without a Constitutional Court, but never without a Judiciary.

the end, you decide, the Congress-if-only dare hope that is the best in the not too distant future.

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The Constitutional Tribunal of Peru transgressed! At what point

The September edition of Law (Law Gazette monthly newspaper) surprises us with a news-bomb: The Constitutional Court judges and more specifically Alvarez Miranda, Calle Hani-Urviola Hayen and solved a case with a rule repealed over 15 years!

Here I show the cover of the newspaper.

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tc

And below the page where the news unfolds.

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The note says everything. The malfeasance is a crime and judges who have made should go to jail. But beyond the criminal sanction applied by the judiciary (after the Congress I lift the immunity through a political impeachment), this case demonstrates the absolute irresponsibility with which solves such an important organ. If they prevaricate, I can not even imagine what else they can do.

And now, what are they going to say the champions of TC? Mesia Doctor Ramirez, you have the floor.

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fucked up the TC? And the Court

Applied to the Constitutional Court is not so difficult to answer this question vargasllosiana (yes it is, however, if we speak of Peru).

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using either the fuzzy control but ...

One of lime and other sand. This is our Supreme Court. If you can make mistakes as serious as a decision on the merits to qualify an appeal (see post below) or issue a ruling as immoral as the first full casatorio, can sometimes give good judgments. However, Cas. LIMA No. 693-2009 is in the middle: this is the right decision, but with weak foundations. Here are the show and, below, a small comment.

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Although not explicitly stated, the statement regarding comments casatoria infringed Article 6 of Law No. 26,872 (Reconciliation Act) by violating the right of access to justice, ie used the fuzzy control . The reasoning of the Permanent Civil Division consists of the following: while the demand for payment of improvements must be accompanied by an act of conciliation to be a compatible material (Article 6 of the Settlement Act), this can not be required in this process because The very short time to demand improvements when the owner is sued, in turn, eviction (five days), considering that the deadline for completion of the settlement hearing is thirty days after the parties mentioned. Therefore, it offends the right of access to justice when attempting to require the submission of report of conciliation procedures, to be almost impossible to conduct a conciliation procedure before preclude (or rather expires?) The time to demand improvements .

For our part, we agree with the decision of the Permanent Civil Chamber, however, there are some issues to be analyzed. First is Article 595 of the Code of Civil Procedure cited above. Notwithstanding the disadvantages of this rule [1], the fact is that if the holder is claimed to eviction and want to assert their right to improvements, the deadline for filing the claim is the same as to answer the eviction suit, ie five working days. As pointed out by the Board, although Article 6 of the Conciliation Act requires the plaintiffs to bring the record of settlement out of court when the claim is subject to exercise of conciliation, it is impossible to comply with this requirement to the lack of time to sue improvements.

However, the rationale for deviating from this legal mandate what should be emphasized: the Permanent Civil Chamber turned to the right of access to justice (conceptualizing correctly, without restricting the mere entry into the jurisdiction, but throughout the process) to demonstrate how worthwhile the judges had not considered this right. Thus, favored the constitutional provision on the standard infra, promoting the direct effect of the fundamental right of access to justice to this case, through the fuzzy control. It is, without doubt, a decision that deserves applause. However, there are two conceptual issues suggested by the Board with which we disagree. The first is to devise the right of access to justice as a "special right" of the right to effective judicial protection, since both categories, at least for the way they have been made by the contemporary doctrine, are synonymous, the use of which varies in certain latitudes.

The second objection of the following statement: "(...) to the existence of situations like this, the constitutional right [of access to justice] must be construed most favorable for the realization of the right to justice, that is, apply the principle of pro actionis actione or favor, that is, 'give the highest possible virtual right to access the process' (...). " First, what should be interpreted to operationalize the "remedy" is not the right of access to justice (for it is this which must be made effective), but the rules infra, in this case, Article 595 of the CPC and Article 6 of Law Conciliation.

Finally, it is superfluous reference to the principle pro actione because, as was argued recently ( Dialogue with the Court, No. 141), the premise for its application is reasonable doubt about whether to continue the process or extinguish without comment on the merits. And as is clear from the view of the Board, here there is no doubt give admissible to demand payment for improvements.

------------------------ [1] See the interesting critical Dého ARIANO Eugenia, "The best among the CC and CPC: Trying to unravel a very tangled skein. " In: Dialogue with the Court , No. 78, Law Gazette, Lima, 2005, pp. 73-83.

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The Supreme Court of Peru and its failures "undercover"

Who has not read an order qualifier by which our Supreme Court rejects appeal but in reality it seems as if it had terminated the fund of the question? I imagine that many, because it is a very common practice that the Court not only qualify the resource, but also take the opportunity to rule on the merits, which often is overlooked. In other words, it is safe "undercover" as it somehow. And even if you do not believe it, this situation has been blessed by our infamous Constitutional Court (RTC Exp No. 02522-2009-PA/TC, discussed in dialogue with the Court , No. 138, March 2010 pp. 212 et seq.). But if your disbelief can still support some more, this resolution came before it overturned several other casatorios procedures because, as the undisputed and ineffable criterion was evaluation of evidence (see here ).

First, we must consider that the action starts casatorio procedure, in which the Court of Cassation issued a decision on the merits (ie, on the appellant's claim, this is a finding of error in iudicando or in procedendo ), deciding the fundabilidad or unfounded the appeal, subject to compliance with the requirements of the law that enable precisely to issue an opinion on merit. Such requirements include, among others, to meet the deadline, challenging a decision or order terminating the proceedings, the decision is issued by a Superior Room, justify the action with clarity and precision, etc. These requirements may be admissible or provenance on its ability to cure. Thus, elements that have to be that the Court must evaluate to just be able to pronounce on the merits, it is correct to say that if only those submitted for the defendant who initiated the proceedings is entitled to a ruling on the merits. In fact, if you meet the requirements for issuing a decision on the merits, then this fact must be issued.

But our legal system has designed the procedure casatorio-regardless of the new regulation of Law No. 29364 - in the following way: the action is brought, the Board Supreme qualify the eligibility requirements and origin stating the legality or illegality of the action, if appropriate states, it notifies the date of hearing to which the parties have the opportunity to inform and to make submissions orally and finally, the sentence stating founded or unfounded. Consequently, the time of qualification, which is examining the requirements for the trial on the merits, and the decision on this, are located at different points in the procedure. The decision of merit should not be contained in the rating of the resource, nor is it at that. First the Supreme Court should be limited to testify out of order or from the action, if the latter happens, then I declare founded or unfounded. This distinction is important because in the middle of these two acts of jurisdiction is guaranteed the right of defense of the parties.

But what happens when the formalism is overturned by the Supreme Court itself? What if at the time to qualify, the Court issued an opinion on the merit hidden in an "order" of the resource? Well this is something very serious: it would have violated the right to effective judicial protection of the applicant for at least two reasons: i) not allowed to advise orally or in writing and ii) violating the procedure expressly provided by law. This being so serious consequence, how the Supreme Court of Peru may incur so repeatedly in this offense? We believe the answer may lie in eliminating a case, as the Supreme Court justices, is bound to lose, thus preventing an increase in its caseload. Unless some other act morally and legally reprehensible penalties, we see no other answer.

But the caseload does not justify at all a violation of the procedural protection effective. If the idea is that the Supreme Court wants to avoid an overabundance of cases to be resolved, then they should devote other methods which, unfortunately, were inexplicably removed by irresponsible members of Congress who put together the new regulation we have now. Some of these methods, for example, were the non-suspension of the effects of the contested decision of appeal (a technique essential to the effectiveness of the reform), or the principle of double and under. As you can see, this far from the removal of the right of the appellant produced by this act of the court, violating the legal procedure designed which is bound to respect.

How to address this outrageous situation? Unfortunately for us, there would be no other way than under, but the Constitutional Court that we may best be mourn our misfortunes to the river and not to give more opportunities to swell more and more power.

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Guardianship inhibitory to the River!

Entering yesterday, as every day-a page Trade in the lower right corner of my screen appeared a tiny little picture with a link entitled From heaven to hell: a tour of the Rio Rimac " . Intrigued, I clicked and then watch and read the excellent report virtual (no videos, computer graphics and pictures) was stunned by the current state of our Rimac River, whose waters are used by 80% Atarjea as to supply the capital.

Beyond outrage against the perpetrators of this abominable situation (mining companies, a state almost irrelevant, irresponsible citizens who use the river as a drain, laundry, dump, etc.) was a detail that caught my attention powerfully: 500,000 tons of toxic tailings of arsenic, Lead and mercury produced by the company San Juan, located on the hill Tamboraque (km. 90 Central Road) are deposited on the banks of the river as shown in photo - with an imminent risk of pollution to produce a very severe, perhaps irreversible. In other words, there is a danger to poison the water that comes into our homes. Neither more nor less.

immediately thought: How do to avoid this potential disaster? The state must intervene, but decidedly not a reasonable solution, say, the environment ministry threatened to fine the San Juan mining to avoid injury. No, we need a more effective remedy, timely and immediate. I go to court then he could be an alternative.

Notwithstanding the skepticism that can cause this idea, the truth is that the jurisdiction extends beyond the actual performance of any judiciary in a territory and historical context. That is, the things you can do a body vested with the judicial function can become great, but there are many factors that impede such as poor or no regulation, lack of preparation, cowardly judges, etc. I think the case of the Rimac River lends itself to such behavior, where someone (a regional government, community, prosecutors, etc..) Ask the judge to order the San Juan mining moves to another place the tailings deposit.

And how do you make viable the proposal? Civil Procedural Law are different types of guardianship of the law (such as protection for recovery or repossession), one of which is inhibitory protection, and is part of the broader spectrum of of preventive custody rights . This type of guardianship is responsible for the protection of a material right situation is likely to generate damage. That is, there is an illegal but there is no damage, if any, and if they seek redress, and not to prevent further spread of damage- then we have a protection in damages. This material legal guardianship may be subject to individual rights or collective rights sensu lato, also called rights of the community (where rights are diffused in the case of Rio Rimac) . As can be seen, both the inhibitory and the nature protection of the rights to be protected require adequate and timely delivery of justice, if there is satisfactory control in horabuena, if not satisfactory or no, then the judge has a duty to grant most suitable technical procedure. That duty arises from the fundamental right a fair trial.

Specifically, what does all this mean? The judge who receives a complaint where a guardianship inhibitory intends to adopt measures to avoid damage occurs. For this there are various mechanisms: precautionary measures coincide (if the parties so request), Fines (indirect coercion), among others. Moreover, a request to seek the immediate protection of legal status of substantive law that is in reach of being damaged irreparably, in my opinion authorizes the judge not only to channel it through one of the channels provided by the CPC, but also to distort the procedure itself if necessary to prevent imminent harm or in any case, to prevent the further production (here the inhibitory protection can coexist perfectly with an order of protection in damages, one to prevent the other doomed to repair). It occurs to me, for example, if the process is favorable to the plaintiff, the court applied the technique of the performance of the contested decision even though there is an express rule requiring the suspension of the effects of a ruling appealed.

All this has been the subject of thorough studies of procedural doctrine, is fully justified to warn that the process in its role as an instrument of legal material, and can not remain indifferent or helpless (or perhaps lazy) contemplating how to protect those rights should be prejudiced, and that because of their limitations. Thanks to the enormous progress of constitutionalism, we are in an era where so-called fourth generation rights and the environment "require special protection, but only when there is damage, but mainly to prevent it. The first is typical of the classical conception of the process where restitution predominated, the latter belongs to a procedural law committed to the needs of society.

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In our country, perhaps the best thing to come out on preventive custody is the work specific Guardianship rights Luiz Guilherme Marinoni, translated by Aldo Zela Villegas, work that is highly recommended to deal with the problem, take a dogmatic view on it and also some solutions for the immensity of cases, the reality (see here ).

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electronic Notices in the process Peruvian court: an approaching reality?

electronic Notices

Reviewing the Congress website I came across a bill introduced by the Judiciary which proposes creating an electronic notification law for all judicial processes (except those in criminal matters), seeking a uniform regulation to create the title III-A in the third section of the TUO of the Organic Law of Judicial Power. As you know, Article 163 of the Civil Procedure Code provides that electronic communication can be a choice of part next to the notice by ballot, but this option was unrealistic in the absence of a system designed.

However, the amendment made by the D. Leg. No. 1067, the Law on Administrative Dispute Process came to be seen in Article 28 of the electronic notification as required for most decisions except those expressly set forth. In this particular case, in the last two years the Executive Council of the Judiciary has issued several administrative orders in order to regulate the issue, currently in administrative litigation process is required that the parties appropriate the electronic box. Furthermore, Article 13 of the New Law Procedural Labour (Law No. 29 497) also provides for compulsory notification electronically. Currently the law is in force since 16 July in the judicial district of Tacna and from 16 August in the judicial district of Cañete, but do not know if electronic reporting is already being effectively employed.

Indeed, it is worth noting that the draft presented to Congress was conceived originally commissioned by the Judicial Branch Dr. Walter Gutierrez, with whom I had the opportunity to work the project was sent to the Staff of the Presidency Judicial. However, there were removed some provisions that we believe were very important, and added others that had not contemplated. However, the main patterns we create for the success of the legislation remained, such as amending the TUO of the OLJ, the small number of events to be notified by card (even if they had proposed a much smaller amount) the proceeds of the notification when they can be submitted electronically and electronic notification optional.

The project, which is in the Committee on Justice and Human Rights can be read here and I am sure that, if approved, will mean a profound change in the effectiveness of the Peruvian process. Hopefully that in the coming days to share some thoughts with bloggers about the proposed regulation. In the meantime, I welcome your comments.

Driver Magic Gate Seven

TC = "Terribly Chaotic"

Peru Constitutional Court

As a beloved teacher of mine said, Peru elm is the only da pears, and this ruling applies perfectly our justice system, where Kafka's imagination is constantly belittled by some actions of our judges.

is a dramatic case of a decision issued recently by our Constitutional Court (which may be here ). What did happen? It is worth taking time to understand the whole situation: A defendant initiated a process under in 2001, demanding a special judge for his right to due process was violated. The Public Law Chamber granted the application and then to handle the process, dismissed the claim because there was no wrong. Appealed the decision, the Board of Social Constitutional Law and Supreme Court confirmed the almost same grounds. Let us pause here: the judges of merit erred in holding inadmissible, when it should be declared unfounded since issued a statement on merit. This consideration is very important because, apparently, led to our TC to rave. When it filed an extraordinary appeal (ex nomen iuris the constitutional tort action), the TC said: "(...)

appellant's arguments need to be carefully contrasted. For this should be allowed to proceed and refer it cum notice to court, so you can sought more elements for a decision on the merits (...).

As this information is absent a result of being rejected in limine demand, the Constitutional Court considers to be incurred in the grounds of invalidity provided for in Article 20 ° of the Code of constitutional, so it must refer the case to the appropriate body for the admission of the petition and refer it to run to the defendants, to the effect that the issuance of a pronouncement valid on the merits of the claim " (Emphasis added).

said, annulled all the proceedings and ordered to admit the claim and refer it to run. Indeed, it is noted that this resolution (which can be seen here ) was issued in 2007. And here comes the chaos: the case came to the Sixth Civil Court, who "raised in consultation" resolution CT together with the dossier, saying that there contradiction between the ruling and what had happened in the process, ie, the board could not comply with the mandate that the Board of Public Law and was admitted demand had been served. The TC received this "consultation" and decided what unthinkable: cancel all proceedings from the decision which, in turn, ordered the annulment of all proceedings, admitting he was wrong because he had rule on the merits. Therefore he will set a date for the hearing of the case.

beyond the time that should have delayed this swing that only harmed the litigant whose claim was made in just under ten years, which is terrible because it is assumed that the protection is protection of urgency, I call attention to several issues. Attempt to summarize the main

i) The he had to make the TC initially

Instead of canceling all proceedings in the first resolution (arguing a non-existent in irrelevance limine), it appears that the TC could have pronounced on the merits. This part of two reasons: the first is that, as stated, the ordinary courts to verify the non-production of the violation of fundamental law, should declare unfounded and do not dismiss the request because it is a real trial on merit. The second reason is that the TC it can rule on the merits to Although judges have declared the invalidity merit of the claim through a "ruling inhibitory " (if an inadmissible in limine this would be impossible because they need to be given throughout the procedure .) I believe that the urgency to protect the fundamental rights and required in certain circumstances.

But this is what the TC could do and did. Still, it inexplicable how you can be claimed that it was an irrelevance in limine when he had handled a whole procedure. Pulling of ears for the counselor, or better, for the practitioner who made the decision. For the constitutional judges or speak. Who was harmed? As the applicant under process, he could have obtained a ruling final in 2007, and to date has not yet.

ii) The "consultation"

is curious that the Sixth Civil Court has used the consultation mechanism to raise not their own decision, but "contradictory " resolution CT . Actually this is surprising: when does a body here "raises in consultation" resolution the body that issued the mandate to be fulfilled? To our knowledge, the only thing one can raise in consultation body is its own resolution and also in our judicial system, on the grounds specified in the law "And this why? simply because the legal system wants some situations is material on which the judges meet to be considered by a higher level, provided it does not have a chance to decide through the challenging part. We conclude that the query is a mechanism extremely unique because it prevents the formation of double jeopardy even if the parties consent to the resolution challenge.

At least within the parameters set by the CPC , who raised in consultation are only judges of the first degree, except in the case of the application of fuzzy control (see article 408). Here's an example using the topic of fuzzy control (in this specific is the duty of both the Judge and the first grade second grade). If the decision is not attacked by any action by the standing to challenge, in consultation should be raised to higher-level judge, who will be the reviewing court (the then acting as such) or the Constitutional Law Division of the Court and Social Supreme Court, as appropriate. But what must be in mind is that the consultation expiry of the period occurs when there is not recursive challenge. So it seems that the Board understood the query as if you asked a "tip" or a "little help " for the TC told what to do with the mandate, because it is contradictory . But the way the query was not understood in its technical sense. At best, it would have been appropriate to send a craft , avoiding the transfer of the file.

iii) The superior "asking explanations" to TC ...

However, this digression on whether it should used the office or the office encourages further reflection: It is dangerous that a judge must meet the mandate of a higher level court say: "Lord, I do not understand, its mandate is contradictory , are you sure this is what you mean? ". And it is dangerous not only because it can slow timeliness of delivery of justice to the case, but because it authorizes judges who must comply with a mandate to "ask for explanations " the judge who issued it or, why not try to "amend the flat" or make them see their error. Is this attitude justified? No, the judge must comply with what they say because it is their duty, if the top judge was wrong is something that the court below can not solve.

However, this does not mean that the judge should effectuate the mandate must comply without question. No one is infallible (even the TC , but its members believe it) nor the judge is an automaton that executes commands robotically and without thinking. I believe that sometimes, in very exceptional and if the situation warrants , there may be internal communication, for example, to clarify something unintelligible or correct a point that is indecipherable or that involves an obvious factual error, or any situation really warrants such action. Even for this the judge must be very well-intentioned, and have the conviction that really deserves such behavior.

However, without prejudice to the query-elected is not the proper way "to let you know the TC his decision was" contradictory ", did well the Sixth Civil Court? The answer is negative. First, it must be noted that the TC quashed all proceedings on the understanding that the judges of merit declared inadmissible preliminary of claim and ordering the Board that accepted for processing. Then we have a declaration of nullity of procedure and a specific order: that the Board supports the demand (remember that overruled by a "ruling inhibitory). Sixth Court says that the mandate is contradictory because the Public Law Chamber itself admitted it, but this is false because at the time of sentencing was rejected, ergo, in the end, unwilling to admit. With this, the Board's argument falls apart, but the worst is that the TC says something very specific and clearly opposed unfounded reasons, and above all, it returned the case to itself TC.

there anything I should be clear. If the TC annulled all proceedings, removed the effectiveness of all acts of procedure, including the self admisorio (will lsuser members thought what about the prescription?), Ordering the Board to support demand again. This being so, who is the Board to reply to this mandate? In this case should do what the TC said, without giving any contradiction or anything like that. Now imagine that the Board was aware the TC erred in annulling all that had to decide on the merits, which condemned the trial to support a new procedure , etc. Despite all this, according to operating system, a judge is unable to "ask explanations, or communicate the error to the judge who issued the command (unless, as mentioned, is absolutely necessary for their own compliance). For this there are the legal remedies available to the aggrieved with a decision like that. The judge's error "top" is fought in many ways, but it is wholly unacceptable that the "court below" that must comply with the mandate, no matter who report to him of his error.

So no doubt that this was due to sanction exemplary senior judges.

iv) ... and TC "amending" his mistake

If the reader is surprised by the attitude of the Sixth Civil Court, the reaction of TC should leave petrified. Our renowned Chartered, which in recent years has been characterized by proclaiming his infallibility, interfere in legal proceedings and demonstrate possible arrogant ... admitted his error. So as it reads. "(...)

is manifestly clear that there has been no rejection LIMINATE as has been recorded erroneously as main basis in the resolution dated July 10, 2007, issued by the Constitutional Court in the case No. 8230-2006 - PA / TC .

is very clear that TC so unforgivable wrong in stating in the first resolution was inadmissible in limine , missing the opportunity to rule on the merits, but no contradiction whatsoever between nullification of and procedure made by the Board of Public Law. This is a declaration of invalidity of all common function and wildlife.

However, there is something more serious. To our knowledge, the first resolution CT not terminated the proceedings but took on estoppel. In issuing the new resolution, the first and overriding all that came later, TC simply ran over the firm that had created its own resolution. Of course, nobody noticed or did not warn of this because the second term is nothing but a righteous decision, those who have done so much damage to our system of justice delivery. The TC must decide on the merits, it is true, and it should do, but at what price? Annihilating "procedural formalism? It is possible to see how from an error so glaring as it was the first resolution, everything that can be done then distorted. But this case

Kafka is not there. It should also read the single vote (yes, there is a single vote on this issue!), In which the judge Miranda Alvarez says there is no contradiction whatsoever and that no grounds had declared the query (actually says "no place", but anyway, are details.) It is worth transcribing their arguments:

"2. That, while our peer declared void all actions taken in previous instances and proceeded to refer the case to the appropriate body to be supported and run demand transfer to the defendants, this bug was fixed in attention mainly to third and fourth bases of the resolution in order to ensure the issuance of a pronouncement valid on the merits of the claim.

In these circumstances it should be understood that the above criterion to declare the admission admissible in demand not only a consequence formal, as understood by the applicant, but a more implication it was determined that they were immersed issues relevant constitutional doubt , which should be analyzed carefully for justice constitutional , to elucidate a possible involvement of the fundamental right of defense defendant, given the lack of notification was made evident as a result preliminary rejection of request.

3. That, therefore has not been nor is there any contradiction regarding the ruling of the Constitutional Court . It is rather the Board, which has made the inquiry, which has not entirely revised the resolution, which orders reinstate the claim, and proceed according to law, that is, running forward the claim to the courts located ".

The single vote is consistent with the first resolution CT . This does not mean it's good. Beyond that we share or not" material consequences ", as opposed to the" consequences formal "to which it ausión - the first declaration of invalidity and establishment generates a new process (Which we did not decipher what the practical impact) would have been ideal that the judge stating that the Board could not rely on consulting for such request and, further, that such revocation also implied support demand back .

However, at this point, when the right of access to justice the applicant has been so violated because of errors of the organs of constitutional justice is difficult to find a solution satisfactory , can only be resigned to the least harmful.