Thursday, August 26, 2010
Tuesday, August 24, 2010
Benefits Of A Turbo Prop Plane
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.
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.
Wednesday, August 11, 2010
Driver Magic Gate Seven
TC = "Terribly Chaotic"
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.
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.
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