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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 ).