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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