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.
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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