EXP.
No. LIMA
02849-2010-PA/TC
STEEL THOMAS MANUEL ROSALES
RESOLUTION OF THE CONSTITUTIONAL COURT
Lima, 22 September 2010
SEEN
The constitutional tort action brought by Don Tomas Steel Manuel Rosales against the decision issued by the Second Civil Chamber of the Superior Court of Lima, on pages 106, date March 16, 2010, which confirmed the appeal, rejected the demand in limine and overruled, and
SERVING
1. That on September 22, 2008 the plaintiff brought claim for protection against the Universidad Nacional Mayor de San Marcos and the Electoral Committee of the university, to be declared inapplicable to Resolution No. 073-CE-2008-San Marcos of June 20, 2008, which states founded, in part, the challenge brought against his election as Dean of the Faculty of Chemistry and Chemical Engineering, since in this way be prevented from exercising the office to which he was elected.
2. That as it flows from the wording of the claim on pages 43 and following, the actor supports his claim that the questioned resolution is a threat of violation of their rights to work, effective judicial protection and compensation.
3. The Twenty-Third Civil Court of Lima, dated October 21, 2008, overruled, in limine, the demand, arguing that what is at issue is a concrete fact, Resolution No. 073-CE-2008-San Marcos - which is an impairment of the rights claimed, but not a threat so that the date of filing of the application, the period provided for in Article 44 of the Code has won a constitutional procedural excess. It is therefore implementing paragraph 5.10 of the Code bounded adjective.
4. That decision was upheld by the Second Civil Chamber of the Superior Court of Lima on the same foundation.
5. That the Constitutional Court does not share the ruling of the judges of the previous instances whenever it is true that the plaintiff seeks to rescind Resolution No. 073-CE-2008-San Marcos, as it flows in demand is the application of the administrative act which considers a threat of violation of their rights.
6. That in fact, in case the object of the process is not a case for injunction against an administrative act, the Resolution No. 073-CE-UNMSM-2008-, as has been wrongly understood by the courts, but rather a protection against the threat posed by its implementation and would be detrimental OrdenanaOrque of certain constitutional rights.
7. Also that the judges of the previous instances have not taken into account article 44, item 4), Constitutional Procedural Code, which states that the threat of execution of a harmful act does not initiate the computation the deadline. Only if there is involvement should start counting the time.
8. And finally that face the arguments with which the actor supports his claim, we note that the issuance of the questioned Resolution No. 073-CE-UNMSM-2008, which states founded in part the challenge brought against his election as Dean School of Chemistry and Chemical Engineering, could possibly have affected the right to due process, and therefore corresponding examination on the merits of the dispute in the appropriate procedural stage, which obviously implies that the demand car is under admissible.
9. That in this sense, the Constitutional Court deems it appropriate to remember, given the nature of the constitutional processes and the purposes and principles that guide provided for in Articles II and III of the Preliminary Constitutional Procedural Code ", which is only preliminary rejection appropriate when there is no margin of doubt about the invalidity of the claim, which as has been explained above, this is not the case.
10. That consequently, this Court has produced a preliminary rejection of abuse claim by the judges of the instances above given that the assumptions are not enabling to do under article 5. No Constitutional Procedural Code, as established, moreover, the numeral 47. No adjective limited.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED resolution
REVOKE grade, current at page 106, and, altering, orders the refer the case to the Twenty-Third Civil Court of Lima Superior Court of Justice of Lima, in order to support the claim for protection of cars and dealt with under the law, running forward the claim to the sites.
published and notifíquese.
SS. BEAUMONT
Callirgos
STREET MIRANDA ALVAREZ Hayen
No. LIMA
02849-2010-PA/TC
STEEL THOMAS MANUEL ROSALES
RESOLUTION OF THE CONSTITUTIONAL COURT
Lima, 22 September 2010
SEEN
The constitutional tort action brought by Don Tomas Steel Manuel Rosales against the decision issued by the Second Civil Chamber of the Superior Court of Lima, on pages 106, date March 16, 2010, which confirmed the appeal, rejected the demand in limine and overruled, and
SERVING
1. That on September 22, 2008 the plaintiff brought claim for protection against the Universidad Nacional Mayor de San Marcos and the Electoral Committee of the university, to be declared inapplicable to Resolution No. 073-CE-2008-San Marcos of June 20, 2008, which states founded, in part, the challenge brought against his election as Dean of the Faculty of Chemistry and Chemical Engineering, since in this way be prevented from exercising the office to which he was elected.
2. That as it flows from the wording of the claim on pages 43 and following, the actor supports his claim that the questioned resolution is a threat of violation of their rights to work, effective judicial protection and compensation.
3. The Twenty-Third Civil Court of Lima, dated October 21, 2008, overruled, in limine, the demand, arguing that what is at issue is a concrete fact, Resolution No. 073-CE-2008-San Marcos - which is an impairment of the rights claimed, but not a threat so that the date of filing of the application, the period provided for in Article 44 of the Code has won a constitutional procedural excess. It is therefore implementing paragraph 5.10 of the Code bounded adjective.
4. That decision was upheld by the Second Civil Chamber of the Superior Court of Lima on the same foundation.
5. That the Constitutional Court does not share the ruling of the judges of the previous instances whenever it is true that the plaintiff seeks to rescind Resolution No. 073-CE-2008-San Marcos, as it flows in demand is the application of the administrative act which considers a threat of violation of their rights.
6. That in fact, in case the object of the process is not a case for injunction against an administrative act, the Resolution No. 073-CE-UNMSM-2008-, as has been wrongly understood by the courts, but rather a protection against the threat posed by its implementation and would be detrimental OrdenanaOrque of certain constitutional rights.
7. Also that the judges of the previous instances have not taken into account article 44, item 4), Constitutional Procedural Code, which states that the threat of execution of a harmful act does not initiate the computation the deadline. Only if there is involvement should start counting the time.
8. And finally that face the arguments with which the actor supports his claim, we note that the issuance of the questioned Resolution No. 073-CE-UNMSM-2008, which states founded in part the challenge brought against his election as Dean School of Chemistry and Chemical Engineering, could possibly have affected the right to due process, and therefore corresponding examination on the merits of the dispute in the appropriate procedural stage, which obviously implies that the demand car is under admissible.
9. That in this sense, the Constitutional Court deems it appropriate to remember, given the nature of the constitutional processes and the purposes and principles that guide provided for in Articles II and III of the Preliminary Constitutional Procedural Code ", which is only preliminary rejection appropriate when there is no margin of doubt about the invalidity of the claim, which as has been explained above, this is not the case.
10. That consequently, this Court has produced a preliminary rejection of abuse claim by the judges of the instances above given that the assumptions are not enabling to do under article 5. No Constitutional Procedural Code, as established, moreover, the numeral 47. No adjective limited.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED resolution
REVOKE grade, current at page 106, and, altering, orders the refer the case to the Twenty-Third Civil Court of Lima Superior Court of Justice of Lima, in order to support the claim for protection of cars and dealt with under the law, running forward the claim to the sites.
published and notifíquese.
SS. BEAUMONT
Callirgos
STREET MIRANDA ALVAREZ Hayen
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