exp. No
00063-2010-pc/TC NORTH LIMA PATRICIA
VICKY
MIJA
REGALADO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 14th day of October 2010, the Second Chamber of the Constitutional Court, composed of Judges Mesía Ramírez, Hayen and Eto Cross Street, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mrs Vicky Micha Patricia Regalado against the decision of the Second Civil Chamber of the Superior Court of Justice of North Lima, on pages 97, the date September 8, 2009, which states inappropriate demand for cars. BACKGROUND
On January 16, 2009, the appellant compliance demands brought against the District Municipality of Ancon, requesting to meet with the Mayor's Resolutions Nos. 248-2004-A/MDA and 249-2004-A/MDA, dated August 18, 2004, granting bonuses available to reach fifteen and twenty years of service.
The Public Prosecutor in charge of judicial affairs of the District Municipality of Ancon answer the complaint stating that the minutes of direct tract for the years 1992 and 1995 resolutions supporting the mayor whose compliance is sought are invalid because they violate the Supreme Decree No. 070-85, PCM and Legislative Decree No. 276, which is why no mayor resolutions of a binding mandate.
The Third Civil Court Specializing in North Lima, dated March 25, 2009, states established the action, finding that decisions regarding compliance contain a very clear, specific, precise and specific to be executed by its own terms, so that failure to comply with this has shown the reluctance of the Municipality located.
reviewing
The Board, reversing the appeal, declared inadmissible, considering that the resolutions of the municipality whose compliance is sought subject to a complex dispute, since there is no certainty that the minutes of direct that support them have met the requirements of Supreme Decree No. 003-82-PCM. BASICS
1. In the document dated some obrante at page 10, it is established that the applicant has met the specific requirements of the application under Article 69 of Constitutional Procedure Code, so it must consider whether the resolutions which enforcement is sought meet common minimum requirements to be included in an administrative act to be enforceable through the compliance process, requirements that have been established as a precedent binding on the STC 0168-2005-PC/TC.
2. The applicant requests that the comply with the following resolutions: a) Resolution No. 248-2004-A/MDA Mayor, dated August 18, 2004, which gives a bonus for having completed 15 years of service, and b) Resolution of Hall N. No 249-2004-A/MDA, dated August 18, 2004, which gives a bonus for having completed 20 years of service.
3. Defined in the terms set forth defendant's claim, the Court considers relevant to recall that Article 44. ° of Legislative Decree No. 276, applicable to the case, expressly prohibits public entities to negotiate with its servers, either directly or through their organizations union, working conditions or benefits increases involving remunerative or to modify the Unified Payroll established, resulting void any stipulation to the contrary.
4. In this regard, it should be noted that the preamble to the resolutions of the municipality whose compliance is sought, it appears that the subsidies granted to the applicant to have completed 15 and 20 years of service, have as their source of origin or collective agreements direct treatment records for the years 1992, 1995 and 2002.
5. Bearing in mind that Article 43 of Legislative Decree No. 276, provides that the "compensation of officers and public servants will be formed by the basic, bonuses and benefits, the Court considers that collective acts of direct or referred to in the end that attach to officials and public servants of the municipality located a bonus for turning 15 or 20 years of service are null and void because they violate the Unique System of Compensation established by Legislative Decree No. 276, since the latter in its Article 54, paragraph a) only provides that public servants and grant them allowance be 25 or 30 years of service.
6. Therefore, Mayor resolutions whose implementation is sought does not contain a current mandate mandatory and unavoidable, since the granting of subsidies to meet 15 or 20 years service in the case of civil servants and officials of the municipality situated, contrary to the System Single Earnings established by Legislative Decree No. 276.
7. Consequently, the mayor mentioned resolutions, to not contain a current mandate mandatory and unavoidable, make it clear that the Municipality has not located reluctant behavior for not having executed, which is why the lawsuit should be dismissed.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
declare the petition, for not having established the infringement of the rights to the effectiveness of actions administrative.
published and notifíquese.
SS. MESSIAH
RAMIREZ STREET CROSS Hayen
ETO
00063-2010-pc/TC NORTH LIMA PATRICIA
VICKY
MIJA
REGALADO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 14th day of October 2010, the Second Chamber of the Constitutional Court, composed of Judges Mesía Ramírez, Hayen and Eto Cross Street, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mrs Vicky Micha Patricia Regalado against the decision of the Second Civil Chamber of the Superior Court of Justice of North Lima, on pages 97, the date September 8, 2009, which states inappropriate demand for cars. BACKGROUND
On January 16, 2009, the appellant compliance demands brought against the District Municipality of Ancon, requesting to meet with the Mayor's Resolutions Nos. 248-2004-A/MDA and 249-2004-A/MDA, dated August 18, 2004, granting bonuses available to reach fifteen and twenty years of service.
The Public Prosecutor in charge of judicial affairs of the District Municipality of Ancon answer the complaint stating that the minutes of direct tract for the years 1992 and 1995 resolutions supporting the mayor whose compliance is sought are invalid because they violate the Supreme Decree No. 070-85, PCM and Legislative Decree No. 276, which is why no mayor resolutions of a binding mandate.
The Third Civil Court Specializing in North Lima, dated March 25, 2009, states established the action, finding that decisions regarding compliance contain a very clear, specific, precise and specific to be executed by its own terms, so that failure to comply with this has shown the reluctance of the Municipality located.
reviewing
The Board, reversing the appeal, declared inadmissible, considering that the resolutions of the municipality whose compliance is sought subject to a complex dispute, since there is no certainty that the minutes of direct that support them have met the requirements of Supreme Decree No. 003-82-PCM. BASICS
1. In the document dated some obrante at page 10, it is established that the applicant has met the specific requirements of the application under Article 69 of Constitutional Procedure Code, so it must consider whether the resolutions which enforcement is sought meet common minimum requirements to be included in an administrative act to be enforceable through the compliance process, requirements that have been established as a precedent binding on the STC 0168-2005-PC/TC.
2. The applicant requests that the comply with the following resolutions: a) Resolution No. 248-2004-A/MDA Mayor, dated August 18, 2004, which gives a bonus for having completed 15 years of service, and b) Resolution of Hall N. No 249-2004-A/MDA, dated August 18, 2004, which gives a bonus for having completed 20 years of service.
3. Defined in the terms set forth defendant's claim, the Court considers relevant to recall that Article 44. ° of Legislative Decree No. 276, applicable to the case, expressly prohibits public entities to negotiate with its servers, either directly or through their organizations union, working conditions or benefits increases involving remunerative or to modify the Unified Payroll established, resulting void any stipulation to the contrary.
4. In this regard, it should be noted that the preamble to the resolutions of the municipality whose compliance is sought, it appears that the subsidies granted to the applicant to have completed 15 and 20 years of service, have as their source of origin or collective agreements direct treatment records for the years 1992, 1995 and 2002.
5. Bearing in mind that Article 43 of Legislative Decree No. 276, provides that the "compensation of officers and public servants will be formed by the basic, bonuses and benefits, the Court considers that collective acts of direct or referred to in the end that attach to officials and public servants of the municipality located a bonus for turning 15 or 20 years of service are null and void because they violate the Unique System of Compensation established by Legislative Decree No. 276, since the latter in its Article 54, paragraph a) only provides that public servants and grant them allowance be 25 or 30 years of service.
6. Therefore, Mayor resolutions whose implementation is sought does not contain a current mandate mandatory and unavoidable, since the granting of subsidies to meet 15 or 20 years service in the case of civil servants and officials of the municipality situated, contrary to the System Single Earnings established by Legislative Decree No. 276.
7. Consequently, the mayor mentioned resolutions, to not contain a current mandate mandatory and unavoidable, make it clear that the Municipality has not located reluctant behavior for not having executed, which is why the lawsuit should be dismissed.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
declare the petition, for not having established the infringement of the rights to the effectiveness of actions administrative.
published and notifíquese.
SS. MESSIAH
RAMIREZ STREET CROSS Hayen
ETO
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