EXP.
No. CUZCO 00592-2010-PA/TC
GABINO TINTAYA
CONDORI AND OTHER
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 7 days of October 2010, the First Chamber of the Constitutional Court composed of Judges Callirgos Beaumont, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Gabino Tintaya Condon and others, against the decision issued by the Civil Division the Superior Court of Cuzco, on pages 2403, the date December 15, 2008, which overruled a particular end of the execution of the sentence under cars.
BACKGROUND
in execution of sentence, dated October 3, 2008, the Second Civil Court of the Superior Court of Cuzco, by Resolution No. 268, declared inadmissible the ecological park Marcavalle delivery requested by the applicant and "unenforceable statement therefore provides final archiving process" (folio 2336). The resolution says, among other arguments, that "(...) the Court can not make physical delivery of a portion of land in favor of the plaintiff, because it has rights to an ideal part of the Santa Teresa ranch, not being physically possible to determine what area of \u200b\u200bland belongs as there is not a process of division and partition (folio 2336).
On 15 October 2008, the plaintiff brought an appeal against that Resolution No. 268, officially requesting that annulling all proceedings, replacing everything to the letter on pages 555, in requesting the return of the plot of land occupied by the Marcavalle ecological park.
On December 15, 2008, the Second Civil Chamber of the Superior Court of Cuzco, by Resolution No. 275 resolves to confirm the Resolution No. 268.
On December 23, 2008 (folio 2416), the plaintiff brought "extraordinary appeal" against the Resolution No. 275 requesting your case to be in consultation with the Constitutional Court, arguing that such confirmatory, the aforementioned Civil Chamber "has flagrantly violated the facts provided in the application on pages 8, which refers to the proportion of land occupied by the current Marcavalle ECOLOGICAL PARK - Municipality defendant, accepted by the defendant himself at page 25, which is related to the fraction of land occupied by the Ecological Park Marcavalle folio covered by Case 8 ", which, as she recounts, in contravention of Article 70. º of the Constitution and their right to the effective execution of sentence.
On June 24, 2009, the Constitutional Court (Exp. No. 00127-2009-Q/TC) states based on the appeal filed by the appellant, considering that according to an earlier statement (Exp. N. º 201-2007-Q) this school has established general guidelines for exceptional provenance constitutional tort action for enforcement of judgments issued by the judiciary in constitutional processes.
On 3 September 2009, the appellant alleges the excessive delay in the execution of the sentence under which turned in its favor, since that date had passed more than 15 years with no effect to the decisions made.
BASICS
Given that in this case was brought to the attention of the Constitutional Court under a process that is under implementation of estimatory sentence, it should be noted that this school has been held in File No. 00201-2007-Q that "in exceptional circumstances can be accepted origin of the RAC [constitutional tort action] when it comes to protecting their own performance in terms of issued judgment by constitutional processes, both for those who have obtained a judgment by the part of this school, and for those who have done so through a statement issued by the judiciary. RAC exceptional provenance in this course aims at restoring constitutional legal order, the Court must assess the degree of violation of the judgment by issued by the judiciary when it does not perform that function, the function returning the corresponding instance to comply strictly with the findings of the Tribunal.
The Constitutional Court is entitled to know under cars, on execution, given that the appellant challenges through its constitutional tort action for undue delay in implementing the provisions of decision dated 3 November 1997 (folio 108), confirmed by resolution dated January 30, 1998 (folio 171), the same as settled the lawsuit for habeas corpus filed on 30 March 1995 (folio 8). In that sense, it is evident that from that date until now been more than 15 years without constitutional jurisdiction has materialized respective effective protection of fundamental rights that the Constitution commands.
On the other hand, include the right of enforcement of judgments is contained implicitly in the right to judicial protection as recognized in paragraph 3) of Article 139 of our Constitution. Indeed, although the said rule does not refer expressly to the "effectiveness" of judicial decisions, such quality is apparent from its interpretation, in accordance with international treaties on human rights (Fourth Final and Transitory Provision of the Constitution). Indeed, Article 8. ° of the Universal Declaration of Human Rights states that "Everyone is entitled to an effective remedy by the competent national tribunals for protection against acts that violate his fundamental rights recognized by the Constitution or by law "and Article 25.1 of the American Convention on Human Rights states" Everyone has the right to a simple, fast or any other effective remedy before judges or competent court for protection against acts that violate his fundamental rights recognized by the Constitution, law or by this Convention (...)". Thus, the right to judicial protection not only involves the right of access to justice, but also the right to the "effectiveness" of judicial decisions, seeks to ensure that the decision of the judicial authority has a practical significance and meeting so that it does not become a mere declaration of intent.
Thus, the judicial authority's performance in the stage of enforcement of judgments is a fundamental and essential element in achieving an "effective" legal protection, being of particular relevance to the public interest, because one could hardly point out the existence of a rule of law, when people inside can not achieve justice through the bodies established for that purpose.
To this end, the judicial authority shall perform all actions that individuals tend to be reinstated in their rights and remedies, if any of this, for the damage suffered. Should emphasize this component of the right to effective judicial protection, so that the courts themselves react to subsequent acts or behavior that undermine the substance of their decisions, because only then may satisfy the rights of those who have won at trial, without forcing them to shoulder the burden of new processes (Exp. No. 01042-2002-AA/TC, foundation 2.3.2).
In this case, regardless of the complexity that involves the execution of the sentence handed down estimatory favor of the appellant, this school can not help but draw attention to the seriousness that implies the mere fact that a litigant is more than 12 years without being able to enforce a ruling in their favor (and 15 years since he filed the lawsuit), so it alone in the grounds which are outlined below, should be forwarded a copy of the proceeding to the respective body Judicial control for effects that might arise.
Indeed, in a decision dated November 3, 1997 (folio 108), the Second Special Civil Court of Cuzco states founded claim for habeas corpus filed by Mrs. Salcedo Tintaya Celedonia Galicia against the District Municipality Wanchaq and thus ordered:
(...) that the respondent company to refrain from threatening and violating the property rights of said plaintiff, while not meeting the expropriation and compensation payment of appraised value, according to law and in the process for, as required under Article 70 of the Constitution (...).
One of the foundations of the sentence reads as follows:
(...) That the defendant municipality, while admitting implicitly in its brief on pages twenty-five be doing the work of ecological park in the area where the property is located the plaintiffs, to affect the share of the property of the plaintiffs, has not established the Court, having complied with the provisions of Article 70 of the Constitution of the State, or have expropriated and paid compensation appraised value, which therefore without first performing this procedure and obtain legal expropriation by such means can not arbitrarily affect land corresponding property of the actors (...).
On appeal, the First Civil Chamber of Cuzco, dated January 30, 1998 (folio 171), confirms the decision dated November 3, 1997, holding one of its foundations:
(... ) That, to proceed with the way he did the defendant to the plaintiff's property, has had to comply with the provisions by article seventy of the State Constitution, that is, making the expropriation of paying the real estate price, but in this case proceeded by way of fact and an arbitrary attack on property rights enshrined in the Constitution (...).
regard, reviewed the file, the Constitutional Court considers that the claim should be deemed the appellant for having established the infringement of their rights to effective execution of judgments and res judicata, since over 12 years has been postponed as ordered in the aforesaid statement admitting the protection and also has distorted the terms of that sentence, to the point of having provided the definitive arbitrarily unfulfilled process ordered it. The reasons for the decision of this school are: i) the judgment by dated November 3, 1997 (folio 108) established that the municipality was building located the work of ecological park on the property of the plaintiff (now appellant's wife), ii) ordered to refrain from threatening or violate the right of ownership of property, while not meeting with the expropriation and the payment appraised value compensation, but despite that order, as is established in the case, the municipality located continued the work of ecological park to conclusion iii) on execution, the respective judges who have taken up the case along these 12 years, have been limited, in general, through numerous surveys to verify what the exact end property that must be restored to the plaintiff, unverified claim and admonish the municipality located to make fulfill the respective procedure of expropriation and especially that it pay compensation appraised value; iv) the responsibility for certifying the payment of its fair price is the State to expropriate (in this case the municipality) and not expropriated citizens; v) despite the time elapsed and the effects it causes in the implementation phase of decision regarding the possibility of restitution of property of the plaintiff, it is indisputable the injunction to the City Wanchaq District stating that the expropriation proceedings and the actual payment of compensation appraised value as may be appropriate, accordance with Article 70. of the Constitution. Consequently, the municipality must be ordered compliance located above the injunction under pain of implementing all the measures provided for in Article 22. No Constitutional Procedural Code, which must be supervised by the enforcement judge under responsibility.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru,
RESOLVED
1. Upheld the constitutional tort action brought by the appellant, and accordingly: Declares
void Resolution No. 268, dated October 3, 2008, and Resolution No. 275 dated December 15, 2008, to the extent available to process the file here. Sort
the District Municipality of Wanchaq prove that meets the relevant procedure of expropriation and the compensation actually paid the appraised value as may be appropriate, under Article 70. Of the Constitution, failing to implement the measures laid down in Article 22 . No Constitutional Procedural Code.
judge orders the implementation of this constitutional process as soon meets the provisions of decision dated November 3, 1997, confirmed by resolution dated January 30, 1998, under the responsibility and as outlined in this statement.
2. Send a copy of the proceeding to the respective authority of the judiciary to control the effects that might arise.
published and notifíquese.
SS. BEAUMONT
Callirgos
ALVAREZ MIRANDA
URVIOLA HANI
No. CUZCO 00592-2010-PA/TC
GABINO TINTAYA
CONDORI AND OTHER
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 7 days of October 2010, the First Chamber of the Constitutional Court composed of Judges Callirgos Beaumont, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Gabino Tintaya Condon and others, against the decision issued by the Civil Division the Superior Court of Cuzco, on pages 2403, the date December 15, 2008, which overruled a particular end of the execution of the sentence under cars.
BACKGROUND
in execution of sentence, dated October 3, 2008, the Second Civil Court of the Superior Court of Cuzco, by Resolution No. 268, declared inadmissible the ecological park Marcavalle delivery requested by the applicant and "unenforceable statement therefore provides final archiving process" (folio 2336). The resolution says, among other arguments, that "(...) the Court can not make physical delivery of a portion of land in favor of the plaintiff, because it has rights to an ideal part of the Santa Teresa ranch, not being physically possible to determine what area of \u200b\u200bland belongs as there is not a process of division and partition (folio 2336).
On 15 October 2008, the plaintiff brought an appeal against that Resolution No. 268, officially requesting that annulling all proceedings, replacing everything to the letter on pages 555, in requesting the return of the plot of land occupied by the Marcavalle ecological park.
On December 15, 2008, the Second Civil Chamber of the Superior Court of Cuzco, by Resolution No. 275 resolves to confirm the Resolution No. 268.
On December 23, 2008 (folio 2416), the plaintiff brought "extraordinary appeal" against the Resolution No. 275 requesting your case to be in consultation with the Constitutional Court, arguing that such confirmatory, the aforementioned Civil Chamber "has flagrantly violated the facts provided in the application on pages 8, which refers to the proportion of land occupied by the current Marcavalle ECOLOGICAL PARK - Municipality defendant, accepted by the defendant himself at page 25, which is related to the fraction of land occupied by the Ecological Park Marcavalle folio covered by Case 8 ", which, as she recounts, in contravention of Article 70. º of the Constitution and their right to the effective execution of sentence.
On June 24, 2009, the Constitutional Court (Exp. No. 00127-2009-Q/TC) states based on the appeal filed by the appellant, considering that according to an earlier statement (Exp. N. º 201-2007-Q) this school has established general guidelines for exceptional provenance constitutional tort action for enforcement of judgments issued by the judiciary in constitutional processes.
On 3 September 2009, the appellant alleges the excessive delay in the execution of the sentence under which turned in its favor, since that date had passed more than 15 years with no effect to the decisions made.
BASICS
Given that in this case was brought to the attention of the Constitutional Court under a process that is under implementation of estimatory sentence, it should be noted that this school has been held in File No. 00201-2007-Q that "in exceptional circumstances can be accepted origin of the RAC [constitutional tort action] when it comes to protecting their own performance in terms of issued judgment by constitutional processes, both for those who have obtained a judgment by the part of this school, and for those who have done so through a statement issued by the judiciary. RAC exceptional provenance in this course aims at restoring constitutional legal order, the Court must assess the degree of violation of the judgment by issued by the judiciary when it does not perform that function, the function returning the corresponding instance to comply strictly with the findings of the Tribunal.
The Constitutional Court is entitled to know under cars, on execution, given that the appellant challenges through its constitutional tort action for undue delay in implementing the provisions of decision dated 3 November 1997 (folio 108), confirmed by resolution dated January 30, 1998 (folio 171), the same as settled the lawsuit for habeas corpus filed on 30 March 1995 (folio 8). In that sense, it is evident that from that date until now been more than 15 years without constitutional jurisdiction has materialized respective effective protection of fundamental rights that the Constitution commands.
On the other hand, include the right of enforcement of judgments is contained implicitly in the right to judicial protection as recognized in paragraph 3) of Article 139 of our Constitution. Indeed, although the said rule does not refer expressly to the "effectiveness" of judicial decisions, such quality is apparent from its interpretation, in accordance with international treaties on human rights (Fourth Final and Transitory Provision of the Constitution). Indeed, Article 8. ° of the Universal Declaration of Human Rights states that "Everyone is entitled to an effective remedy by the competent national tribunals for protection against acts that violate his fundamental rights recognized by the Constitution or by law "and Article 25.1 of the American Convention on Human Rights states" Everyone has the right to a simple, fast or any other effective remedy before judges or competent court for protection against acts that violate his fundamental rights recognized by the Constitution, law or by this Convention (...)". Thus, the right to judicial protection not only involves the right of access to justice, but also the right to the "effectiveness" of judicial decisions, seeks to ensure that the decision of the judicial authority has a practical significance and meeting so that it does not become a mere declaration of intent.
Thus, the judicial authority's performance in the stage of enforcement of judgments is a fundamental and essential element in achieving an "effective" legal protection, being of particular relevance to the public interest, because one could hardly point out the existence of a rule of law, when people inside can not achieve justice through the bodies established for that purpose.
To this end, the judicial authority shall perform all actions that individuals tend to be reinstated in their rights and remedies, if any of this, for the damage suffered. Should emphasize this component of the right to effective judicial protection, so that the courts themselves react to subsequent acts or behavior that undermine the substance of their decisions, because only then may satisfy the rights of those who have won at trial, without forcing them to shoulder the burden of new processes (Exp. No. 01042-2002-AA/TC, foundation 2.3.2).
In this case, regardless of the complexity that involves the execution of the sentence handed down estimatory favor of the appellant, this school can not help but draw attention to the seriousness that implies the mere fact that a litigant is more than 12 years without being able to enforce a ruling in their favor (and 15 years since he filed the lawsuit), so it alone in the grounds which are outlined below, should be forwarded a copy of the proceeding to the respective body Judicial control for effects that might arise.
Indeed, in a decision dated November 3, 1997 (folio 108), the Second Special Civil Court of Cuzco states founded claim for habeas corpus filed by Mrs. Salcedo Tintaya Celedonia Galicia against the District Municipality Wanchaq and thus ordered:
(...) that the respondent company to refrain from threatening and violating the property rights of said plaintiff, while not meeting the expropriation and compensation payment of appraised value, according to law and in the process for, as required under Article 70 of the Constitution (...).
One of the foundations of the sentence reads as follows:
(...) That the defendant municipality, while admitting implicitly in its brief on pages twenty-five be doing the work of ecological park in the area where the property is located the plaintiffs, to affect the share of the property of the plaintiffs, has not established the Court, having complied with the provisions of Article 70 of the Constitution of the State, or have expropriated and paid compensation appraised value, which therefore without first performing this procedure and obtain legal expropriation by such means can not arbitrarily affect land corresponding property of the actors (...).
On appeal, the First Civil Chamber of Cuzco, dated January 30, 1998 (folio 171), confirms the decision dated November 3, 1997, holding one of its foundations:
(... ) That, to proceed with the way he did the defendant to the plaintiff's property, has had to comply with the provisions by article seventy of the State Constitution, that is, making the expropriation of paying the real estate price, but in this case proceeded by way of fact and an arbitrary attack on property rights enshrined in the Constitution (...).
regard, reviewed the file, the Constitutional Court considers that the claim should be deemed the appellant for having established the infringement of their rights to effective execution of judgments and res judicata, since over 12 years has been postponed as ordered in the aforesaid statement admitting the protection and also has distorted the terms of that sentence, to the point of having provided the definitive arbitrarily unfulfilled process ordered it. The reasons for the decision of this school are: i) the judgment by dated November 3, 1997 (folio 108) established that the municipality was building located the work of ecological park on the property of the plaintiff (now appellant's wife), ii) ordered to refrain from threatening or violate the right of ownership of property, while not meeting with the expropriation and the payment appraised value compensation, but despite that order, as is established in the case, the municipality located continued the work of ecological park to conclusion iii) on execution, the respective judges who have taken up the case along these 12 years, have been limited, in general, through numerous surveys to verify what the exact end property that must be restored to the plaintiff, unverified claim and admonish the municipality located to make fulfill the respective procedure of expropriation and especially that it pay compensation appraised value; iv) the responsibility for certifying the payment of its fair price is the State to expropriate (in this case the municipality) and not expropriated citizens; v) despite the time elapsed and the effects it causes in the implementation phase of decision regarding the possibility of restitution of property of the plaintiff, it is indisputable the injunction to the City Wanchaq District stating that the expropriation proceedings and the actual payment of compensation appraised value as may be appropriate, accordance with Article 70. of the Constitution. Consequently, the municipality must be ordered compliance located above the injunction under pain of implementing all the measures provided for in Article 22. No Constitutional Procedural Code, which must be supervised by the enforcement judge under responsibility.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru,
RESOLVED
1. Upheld the constitutional tort action brought by the appellant, and accordingly: Declares
void Resolution No. 268, dated October 3, 2008, and Resolution No. 275 dated December 15, 2008, to the extent available to process the file here. Sort
the District Municipality of Wanchaq prove that meets the relevant procedure of expropriation and the compensation actually paid the appraised value as may be appropriate, under Article 70. Of the Constitution, failing to implement the measures laid down in Article 22 . No Constitutional Procedural Code.
judge orders the implementation of this constitutional process as soon meets the provisions of decision dated November 3, 1997, confirmed by resolution dated January 30, 1998, under the responsibility and as outlined in this statement.
2. Send a copy of the proceeding to the respective authority of the judiciary to control the effects that might arise.
published and notifíquese.
SS. BEAUMONT
Callirgos
ALVAREZ MIRANDA
URVIOLA HANI
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