EXP.
No. ICA 00566-2010-PHD/TC
OSCAR ELIAS JULIO LUCANA
JUDGEMENT OF THE COURT CONSTITUTIONAL
In Lima, 30 days of September 2010, the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT Appeal
constitutional tort brought by Don Julio Oscar Elias Lucana against the decision issued by the Joint Board Nazca Decentralized Superior Court of Justice of Ica, on pages 60, the date January 8, 2009, which dismissed the habeas data demand here. BACKGROUND
On July 21, 2008, the appellant filed for habeas data against the mayor of the provincial municipality of Nazca, Don Daniel Osvaldo Bendezú Mantilla. Requests to be given certified copies of records that contain the regular session from March 17, 2009 and until the date of formal request, as indicated in the receipt stamp of the municipality situated, for the June 15 the same year.
states that despite having met the formal requirement that refers to Article 62 of Constitutional Procedure Code, the City Hall site has not responded to its requirement, constituting thus a violation of his right of access to information enshrined in Article 2.5 of the Constitution.
A folio 11 the answer the demand notice stating that the appellant's request does not correspond to the right of access to information contained in Article 2.5 of the Constitution, but rather the right to petition would be enshrined in paragraph 20 of Article 2. of the Constitution, therefore, requested that the claim is rejected. On the request, even if expressed agreement, states that "it was referred for processing to the appropriate office where because it is granting copies must comply with the procedure established as is the cover expenditure (...). " Finally says that as mayor is not for the delivery of the requested information, he understands that "the demand addressed to me, has a destabilizing order as the mayor, not the one who should keep the documentation nor the documentary process manager ".
On October 12, 2009, the Civil and Family Court Nazca demand states founded and directs the City located delivering copies of the records requested by the appellant, having found that the requested information public and has set up an alleged violation of the right of access to public information. For its part, the Joint Appeals Board Nazca Superior Court of Justice of Ica, overturning the appeal, declared inadmissible the claim under paragraph 4) of section 5. No Constitutional Procedural Code, finding that the appellant would not have met the previous requirement referred to in Article 62 of the Code of the Constitution. BASICS
§ Definition of request
1. By car demand the appellant, invoking his status as "citizen and alderman, mayor calls upon the provincial municipality of Nazca in order to be granted certified copies containing the minutes from the regular meetings of March 17, 2009 and until the date of formal request, as indicated in the receipt stamp of the municipality situated, is 15 June of that year. §
special requirement on the merits of the application of Habeas Data and the decision of second instance
2. Before going on the substantive issues, it is pertinent to refer to the specific requirements of origin of the demand referred to in Article 62 of Constitutional Procedure Code. This to the extent that the second court, upon the verdict admitting the first instance, has established an interpretation that this school does not agree on how to proceed in calculating the period within the meaning of the answer should be given the authority over the request for information posed.
Indeed, as is clear from the resolution on pages 60, the Joint Appeals Board Nazca, after citing both Article 62. No Constitutional Procedural Code and Article 11.b of the Law No. 27806, Law of Transparency and access to public information, he concluded, "from a systematic interpretation of these rules" that the appellant had not exhausted the previous procedure required prior to the presentation demand of Habeas Data, as
at the discretion of the Board: "expired legal term for the entity to provide respondent information (Article 11, paragraph b) of Law No. 27,806) the applicant must claim respect for their right to information through document dated some, being expedited through the process of Habeas Data to claim compliance with this law, when the defendant has been ratified in default or has not provided any reply to the claim referred to within ten days to submit it. "
3. The aforementioned Article 11.b of the Law No. 27806 provides:
"Article 11 .- Procedures
access to public information is subject to the following: b) The Public Administration entity to which it has submitted a request for information must be provided within a period not exceeding seven (7) days; period may be extended in exceptional form for five (5) additional working days, to mediate events that make it unusually difficult to gather the required information. In this case, the institution must give written notice before the expiration of the first term, the reasons that make use of such an extension, otherwise, the request is considered denied. "
For its part, Article 62 of Constitutional Procedure Code provides:
"For the origin of habeas data will require that the applicant has previously claimed, by document dated some, respect for the rights to which the previous article, and that the defendant was ratified in default or has not responded within ten working days after the filing in the case of the right recognized by Article 2 paragraph 5) of the Constitution, or within two days if it is the right recognized by Article 2 paragraph 6) of the Constitution. May exceptionally be dispense with this requirement if their demand generated by the imminent danger of suffering irreparable harm, which must be accredited by the plaintiff. Apart from this requirement shall not require exhaustion of administrative remedies that may exist. "(Emphasis added.)
In resolving this apparent antinomy, Nazca Joint Board has established an interpretation that creates, in practice, a sort of way prior to the process of Habeas Data, pursuant to which every litigant, before turning to the process Habeas Data will exhaust the administrative procedure under Law No. 27806 and then start the procedure referred to Article 62 of the Code Constitutional Litigation.
4. The Court does not share this interpretation of the Chamber, not only because the same Article 62 is explicit in stating that apart from "certain date document" is not necessary to exhaust the administrative process that could exist ", but also because there incompatibility or antinomy between the procedure administrative inquiry governed by Law No. 27806 and the rules of habeas data procedure established by the Constitutional Procedural Code. Within the process of Habeas Data, the only prerequisite to the filing of the complaint is referred to in Article 62 º. The unsatisfactory response or silence from the required performance enabled the judiciary in order to restore the right violated. Since this school has found that more than one occasion (cf. Exp 6070-2009-HD/TC) courts have been giving this interpretation is in practice a clear interference in the judicial protection of rights of access to public information, the school considers appropriate to leave established, although it is repetitive, that the judiciary in the context of the process of Habeas Data must adhere strictly to the provisions of Article 62 of the Code of Constitutional so the only prerequisite to the filing of the claim as is the order by date and to document the refusal of the notice to provide the information requested.
In this case, the document on pages 1 and the lack of response from the Municipality located, the Collegiate concludes at this point that the special requirements laid down in Article 62. No Constitutional Procedural Code was fulfilled, so it must analyze the merits of the claim. §
The relevance of the principle of transparency in the democratic state
5. The process of Habeas Data is directly connected with the significance it acquires in the current democratic systems, the principle of transparency in the exercise of public power. It is a principle of constitutional significance implicit in the model of democratic and social state of law and republican government formula alluded to in Articles 3, 43 and 45 of the Constitution. There where power emanates from the people, as the Constitution in its article 45, it must be exercised not only on behalf of the people but for the people. The implementation of the principle of transparency contributes to combat corruption rates in the state and at the same time, is an effective tool against impunity power allowing the people to have access to the way it exercises the delegation of power. One manifestation of the principle of transparency is certainly the right of access to public information that the College has developed in its jurisprudence (see, among other 1797-2002-HD/TC STC). However, the principle of transparency does not end here its contents, to the extent that it also imposes a number of obligations on public authorities not only in relation to information, but in the practice of governance in general.
For example, it has been argued that any information creates transparency in the exercise of power public, but one that is timely and credible to the public. In this regard, the World Bank Institute, which developed the famous index of governance, has four components that make up a transparent information: accessibility, relevance, quality and reliability.
a) Accessibility .- Accessible is the information you are kindly made accessible to the public. This implies the need to work the information within government, such as creating searchable indexes, or establishing user-friendly file a citizen with basic education. Making information accessible means, then, organize files y establecer estándares mínimos de atención eficiente al pedido de información.
b) Relevancia.- La relevancia de la información tiene que ver con los usos de la información en la agenda de las políticas públicas. La información relevante es aquella que impacta o sirve para la toma de decisiones y para el control por parte de los ciudadanos. Por ejemplo, relevante es la información que una Municipalidad pueda brindar sobre sus proveedores y las adjudicaciones que se le han otorgado en un periodo determinado. De este modo la ciudadanía conoce también a las empresas y las calidades con que suelen prestar determinados servicios que tienen carácter público.
c) Calidad.- La calidad de la good account information has to do with relevance, but in this case affects the consistency of information. On the possibility that it may be tested or confirmed. Again this affects the way it is presented to the public.
d) Reliability .- Here is more of a reaction of the citizen against the information available in the Administration. Reliable is the information that is accessible, relevant and verifiable. Good account is reliable information that provides a transparent and well-organized administration.
Thus, the laws on access to information, as in Law No. 27806, is only an instrument that should allow the realization of the principle of transparency, however, an effective and timely access requires actions by public authorities to allow access to useful information, portable and above all reliable and timely, which is only possible with the transformation of government into a transparent model of action and management.
6. The principle of transparency is also directly connected to another basic principle on which sits the Democratic Constitutional State. We refer now to the principle of accountability. As has been noted, "if the information were perfect and the exercise of power transparent no need to hold accountable anyone. The demand for accountability, the demand for transparency to facts and reason arises from the opacity of power "(cf. Schedler, Andreas:" What is the accountable manner ", Federal Institute of Access to Public Information, Mexico 2004, p. 26 and 27). Meridian is why it is that the more transparent the governance will be against government more responsible and more committed to public purposes, as the secret, usually encourages lobbying practices of groups or individuals, but not necessarily to public ends.
§
present case Analysis: Citizens and authorities to the right of access to public information
7. In this case, the appellant has invoked his condition, former city councilman and then a provincial municipality. This is relevant for the purposes of establishing the relationship that develops between the right of access to public information and the prerogative to have City Council members under the Organic Law of Municipalities, which in Article 9.22 establishes the allocation of City Council: "To authorize and deal with requests for information from the council for control purposes."
8. Based on these provisions, the notice, in this case, has reiterated his allegations of appeal: "When the section 22 of article 9 of the Organic Law on Municipalities No. 27972 granted to the City Council a lot of discretion (sic ) to approve and respond to requests for information from policy makers who wish to carry out its oversight role, seeks to channel the most appropriate way the corporate will of the Council "from this premise, the mayor called concludes that in this case" action is inappropriate because the applicant is Councillor of the provincial municipality of Nazca and, therefore, must comply as provided specifically by its own Organic Law, (...) rule requiring him to request such information is not the mayor of the municipality of Nazca, but the City Council. "
9. This college has had occasion to rule on this prerogative of the council (the request information for control purposes) in a process instituted against that provision unconstitutional. At that time we established that it was not an arbitrary restriction which the Council assumes that competition. In this regard, we established that, unlike what happens with the right of access to public information referred to in article 2.5 of the Constitution, the prerogative council to request information for control purposes was rather: "[...] the exercise of a right or privilege for a state official or authority" [STC-AI 007-2003 Rationale 4).
With that statement, of course, we did not want to leave out to protect his right as a citizen assist any authority, including, of course, City Council members, as well as that if authorities assume responsibilities and public obligations, privileges conferred upon them by law could not, under any view, empty of content rights recognized by the Constitution as any other citizen. So this assumes that if such Collegiate Regidor the appellant has not succeeded in their efforts to make the request for information referred to his claim now as a citizen not be denied access to the process of Habeas Data to be claimed and not in his capacity as an alderman, but as a citizen.
In that sense, this school does not share the statement of notice states that as mayor he is not competent to deliver the requested information, because as the highest municipal authority is responsible, in any case, have through the appropriate office immediate delivery of the requested information, because otherwise, their arguments only reveal a clear appeal to defy a formality which is as a requirement from the Constitution itself.
10. In this regard, the College noted that the attitude of the Mayor in his capacity as representative of the commune emplazadaza, throughout this process, expresses a behavior that is consistent with the principle of transparency to which we referred above. This follows the objective fact that, although the notice states that it has been denied access to the information requested has not shown that this has happened as well. For delivery of certified copies Minutes of the regular sessions, this information is public unless it is otherwise qualified and reasonable for the City Council itself met in full, what has not happened in this case. On the contrary, their arguments over who has traveled instances this process show a little defiance and committed to the principle of transparency and clearly violates the right of access to public information referred to in Article 2.5 of the Constitution.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim, accordingly.
2. ORDER Mayor of the Provincial Municipality of Nazca, meet the request made at the request of the application through the appropriate office, with payment of costs that might arise, which must be determined in the implementation phase.
published and notifíquese.
SS. BEAUMONT
Callirgos
ALVAREZ MIRANDA
URVIOLA HANI
No. ICA 00566-2010-PHD/TC
OSCAR ELIAS JULIO LUCANA
JUDGEMENT OF THE COURT CONSTITUTIONAL
In Lima, 30 days of September 2010, the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT Appeal
constitutional tort brought by Don Julio Oscar Elias Lucana against the decision issued by the Joint Board Nazca Decentralized Superior Court of Justice of Ica, on pages 60, the date January 8, 2009, which dismissed the habeas data demand here. BACKGROUND
On July 21, 2008, the appellant filed for habeas data against the mayor of the provincial municipality of Nazca, Don Daniel Osvaldo Bendezú Mantilla. Requests to be given certified copies of records that contain the regular session from March 17, 2009 and until the date of formal request, as indicated in the receipt stamp of the municipality situated, for the June 15 the same year.
states that despite having met the formal requirement that refers to Article 62 of Constitutional Procedure Code, the City Hall site has not responded to its requirement, constituting thus a violation of his right of access to information enshrined in Article 2.5 of the Constitution.
A folio 11 the answer the demand notice stating that the appellant's request does not correspond to the right of access to information contained in Article 2.5 of the Constitution, but rather the right to petition would be enshrined in paragraph 20 of Article 2. of the Constitution, therefore, requested that the claim is rejected. On the request, even if expressed agreement, states that "it was referred for processing to the appropriate office where because it is granting copies must comply with the procedure established as is the cover expenditure (...). " Finally says that as mayor is not for the delivery of the requested information, he understands that "the demand addressed to me, has a destabilizing order as the mayor, not the one who should keep the documentation nor the documentary process manager ".
On October 12, 2009, the Civil and Family Court Nazca demand states founded and directs the City located delivering copies of the records requested by the appellant, having found that the requested information public and has set up an alleged violation of the right of access to public information. For its part, the Joint Appeals Board Nazca Superior Court of Justice of Ica, overturning the appeal, declared inadmissible the claim under paragraph 4) of section 5. No Constitutional Procedural Code, finding that the appellant would not have met the previous requirement referred to in Article 62 of the Code of the Constitution. BASICS
§ Definition of request
1. By car demand the appellant, invoking his status as "citizen and alderman, mayor calls upon the provincial municipality of Nazca in order to be granted certified copies containing the minutes from the regular meetings of March 17, 2009 and until the date of formal request, as indicated in the receipt stamp of the municipality situated, is 15 June of that year. §
special requirement on the merits of the application of Habeas Data and the decision of second instance
2. Before going on the substantive issues, it is pertinent to refer to the specific requirements of origin of the demand referred to in Article 62 of Constitutional Procedure Code. This to the extent that the second court, upon the verdict admitting the first instance, has established an interpretation that this school does not agree on how to proceed in calculating the period within the meaning of the answer should be given the authority over the request for information posed.
Indeed, as is clear from the resolution on pages 60, the Joint Appeals Board Nazca, after citing both Article 62. No Constitutional Procedural Code and Article 11.b of the Law No. 27806, Law of Transparency and access to public information, he concluded, "from a systematic interpretation of these rules" that the appellant had not exhausted the previous procedure required prior to the presentation demand of Habeas Data, as
at the discretion of the Board: "expired legal term for the entity to provide respondent information (Article 11, paragraph b) of Law No. 27,806) the applicant must claim respect for their right to information through document dated some, being expedited through the process of Habeas Data to claim compliance with this law, when the defendant has been ratified in default or has not provided any reply to the claim referred to within ten days to submit it. "
3. The aforementioned Article 11.b of the Law No. 27806 provides:
"Article 11 .- Procedures
access to public information is subject to the following: b) The Public Administration entity to which it has submitted a request for information must be provided within a period not exceeding seven (7) days; period may be extended in exceptional form for five (5) additional working days, to mediate events that make it unusually difficult to gather the required information. In this case, the institution must give written notice before the expiration of the first term, the reasons that make use of such an extension, otherwise, the request is considered denied. "
For its part, Article 62 of Constitutional Procedure Code provides:
"For the origin of habeas data will require that the applicant has previously claimed, by document dated some, respect for the rights to which the previous article, and that the defendant was ratified in default or has not responded within ten working days after the filing in the case of the right recognized by Article 2 paragraph 5) of the Constitution, or within two days if it is the right recognized by Article 2 paragraph 6) of the Constitution. May exceptionally be dispense with this requirement if their demand generated by the imminent danger of suffering irreparable harm, which must be accredited by the plaintiff. Apart from this requirement shall not require exhaustion of administrative remedies that may exist. "(Emphasis added.)
In resolving this apparent antinomy, Nazca Joint Board has established an interpretation that creates, in practice, a sort of way prior to the process of Habeas Data, pursuant to which every litigant, before turning to the process Habeas Data will exhaust the administrative procedure under Law No. 27806 and then start the procedure referred to Article 62 of the Code Constitutional Litigation.
4. The Court does not share this interpretation of the Chamber, not only because the same Article 62 is explicit in stating that apart from "certain date document" is not necessary to exhaust the administrative process that could exist ", but also because there incompatibility or antinomy between the procedure administrative inquiry governed by Law No. 27806 and the rules of habeas data procedure established by the Constitutional Procedural Code. Within the process of Habeas Data, the only prerequisite to the filing of the complaint is referred to in Article 62 º. The unsatisfactory response or silence from the required performance enabled the judiciary in order to restore the right violated. Since this school has found that more than one occasion (cf. Exp 6070-2009-HD/TC) courts have been giving this interpretation is in practice a clear interference in the judicial protection of rights of access to public information, the school considers appropriate to leave established, although it is repetitive, that the judiciary in the context of the process of Habeas Data must adhere strictly to the provisions of Article 62 of the Code of Constitutional so the only prerequisite to the filing of the claim as is the order by date and to document the refusal of the notice to provide the information requested.
In this case, the document on pages 1 and the lack of response from the Municipality located, the Collegiate concludes at this point that the special requirements laid down in Article 62. No Constitutional Procedural Code was fulfilled, so it must analyze the merits of the claim. §
The relevance of the principle of transparency in the democratic state
5. The process of Habeas Data is directly connected with the significance it acquires in the current democratic systems, the principle of transparency in the exercise of public power. It is a principle of constitutional significance implicit in the model of democratic and social state of law and republican government formula alluded to in Articles 3, 43 and 45 of the Constitution. There where power emanates from the people, as the Constitution in its article 45, it must be exercised not only on behalf of the people but for the people. The implementation of the principle of transparency contributes to combat corruption rates in the state and at the same time, is an effective tool against impunity power allowing the people to have access to the way it exercises the delegation of power. One manifestation of the principle of transparency is certainly the right of access to public information that the College has developed in its jurisprudence (see, among other 1797-2002-HD/TC STC). However, the principle of transparency does not end here its contents, to the extent that it also imposes a number of obligations on public authorities not only in relation to information, but in the practice of governance in general.
For example, it has been argued that any information creates transparency in the exercise of power public, but one that is timely and credible to the public. In this regard, the World Bank Institute, which developed the famous index of governance, has four components that make up a transparent information: accessibility, relevance, quality and reliability.
a) Accessibility .- Accessible is the information you are kindly made accessible to the public. This implies the need to work the information within government, such as creating searchable indexes, or establishing user-friendly file a citizen with basic education. Making information accessible means, then, organize files y establecer estándares mínimos de atención eficiente al pedido de información.
b) Relevancia.- La relevancia de la información tiene que ver con los usos de la información en la agenda de las políticas públicas. La información relevante es aquella que impacta o sirve para la toma de decisiones y para el control por parte de los ciudadanos. Por ejemplo, relevante es la información que una Municipalidad pueda brindar sobre sus proveedores y las adjudicaciones que se le han otorgado en un periodo determinado. De este modo la ciudadanía conoce también a las empresas y las calidades con que suelen prestar determinados servicios que tienen carácter público.
c) Calidad.- La calidad de la good account information has to do with relevance, but in this case affects the consistency of information. On the possibility that it may be tested or confirmed. Again this affects the way it is presented to the public.
d) Reliability .- Here is more of a reaction of the citizen against the information available in the Administration. Reliable is the information that is accessible, relevant and verifiable. Good account is reliable information that provides a transparent and well-organized administration.
Thus, the laws on access to information, as in Law No. 27806, is only an instrument that should allow the realization of the principle of transparency, however, an effective and timely access requires actions by public authorities to allow access to useful information, portable and above all reliable and timely, which is only possible with the transformation of government into a transparent model of action and management.
6. The principle of transparency is also directly connected to another basic principle on which sits the Democratic Constitutional State. We refer now to the principle of accountability. As has been noted, "if the information were perfect and the exercise of power transparent no need to hold accountable anyone. The demand for accountability, the demand for transparency to facts and reason arises from the opacity of power "(cf. Schedler, Andreas:" What is the accountable manner ", Federal Institute of Access to Public Information, Mexico 2004, p. 26 and 27). Meridian is why it is that the more transparent the governance will be against government more responsible and more committed to public purposes, as the secret, usually encourages lobbying practices of groups or individuals, but not necessarily to public ends.
§
present case Analysis: Citizens and authorities to the right of access to public information
7. In this case, the appellant has invoked his condition, former city councilman and then a provincial municipality. This is relevant for the purposes of establishing the relationship that develops between the right of access to public information and the prerogative to have City Council members under the Organic Law of Municipalities, which in Article 9.22 establishes the allocation of City Council: "To authorize and deal with requests for information from the council for control purposes."
8. Based on these provisions, the notice, in this case, has reiterated his allegations of appeal: "When the section 22 of article 9 of the Organic Law on Municipalities No. 27972 granted to the City Council a lot of discretion (sic ) to approve and respond to requests for information from policy makers who wish to carry out its oversight role, seeks to channel the most appropriate way the corporate will of the Council "from this premise, the mayor called concludes that in this case" action is inappropriate because the applicant is Councillor of the provincial municipality of Nazca and, therefore, must comply as provided specifically by its own Organic Law, (...) rule requiring him to request such information is not the mayor of the municipality of Nazca, but the City Council. "
9. This college has had occasion to rule on this prerogative of the council (the request information for control purposes) in a process instituted against that provision unconstitutional. At that time we established that it was not an arbitrary restriction which the Council assumes that competition. In this regard, we established that, unlike what happens with the right of access to public information referred to in article 2.5 of the Constitution, the prerogative council to request information for control purposes was rather: "[...] the exercise of a right or privilege for a state official or authority" [STC-AI 007-2003 Rationale 4).
With that statement, of course, we did not want to leave out to protect his right as a citizen assist any authority, including, of course, City Council members, as well as that if authorities assume responsibilities and public obligations, privileges conferred upon them by law could not, under any view, empty of content rights recognized by the Constitution as any other citizen. So this assumes that if such Collegiate Regidor the appellant has not succeeded in their efforts to make the request for information referred to his claim now as a citizen not be denied access to the process of Habeas Data to be claimed and not in his capacity as an alderman, but as a citizen.
In that sense, this school does not share the statement of notice states that as mayor he is not competent to deliver the requested information, because as the highest municipal authority is responsible, in any case, have through the appropriate office immediate delivery of the requested information, because otherwise, their arguments only reveal a clear appeal to defy a formality which is as a requirement from the Constitution itself.
10. In this regard, the College noted that the attitude of the Mayor in his capacity as representative of the commune emplazadaza, throughout this process, expresses a behavior that is consistent with the principle of transparency to which we referred above. This follows the objective fact that, although the notice states that it has been denied access to the information requested has not shown that this has happened as well. For delivery of certified copies Minutes of the regular sessions, this information is public unless it is otherwise qualified and reasonable for the City Council itself met in full, what has not happened in this case. On the contrary, their arguments over who has traveled instances this process show a little defiance and committed to the principle of transparency and clearly violates the right of access to public information referred to in Article 2.5 of the Constitution.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim, accordingly.
2. ORDER Mayor of the Provincial Municipality of Nazca, meet the request made at the request of the application through the appropriate office, with payment of costs that might arise, which must be determined in the implementation phase.
published and notifíquese.
SS. BEAUMONT
Callirgos
ALVAREZ MIRANDA
URVIOLA HANI
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