EXP. No.
04762-2007-PA/TC SANTA
ALEJANDRO VALVERDE TARAZONA
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 22 days of September 2008, the Constitutional Court in plenary session court, with the assistance of judges Mesia Ramirez Vergara Gotelli, Landa Arroyo, Beaumont Callirgos, Calle Hayen, Eto Cruz and Alvarez Miranda, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Alejandro Valverde Tarazona against the decision of the Second Civil Chamber of the Court Superior Court of Santa, on pages 126, the date July 12, 2007, declaring unfounded claim here.
04762-2007-PA/TC SANTA
ALEJANDRO VALVERDE TARAZONA
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 22 days of September 2008, the Constitutional Court in plenary session court, with the assistance of judges Mesia Ramirez Vergara Gotelli, Landa Arroyo, Beaumont Callirgos, Calle Hayen, Eto Cruz and Alvarez Miranda, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Alejandro Valverde Tarazona against the decision of the Second Civil Chamber of the Court Superior Court of Santa, on pages 126, the date July 12, 2007, declaring unfounded claim here.
BACKGROUND On July 7, 2006 the plaintiff brought claim for protection against the Office (ONP), requesting that it declare inapplicable 0000040058-2005-ONP/DC/DL Resolution No. 19990, dated May 10, 2005, and that therefore be granted pension pursuant to Article 47. of Decree Law No. 19990, with the payment of pensions accrued and statutory interest.
The demand answers located on the grounds that the applicant does not meet the requirements of Article 47., Decree Law No. 19990 to be eligible for a pension from the special pension scheme because they were not born before July 1, 1931.
Fifth Special Civil Court of Chimbote, dated March 5, 2007, hereby demand based in part on the grounds that the applicant demonstrate that they have complied with the requirements Article 44., Decree Law No. 19990 to access an early retirement pension.
The appeal, quashing the appeal, declared unfounded claim, holding that the plaintiff intends to prove his years of contributions with a certificate of employment who are not eligible for recognition of years of contributions under Article 54. Of Supreme Decree N. º 011-74-TR. BASICS
1. § Source of demand and delimitation of the request
1. On the basis 37 of the 1417-2005 STC-PA, published in the official gazette El Peruano on July 12, 2005, this Court has stated that part of the content directly essential to the fundamental right protected by the pension laws that establish the requirements for their production, and ownership of the right claimed must be sufficiently established to make it possible to issue a finding of merit.
2. The plaintiff claims that the resolution in question violates their fundamental right to a pension, because it does not recognize their contributions made after August 21, 1964 until May 22, 1992, by Electro Ceramics Chimbote, so he requests to be recognize the contribution period and be granted pension pursuant to Article 47., Decree Law No. 19990. Consequently, his claim is included in the case provided the foundation 37.b) of that sentence, why should analyze the merits of the issue.
3. For its part, the ONP submits that there is a physical impossibility to prove all contributions made after August 21, 1964 until May 22, 1992, by Electro Ceramics Chimbote, because the revision of its forms is only able to observe and recognize the contributions from 1971 to 1974, one week in 1979, and several weeks between 1985 and 1992.
4. Delimited in this way the terms of debate, the Constitutional Court, given the increasing recurrence of this issue, consider should review its jurisprudence on the evidence that can prove periods of contributions that are considered by the NPO as years of contributions are not accredited, saying that they have not been conclusively proven or that there is physically impossible to accredit.
This is because a large number of processes that are designed under the guidance of the fundamental right to a pension, the dispute centers on whether the applicant has the period of contributions required by law to access to pensions requested, which always involves the need to assess the adequacy, probity and effectiveness of the evidence submitted by the parties to determine whether or not the applicant is complying with the years of contributions, because the fundamental right to a pension is a legal configuration.
5. Also, please note that the fundamental right to a pension has the nature of social law, and as such requires public authorities required to provide adequate benefits for the purpose of addressing the basic needs and living of pensioners to enable them to achieve and adequately meet the exercise of the right to a dignified life.
To this end, the following topics: a.
The proof in the absence of constitutional and evidentiary stage
B.
Who is responsible for withholding and payment of contribution? C.
How do you test for contribution periods? D.
Rules for testing periods of contributions
2. § The test in constitutional processes
6. The test in constitutional processes, as in any other kind of process or procedure, aims to establish or determine the existence or nonexistence of relevant facts or litigation that are relevant to the decision. The test should be oriented towards the search for decisions to be fair, should be based on a true determination of the facts asserted by the parties in the process, which, after the acts postulatorios (demand response), is controversial and relevant to the decision.
7. Thus, in the constitutional process has the function test to prove or establish that the threatened violation alleged by the plaintiff is certain and imminent implementation, or that the alleged infringement of fundamental rights has been produced in a real and effective, or that has become irreparable. This
order that the judge in sentencing, as estimated, may order the reinstatement of the previous state of things, or provide that the notice does not re-engage in the acts or omissions that led to the filing of the complaint, and when rejected, may condemn the plaintiff to pay costs and expenses in the event that action was manifestly frivolous.
8. In this sense it is the parties should provide the facts to the process. This means that the parties, slip and distributes the burden of proving the facts in the process. Thus the plaintiff has the burden of proving the facts asserted to support its claim, while the defendant has the burden of proving the facts and contradicting claims.
2.1 § The absence of evidence-gathering stage in constitutional processes
9. According to Article 9. º Constitutional Procedural Code (CPConst.), in constitutional processes no evidentiary stage. Only from the evidence that no action is required, which does not preclude the conduct of evidentiary proceedings that the judge deems necessary, without affecting the duration of the process.
10. The absence of evidence-gathering stage in the process of protection is derived from the purpose and object of the process because it did not elucidate the ownership of a right, as in others, but only resets the exercise to a manifestly arbitrary involvement or unreasonable. Therefore, in order to be able to issue a ruling on the merits, we must not only not be in discussion of ownership of the constitutional right that is allegedly infringed, but even one who claims to have been affected in the exercise of proving the existence of the act in question. This means that ownership of the right whose violation or threatened violation is alleged to be certain and indubitable, and not disputed or doubtful.
11. Hence, the protection is a process in which the judge has, in essence, to act evidence, but only to judge the legitimacy or illegitimacy of the act constitutional reputed as harmful, since, as a way of urgent protection, this process requires fast, easy and effective. Therefore, the process is under the performance test immediate, instantaneous and self-attached when demand or answered.
12. That is why, in need of protection can not be elucidated claims which are designed to return a fundamental right whose ownership is uncertain or disputed, or that are based on contradictory facts, or controversial, or requiring the administration of evidence complex. However, this does not prevent the Court may request the performance of complex evidentiary proceedings when deemed necessary and essential for determining the constitutional legitimacy or illegitimacy reputed injurious act.
3. § Responsibility for the withholding and payment of
contributions
13. Regarding the responsibility for the withholding and payment of contribution, it should be noted that Decree Law No. 19990 on the premise that the employer acts as a withholding agent, that is, as it is appropriate to retain the contribution made the worker and deliver it to the competent authority. Therefore, Article 11., Decree Law No. 19990 provides that:
Employers and socially owned enterprises, cooperatives or the like, are required to withhold employee contributions required in the pawnshop secured payment and surrender their salaries to Social Security in Peru, together with such employers or companies must pay for the term set by the Regulation, within one month following the date on which the job quickly. If the liable persons the opportunity retuvieren not indicated the contributions of its employees, liable for payment, without the right to deduct these.
14. Should also be noted that Decree Law No. 19990 contribution considered as periods of days, months and weeks that provide or have provided services for workers, even if the employer had not paid contributions to the management body, to have it withholding agent status. Thus, in the original wording of the first paragraph of article 70. No provided that:
compulsory insurance for periods of contribution are the months, weeks or days to pay, or have provided services that create the obligation to pay the contributions referred to in Articles 7 to 13, even if the employer or the socially owned enterprise, cooperative or similar, would not have made the payment of contributions (emphasis added).
However, the original wording of the first paragraph of Article 70., Decree Law No. 19990 was amended by the Fourth Transitory and Final Provision of Law No. 28991, eliminating the phrase "even if the employer or company socially owned, cooperative or similar, would not have made the payment of contributions "to read as follows:
compulsory insurance for periods of contribution are the months, weeks or days to pay, or have served that create the obligation to pay the contributions referred to in Articles 7 to 13.
15. However, taking into account the new wording in first paragraph of Article 70., Decree Law No. 19990 is imposed whether the modification in question has been deleted irrebuttable presumption that it is considered effective contributions to the retention of the contribution made by the employer a worker's compensation is not paid to the managing entity. To resolve this issue note the position of the worker, the employer and manager in labor relations, social security withholding and payment of contributions to the National Pension System.
16. Regard, the Court considers that the amendment of Article 70., Decree Law No. 19990 does not affect the liability of employers for withholding and payment of contributions to the national pension system, because although the new wording has been deleted the phrase "even if the employer or the socially owned enterprise, cooperative or similar, had not made payment of contributions, this does not imply that the retained and unpaid contributions are treated as contributions not made, on the contrary, the contributions withheld and not paid by employers should be regarded as actual contributions, for the modification in question has no bearing quality employers and withholding agents of employee contributions.
17. It should be borne in mind that in terms of retention and payment of contributions to the National Pension System, the employee occupies a position of disadvantage, although he made the contribution, the employer who retains and actually paid before the managing body, ie is solely responsible for entering that contributions to the pension fund. For its part, the employer, to act as withholding agent, takes an advantage with respect to employees by fall in their actions the possibility that contributions be made effectively, since it can retain the worker's compensation but not to pay to the managing body, because the employee insured as required, plays the role of inaction and, therefore, is released from liability for the deposit of contributions to the management agency. This also means that the managing body against the employer maintains a position of advantage, as it may impose a fine for non-payment de aportaciones retenidas o exigirle mediante los procedimientos legales el cobro de las aportaciones retenidas.
18. Por lo tanto, los asegurados obligatorios del Sistema Nacional de Pensiones nunca se encuentran en la posibilidad efectiva de realizar directamente el pago de sus aportaciones a la entidad gestora, razón por la cual las aportaciones retenidas pero no pagadas al Sistema Nacional de Pensiones serán consideradas para determinar el total de años de aportaciones, pues su pago es responsabilidad exclusiva del empleador.
19. Ello quiere decir que el incumplimiento de la obligación de abonar las aportaciones por el empleador no puede perjudicar al trabajador, ya que si existe incumplimiento en este aspecto, ONP or competent institution must use the collection procedures and penalties provided by law to charge the employer contributions withheld and not paid. Consequently, in all cases had been adequately tested the employment relationship, should match the period of work as the period of effective contributions to national pension system.
20. Also bear in mind that from the date of enactment of Law No. 27334 and Supreme Decree No. 039-2001-EF non-payment of contributions is a problem of labor between the tax- collecting agency of the ONP-now, the Superintendencia Nacional de Administración Tax-and the same employer.
And, as noted by the Ombudsman, the lack of verification of the cash contribution is a tax problem between the employer and SUNAT, oblivious to the worker, the collecting entity having its own tools to enforce their collection [1].
4. § Proof of periods of contributions to constitutional jurisprudence
21. In this regard, the criteria set by the Constitutional Court was to consider employment certificates submitted in original, certified copy or single copy, as evidence sufficient to prove suitable and periods of contributions that have been considered by the ONP such contributions are not credited.
This because, after a joint reading of articles 11. No. 70., Decree Law No. 19990 the Court concluded that, in the case of compulsory insurance, months weeks or days to pay, or have provided services that create the obligation to pay benefits are considered as periods of actual contributions, although the employer had not made the payment of contributions, because it is obligated to retain workers . Moreover, this argument has been strengthened with the appointment. Article 13 of Decree Law No. 19990, which states that the ONP is required to initiate the procedure coercive if the employer fails to make payment of the aforementioned contributions.
This line of jurisprudence has been consistently and uniformly by this Court is reaffirming, after the amendment of Article 70., Decree Law No. 19990, as has been based on the previous basis.
22. However, it should be noted that from this jurisprudential approach during the development processes in pensionary under this Court has been detected, among other cases, in which they have submitted false documents to prove years of contributions are not recognized by ONP.
Thus, in the STC 09560-2006-PA/TC the Constitutional Court rejected the request by Mr. Roger Aguinaldo Vera head against the ONP and ordered to send a copy of the statement and relevant to the Attorney General acted because the data entered in one of the certificates submitted by the plaintiff were untrue. In this regard it was noted that:
On the first certificate of employment, it should be noted that the data contained in can not be true, as the notary in question was dismissed by the Notarial Council Resolution No. 005 - 93-JUS/CN, dated July 20, 1993. Therefore, the applicant could not work in the notary referred to the July 30, 1995, because Don Daniel Alejandro Céspedes Marin was removed from office of notary in the year 1993.
23. On the other hand, we also note that during the development of processes under in pensionary, the Court was able to detect other cases in which the plaintiff, to establish periods of contribution, presented certificates of work that have been issued by third parties or labor certifications that are contradictory in content.
4332-2005-PA/TC In the STC, the Court declare the petition for habeas corpus filed by Mr. Heraclio Barranzuela Cienfuegos against ONP, because the work presented certificates to prove that 20 years had contribution to access a pension, had been issued by third parties and were contradictory. In this sense, to dismiss the lawsuit stated: (...)
warns at page 65 of the booklet made before this Tribunal, a work certificate signed by Manuel Rangel Castro, claiming to be former employee of the office Yapatera the former hacienda, it was owned by Mrs. Josephine McDonald Czech widow, a certificate stating that the appellant worked for the said estate from 1950 to 1971, but also on the record, at page 6, another work certificate signed by Miguel Torres Carrasco - annexed by the appellant along with this demand - which is dated May 2004, who also claims to be a former employee (general pointer) of the former hacienda Yapatera Agricultural Company SA and that it was owned by Mrs. Joseph Mc Donald Czech. According to this certificate, the appellant worked for the said estate from 1953 until December 30, 1957. With these documents the applicant seeks to demonstrate that it meets the 20 years of contributions needed to get her pension, however, to be signed by parties other than his former employer could not be taken as evidence to prove their employment relationship . Moreover, we see a contradiction between them: while the document stated in page 6 states that the appellant worked from 1953 until December 1957 in the said property, the document stated in page 65 of the booklet made before this Court, contends that he did since 1950 to 1971. That is, not only its validity is in question but also its accuracy, making it impossible to establish with them or the employment relationship or the time actually worked to determine the years of contributions which would have been unknown to the plaintiff (...) .
24. Finally, it should be noted that during the development processes in pensionary under this Court has also been detect cases in which the applicant seeks the recognition of years of contributions without presenting any evidence indicating that clears.
Thus, in the STC 10465-2006-PA/TC, the Court declare the petition for habeas corpus filed by Mr. Edilberto Dueñas Coronado against ONP. In this case, the applicant requested to be granted a total of 33 contributions, instead of the 27 years of contributions that had recognized the ONP. In discussing the dispute, the Court dismissed the application because:
(...) to establish those years of contributions, the plaintiff ha [d] attached was no evidence (certificates work payslips, payment of service time, a summary of contributions, among others).
Likewise, in the STC 00273-2006-PA/TC, the Court declare the petition for habeas corpus filed by Mr. Bernardo Isaac Leudo Ku against ONP. In this case, the dispute focused on whether the applicant met the 20 years of contributions required by Article 1., Decree Law No. 25967 to access a pension. In discussing the controversy, dismissed the claim because of the joint assessment of the evidence on the record, it concluded that: (...)
can not be verified whether or not the appellant has demonstrated its rights in respect of contributions for those years since it has not filed papers with at least test the working relationship with different employers during that time.
25. Therefore, bearing in mind that the approach outlined has been used improperly by the applicants, the Constitutional Court, in exercising its functions of management and peacekeeping, and making use of the power conferred by Article VII of the Preliminary Title of the Code of Constitutional deems it set a precedent that was binding on the rules to be observed by judges who know amparo process accreditation periods of contributions considered not accredited by the ONP.
note that these particular rules to be followed by the judges hearing protection processes to determine when an applicant has demonstrated convincingly periods of contributions, has its reason for being not only by the absence of evidence in the station process protection, but also because the approach has been used maliciously referred to by the plaintiffs.
5. § Rules for periods of contributions credited in the process under
26. Thus, when the processes under the elucidation of the controversy involves the recognition of periods contributions, which have not been considered by the NAO, so that the demand is granted, the judges and the parties must take into account the following rules: a.
The plaintiff in order to generate enough conviction to judge the reasonableness of her request may attach to its application and test instrument, the following documents: certificate of employment, report wages paid, the books of payrolls, time settlement services or benefits, the records of contributions Orcinea the IPSS or EsSalud, among other documents. These instruments can be submitted in original or certified copy fedateada, but not in single copy. The Judge, own initiative or at the request of the applicant may request the administrative record to the ONP or copy it fedateada under responsibility.
b. ONP, when answering the request for defense, the caseload has attached as evidence of the administrative record of granting a pension or fedateada copy of it. This in order to determine with certainty whether the refusal to grant or the lack of a longer period of contributions has been arbitrary or is justified. And, if you are questioning the alleged violation of right to a pension, it is that the judicial authorities have in view the same act or, at least, the documents submitted to the administrative authority, and those in which the authority based its decision, to determine whether there was or not the alleged violation.
c. The caseload of the administrative record include the granting of a pension or fedateada copy thereof, is applicable to the process under underway when the judges deem it necessary and indispensable to resolve the dispute.
d. In amparo proceedings are initiated after the publication of this ruling, the ONP, when answering the demand, has the duty to comply with the administrative record file for granting pension or fedateada copy of it. If fails of its caseload to attach as evidence the administrative record, the court will apply the principle of prevalence of the complaining party, if the evidence submitted by the applicant are sufficient, relevant and appropriate to establish years of contributions, or additionally apply Article 282. of the Code of Civil Procedure. E.
Not require judges to apply the administrative record of granting a pension or fedateada copy of it, when we are faced with a claim manifestly unfounded. For these purposes is treated as a claim clearly established, one in which it notes that the period has not recognized ONP contributions that have been accredited by the plaintiff convincingly arguing that they have lost their validity, that the applicant has had the double condition of insurers and employers, and according to the Reference Table Start Contributions by Zones, established by the former Institute Peruvian Social Security in the area have not yet started trading.
f. Not require judges to apply the administrative record of granting a pension or fedateada copy of it, when we are faced with a claim manifestly unfounded. For these purposes, is regarded as a manifestly unfounded claim, one in which you note that the applicant is applying for recognition of years of contributions and has failed to present evidence to support his claim, when combined assessment of the types of evidence leads to the conviction that demonstrate that the minimum years of contributions for access to a retirement pension, or when presented certificates of employment that have not been issued by former employers, but by third parties.
6. § Analysis of the dispute
27. Articles 47. º and 48., Decree Law No. 19990, in force before the promulgation of Decree Law No. 25967, are the laws that shape the constitutionally protected right to access to pensions claimed. They provide pension entitled to special pension scheme for men who: a) have 60 years if born before July 1, 1931, b) have been enrolled in the Pension Funds of the Caisse Nationale Social Security or Employee Social Security, and c) demonstrating, at least five years of contributions, provided they are insured or required, having been, then opt for the optional.
28. In this case, according to the National Identity Document obrante at page 36, the actor was born on November 25, 1949, ie after the date specified in Article 47., Decree Law No. 19990 to be eligible to purchase a retirement pension under the special regime, so that the pension scheme is not applicable.
29. However, this school believes that attention to the content of the resolution in question, should the principle jura novit curia, enshrined in Article VIII of the Code of the Constitution. Consequently, in this case the legal right to own the applicant's pension will be analyzed as required by the rules governing early retirement scheme established by Decree Law No. 19990, as well as amended.
30. According to Article 44., Decree Law No. 19990, to be entitled to early retirement pension is required to have, in the case of men, at least 55 years of age and 30 full years of contributions.
31. Resolution No. 19990 and in Table 0000053395-2006-ONP/DC/DL Summary of contributions which are contained on pages 2 and 7, we see that the ONP was denied the plaintiff's early retirement pension because he considered that: a) had accredited only 17 years and 5 months of contributions, and b) there was the physical impossibility of proving the age of 22 and 10 months of contributions made from 1965 to 1970, from 1975 to 1978 and from 1980 to 1984 and missing periods 1964, 1971, 1973, 1974, 1979, from 1985 to 1992 and from 1994 to 1996.
32. To prove the ownership of pension entitlement and compliance with legal requirements that make it up, the applicant has attached to its demands two certificates of employment procedure on pages 9 and 14, and two assessments of benefits procedure on pages 10 and 11 , which show that has worked for Electro Ceramics Chimbote SA since August 21, 1964 until May 22, 1992. Consequently, in application of Articles 11. No. 70., Decree Law No. 19990, that period shall be counted as a period of contributions for the purpose of giving retirement pension, even if the employer had not made the payment of necessary contributions, since the defendant must make the collection of contributions indicated in accordance with the powers granted by law, making use of constraints that are necessary for that purpose.
33. Therefore, taking into account the documentation referred to, the actor credited 21 years and 4 months of contributions to national pension system, which added to the 17 years and 5 months of contributions recognized by the defendant, a total of 38 years and 9 months of contributions. Also, with National Identity Document obrante at page 36, certifying that the applicant was born on November 25 1949, and who turned 55 on November 25, 2004.
34. Thus, the applicant meets all legal requirements for the perception of early retirement pension and, consequently, it has ignored the constitutional right arbitrarily to the board that it has, so the defendant must pay the accrued pension accordance with Article 81., Decree Law 19990, for which it must take into account the date of opening of Record No. 00900037205, which consists of the pension application rejected.
35. Additionally, you must order the site that make the calculation of accrued since the date of the constitutional tort and the legal interests generated according to the rate specified in Article 1246. of the Civil Code, and to proceed with your payment in the manner prescribed by Law No. 28798.
36. Having established that the site has violated the constitutional right to a pension, corresponds, in accordance with Article 56. No Constitutional Procedural Code, order the entity to bear the court costs, which must be settled in the implementation phase of above.
For these reasons, the Constitutional Court with the authority under the Constitution Peru's political
RESOLVED 1. Upheld the claim, and consequently null and void Resolution Nos. 19990 and 0000053395-2006-ONP/DC/DL 0000040058-2005-ONP/DC/DL 19990.
2. Order that meets summoned to give the appellant an early retirement pension under Article 44., Decree Law No. 19990, and to pay the accrued pension and statutory interest and court costs in the stage of execution of the sentence.
3. Declares that the criteria in the foundation 26, above, are immediately binding precedent under Article VII of the Preliminary Title CPConst. Published and notifíquese
.
SS. MESSIAH
RAMÍREZ
VERGARA Gotelli
LANDA ARROYO STREET BEAUMONT Callirgos
Hayen
ETO
CRUZ ALVAREZ MIRANDA
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