EXP. No.
05562-2008-PA/TC
LIMA CESAR AUGUSTO
BERTRAM MURGA
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, this 25th day of October 2010, the First Chamber of the Court Constitutional assistance of Messrs. Mesia Magistrates Ramirez, Beaumont Eto Callirgos and pronounce the following sentence Cruz
SUBJECT
Appeal lodged a constitutional tort by Don Cesar Augusto Beltran Murga, against the First Civil Chamber of the Superior Court of Lima, on pages 731, date May 27, 2008, which confirmed the appeal declared unfounded the claim for protection here.
BACKGROUND On April 29, 2005, plaintiff brought claim for protection against the Ministry of Interior, Territorial Police Directorate X Cuzco, the First Court of Permanent Instruction of the Fourth Judicial Zone of Cuzco, the Superior Council Justice of the Judicial Zone IV of the National Police of Peru - Cuzco, and the Supreme Council of Military Justice, in order to be declared inapplicable if the resolutions, sanctions and other measures taken by these bodies that have corm therefore its termination of the police.
argues that in his capacity as member of the National Police of Peru (PNP Deputy - home Cusco) made use of their vacation up to 21 days, from 10 to 31 August 2001 in Lima, and to the poor health of his mother, dated August 31 asked the Personnel Department of the National Police permit 15 days on account of holidays in 2002. That request, he claims, was not rejected but rather, was accepted by Mayor Carlos Victor Yaypen PNP Uribe who informed the X-RPNP your order Cusco "Be served" (sic), which appears in the Radiogram No. 5706-DIRPER-DIVCOPER-DVPC/SE-PNP. Despite the above, was administratively and criminally liable for abandonment of employment ", which ultimately has led to his move to retirement, so estimated to have violated their rights of defense, to petition, and their right to work.
On 14 September 2005, the appellant attached a copy of Supreme Resolution 0444-2005-IN/PNP, dated August 9, 2005, which resolved: i) passing the appellant of the status of activity of Busy causal judicial conviction, and ii) moving to the state of retreat from the date of issue of the resolution, having been found guilty of involvement on call twice on the grounds of judicial conviction.
On May 24, 2006, the Public Prosecutor in charge of judicial affairs of Military Justice, disputes the claim by deducting the exception of prescription, obscurity or ambiguity in the way of bringing the case, lack of standing, and res judicata, suggesting the absence of an irregular process.
On May 26, 2006, the Public Prosecutor in charge of judicial affairs of the Ministry of Interior for its part, disputes the claim by deducting the exception of prescription, incompetence and darkness in the way of submitting the application, and that the resolution in question was issued in strict application of the law and regulations.
Also, on June 21, 2006, the Examining Magistrate of the First Permanent Permanent magistrate of the Supreme Council of Justice of the Fourth Judicial Police Area Cuzco answer the complaint stating that carried out the relevant legal proceedings, and that all times due process was respected.
Fifth Civil Court of the Superior Court of Lima, dated March 20, 2007, said demand for cars unfounded, considering that no one appreciates the involvement of constitutional law, since it has acted within the framework of the Constitution and observing the rules applicable to the case. The appeal for his part confirmed the appeal on the same grounds. BASICS
1 .- After reviewing the record reflects that the appellant's claim turns primarily on challenges to the Supreme Resolution No. 0444 - 2005-IN/PNP, dated August 9, 2005, which resolves to spend retired having been found on call twice on the grounds of judicial conviction, also questioning judgments in the military courts Police (Case No. 44001-2002-0041), which he was convicted the crime of abandonment of employment, following the events between September 1 and 15 2001. Alleging infringement of the right to due process, petition, and to work.
05562-2008-PA/TC
LIMA CESAR AUGUSTO
BERTRAM MURGA
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, this 25th day of October 2010, the First Chamber of the Court Constitutional assistance of Messrs. Mesia Magistrates Ramirez, Beaumont Eto Callirgos and pronounce the following sentence Cruz
SUBJECT
Appeal lodged a constitutional tort by Don Cesar Augusto Beltran Murga, against the First Civil Chamber of the Superior Court of Lima, on pages 731, date May 27, 2008, which confirmed the appeal declared unfounded the claim for protection here.
BACKGROUND On April 29, 2005, plaintiff brought claim for protection against the Ministry of Interior, Territorial Police Directorate X Cuzco, the First Court of Permanent Instruction of the Fourth Judicial Zone of Cuzco, the Superior Council Justice of the Judicial Zone IV of the National Police of Peru - Cuzco, and the Supreme Council of Military Justice, in order to be declared inapplicable if the resolutions, sanctions and other measures taken by these bodies that have corm therefore its termination of the police.
argues that in his capacity as member of the National Police of Peru (PNP Deputy - home Cusco) made use of their vacation up to 21 days, from 10 to 31 August 2001 in Lima, and to the poor health of his mother, dated August 31 asked the Personnel Department of the National Police permit 15 days on account of holidays in 2002. That request, he claims, was not rejected but rather, was accepted by Mayor Carlos Victor Yaypen PNP Uribe who informed the X-RPNP your order Cusco "Be served" (sic), which appears in the Radiogram No. 5706-DIRPER-DIVCOPER-DVPC/SE-PNP. Despite the above, was administratively and criminally liable for abandonment of employment ", which ultimately has led to his move to retirement, so estimated to have violated their rights of defense, to petition, and their right to work.
On 14 September 2005, the appellant attached a copy of Supreme Resolution 0444-2005-IN/PNP, dated August 9, 2005, which resolved: i) passing the appellant of the status of activity of Busy causal judicial conviction, and ii) moving to the state of retreat from the date of issue of the resolution, having been found guilty of involvement on call twice on the grounds of judicial conviction.
On May 24, 2006, the Public Prosecutor in charge of judicial affairs of Military Justice, disputes the claim by deducting the exception of prescription, obscurity or ambiguity in the way of bringing the case, lack of standing, and res judicata, suggesting the absence of an irregular process.
On May 26, 2006, the Public Prosecutor in charge of judicial affairs of the Ministry of Interior for its part, disputes the claim by deducting the exception of prescription, incompetence and darkness in the way of submitting the application, and that the resolution in question was issued in strict application of the law and regulations.
Also, on June 21, 2006, the Examining Magistrate of the First Permanent Permanent magistrate of the Supreme Council of Justice of the Fourth Judicial Police Area Cuzco answer the complaint stating that carried out the relevant legal proceedings, and that all times due process was respected.
Fifth Civil Court of the Superior Court of Lima, dated March 20, 2007, said demand for cars unfounded, considering that no one appreciates the involvement of constitutional law, since it has acted within the framework of the Constitution and observing the rules applicable to the case. The appeal for his part confirmed the appeal on the same grounds. BASICS
1 .- After reviewing the record reflects that the appellant's claim turns primarily on challenges to the Supreme Resolution No. 0444 - 2005-IN/PNP, dated August 9, 2005, which resolves to spend retired having been found on call twice on the grounds of judicial conviction, also questioning judgments in the military courts Police (Case No. 44001-2002-0041), which he was convicted the crime of abandonment of employment, following the events between September 1 and 15 2001. Alleging infringement of the right to due process, petition, and to work.
2 .- In this regard, it should be noted, first, that the requirement that judicial decisions are motivated in terms of Article 139 paragraph 5) of the Constitution guarantees that the judges or the administration, among others, whatever the instance where they are, must clearly articulate the arguments of law and fact which have led to the settlement of the dispute or legal uncertainty, ensuring that the exercise of its functions are performed subject to the Constitution and the laws issued under that Law.
3 .- As has been pointed out that Collegiate settled law that the right motivation does not guarantee a particular area of \u200b\u200bmotivation, so that the content is respected constitutional, prima facie, whenever there is: a) legal basis, which does not involve the mere mention of the rules to apply to the case, but the explanation and justification of why a case is or not in cases that include such standards; b) congruence between the order and the resolution, which involves the manifestation of the arguments to express the agreement between the judgments of conviction and the claims made by the parties, and c) that itself expresses a consistent and adequate justification for the decision (whether on the applicable law or the facts established), even if it is brief or concise, and presents the course of reasoning by reference.
4 .- In this case, the resolutions issued in the military courts Police which are contained on pages 244 and following, the Supreme Resolution No. 0444-2005-IN/PNP, obrante at page 63, and so acted, it is clear that the main problems facing the case of appellant in that court were confined to the grounds of the facts, specifically, as the plaintiff as alleged in all his writings: A) the problem of determining whether it was notified or not the decision that denied its request for advance rental because if we could properly test that between 1 and 15 September 2001 he met the denial of his request. was fully accredited reluctance to resume service setting and the conduct that prohibits the crime of abandonment of employment, but if not he could prove he knew that rejecting his request is not configured then the aforementioned offense, and B) problem of determining if the appellant's mother was suffering from a serious illness that required the assistance of that, I could set some justification.
5 .- Notwithstanding the clear identification of the problems that had become controversial matter in the military courts Police, the decisions adopted in it, in different instances, established, among other reasons as follows (folio 244, 245 and 249): (...)
FOURTH: It is proven that the fourth day of September of year two thousand one, the Chief of Staff of the Tenth Police Region of Cusco, merit of Radiogram number five hundred sixty-five-XR.PNP.EMR.R1. (4) of 04SET01 (...) informed the Chief of Staff Control Personnel Management PNP.Lima, making known that the request of the defendant BERTRAM MURGA, had been denied by the Chief PNP.Cusco Tenth Region, with the shortage of officers, asking for immediate reinstatement of the said defendant, as is seen from the administrative part of one to five (...). folio
FIFTH .- It is established that the accused Deputy National Police of Peru César Augusto MURGA BERTRAM, personally, on its own accord and without permission of the superiority, by granting the permission slip, took fifteen days leave on account of holidays for the year two thousand two (...)
FOURTH: It is proven that the fourth day of September of year two thousand one, the Chief of Staff of the Tenth Police Region of Cusco, merit of Radiogram number five hundred sixty-five-XR.PNP.EMR.R1. (4) of 04SET01 (...) informed the Chief of Staff Control Personnel Management PNP.Lima, making known that the request of the defendant BERTRAM MURGA, had been denied by the Chief PNP.Cusco Tenth Region, with the shortage of officers, asking for immediate reinstatement of the said defendant, as is seen from the administrative part of one to five (...). folio
FIFTH .- It is established that the accused Deputy National Police of Peru César Augusto MURGA BERTRAM, personally, on its own accord and without permission of the superiority, by granting the permission slip, took fifteen days leave on account of holidays for the year two thousand two (...)
6 .- As shown, the bodies of the Military Police Jurisdiction knowledge given by the appellant tried on the denial of his request and thus their reluctance to resume service, without showing what those means were generated evidence that such conviction or without testing whether the case presented a cause of justification as a result of the illness of the mother of the plaintiff, which obviously affects your motivation. In the above act if tested the PNP-Directorate informed Cusco Lima PNP headquarters rejecting the request for advance rental, but not tested if the PNP headquarters Lima communicated this decision to the appellant.
addition to the above, it should be mentioned that the Office No. 651-2010-DIRREHUM-PNP-DIVADLEG-DEPALPR-SECOFI, dated May 20, 2010, addressed to the Constitutional Court by Colonel PNP Nabor Ortiz Melgarejo, appears "(...) that Section Bundles PNP Officers Retreat to review the personal files of Lt. No. 8545 PNP (r) César Augusto MURGA BERTRAM, there is attached the notification by the person indicated on the 04SET01 refusal date issued by Commandant Oscar VILLAFUERTE Tupayachi PNP, Chief of Staff of the X-RPNP-Cusco, on the request for advance rental
7 .- accordingly. Having established the involvement of the right to recurrent motivation of the decisions of the Military Court Police issued dated October 1, 2002, January 29, 2003 and November 5, 2004, they must be rendered ineffective and ordered them back to be motivated. It bearing in mind that these decisions of the Military Court Police formed the basis for the issue of Supreme Resolution No. 0444-2005IN/PNP, dated August 9, 2005, it should also be rescinded, and recovering the previous state of things, should appellant ordered the reinstatement of the military courts and other decisions issued police with a right motivation.
For these reasons, the Constitutional Court, in exercise of the powers conferred by the Constitution and State Law
RESOLVED 1. Upheld the appeal for protection and thus nullify the proceedings in military courts Police (Case No. 44001-2002-0041) until the decision of October 1, 2002, and the Supreme Resolution No. 0444 -2005-IN/PNP. Order reinstatement of appellant to the National Police Peru and that the Police Military Court handed down a sentence again reasoned that addresses the applicant's arguments and rule as stated in the foundation 6, supra. Published and notifíquese
.
SS. MESSIAH
RAMÍREZ
BEAUMONT Callirgos
ETO CRUZ
