EXP. No. 05924-2009-PA/TC (Basic 3 and 4) and CAS 623-2003 PIURA
LIMA MUNICIPAL HOUSING SAVINGS AND CREDIT MAYNAS
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, the 4 th day of October 2010, the Plenum of Constitutional Court, composed of judges Mesía Ramirez, Beaumont Callirgos, Gotelli Vergara, Calle Hayen, Eto Cruz and Alvarez Miranda , made the following statement
Appeal Case
constitutional tort brought by the Caja Municipal de Ahorro y Credito Maynas, through its representative, against the decision dated June 17, 2009, issued by the Constitutional Law Division Permanent Social and Supreme Court of the Republic, confirming the appeal, declared unfounded the action cars.
BACKGROUND On August 23, 2007 the plaintiff brought claim for protection against the vocal members of the JCC Board of Loreto, Mr. Carlos Amoretti Martínez, María Esther Chirinos Maruri and Mercedes Centeno couple, seeking rescission of any resolution dated April 30, 2007 which dismissed his claim under administrative and back to deliver verdict on appeal. Contends that trial began on administrative dispute resolution against the Regional Directorate of Labour and Employment to rescind that Executive Resolution No. 01-15-12-117-2004-DPSC-iqu, which fined S /. Soles 12,800.00 for breach of labor standards (overtime); process in which-as-respect has been violated his right to due process whenever the defendant Board, to issue ruling, upheld the validity of the fine without observing the official who imposed an inspector was not working (had usurped function), and infringed Article 12.4 of Law No. 27879 of the Budget Act of 2003 and Directive No. 004-2003-EF/76.01 that established the prohibition of payment for the performance of overtime.
The Public Prosecutor in charge of the affairs of the Judiciary answer the complaint, arguing that what is intended by the appellant is improper review of the merits of a case already decided in compliance with the procedural protection effective in accordance with the substantive and procedural rules of the art.
The JCC Board of Loreto, with a resolution dated October 10, 2008, declared unfounded the claim on the grounds that the inspection visit was credited with the judicial process underlying workers who worked outside the schedule, ie work overtime and that the fine is imposed according to law.
For its part, the Board of Constitutional Law and Social Standing Supreme Court of the Republic, with a resolution dated June 17, 2009, confirms the appeal on the grounds has not been able to establish that the court decision is a matter of claim clearly violates the constitutional rights invoked by the appellant. BASICS
Delimitation of the request
1. The object of the claim is that any repeal the resolution dated April 30, 2007 that dismissed the lawsuit filed by administrative law and become the appellant to deliver verdict on appeal. That exposed the claims, the Constitutional Court considers necessary to determine, in light of the facts stated in the application and the collections held by it, if it has violated the due process rights of the appellant to have ratified the validity of the fine imposed without official noted that the sentencing was not a labor inspector and apply Article 12.4 of Law No. 27879 of the Budget Act of 2003 and Directive No. 004-2003-EF/76.01 which prohibit the payment for overtime.
Case Analysis constitutional controversy regarding
2. The Constitutional Court has ruled that paragraph 3) of Article 139 of the Constitution of Peru establishes, as a principle of the judicial function, the observance of due process and judicial protection, an approach that not only limited to the formalities of judicial proceedings, but extends to the procedures administrative sanctions. Indeed, due process is conceived as the fulfillment of all warranties, conditions and rules of public policy to be observed in the procedural stages of all proceedings, including administrative, so that people are able to adequately defend their rights against any State action that could affect them. That is, any act or omission of State bodies in a process, whether administrative-punitive (...) or court must respect the due process of law. (Cf. STC No. 0858-2001-AA/TC, foundation 1a).
3. On this particular car Chartered believes that there is no apparent violation of any constitutional right of the appellant, since if it is true that the budget law at that time (2003) prohibited the State agencies to authorize the payment of overtime, it is not true also that through the inspection visit was proven irrefutably that the appellant's failure to pay overtime to their workers (folios 69-75 of the first book), a situation that led to the labor authorities will impose fines for failure job duties (overtime). Importantly, demand for cars seeks to challenge the imposition of a fine by the administrative authority based work failure to comply with labor regulations, however this question is based on the existence of a budget rule (prohibition of overtime), supporting that it is to say the least incongruous and illogical since both events (the imposition of the fine and ban overtime pay) are independent of each other and bear no connectedness whatsoever. It is a duty to point out here that the imposition of the fine for breaching labor standards.
4. Furthermore it is abundantly clear to understand that the prohibition of authorizing the payment of overtime is subjective scope of the public body (the appellant), but not workers of it, being so belonged to the appellant as do the leading employer in order to give full effect to the budget rule (for example, monitor the departure time of their workers and thus prevent any overtime .) But this was not done, constituting the negligence of the appellant made to allow work outside working hours.
5. On the other hand, with respect to the other argument made by the appellant, namely that the official who imposed the fine was not a labor inspector and therefore would have usurped function, this school believes that the protection against judicial decisions can not serve rethink a dispute resolved by the ordinary courts (the jurisdiction of the officer imposing the fine), it is not a means of challenge to continue to review a decision that is within the exclusive competence of the ordinary jurisdiction, venue where confirmed and / or ratified the validity of the imposition of the fine, as shown on pages 64-68 of the first book.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
declare the petition for protection in the absence of proven infringement of the right to due process.
published and notifíquese.
SS. MESSIAH
RAMÍREZ
BEAUMONT Callirgos
VERGARA Gotelli
Hayen
ETO STREET CROSS
LIMA MUNICIPAL HOUSING SAVINGS AND CREDIT MAYNAS
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, the 4 th day of October 2010, the Plenum of Constitutional Court, composed of judges Mesía Ramirez, Beaumont Callirgos, Gotelli Vergara, Calle Hayen, Eto Cruz and Alvarez Miranda , made the following statement
Appeal Case
constitutional tort brought by the Caja Municipal de Ahorro y Credito Maynas, through its representative, against the decision dated June 17, 2009, issued by the Constitutional Law Division Permanent Social and Supreme Court of the Republic, confirming the appeal, declared unfounded the action cars.
BACKGROUND On August 23, 2007 the plaintiff brought claim for protection against the vocal members of the JCC Board of Loreto, Mr. Carlos Amoretti Martínez, María Esther Chirinos Maruri and Mercedes Centeno couple, seeking rescission of any resolution dated April 30, 2007 which dismissed his claim under administrative and back to deliver verdict on appeal. Contends that trial began on administrative dispute resolution against the Regional Directorate of Labour and Employment to rescind that Executive Resolution No. 01-15-12-117-2004-DPSC-iqu, which fined S /. Soles 12,800.00 for breach of labor standards (overtime); process in which-as-respect has been violated his right to due process whenever the defendant Board, to issue ruling, upheld the validity of the fine without observing the official who imposed an inspector was not working (had usurped function), and infringed Article 12.4 of Law No. 27879 of the Budget Act of 2003 and Directive No. 004-2003-EF/76.01 that established the prohibition of payment for the performance of overtime.
The Public Prosecutor in charge of the affairs of the Judiciary answer the complaint, arguing that what is intended by the appellant is improper review of the merits of a case already decided in compliance with the procedural protection effective in accordance with the substantive and procedural rules of the art.
The JCC Board of Loreto, with a resolution dated October 10, 2008, declared unfounded the claim on the grounds that the inspection visit was credited with the judicial process underlying workers who worked outside the schedule, ie work overtime and that the fine is imposed according to law.
For its part, the Board of Constitutional Law and Social Standing Supreme Court of the Republic, with a resolution dated June 17, 2009, confirms the appeal on the grounds has not been able to establish that the court decision is a matter of claim clearly violates the constitutional rights invoked by the appellant. BASICS
Delimitation of the request
1. The object of the claim is that any repeal the resolution dated April 30, 2007 that dismissed the lawsuit filed by administrative law and become the appellant to deliver verdict on appeal. That exposed the claims, the Constitutional Court considers necessary to determine, in light of the facts stated in the application and the collections held by it, if it has violated the due process rights of the appellant to have ratified the validity of the fine imposed without official noted that the sentencing was not a labor inspector and apply Article 12.4 of Law No. 27879 of the Budget Act of 2003 and Directive No. 004-2003-EF/76.01 which prohibit the payment for overtime.
Case Analysis constitutional controversy regarding
2. The Constitutional Court has ruled that paragraph 3) of Article 139 of the Constitution of Peru establishes, as a principle of the judicial function, the observance of due process and judicial protection, an approach that not only limited to the formalities of judicial proceedings, but extends to the procedures administrative sanctions. Indeed, due process is conceived as the fulfillment of all warranties, conditions and rules of public policy to be observed in the procedural stages of all proceedings, including administrative, so that people are able to adequately defend their rights against any State action that could affect them. That is, any act or omission of State bodies in a process, whether administrative-punitive (...) or court must respect the due process of law. (Cf. STC No. 0858-2001-AA/TC, foundation 1a).
3. On this particular car Chartered believes that there is no apparent violation of any constitutional right of the appellant, since if it is true that the budget law at that time (2003) prohibited the State agencies to authorize the payment of overtime, it is not true also that through the inspection visit was proven irrefutably that the appellant's failure to pay overtime to their workers (folios 69-75 of the first book), a situation that led to the labor authorities will impose fines for failure job duties (overtime). Importantly, demand for cars seeks to challenge the imposition of a fine by the administrative authority based work failure to comply with labor regulations, however this question is based on the existence of a budget rule (prohibition of overtime), supporting that it is to say the least incongruous and illogical since both events (the imposition of the fine and ban overtime pay) are independent of each other and bear no connectedness whatsoever. It is a duty to point out here that the imposition of the fine for breaching labor standards.
4. Furthermore it is abundantly clear to understand that the prohibition of authorizing the payment of overtime is subjective scope of the public body (the appellant), but not workers of it, being so belonged to the appellant as do the leading employer in order to give full effect to the budget rule (for example, monitor the departure time of their workers and thus prevent any overtime .) But this was not done, constituting the negligence of the appellant made to allow work outside working hours.
5. On the other hand, with respect to the other argument made by the appellant, namely that the official who imposed the fine was not a labor inspector and therefore would have usurped function, this school believes that the protection against judicial decisions can not serve rethink a dispute resolved by the ordinary courts (the jurisdiction of the officer imposing the fine), it is not a means of challenge to continue to review a decision that is within the exclusive competence of the ordinary jurisdiction, venue where confirmed and / or ratified the validity of the imposition of the fine, as shown on pages 64-68 of the first book.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
declare the petition for protection in the absence of proven infringement of the right to due process.
published and notifíquese.
SS. MESSIAH
RAMÍREZ
BEAUMONT Callirgos
VERGARA Gotelli
Hayen
ETO STREET CROSS
overtime (overtime): inalienable right under the Constitution:
"That in addition , the real and true is that the claimant worked days beyond the absence of legal and constitutionally free labor, of course the claim of the plaintiff should be protected in response to "the inalienability of the rights recognized by the Constitution and the law" ( second paragraph of Article twenty-six of the Constitution of the State). "
CAS.
No. 623-2003 PIURA.
Social Benefits Repayment
.
(El Peruano: 01/08/2005)
Lima, February 25 two thousand five.
TRANSIENT ROOM CONSTITUTIONAL LAW AND SOCIAL JUSTICE SUPREME COURT OF THE REPUBLIC.
SEEN: The leading cause dash six hundred twenty-three two thousand and three, as explained in the Tax Opinion, in Hearing Public date, and produced the vote in accordance with Law, issued the following statement.
MATTER OF THE APPEAL: This is an appeal by the applicant, folio letter of noventicuatro, against the Judgement of view ochentiocho folio dated 12 February, two thousand three, issued by the Second Civil Chamber of the Superior Court of Justice of Piura, which confirms the appeal of folio sixty dated November 4, two thousand two, which states no cause for action.
GROUNDS OF APPEAL: That, by resolution dated June 1, two thousand four, who work in the twentieth folio booklet stated from the appeal on the grounds of Disapplication of article nine of the legislative decree number eight cincuenticuatro.
WHEREAS
First: That the applicant submits that his case should have applied the ninth article of Legislative Decree cincuenticuatro number eight, to order the payment of overtime and reimbursement for the benefits side, since the judgments of merit is explicitly recognized that the actor performed overtime work; therefore the basis in which the ruling is based, to deny your payment in the sense that the defendant is a public entity and therefore the entity governing rules for each fiscal year budget which must be attached to both the entity subordinates "infringing articles twenty-five and twenty-six of the Constitution of the State.
Second: That, is a fact beyond dispute that the instances of merit have explicitly recognized that the actor performed overtime work, as well noted in the third recital of the sentence confirmed by the superior, "... that although from the year 1900 noventisiete to two thousand and one proves that you worked at the number indicated in the report revisory .. "(sic).
Third: That the appeal as the appeal based its decision not to defend the claim on the fact that as the Proyecto Especial Chira Piura a public sector entity and structurally dependent on the Ministry of Housing, Construction and Sanitation is subject to compliance standards and budget justification of the Republic, where the rules of austerity prohibiting the payment of overtime.
Fourth: to resolve fairly this point, you should keep in mind the scope of the latter part of Article twenty-three of the current Constitution, which states that "No one is forced to work without pay or without his free consent "therefore, the foundations of the appeal at this point are not only unreasonable and excessive, but to accept its relevance and validity would protect the exercise of abuse of rights by the state, because even though these standards are austerity, located not have allowed the appellant working outside normal working hours to eight hours for almost five consecutive years, inferring instead that the defendant had agreed to it.
Fifth: That in addition, the real and true is that the claimant worked hours beyond the legal and constitutional in the absence of free labor, of course the plaintiff's claim should be covered in response to "the inalienability of the rights recognized by the Constitution and the law "(paragraph two of Article twenty-six of the Constitution of the State).
Sixth: That, when the ninth article of the legislative decree number eight cincuenticuatro notes that the work is voluntary only states that, in principle, no one can be required to perform extra work without your prior consent, except where litigants that the law provides.
Seventh: That, it must invoke the application, ordering the payment of overtime at the number provided in the expert report on pages eighties, with a surcharge of five per cent of regular pay, as stated in article ten of Legislative Decree mentioned, on execution by determining the amount for their impact on the social demands in the demand for the period between 1900 noventisiete to two thousand one.
RESOLUTION: upheld the appeal by Mr. Victor Manuel Almestica Soto, noventicuatro folio, and consequently MARRIED Case ochentiocho folio view, date 12 February, two thousand three, and Acting Headquarters appealed Court revoked the date four November two thousand and two current folio sixty, declaring unfounded demand, to reform the declared founded, order the publication of this resolution in the official gazette El Peruano, for establish this precedent of mandatory compliance in the manner and form under the Act, in the row with Chira-Piura Special Project on Reimbursement of overtime and others, and returned.
SS. WALDE JAUREGUI; VILLACORTA RAMIREZ; DONGO ORTEGA; ACEVEDO MENA; STAR BED
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