EXP. No. 02833-2006-PA/TC (Background 10.b) LIMA
MILD SIDANELIA
TIE CALL OF THE CONSTITUTIONAL COURT JUDGEMENT
In Lima, on the 28th day of November 2007, the First Chamber of the Constitutional Court, composed of Judges Landa Arroyo, Beaumont and Eto Callirgos Cruz, made the following statement
Appeal Case
constitutional tort brought by Mrs. Milder Lazo Llamosas Sidanelia against the decision of the Fourth Civil Division of the Superior Court of Lima, on pages 213, date November 30, 2005, declaring unfounded claim here.
BACKGROUND On September 3, 2003, plaintiff brought the claim for protection against the National Intelligence Council (CNI), seeking to declare Article 34 inapplicable. º. 38 of Supreme Decree N º 003 -97-TR, and that, consequently, to order his reinstatement in the position he occupied, with the payment of wages not received and statutory interest, and brought criminal charges against the aggressor. The Charter states that No. 059-2003-OGPPA-INF dated March 28, 2003, have violated their rights to work, defense and due process because he was told the term of their employment without being has expressed a valid reason.
The Public Prosecutor in charge of judicial affairs of the Presidency of the Council of Ministers proposes the exception of the arbitration agreement and answer the complaint alleging that the plaintiff has failed to exhaust administrative appeals and the process for defense, lacking probation station is not the appropriate way to elucidate the defendant claims.
Fifth Special Civil Court of Lima, dated March 31, 2005, declared unfounded the objection raised and unfounded claim, arguing that the decision to terminate summoned the employment of the applicant is under the law and that in any case, must assert its right in ordinary work.
The appeal upholds the appeal, believing that having completed the term of the last contract of the applicant, the termination of their work occurred automatically. BASICS
§. Delimitation of the dispute
1. The question that arises in this process under focuses on whether the Letter No. 059-2003-OGPPA-CNI, dated March 28, 2003, which communicates to the applicant the term of his employment without cause, has violated the rights to work, defense and due process.
2. Before going in-depth analysis, should be a response to the allegation made by the Public Prosecutor on the inadmissibility of the claim for failure to exhaust properly the applicant prior jurisdiction. In this case, to determine if properly drained prior jurisdiction, in principle, should be established whether the exhaustion of the previous results due
3. This is due to the exhaustion of the previous budget is a process inherent to judicial protection, which has been highlighted by this Court in STC 0485-2002-AA/TC as "a condition of the action required to be obtained a decision on the merits of the Constitution." Hence
paragraph 4) of section 5. No Constitutional Procedural Code (CPConst.) provides that no constitutional processes come when "[n] o prior remedies have been exhausted, except as provided by this Code and habeas corpus. "
4. It is also important to determine whether or not due the exhaustion of the stage, for purposes of computing the limitation period for filing the claim, and that paragraph 6) of Article 44. º of CPConst. provides that the deadline for filing the petition for relief "shall start after the period prior jurisdiction, when it appropriate." And because paragraph 10) of Article 5. º of CPConst. establishes that no constitutional processes come when "[h] to the deadline for filing the claim, with the exception of habeas corpus."
§. The exhaustion of the previous
5. On the purpose of the exhaustion of the previous, it should be noted that this Court in STC 0895-2001-AA/TC, referring to the exhaustion of administrative review, which also applies to prior remedies, determined that "[l ] he requirement administratively exhausted before turning to the constitutional protection is based on the need to give the administration a chance to review their own actions, in order to enable the run, before going to the court based, in this way can solve , if any, injury to their rights and legitimate interests. "
6. And is that the requirement of prior exhaustion of the aims to preserve the subsidiary character of the process of protection, preventing access to this constitutional jurisdiction occur without the opportunity for Public Administration to rule and, ultimately, to remedy the injury then invoked in the process for protection, because according to Article 38. of the Constitution has a duty "to respect, enforce and defend the Constitution."
7. Despite its obligation, there are certain circumstances that can make the exhaustion of administrative evil or a requirement in a ritual useless, particularly when the allocation of fundamental rights in question. In such cases, releasing the managed to fulfill this obligation. The variables, in limited sense, those exceptions are contained in Article 46. No. CPConst.
8. On the other hand, it should be noted that in the case of attacks attributed to the entities that Public Administration, the prior jurisdiction is established administratively, which is always set by the administrative resources and the administrative procedures that are known, processed and resolved within the institution. In contrast, in the case of attacks attributed to individuals or legal persons, the person concerned will be subject to this requirement only if the statute that provides that procedure, as according to paragraph 3) of Article 46. º of CPConst. not be required exhaustion of prior remedies if it "is not regulated."
9. To satisfy the exhaustion of the previous, not enough mere filing of administrative appeals by the applicant, but they must meet the requirements established by law for its validity and administrative efficiency. Also, administrative resources, to give beginning to exhaust the prior and to suspend the computation of the limitation period should be submitted within legally stipulated for it, and that an administrative act which is not contested within acquires res decided, and because the appeal out of time does not carry the previous road start, because it is a specific effect and made of the resources that stand within the legally stipulated for it.
10. Mindful above, must determine whether the cases alleged to have been subject to arbitrary dismissal or not it required the exhaustion of the previous. In this regard, the Court considers that:
If the act of dismissal was effected by an entity that makes up the Public Administration, whose working arrangements has been regulated by Legislative Decree No. 276 and Supreme Decree No. 005 - 90-PCM, the prior jurisdiction is regulated by the administrative resources and the administrative procedure established by Law No. 27444. The administrator who starts the exhaustion of administrative review, after the deadline for Public Administration to resolve the administrative appeal brought, is entitled to invoke the administrative silence, and so go to the courts, or wait for the express decision of the Public Administration.
If the act of dismissal was effected by an entity that makes up the Civil Service, an individual or a legal person whose labor system has been regulated by Legislative Decree No. 728 and Supreme Decree No. 003-97 -TR, the exhaustion of the following is only required if it is provided and regulated in the statute or rules of work, otherwise the exhaustion requirement turns into unenforceable, resulting valid way of going to the shelter.
However, it is noted that the rules of exhaustion of the previous mentioned, they are the exceptions provided for in Article 46. º of CPConst.
§. Analysis of the dispute
11. In this case, the employment contract for an indefinite period, obrante at page 115, shows that the employment relationship that the applicant had with the CNI was regulated by Legislative Decree No. 728, that is, under the regime private work, so it is not required the exhaustion of the previous.
12. Therefore, the appeal by the applicant does not suspend the calculation of the limitation period. This being so, the date of filing of this application, ie to 3 September 2003, has been exceeded the limitation period provided for in Article 44. º of CPConst.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
dismiss the request. Published and notifíquese
SS. LANDA ARROYO
Beaumont Callirgos
ETO CRUZ
MILD SIDANELIA
TIE CALL OF THE CONSTITUTIONAL COURT JUDGEMENT
In Lima, on the 28th day of November 2007, the First Chamber of the Constitutional Court, composed of Judges Landa Arroyo, Beaumont and Eto Callirgos Cruz, made the following statement
Appeal Case
constitutional tort brought by Mrs. Milder Lazo Llamosas Sidanelia against the decision of the Fourth Civil Division of the Superior Court of Lima, on pages 213, date November 30, 2005, declaring unfounded claim here.
BACKGROUND On September 3, 2003, plaintiff brought the claim for protection against the National Intelligence Council (CNI), seeking to declare Article 34 inapplicable. º. 38 of Supreme Decree N º 003 -97-TR, and that, consequently, to order his reinstatement in the position he occupied, with the payment of wages not received and statutory interest, and brought criminal charges against the aggressor. The Charter states that No. 059-2003-OGPPA-INF dated March 28, 2003, have violated their rights to work, defense and due process because he was told the term of their employment without being has expressed a valid reason.
The Public Prosecutor in charge of judicial affairs of the Presidency of the Council of Ministers proposes the exception of the arbitration agreement and answer the complaint alleging that the plaintiff has failed to exhaust administrative appeals and the process for defense, lacking probation station is not the appropriate way to elucidate the defendant claims.
Fifth Special Civil Court of Lima, dated March 31, 2005, declared unfounded the objection raised and unfounded claim, arguing that the decision to terminate summoned the employment of the applicant is under the law and that in any case, must assert its right in ordinary work.
The appeal upholds the appeal, believing that having completed the term of the last contract of the applicant, the termination of their work occurred automatically. BASICS
§. Delimitation of the dispute
1. The question that arises in this process under focuses on whether the Letter No. 059-2003-OGPPA-CNI, dated March 28, 2003, which communicates to the applicant the term of his employment without cause, has violated the rights to work, defense and due process.
2. Before going in-depth analysis, should be a response to the allegation made by the Public Prosecutor on the inadmissibility of the claim for failure to exhaust properly the applicant prior jurisdiction. In this case, to determine if properly drained prior jurisdiction, in principle, should be established whether the exhaustion of the previous results due
3. This is due to the exhaustion of the previous budget is a process inherent to judicial protection, which has been highlighted by this Court in STC 0485-2002-AA/TC as "a condition of the action required to be obtained a decision on the merits of the Constitution." Hence
paragraph 4) of section 5. No Constitutional Procedural Code (CPConst.) provides that no constitutional processes come when "[n] o prior remedies have been exhausted, except as provided by this Code and habeas corpus. "
4. It is also important to determine whether or not due the exhaustion of the stage, for purposes of computing the limitation period for filing the claim, and that paragraph 6) of Article 44. º of CPConst. provides that the deadline for filing the petition for relief "shall start after the period prior jurisdiction, when it appropriate." And because paragraph 10) of Article 5. º of CPConst. establishes that no constitutional processes come when "[h] to the deadline for filing the claim, with the exception of habeas corpus."
§. The exhaustion of the previous
5. On the purpose of the exhaustion of the previous, it should be noted that this Court in STC 0895-2001-AA/TC, referring to the exhaustion of administrative review, which also applies to prior remedies, determined that "[l ] he requirement administratively exhausted before turning to the constitutional protection is based on the need to give the administration a chance to review their own actions, in order to enable the run, before going to the court based, in this way can solve , if any, injury to their rights and legitimate interests. "
6. And is that the requirement of prior exhaustion of the aims to preserve the subsidiary character of the process of protection, preventing access to this constitutional jurisdiction occur without the opportunity for Public Administration to rule and, ultimately, to remedy the injury then invoked in the process for protection, because according to Article 38. of the Constitution has a duty "to respect, enforce and defend the Constitution."
7. Despite its obligation, there are certain circumstances that can make the exhaustion of administrative evil or a requirement in a ritual useless, particularly when the allocation of fundamental rights in question. In such cases, releasing the managed to fulfill this obligation. The variables, in limited sense, those exceptions are contained in Article 46. No. CPConst.
8. On the other hand, it should be noted that in the case of attacks attributed to the entities that Public Administration, the prior jurisdiction is established administratively, which is always set by the administrative resources and the administrative procedures that are known, processed and resolved within the institution. In contrast, in the case of attacks attributed to individuals or legal persons, the person concerned will be subject to this requirement only if the statute that provides that procedure, as according to paragraph 3) of Article 46. º of CPConst. not be required exhaustion of prior remedies if it "is not regulated."
9. To satisfy the exhaustion of the previous, not enough mere filing of administrative appeals by the applicant, but they must meet the requirements established by law for its validity and administrative efficiency. Also, administrative resources, to give beginning to exhaust the prior and to suspend the computation of the limitation period should be submitted within legally stipulated for it, and that an administrative act which is not contested within acquires res decided, and because the appeal out of time does not carry the previous road start, because it is a specific effect and made of the resources that stand within the legally stipulated for it.
10. Mindful above, must determine whether the cases alleged to have been subject to arbitrary dismissal or not it required the exhaustion of the previous. In this regard, the Court considers that:
If the act of dismissal was effected by an entity that makes up the Public Administration, whose working arrangements has been regulated by Legislative Decree No. 276 and Supreme Decree No. 005 - 90-PCM, the prior jurisdiction is regulated by the administrative resources and the administrative procedure established by Law No. 27444. The administrator who starts the exhaustion of administrative review, after the deadline for Public Administration to resolve the administrative appeal brought, is entitled to invoke the administrative silence, and so go to the courts, or wait for the express decision of the Public Administration.
If the act of dismissal was effected by an entity that makes up the Civil Service, an individual or a legal person whose labor system has been regulated by Legislative Decree No. 728 and Supreme Decree No. 003-97 -TR, the exhaustion of the following is only required if it is provided and regulated in the statute or rules of work, otherwise the exhaustion requirement turns into unenforceable, resulting valid way of going to the shelter.
However, it is noted that the rules of exhaustion of the previous mentioned, they are the exceptions provided for in Article 46. º of CPConst.
§. Analysis of the dispute
11. In this case, the employment contract for an indefinite period, obrante at page 115, shows that the employment relationship that the applicant had with the CNI was regulated by Legislative Decree No. 728, that is, under the regime private work, so it is not required the exhaustion of the previous.
12. Therefore, the appeal by the applicant does not suspend the calculation of the limitation period. This being so, the date of filing of this application, ie to 3 September 2003, has been exceeded the limitation period provided for in Article 44. º of CPConst.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
dismiss the request. Published and notifíquese
SS. LANDA ARROYO
Beaumont Callirgos
ETO CRUZ
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