* Article 204

* Background on the 1979 Constitution

* Exegetical Analysis

* Article 205

* Analysis exegetical

366. Article 204

“Article 204 .- The Court’s ruling declaring the unconstitutionality of a rule is published in the official gazette. The day after publication, this rule has no effect.

Has no retroactive effect the Court declaring unconstitutional in whole or in part, a legal standard. ”

Background to the 1979 Constitution

The Articles of the Constitution of 1979 that it operate as a history of that comment is the following:

“Article 300 .- It has no retroactive effect the Court ruling that declared unconstitutional a provision in whole or in part.”

“Article 301 .- The court informed the President of Congress unconstitutional sentence rules issued by the legislature. The Congress for the merit of the decision approving a law repealing the rule unconstitutional.

Than forty-five calendar days, not repeal is enacted, it is understood repealed rule unconstitutional. The court ordered to publish the ruling in the Official Journal. ”

Both constitutions provide that the Court is not retroactive.

As for the invalidation procedure. The 1979 Constitution required a communication to Congress of the ruling that declared unconstitutional a law to repeal the rule within forty-five days. Then, if that had not happened. Understood the statement was published repealed the rule.

The constitution of 1993, simply publish the ruling and sent the day following publication, the rule has no effect.

Exegetical analysis

The ruling in an action of unconstitutionality has important effects and the particular time:

* If you declare founded claim, then the effect of invalidating. There is an exemption because the concept has a clear meaning in the theory and the law: Article 103 of the Constitution states that “The law was repealed only by another law.” Although we have expressed criticism timely technical nature of this expression, it is clear that the repeal is effective only to the deprivation of a statute by another piece of legislation. The repeal is, therefore, this kind of disability. The Court’s ruling is not a legislative rule and therefore does not repeal, but also invalid.

At the same time, it is important to note that the Court acts with authority to develop in the sentence to two aspects have been sued or not:

* You can order the invalidation of other standards if it finds that are linked to one whose invalidation is requested. Must indicate.

* You can resolve the constitutionality of the Act for reasons that were not raised in the lawsuit.

These provisions are in Article 38 of the Constitutional Court Organization Act:

“Law 26435, Article 38 .- When the ruling declaring the unconstitutionality of the challenged standard device. Declares also that of those other provisions of the same rule should be extended to the connection or result and has been the subject of the cause .

The court may base the declaration of unconstitutionality in violation of any constitutional provision, but has not been raised during the process. ”

In other processes such rules would be an arbitrariness in ruling the Court terms unsolicited but in the case of unconstitutionality is possible because neither the applicant is acting on individual interest and, accordingly, the Tribunal requests the parties in their own interest. By contrast, the essence of a constitutional challenge is to control the consistency of the legal system and that is a valid phenomenon in itself, regardless of the legitimate stakeholders who may have been harmed by the rule unconstitutional. Therefore, if found unconstitutional were not missed and can declare if they are linked to the case on trial: the interest that is handled in the case of the constitutionality of laws is always social in nature, or not to match specific individual interest .

* If declared unfounded the claim of unconstitutionality, the decision has the effect of preventing a new action challenging the constitutionality of this provision, under the same article of the Constitution. Organizers said the Constitutional Court Act:

“Law 26435, Article 37 .- (…)

The ruling rejecting the constitutionality of a rule prevents the bringing of new actions, based on the same constitutional provision.

(….)”.

The Constitutional Court Organization Act lays down several rules regarding the effects of a decision of unconstitutionality. Highlight the most important:

* Once issued, the Court’s judgments are res judicata and force throughout the State. Article 35 says:

“The Law 26435, Article 35 .- The sentence handed down in the constitutional process has res judicata, binding on all public authorities and general effects, from the day following the date of publication under the next paragraph.

(….)”.

* The general rule is that the Court ruling that declared unconstitutional a provision of the force of law has no retroactive effect. That is, does not change the situations that have been established as the norm there until he was declared unconstitutional.

The Constitutional Court’s statute provides two exceptions to this principle is sound constitutional basis and that, therefore, seem consistent and not inconsistent with the Constitution. Indeed, if the constituents have been more legislative technique, they should have introduced in this article 204. They are:

* If the Court ruling declaring the unconstitutionality of a law can be attributed benign retroactive effect in criminal matters must be done. This decision is fully covered in the second paragraph of Article 103 of the Constitution and is systematically consistent with it.

* If the rule invalidated by the ruling of unconstitutionality was a tax rule is applicable the last part of Article 74 which says “No tax rules take effect issued in violation of laid down in this article.” In other words, the tax effects that have had such a rule are invalidated as well.

These two points are found in Article 40 of the Constitutional Court Organization Act.

“Law 26435, Article 40 .- The declaratory judgments of unconstitutionality does not allow reopening closed cases in which application of the rules has been declared unconstitutional, except in the matters referred to in the second paragraph of Article 103 and last paragraph of Article 74 of the Constitution. ”

An issue of retroactivity has not addressed neither the Constitution nor the Constitutional Court Organization Act is as follows: according to Article 62 of the Constitution, once prepared a contract under the law applicable at the time of development, “The terms contract can not be modified by laws or other provisions of any kind. ” The obvious question is: If a contract is made under a law whose rules then declared unconstitutional gift worth therefore unconstitutional clauses of the contract or loosing a life From a strictly literal point of view would have to conclude that under Article 62 of the contract remain valid because it can not be modified by “provisions of any kind” which would include the Court’s judgments.

However, it is clear that contrary to the law that is so. It would be appropriate contract rescue effort adapting to new circumstances. It would not be systematic, in our view, leaves room for a private act to a law declared unconstitutional because it is based on it and has legal stability. The motion did not prevail over the text of the Constitution for any reason within the legal system because the Constitution is the supreme law of the State only.

This comment does see this remarkable technical deficiency in the Constitution, which consists in not properly matching the standards of Article 62 and Article 204.

* All state courts must necessarily follow the interpretations of the Constitution to make the judgments of the Constitutional Tribune. This rule actually applies to all types of sentences, not only unconstitutional, but certainly also to them. Says the first general layout of the Constitutional Court Organization Act:

“Law 26435, the first available general .- The judges and courts interpret and apply the law or any regulation having the force of law and regulations according to the precepts and principles of the Constitution, as interpreted by them resulting from the decisions of the Constitutional Court in all types of processes. ”

In previous issues, most of them technical in nature, joined one that combines the technical with the political and can be summarized as follows: since the members of the Tribunal are appointed by the Congress with a vote of two thirds, and from to be seven members would take six votes in favor to declare unconstitutional agencies are in the political negotiations of the appointment, to ensure that security is not declared unconstitutional laws that they do not want to see invalidated.

Article 138 .-

(….)

In another process, if there is incompatibility between a constitutional and a statutory rule, the judges prefer the former. Similarly, they give legal standard over any other provision of lower rank. ”

Article 39 of the Constitutional Court Act confronts us as well, the next legal problem: how should it be confirmed the contested law “.

Here there are two interpretations. The first is that any constitutional claim unfounded automatically generated confirmation of the constitutionality of the respective law. That seems to understand Nestor Pedro Sagues in this text:

The question here concerned, is whether a constituent can not but “up” as the Congress of Peru, may validly require another power up, as the Constitutional Court to declare that an unconstitutional law, vote to that effect six the seven members of that court, and that the qualified majority is not reached, the case law is declared constitutional verdict required in addition to all judges in the country.

The other, to understand that any confirmation is an act of declaration of will and, consequently, the Tribunal would declare such a thing when four or more votes to adopt a decision to that effect (remember that the Court adopts all the agreements majority of votes are four .- except in the case of the inadmissibility of the constitutional claim or to declare the unconstitutionality that requires six votes.)

We believe that in this problem, as in many of the same nature, it must be emphasized that the sense of establishing a quorum of voting is to require agreement between higher turnout than normal for a decision. However, do not reach a quorum of voting, in itself, never means that it has taken the opposite decision. The opposite: the failure to comply with the required quorum, no decision in any way.

Moreover it is also evident in the law, any confirmation is an act that requires a declaration of intention, either in private law, either in public law.

On the other hand, it is also clear that, in law any confirmation is an act that requires a declaration of intent. While in private law, either in public law.

It is therefore, if the Constitutional Tribune decisions for at least four votes, would have to conclude that it can only confirm the constitutionality of a law, with the result that judges can not exercise the fuzzy control, when you get four votes in this regard . This last statement, inclusive, has two possible ways to become effective: the first is that four votes to be declared unfounded the action, automatically means confirmation dela constitutionality of the disputed law, the second is that the Tribunal should first be held that the voting action automatically mean confirmation of the constitutionality of the disputed law, the second is that the Tribunal should first vote on declaring founded or unfounded claim of unconstitutionality and to choose the latter decision, you should make a second vote on whether or not to confirm the constitutionality of the law.

Note that from the point of view of fuzzy control, is not the same as the terms of Peruvian law, the presumption of constitutionality that exists against any law duly passed and signed, to confirm its constitutionality. In the first case, the presumption is never right and can be contradicted by the judge. In the second, it could not since the judges have no authority to exercise control diffuse. The presence of law would become in this case, a fiction of law (ie, that can not be contested).

It is also important to note that this claim under Article 39 of the Peruvian Constitutional Law Tribune that the constitutionality of the law is somehow confirmed. It is against the principle of control of constitutionality, which requires to be ever present because although the standard may not be inconsistent with the Constitution at one point, following one another may become one, and for many reasons not the last one feverish technological camber exists in contemporary society.

But to give a full response to this alternative, in our view it is also necessary to put next to the technical elements of the problem models to analyze the nature of the judicial function in this pot is the Constitutional Court and especially the influence of its decisions will have on the way are formed the powers that the Constitution establishes.

Within these latter aspects, we must determine whether a vote was five votes in favor of the constitutionality and two votes against it, strengthen the law discussed in a way that any judge can never discuss their constitutionality.

In our view, this way of seeing things is absurd because a vote is essentially a lack of generation of the Constitutional Court will, however be preventing them from exercising a competition as important as the fuzzy control, constitutionally recognized judges.

Furthermore, we believe that even the Constitutional Court could consider the confirmation of constitutionality which led to the impossibility of fuzzy control by judges, is an abuse of the rules of organic law and that, therefore, declare never confirmed the constitutionality of a law.

Many reasonable grounds exist to take this alternative of which the most important in our view is three. The first, a constitutionally established jurisdiction can not be trimmed by implementing a law. The second, a decision of the Constitutional Court can not perform on the jurisdiction of regular courts in themselves but of course you can still set a precedent of mandatory compliance, the worse it is very different from what we have been discussing. Third, it is always absurd to claim that a statement of “confirmation” of constitutionality. Become constitutional reality in the standard. This is a mistake because I always constitutionally fit to prefer the possibility of upper to the lower standard.

However, not to adopt this position, but a middle of considering the constitutionality confirmation requires at least four votes in the sense of declaring the unconstitutionality unfounded, then we could develop the following four that contains all the possibilities:

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Our opinion on the subject, ultimately, is that not consider it correct that the Constitutional Court confirmed the constitutionality of a law so that the fuzzy control can not be possible. We also believe that if the Court finds a constitutional claim unfounded. Worse not confirm the constitutionality of the Act in the same ruling, one could always exercise the judicial diffuse, inclusive, it could make the Constitutional Court in resolving the constitutional motions. You have Habeas Corpus and data for their own powers as a last and final instance.

367. Article 205

“Article 205 .- exhausted domestic remedies, who considers himself injured in the rights that the Constitution provides recourse to the courts or international organizations established by treaties or conventions to which Peru is party.”

Background to the 1979 Constitution

The preceding article in the Constitution of 1979 is as follows:

“Article 305 .- exhausted domestic remedies, which is considered violation of the rights recognized by the Constitution, he can appeal to international courts or agencies established by the treaty is part of Peru.

With minor wording changes that do not affect the meaning of the text, both constitutions contain identical rules with respect to the subject matter.

Exegetical analysis

We agree with Fernandez Segado when held in the following quotation that the human rights issue has escaped and, for the sake of the sovereignty of States:

Nowadays the issue of human rights is not something that can be restricted to the sovereignty of States, by contrast, can be regarded as the patrimony of the international community, hence its guardianship has transcended the strictly state be impossible to speak of a transnational protection of rights. This is not required but the result of the fact that human rights are, as Cassese said a new natural law of humanity, not in the traditional sense of natural law, ie not in the sense precepts found by private individuals and on “human reason” and conduct required fees in excess of positive law, but rather in the sense of a set of behavioral parameters and we agree distilled assessment (for work of all states) of ideological and philosophical traditions of religious precepts and world views, and transformed by the States themselves in the international code of conduct (73.).

Of course, globalization is not complete and automatic. Must first be an internal process, because international bodies assume that each. State provides safety to people in protecting their rights, based on a concept because we have discussed in commenting on paragraph 3 of Article 139 of the Constitution. As the Segado Fernandez himself that each state of judicial protection of human rights is not just a procedural matter: it becomes a real issue because the due process protection of rights is, in fact, more and such a right Once one of the most important instruments for effective:

(…) This rule of prior exhaustion of domestic remedies in the field of International Law of Human Rights has certain implications for the state. This has been understood American Court of Human Rights, who believed the rule in question requires states to provide effective judicial remedies to victims of a violation of human rights. Resources which must correspond to the requirements of “due process” and ensure the free and full exercise of the rights recognized by the Convention and hence the same court in its ruling of June 26, 1987 (Velasquez Rodriguez, Preliminary) argued that “when you invoke certain exceptions to the rule of exhaustion of domestic remedies, such as the ineffectiveness of such remedies or the victim is under no obligation to pursue such remedies, but a new violation of the obligations of the Convention. In these circumstances, the court concluded – the question of domestic remedies is closely tied to the merits, should be considered together with this “(74):

Article 205 of the Constitution requires domestic remedies have been exhausted. The first place, this means that the process has come in the last instance possible and has been denied. But like many times people have no access to justice in these matters so that the process does not progress, specialized international agencies have often understood that the exhaustion of domestic remedies can also be the presentation of an action unsuccessfully not is received. Garcia Sayan said:

I will not even begin to analyze here the concept of “exhaustion of domestic remedies” that for purposes of applying human rights standards by the agencies mentioned above, has long been the subject of development based on a non-formalist approach. One can only remember that under the provisions of international standards, means that not only the completion of legal proceedings and / or administrative procedures that produce the same effect but the situations of unjustified delay in the decision: inability to access or exhaustion internal resources available and percent, the lack of domestic legislation to ensure due process (75).

According to Article 39 of Law 23,506, promulgated on December 7, 1982, Corpus Act Corpus and Amparo international jurisdiction is:

“Law 23506, Article 39 .- For the purposes stated in Article 305 of the Constitution, international courts that are available to persons who consider the rights recognized in the Constitution are the Committee for Human Rights Nations Unity, Human Rights Commission of the Organization of American States and others who constitute the future and are approved by treaties binding to Peru and have the category referred to in Article 105 of the Constitution. ”

Obviously, the references are to the articles of the Constitution of 1979, effective upon approval of the standard. The equivalent of Article 305 is, in the 1993 constitution, which now comment and instead there is no equivalent to Article 105 which stated:

“1979 Constitution, Article 105 .- The provisions contained in treaties relating to human rights has constitutional, can not be modified except by the procedure governing the reform of the Constitution.

Despite the limitations of consistency in the standards of Law 23506 and the 1993 Constitution it is true that in Peru you can complain to the Human Rights Committee and precisely under the 1979 Constitution, which ratified the Convention. Human Rights in San Jose de Costa Rica, also American Court of Human Rights.

Regarding the Inter-American Commission’s functions are contained in Article 41 of the American Convention on Human Rights which states:

American Convention on Human Rights, article 41, the Commission has the primary role of promoting the observance and protection of human rights and the exercise of its mandate has the following functions and powers:

* Develop an awareness of human rights in the people of America:

* Make recommendations, when appropriate, Governments of Member States to adopt progressive measures in favor of human rights within the framework of its domestic laws and constitutional provisions as well as appropriate measures to promote observance of those rights;

* Prepare reports or studies deemed appropriate for the performance of their duties:

* To request the governments of Member States provide it with reports on measures taken in human rights;

* Answer inquiries, through the General Secretariat of the Organization of American States, to inquiries made by Member States on issues related to human rights within their means will provide the advisory services they request:

* Acting on petitions and other communications exercised its authority under the provisions of Articles 44 through 51 of this Convention and

* To submit an annual report to the General Assembly of the Organization of American States. ”

By correcting the convention, Peru submitted to the jurisdiction of the Commission to address human rights issues of people living Peruvian territory:

American Convention on Human Rights, article 44 ^0, any person or group of persons or entity, no entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party. ”

American Court of Human Rights is also regulated in the American Convention on Human Rights, the main aspects of competence are the following items:

American Convention on Human Rights, Article 63 o .-

* If the Court finds a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party of his right or freedom that was violated. It shall also, if appropriate, to remedy the consequences of the measure or situation that constituted the violation of these rights and the payment of just compensation to the injured party.

* In the case of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the court in matters before it, may take provisional measures it deems appropriate. In the case of matters not yet submitted to it, may act at the request of the Commission. ”

American Convention on Human Rights, Article 64. ”

* Member States of the Organization may consult the Court regarding the interpretation of this Convention or other treaties concerning the protection of human rights in the American states. They may also consult them in their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.

* The court at the request of a Member State of the Organization, may provide views on the compatibility of any of its domestic laws with the aforesaid international instruments. ”

By ratifying Article 45 of the Pact of San Jose. Peru recognizes the right of Member States of the OAS to observe a procedure recipocro to denounce the default by the Peruvian state itself, which also imposes a limit on legal sovereignty to the community and international law. For this purpose, it constitutes a violation of the principle of nonintervention, or complaint against Golden State and its own investigative or judicial action of the Inter-American Commission on Human Rights (76):

And in reference to the Court of Human Rights states:

With the express ratification of Article 62 of the Pact of San Jose, the Peruvian State recognizes the compulsory jurisdiction of the Court of Human Rights Intermaricana. Accordingly, national courts must enforce judgments of the Court without prior review requirement, approval or similar procedure as well as collaborate with the latter for the purposes of justice needs of their competence (Interpretation and / or application of the Covenant) (77).

About the Human Rights Committee, said O ‘Donnell:

The competence of the Human Rights Committee to consider individual complaints is defined in Article 1 of the Optional Protocol to the International Covenant on Civil and Political Rights and race:

Each State Party to the Covenant that becomes a party to this Protocol recognize the competence of the Committee to receive and consider communications from individuals subject to the jurisdiction of this state and claiming to be victims of a violation by that State party, any of the rights enshrined in the Covenant. The Committee did not receive any communication that concerns a State party to the Covenant that is not party to this Protocol. ”

Under this, the competence of the Committee on individual complaints, does not extend to all States Parties to the Covenant, but only those that have also ratified the Optional Protocol (78).

Finally, Article 40 of Law 23506 establishes the way they are met in Peru the decisions of bodies of international jurisdiction.

“Article 40 .- The decision of the international body whose compulsory jurisdiction is found under the Peruvian government does not require for its validity and effectiveness of recognition, any prior review or discussion. The Supreme Court of the Republic will receive the resolutions of the international body, and ensure their implementation and compliance in accordance with existing rules and procedures on enforcement of judgments. ”

In an article that said a full commitment to the international tribunal on human rights.

Miguel Angel Suxe Rhodes

Peru