LAW No. 31307, NEW CONSTITUTIONAL PROCEDURAL CODE OF PERU
LAW No. 31307, NEW CONSTITUTIONAL PROCEDURAL CODE
Article I. Scope
This code regulates the constitutional processes of habeas corpus, amparo, habeas data, compliance, unconstitutionality, popular action and the conflicts of jurisdiction provided for in articles 200 and 202, subsection 3), of the Constitution.
Article II. Purposes of constitutional processes
The essential purposes of constitutional processes are to guarantee the effective enforcement of constitutional rights recognized by the Constitution and human rights treaties; as well as the principles of supremacy of the Constitution and normative force.
Article III. Procedural principles
The judge and the Constitutional Court have the duty of ex officio to promote the processes, except in the cases expressly indicated in this code.
Likewise, the judge and the Constitutional Court must adapt the requirement of the formalities provided for in this code to the achievement of the purposes of the constitutional processes.
When in a constitutional process there is a reasonable doubt as to whether the process should be declared concluded, the judge and the Constitutional Court will declare its continuation.
The gratuity provided for in this article does not impede compliance with the final judicial resolution that provides for the sentence in costs and costs in accordance with the provisions of this code.
Article IV. Competent bodies
Constitutional processes are known to the Judiciary and the Constitutional Court, in accordance with the provisions of the Constitution, their respective organic laws and this code.
Article V. Amicus curiae
The judge, the chamber or the Constitutional Court, if they deem it appropriate, may invite natural or legal persons as amicus curiae, to express in writing or orally their legal opinion on a complex matter. The amicus curiae may also be invited to enlighten the judge on the relevant non-legal, technical or specialized knowledge necessary to resolve the case.
The following are requirements that the participation of the amicus curiae must meet:
1. You are not a party to or have an interest in the process.
2. Has recognized competence and suitability on the matter that is being consulted.
3. Your opinion is not binding.
4. Your admission to the process corresponds to the court.
The amicus curiae does not have the competence to present appeals or file challenge.
Article VI. Binding precedent
The judgments of the Constitutional Court that acquire the authority of res judicata constitute a binding precedent when the judgment so expresses it, specifying the end of its normative effect, formulating the legal rule in which the precedent consists. When the Constitutional Court decides by departing from the precedent, it must state the factual and legal grounds that support the judgment and the reasons why it departs from the precedent.
In order to create, modify, deviate or render without effect a binding precedent, the meeting of the Plenary of the Constitutional Court and the affirmative vote of five magistrates is required.
In popular action processes, the competent chamber of the Supreme Court of the Republic can also create, modify or repeal binding precedents with the assent of four supreme judges. The sentence that establishes it formulates the legal rule in which the precedent consists, expresses the extreme of its normative effect and, in the case of its departure, the factual and legal grounds on which it is based.
Article VII. Fuzzy control and constitutional interpretation
When there is incompatibility between the Constitution and another rule of lower hierarchy, the judge must prefer the former, provided that this is relevant to resolve the dispute and it is not possible to obtain an interpretation in accordance with the Constitution.
The judges cannot fail to apply a norm whose constitutionality has been confirmed in a process of unconstitutionality or in a process of popular action.
The judges interpret and apply the laws or any norm with the force of law and the regulations according to the constitutional precepts and principles in accordance with the interpretation that results from the resolutions of the Constitutional Court.
Article VIII. Interpretation of human rights and international treaties
The content and scope of the constitutional rights protected by the processes regulated in this code must be interpreted in accordance with the Universal Declaration of Human Rights, human rights treaties, as well as with the decisions adopted by international courts on human rights constituted according to treaties to which Peru is a party.
In the event of incompatibility between a conventional norm and a constitutional one, the judges will prefer the norm that most favors the person and their human rights.
Article IX. Supplementary application and integration
Only in the event of a void or defect in this code, the jurisprudence of the Constitutional Court and the Inter-American Court of Human Rights are of supplementary application.
The procedural codes related to the matter discussed are of subsidiary application as long as they do not harm the parties or the purposes of the constitutional process and only in the absence of other criteria.
PROCESSES OF HABEAS CORPUS, AMPARO, HABEAS DATA AND COMPLIANCE
Article 1. Purpose of the processes
The processes referred to in this title are intended to protect constitutional rights, whether of an individual or collective nature, by restoring things to the state prior to the violation or threat of violation of a constitutional right, or by providing for compliance with a legal mandate or an administrative act.
If after the lawsuit is filed, the aggression or threat ceases by voluntary decision of the aggressor, or if it becomes irreparable, the judge, taking into account the injury produced, will declare the lawsuit founded, specifying the scope of his decision, providing that the summons does not return. to incur in the actions or omissions that led to the filing of the claim, and that if it proceeds otherwise, the coercive measures provided for in article 27 of this code will be applied, without prejudice to the corresponding responsibilities.
Article 2. The demand
In habeas corpus proceedings, the claim can be presented in writing or verbally, directly or by mail, through electronic means of communication or other suitable means. When it comes to a verbal demand, minutes are drawn up before the judge or secretary, with no other requirement than to provide a succinct account of the facts.
In the amparo, habeas data and compliance processes, the claim is presented in writing and must contain at least the following data and annexes:
1) The appointment of the judge before whom it intervenes;
2) the name, identity and legal address of the plaintiff;
3) the name and address of the defendant;
4) the numbered list of the facts that have produced, or are in the process of producing, the aggression of constitutional law;
5) the rights that are considered violated or threatened;
6) the petition, which includes the clear and concrete determination of what is requested;
7) the signature of the plaintiff or his representative or attorney-in-fact, and that of the lawyer.
In no case, the claim may be rejected by the administrative staff of the corresponding court or chamber.
In places where Quechua, Aymara and other aboriginal languages predominate, the written or verbal demand may be filed in these languages.
Article 3. Shift
The initiation of constitutional processes will be subject to what is established for the shift in each judicial district, except in habeas corpus processes where constitutional judges are governed by their own rules of jurisdiction.
If the plaintiff knows, before filing or during the process, that the official against whom he directs the lawsuit no longer occupies such a position, he can request the judge that he not be summoned with the lawsuit.
Article 4. Public defense
In habeas corpus, amparo, habeas data and compliance processes, the plaintiff who does not have sufficient financial resources or is in a state of vulnerability, may resort to public defense, and, if any, to the specialized in constitutional defense and constitutional procedural law.
Article 5. Procedural representation of the State
The defense of the State or of any official or public servant is in charge of the public prosecutor or the respective legal representative, who must be summoned with the claim. In addition, the state entity itself or the defendant official or server must be notified with it, who can intervene in the process. Even if they do not appear, they must be notified of the resolution that ends the degree. Your non-participation does not affect the validity of the process.
In constitutional processes against judicial resolution, the judges or magistrates of the Judicial Power are not notified or summoned with the claim.
The public prosecutor, before the process is resolved in the first degree, is empowered to inform the owner of the entity of his motivated professional opinion when he considers that the invoked constitutional right is affected.
Article 6. Prohibition of liminal refusal
In accordance with the purposes of the constitutional processes for the defense of fundamental rights, in the constitutional processes of habeas corpus, amparo, habeas data and compliance, the preliminary rejection of the claim does not proceed.
Article 7. Grounds of inadmissibility
Constitutional processes do not proceed when:
1. The facts and the petition of the claim are not directly related to the constitutionally protected content of the right invoked.
2. There are specific procedural avenues, equally satisfactory, for the protection of threatened or violated constitutional right, except in the case of habeas corpus proceedings.
3. The aggrieved person has previously resorted to another judicial process to request protection regarding their constitutional right.
4. The previous avenues have not been exhausted, except in the cases provided for by this code and in the habeas corpus process.
5. When there is lis pendens due to the filing of another constitutional process.
6. If it is about constitutional conflicts that have arisen between the powers of the State or between entities of the public administration. Nor does it proceed between regional and local governments or between them or against the Legislative Power, the Executive Power and the Judicial Power brought by a local, regional government or any public entity. In these cases, the controversy is processed through unconstitutionality or competition processes, as appropriate.
7. The deadline for filing the claim has expired, with the exception of the habeas corpus process.
Article 8. Provenance against harmful acts based on rules
When the threat or violation of acts that are based on the application of a rule incompatible with the Constitution is invoked, the sentence that declares the claim founded will also provide for the inapplicability of the aforementioned rule.
Article 9. Provenance with respect to judicial decisions
The amparo proceeds with respect to final judicial decisions issued with manifest offense to the effective procedural protection, which includes access to justice and due process. It is inadmissible when the aggrieved party allowed consent to the resolution that claims to affect him.
Habeas corpus proceeds when a firm judicial resolution manifestly violates individual freedom and effective procedural protection.
Effective procedural protection is understood as that legal situation of a person in which, by way of example, their rights of free access to the court, to prove, to defense, to the contradictory and substantial equality in the process are respected, unless they are diverted. of the predetermined jurisdiction or subject to procedures other than those provided by law, to obtain a resolution based on law, to access the regulated challenge means, to the impossibility of reviving expired processes, to the adequate and temporarily timely action of judicial resolutions and the observance of the principle of criminal procedural legality.
Article 10. Constitutional processes during exception regimes
Constitutional processes are not suspended during the validity of the exception regimes. When they are filed in relation to suspended rights, the court will examine the reasonableness and proportionality of the restrictive act, taking into account the following criteria:
1) If the claim refers to constitutional rights that have not been suspended;
2) if, in the case of suspended rights, the reasons that support the restrictive act of the right are not directly related to the causes or motives that justified the declaration of the exception regime; or,
3) If, in the case of suspended rights, the restrictive act of the right is manifestly unnecessary or unjustified, taking into account the behavior of the aggrieved person or the factual situation evaluated summarily by the judge.
The suspension of constitutional rights will have validity and scope only in the geographical areas specified in the decree that declares the exception regime.
Article 11. Notifications
All resolutions are notified to the electronic box. If for some reasonable circumstance, the plaintiff is unable to set the electronic box, he may choose other telematic means or if he prefers, he will be notified at his home address.
The period begins two days after the notification in the electronic box or telematic means by which it was chosen; or from the day after its notification at the domiciliary address.
Article 12. Processing of constitutional processes of protection, habeas data and compliance
In the amparo, habeas data and compliance processes, the lawsuit filed by the aggrieved person, the judge sets the date and time for the single hearing that will take place within a maximum period of thirty business days. At the same time, it summons the defendant to answer the claim within ten business days.
In the brief answering the claim, the summons accompanies his evidence and contradicts those presented by the plaintiff. It also deducts the exceptions it deems appropriate.
The judge informs the plaintiff of the brief answering his claim so that in the single hearing he can allege what he deems appropriate. There must be at least ten calendar days between this notification and the day of the allegations.
In the single hearing, the judge hears the parties and if a judgment has been formed, he pronounces a sentence on the spot or, otherwise, he does so within the unfailing period of ten business days.
The parties may request a copy of the audios and videos of the public hearing.
If, with the brief answering the claim, the judge concludes that it is inadmissible or that the harmful act is manifestly illegitimate, it may issue a sentence regardless of the single hearing.
Article 13. Offering evidence. Opportunity and valuation
In constitutional processes the evidence is offered with the filing of the claim and in the answering brief. Only those that do not require action are appropriate, which does not prevent the performance of the tests that the judge considers essential, without affecting the duration of the process. The judge may order, at the request of the party, the exhibition of the documents that are in the possession of state agencies, under responsibility. In the latter case, prior notification will not be required. The evidence is assessed jointly at the time of sentencing.
The evidentiary means that prove transcendent facts for the process can be admitted by the judge to the main or precautionary controversy, provided that they do not require action, even if the evidence is known or occurs after the claim, but under no circumstances after the single hearing was made. If the evidence is after the single hearing, the party will assert it in the second instance or, if applicable, before the Constitutional Court.
Article 14. Integration of decisions
The judges and the Constitutional Court integrate decisions when there has been an omission. They can also correct the nullity incurred.
The absence of notification of who should be summoned or of the summons for the hearing of the case to whoever has appeared at the instance, will determine the nullity of the process. In other cases in which there are procedural defects, the judge must correct them.
Article 15. Judged thing
In constitutional processes, only the final decision on the merits acquires res judicata authority.
Article 16. Procedure for the repression of homogeneous acts
If a substantially homogeneous act occurs to the one declared harmful in a habeas corpus, amparo, habeas data or compliance process, it may be denounced by the interested party before the execution judge.
Once the claim is made, the judge decides upon transfer to the other party for a period of three days. The resolution is appealable without suspensive effect.
The decision declaring homogeneity broadens the scope of protection of the amparo, incorporating and ordering the repression of the supervening repressive act.
Article 17. Responsibility of the aggressor
When there is probable cause for the commission of a crime, the judge, in the sentence that declares the claim founded in the processes dealt with in this title, will order the referral of the proceedings to the corresponding criminal prosecutor for the pertinent purposes. This will occur, even, when the subtraction of the claim and its effects is declared, or when the violation of constitutional law has become irreparable, if the judge considers it so.
In the case of a public authority or official, the criminal judge may impose dismissal from office as an accessory penalty.
Having proceeded by superior order does not release the executor from criminal, civil or administrative responsibility for the offense committed. If the immediate person responsible for the violation is one of the persons included in article 99 of the Political Constitution of the State, the Permanent Commission of the Congress of the Republic will be immediately informed for the consequent purposes.
Article 18. Precautionary measures
Precautionary measures and suspension of the violating act may be granted in the amparo, habeas data and compliance processes, without violating the provisions of the first paragraph of article 17 of this code.
The precautionary measure should only be limited to guaranteeing the content of the constitutional claim, taking into account its irreversibility, public order and the damage that may be caused. The judge, attending to the requirements, will issue the precautionary measure without transferring the defendant. The execution will depend on the content of the constitutional claim attempted and on the adequate assurance of the final decision, to whose extremes it should be limited. The judge can grant the precautionary measure in whole or in part.
The appeal is only granted without suspensive effect; Except in the case of resolutions of precautionary measures that declare the non-application of self-applying legal regulations, in which case the appeal is with suspensive effect.
Article 19. Requirements for its origin
The judge to grant the precautionary measure must observe that the request is adequate or reasonable, that it has the appearance of law and that there is reasonable certainty that the delay in its issuance may constitute irreparable damage.
In everything not expressly provided for in this code, the provisions of Title IV of the Fifth Section of the Civil Procedure Code are of supplementary application, with the exception of articles 618, 621, 630, 636 and 642 to 672.
Article 20. Conversion of the precautionary measure
The precautionary measure is terminated by law when the resolution that concludes the process has acquired the authority of res judicata. If the final resolution constitutes an affirmative judgment, the effects of the precautionary measure are preserved, producing a full right conversion of it into an executive measure. The effects of this measure remain until the moment of satisfaction of the right recognized to the plaintiff, or until the judge issues a modifying or terminating resolution during the execution phase.
If the final resolution does not recognize the right claimed by the plaintiff, the costs and costs of the precautionary procedure are settled. The subject affected by the precautionary measure can promote the declaration of responsibility. If the same is verified, in addition to the condemnation of costs and costs, the damages will be liquidated and executed and, if the judge considers it necessary, the imposition of a fine of no more than ten procedural reference units.
The resolution that sets the costs and costs is appealable without suspensive effect; the one that establishes the compensatory reparation and the fine is it with suspensive effect.
Regarding the payment of costs and costs, the provisions of article 28 will be followed.
Article 21. Challenge means
The filing of the means of appeal, with the exception of the complaint, does not require substantiation, except in the habeas corpus process if the appellant is the defendant.
The plaintiff who challenges a resolution supports the grievances in the higher instance, in accordance with the procedures established by this code.
Article 22. Appeal
The appeal in the constitutional processes of habeas corpus, amparo, habeas data and compliance proceeds against the resolutions that the parties consider to be wrong. The deadlines to challenge them are:
a) In the habeas corpus process it is two business days.
b) In the amparo, habeas data and compliance processes it is three business days.
c) Exceptionally, the appeal by jump will be allowed in cases of judicial decisions in the process of execution of sentence, when there is an inaction in its execution or when it is decided against the protection granted to the fundamental right attacked and the fundamental rights whose protection has already been granted.
The jump appeal is not applicable when:
1) Compliance with the judgment involves a debate on the quantification of the amount of the unemployment or retirement pension, of the accrued or of the reimbursement of the interests of the costs or costs.
2) The mandate of the constitutional sentence whose execution is intended is clearly and expressly established that it is of progressive fulfillment.
Article 23. Processing of the appeal
The appeal is processed:
a) In the habeas corpus process granted the appeal, the judge raises the files to the superior within a period of one business day. The hierarchical superior resolves within five business days. There is no hearing of the cause, unless the plaintiff or the favored request it .
b) In the amparo, habeas data and compliance processes, once the appeal is granted, the judge raises the files to the superior within a period of two business days. The hierarchical superior sets the day and time for the hearing of the case within five working days, without the need to issue a writ of certiorari. Notified with the resolution that sets the day and time for the hearing of the case, the lawyers can request an oral report within three business days after the notification. After the hearing of the case, the judge decides within ten business days.
c) In cases of appeal by jump, in the case of resolutions in execution, the judge submits the files to the Constitutional Court within a non-extendable period of two business days. No hearing is required for its resolution, so the Constitutional Court decides within a maximum period of ten business days from its respective programming.
Article 24. Appeal for constitutional grievance
Against the second degree resolution that declares the claim unfounded or inadmissible, a constitutional grievance appeal is filed before the Constitutional Court, within a period of ten days from the day following notification of the resolution. Once the appeal is granted, the president of the chamber sends the file to the Constitutional Court within a maximum period of three days, plus the term of distance, under responsibility.
In the Constitutional Court, the hearing of the case is compulsory, the lack of summons of the hearing and the exercise of the defense invalidate the process of the constitutional complaint.
The court sends the file to the Constitutional Court within a period of three working days, under responsibility.
Article 25. Appeal of complaint
The complaint appeal proceeds against the resolution that denies the constitutional grievance appeal. It is filed before the Constitutional Court within the period of three days following notification of the denial. The writing must contain the corresponding justification, attaching a copy of the constitutional grievance appeal and the denial resolution. The appeal will be resolved within five business days. If the Constitutional Court declares the complaint well founded, it will order the court to send the file within the third day of office, under responsibility.
The recourse of complaint is allowed in case the appeal is denied for jumping against resolutions in execution.
ACTION AND ENFORCEMENT OF JUDGMENTS
Article 26. Acting of judgment
The first degree estimating sentence is of immediate action if the judge considers that a situation of irreversibility will not be generated, nor will it cause disproportionate damages to the defendant. It is independent of the appeal that is filed against it and is requested before the judge who issued the resolution.
The resolution that orders the immediate action of the sentence is unquestionable and remains in force until the final and final resolution is issued that puts an end to the process.
Article 27. Execution of judgment
The sentences handed down by constitutional judges take precedence over those of other jurisdictional bodies. In order to comply with the sentences and in accordance with the specific content of the mandate and the magnitude of the constitutional offense, the judge must:
1) To ensure that the sentence is carried out according to its own terms, acting with the prudence and imperative that the circumstances of the case impose. If the defendant does not comply with the mandate, the constitutional judge forwards the actions to the Public Ministry to act in accordance with its powers. It can also order the initiation of the disciplinary procedure of public officials and servants before the corresponding entity for their dismissal.
2) If compliance with the sentence depends on several wills, and if it is not complied with within five working days, the judge sends the proceedings to the Public Ministry to act in accordance with its powers. The Public Ministry formulates a criminal complaint against the head of the entity and those who are responsible, and may demand their preventive detention.
3) If compliance with the sentence depends on provisions contained in the general budget of the Republic or budgets of state entities, the winning party may ask the judge to modify the material execution of the sentence, proposing a substitute formula that causes equal satisfaction to your right violated. The judge runs transfer of the order and listens to the defeated party, deciding what corresponds. If the judge accepts the substitute formula, an order that establishes it must be issued, which is contestable with suspensive effect. The execution by substitution implies that the judge adduces the constraints to its achievement and that the issued ones are null and void.
To comply with the sentences, the judge may choose, ex officio or at the request of a party, for other enforcement measures such as removal, destruction of things, objects or buildings, stoppage of works, among other execution techniques that the judge considers necessary, as well as any other decision or measure that is proportional and reasonable for the preservation, restitution and protection of the constitutional rights that are the object of the process.
In habeas corpus proceedings, the affirmative sentences are executed by the judge or the chamber that issued them, without the need to send the proceedings to the court of origin.
Article 28. Costs and costs
If the judgment declares the claim founded, the costs and costs that the judge establishes will be imposed on the authority, official, or defendant. If the amparo is dismissed by the judge, the judge may order the plaintiff to pay costs and costs when he considers that he incurred in manifest recklessness.
In constitutional processes, the State can only be ordered to pay costs.
In that which is not expressly established in this code, the costs are regulated by articles 410 to 419 of the Civil Procedure Code.
HABEAS CORPUS PROCESS
Article 29. Jurisdiction
The habeas corpus claim is filed before the constitutional judge where the threat or violation of the right occurred or where the aggrieved person is physically located in the case of arbitrary detentions or forced disappearances.
Article 30. Jurisdiction of the justice of the peace
When the affectation of individual liberty is carried out in a place that is different and distant or difficult to access from the one in which the court where the lawsuit was filed has its headquarters, it will issue a peremptory and immediate order for the justice of the peace of the district in which it is filed. finds the detainee complies within the day, under responsibility, with making the verifications and ordering immediate measures to stop the affectation.
Article 31. Legitimation
The claim can be filed by the injured person or by anyone else on their behalf, without the need to have their representation. Nor will it require a lawyer's signature or any other formality. It can also be filed by the Ombudsman's Office.
Article 32. Special procedural characteristics of habeas corpus
The habeas corpus process is also governed by the following principles:
1) Informality: No requirement is required to present the claim, with no further obligation than to detail a succinct account of the facts.
2) No simultaneity: There is no other process to safeguard the constitutional rights it protects. There are no parallel tracks.
3) Vicarious activity: The claim can be filed by the victim or any other person on their behalf, without the need for legal representation.
4) One-sidedness: It is not necessary to listen to the other party to resolve the situation of the victim.
5) Non-applicability: The term to file the claim does not prescribe.
Article 33. Protected rights
Habeas corpus proceeds before the action or omission that threatens or violates the following rights that, without limitation, make up individual freedom:
1) Personal integrity and the right not to be subjected to torture or inhuman or humiliating treatment, nor violated to obtain statements.
2) The right not to be obliged to take an oath or forced or obliged to declare or acknowledge guilt against himself, against his spouse or partner, or his relatives within the fourth degree of consanguinity or second degree of affinity.
3) The right not to be exiled except by final judgment.
4) The right not to be exiled, expatriated or confined by administrative authority for political, racial, cultural, ethnic reasons or for any other nature.
5) The right not to be separated from the place of residence or expelled from the country except by judicial order or by application of the corresponding law.
6) The right of the foreigner, who has been granted political asylum, not to be expelled to the country whose government persecutes him, or in no case if his freedom or security is endangered by the fact of being expelled.
7) The right of nationals or resident foreigners to enter, transit or leave the national territory, except for a judicial mandate or application of the corresponding law.
8) The right not to be detained except by written and motivated mandate of the judge, or by the police authorities in case of flagrante delicto; or if he has been detained, to be placed within 48 hours plus the term of the distance, at the disposal of the corresponding court, in accordance with section f) of subsection 24) of article 2 of the Constitution, without prejudice to the exceptions that are recorded in it. In no case should it be interpreted that the 48 hours referred to in the preceding paragraph or the one that corresponds according to constitutional exceptions is an indispensable limit, but rather the maximum to be considered at the police level.
9) The right to voluntarily decide to perform military service, in accordance with the law on the matter.
10) The right not to be detained for debts, except in the case of the crime of omission of family assistance.
11) The right not to be deprived of the national identity document, as well as to obtain the passport or its renewal within or outside the Republic.
12) The right not to be held incommunicado except in the cases established by literal g) of subsection 24) of Article 2 of the Constitution.
13) The right not to be subjected to slavery, servitude, child exploitation or trafficking in any of its forms.
14) The right to be assisted by a defense lawyer freely chosen from the moment one is summoned or detained by the police or other authority, without exception.
15) The right to withdraw surveillance of the home and suspend police monitoring, when they are arbitrary or unjustified.
16) The right to release a defendant or convicted person, whose freedom has been declared by the judge.
17) The right to observe the corresponding procedure when it comes to the procedure or detention of persons, referred to in article 99 of the Constitution.
18) The right not to be subjected to extrajudicial execution and / or forced disappearance.
19) The right to the truth, in accordance with its jurisprudential recognition.
20) The right of the detainee or inmate not to be subjected to treatment lacking in reasonableness and proportionality, with respect to the manner and conditions in which the detention order or sentence is carried out.
21) The right to protection of the family against acts of domestic violence.
22) The right to defend constitutional rights related to individual freedom.
Article 34. Procedure in case of arbitrary detention
In the case of any of the forms of arbitrary detention and damage to personal integrity, the judge will decide immediately. For this, it may be constituted at the scene of the events, and once the undue detention has been verified, it will order the freedom of the aggrieved in the same place, leaving a record in the corresponding act and without it being necessary to notify the person responsible for the attack in advance to comply with the judicial resolution. .
Article 35. Processing in different cases
When it is not an arbitrary detention or a violation of personal integrity, the judge may be at the scene of the events, or, if applicable, summon who or who carried out the violation, requiring them to explain the reason that motivated aggression, and will resolve outright within one calendar day, under responsibility.
If the circumstances require it, the judge, within 72 hours of the claim being admitted, sets the date for the holding of a single hearing. After hearing the allegations of the parties, the judge, if a trial has been formed, pronounces sentence on the spot or, otherwise, will do so within the unfailing period of three calendar days.
The parties may request a copy of the audios and videos of the public hearing.
The resolution may be notified to the aggrieved party, even if he is deprived of his freedom. The person who filed the claim, as well as his lawyer, if any, can also be notified indistinctly.
Article 36. Procedure in case of forced disappearance
Without prejudice to the procedure provided for in the previous articles, in the case of the forced disappearance of a person, if the authority, official or defendant does not provide satisfactory elements of judgment about his whereabouts or destination, the judge must adopt all the necessary measures that lead to their discovery, and may even commission judges of the judicial district where it is presumed that the person may be detained to practice them. Likewise, the judge will notify the Habeas corpus petition to the Public Ministry so that it can carry out the corresponding investigations.
If the aggression is attributed to a member of the National Police or the Armed Forces, the judge will also request the higher authority of the alleged aggressor in the area in which the disappearance has occurred, to report within a period of twenty-four hours. whether or not the violation of freedom is true and provide the name of the authority that ordered or executed it, under express responsibility in the statement that may be made.
Article 37. Special rules of procedure
This process is also subject to the following rules:
1) There is no challenge, except by the person affected or who acts on their behalf.
2) There is no room for excuses from the judges or the secretaries.
3) The judges must set the day and time for the performance of the procedural actions.
4) The Public Ministry does not intervene.
5) Documents can be presented whose merit will be appreciated by the judge at any stage of the process.
6) The judge or court will appoint a public defender to the plaintiff, if requested.
7) The procedural actions are non-extendable.
8) There is no hearing of the case, unless requested by the plaintiff or the favored.
Article 38. Content of a well-founded judgment
The resolution that declares the habeas corpus claim founded will provide one of the following measures:
1) The release of the person arbitrarily deprived of this right; or
2) that the situation of deprivation of liberty continues in accordance with the legal provisions applicable to the case, but if the judge deems it necessary, he will order a change in the conditions of detention, either in the same establishment or in another, or in the custody of people other than those who used it until then; or
3) that the person deprived of liberty be immediately placed at the disposal of the competent judge, if the attack occurred because the legally established period for their detention had elapsed; or
4) that the offense produced ceases, providing the necessary measures to prevent the act from being repeated.
Article 39. Legitimation
The affected person is the person entitled to file the amparo process.
Article 40. Procedural representation
The affected party may appear through a procedural representative. The registration of the representation granted is not necessary.
In the case of non-residents in the country, the demand will be made by an accredited representative. For this purpose, the off-registration power of attorney granted before the Peruvian consul in the corresponding foreign city and the apostille of the consul's signature before the Ministry of Foreign Affairs will be sufficient, and registration in the Public Registries is not necessary.
The Ombudsman's Office may file a claim for protection in the exercise of its constitutional powers.
Article 41. Informal procurement
Any person may appear on behalf of someone who does not have procedural representation, when he / she is unable to file the claim by himself, be it for a concurrent attack against individual liberty, for reasons of well-founded fear or threat, for a situation of imminent danger or for any other analogous cause. Once the affected party is able to do so, he must ratify the claim and the procedural activity carried out by the unofficial attorney.
Article 42. Competent judge
The constitutional judge of the place where the right was affected, or where the affected person is domiciled, or where the author of the infringement resides, is competent to hear the amparo process, at the option of the plaintiff.
If the violation of rights originates in a judicial resolution, the claim is filed before the constitutional chamber or, if there is not, before the civil chamber on duty of the respective superior court of justice. The Constitutional and Social Chamber of the Supreme Court is competent to resolve in the second degree. If the sentence is dismissed, the aggrieved person can file a constitutional complaint within the term of the law.
In the amparo process, the extension of territorial jurisdiction will not be admitted, under penalty of nullity of all the actions.
Article 43. Exhaustion of previous routes
Amparo only proceeds when the previous avenues have been exhausted. In case of doubt about the exhaustion of the previous route, it will be preferred to process the claim for protection.
The exhaustion of the previous routes will not be required if:
1) A resolution, which is not the last one in the administrative process, is executed before the expiration of the term for it to be consented;
2) due to the exhaustion of the previous path, the aggression could become irreparable;
3) the previous route is not expressly regulated or has been initiated unnecessarily by the affected party; or
4) The previous route is not resolved within the time limits set for its resolution.
Article 44. Protected rights
The amparo proceeds in defense of the following rights:
1) Of equality and not to be discriminated against for reasons of origin, sex, race, genetic characteristics, sexual orientation, religion, opinion, economic, social, language, or any other nature.
2) To the free development of the personality.
3) Of the public exercise of any religious confession.
4) To freedom of conscience and the right to object.
5) Of information, opinion and expression.
6) To free hiring.
7) To artistic, intellectual and scientific creation.
8) Of the inviolability and secrecy of private documents and communications.
10) Of honor, privacy, voice, image and rectification of inaccurate or offensive information.
11) Of association.
12) To work.
13) Of unionization, collective bargaining and strike.
14) Property and inheritance.
15) Request to the competent authority.
16) Of individual or collective participation in the political life of the country.
18) Of effective procedural protection.
19) To education, as well as the right of parents to choose the educational center and participate in the educational process of their children.
20) To impart education within the constitutional principles.
21) To social security.
22) Of the remuneration and pension.
23) Of academic freedom.
24) Access to the means of social communication in the terms of article 35 of the Constitution.
25) To enjoy a balanced and adequate environment for the development of life.
26) To drinking water.
27) To health.
28) Others that the Constitution recognizes.
Article 45. Term for filing the claim
The period for filing the claim for protection prescribes sixty business days after the damage occurred, provided that the affected party had knowledge of the harmful act and had been able to file the claim. If this had not been possible, the term will be computed from the moment of removal of the impediment.
In the case of the amparo process initiated against judicial resolution, the term to file the claim is thirty business days and begins with the notification of the resolution that has the status of firm.
For the calculation of the term, the following rules will be observed:
1) The term is computed from the moment in which the affectation occurs, even when the respective order has been issued previously.
2) If the affectation and the order that protects it are executed simultaneously, the calculation of the term begins at that moment.
3) If the acts that constitute the affectation are continuous, the term is computed from the date on which their execution has completely ceased.
4) The threat of execution of a harmful act does not start the calculation of the term. Only if the affectation occurs should the term begin to count.
5) If the offense consists of an omission, the term will not elapse while it subsists.
6) The term will begin to count once the previous route has been exhausted, when it proceeds.
7) In the case of self-applying rules, the term does not prescribe, unless the rule is repealed or declared unconstitutional.
Article 46. Subjective accumulation ex officio
When the demand appears the need to understand third parties who have not been summoned, the judge may integrate the procedural relationship by summoning other people, if from the demand or the answer it appears evident that the decision to fall on the process will to affect.
The term of the third party to acquit the summons is ten business days.
Article 47. Accumulation of processes
When the same act, fact, omission or threat affects the interest of several people who have separately exercised their right of action, the judge who had prevented, at the request of a party or ex officio, may order the accumulation of the amparo proceedings.
The resolution that grants or denies the accumulation is unchallenged.
Article 48. Intervention in joint litigation
Whoever has a legally relevant interest in the result of a process, can appear in person requesting to be declared optional litisconsorte. If the judge admits their incorporation, he will order the application to be notified. If the process is in the second degree, the request will be directed to the superior judge. The optional litisconsorte enters the process in the state in which it is. The resolution that grants or denies joint litigation is unquestionable.
Article 49. Inadmissibility
If the judge declares the claim inadmissible, he will grant the plaintiff three days to correct the omission or defect, under warning of filing the file. This resolution is appealable.
Article 50. Counterclaim, abandonment and withdrawal
In the amparo, the counterclaim or the abandonment of the process does not proceed. The withdrawal is appropriate.
Article 51. Impediments
The judge must abstain when the grounds for impediment provided for in the Civil Procedure Code concur. In no case the recusal will be appropiated.
The judge who intentionally does not abstain when there is an impediment cause, or does so when one of them does not appear, incurs in disciplinary and criminal responsibility.
Article 52. Judgment
The sentence that resolves the processes referred to in this title contains, as the case may be:
1) The identification of the plaintiff.
2) The identification of the authority, official or person responsible for the violation or threat of a constitutional right; or of one who is reluctant to abide by a legal norm or an administrative act.
3) The precise determination of the constitutional right violated or threatened, or the considerations for which it has not been violated or threatened; or if it is the case, the determination of the unfulfilled obligation.
4) The rationale leading to the decision taken.
5) The decision adopted indicating, where appropriate, under responsibility, the specific mandate provided.
HABEAS DATA PROCESS
Article 53. Definition of the database
A file, registry, database or database is understood to be any set of organized personal information data that is subject to physical, electronic or computerized treatment or processing, whether public or private, and whatever the modality of its formation. , storage, organization or access.
Article 54. Competent judge
It is competent to know the habeas data processes, the constitutional judge of the place where the information, the data is located or where the affected party has his main domicile, at the option of the plaintiff.
In the habeas data process, the extension of territorial jurisdiction will not be admitted, under penalty of nullity of everything that has been done.
Article 55. Active standing
The claim for habeas data can only be exercised by the affected person, their guardians or curators or by their heirs.
When the claim is filed by a legal person under private law, it is filed by its legal representative or by the attorney-in-fact that it designates for that purpose.
Article 56. Passive legitimation
With the demand, the owner or person in charge and the users of data banks, public or private, destined or not to provide information, are summoned.
Article 57. Special requirements of the habeas data claim
In addition to the requirements established in Article 2, the habeas data claim contains:
1. The name and address of the file, registry or database and, where appropriate, the name of the person in charge or user. In the case of public files, registries or banks, an attempt will be made to establish the state agency on which they depend.
2. The reasons why it is understood that the individualized file, registry or database contains information referring to the victim; the reasons why you consider that the information that concerns you is discriminatory, false, inaccurate or violates personal or family privacy.
Article 58. Precautionary measures
Without prejudice to the precautionary measures established in articles 18, 19 and 20 of this code, the judge, ex officio or at the request of a party, may:
1. That while the process lasts, it is registered in the registry or database that the questioned information is subject to a constitutional process.
2. Order the blocking or provisional suspension of the dissemination of the data or information submitted to the process, when its discriminatory, false, inaccurate nature is manifest or if it contains sensitive or private information whose dissemination could cause irreparable damage.
3. The placement of security seals in the environments of the entities, the seizure by the judge and the verification or reproduction of the information, when the judge appreciates the risk of its concealment, disappearance or destruction.
Article 59. Protected rights
Habeas data proceeds in defense of the right of access to public information recognized in paragraph 5) of article 2 of the Constitution.
It also proceeds in defense of the right to informative self-determination, enunciatively, under the following modalities:
1) Repair attacks against the manipulation of highly personal data stored in computerized information banks or not.
2) To know and supervise the way in which personal information has been used.
3) To know the content of the personal information that is stored in the database.
4) To know the name of the person who provided the data.
5) To clarify the reasons that have led to the creation of the database.
6) To know the place where the data is stored, so that the person can exercise their right.
7) To modify the information contained in the database, if it is false, outdated or inaccurate information.
8) To incorporate information into the database that is intended to add certain information but which has undergone modifications over time.
9) To incorporate information that is intended to clarify the certainty of a piece of information that has been misinterpreted.
10) To incorporate omitted information into the database that harms the person.
11) To eliminate sensitive information from data banks that affect personal, family privacy or any other fundamental right of the person.
12) To prevent unauthorized persons from accessing information that has been classified as reserved.
13) That the data is saved under a code that can only be deciphered by whoever is authorized to do so.
14) To prevent the manipulation or publication of the data within the framework of a process, in order to ensure the effectiveness of the right to protect oneself.
15) To request technical control in order to determine whether the information system, computerized or not, guarantees the confidentiality and minimum security conditions of the data and their use in accordance with the purpose for which they have been stored.
16) To challenge the assessments or conclusions reached by the person who analyzes the stored personal information.
Article 60. Pre-litigation stage
For the provenance of habeas data, the plaintiff must previously:
a) In the case of the right recognized in article 2, paragraph 5), of the Constitution, having submitted the request for information to the administrative authority and the latter, tacitly or expressly, partially or totally denied the information, even if it is incomplete. or altered.
b) In the case of the right recognized by article 2, paragraph 6), of the Constitution, to have claimed by document of a certain date and that the defendant has not answered within the following ten working days or has done so incompletely or incompletely. denial or defective. When the plaintiff chooses to go to the Court of Transparency and Access to Public Information, he must exhaust this prior means by express resolution or consider it exhausted in the event of not obtaining a resolution within the legal term.
If the public entity or the owner of the data or information rejects the request, the aggrieved person can file a claim for habeas data within sixty business days.
The aggrieved party can dispense with the pre-litigation stage if he considers that there is a danger of irreparable damage in the enjoyment and exercise of his fundamental rights.
Article 61. Accumulation
When it comes to the protection of personal data, the claims to access and know information from a person may be accumulated, with those to update, rectify, include, delete or prevent the provision of data or information.
Article 62. Burden of proof
The burden of proof of the requested information that may cause substantial damage to the public interest or a right protected by any legal reserve, falls on the public authority being sued.
Article 63. Participation of third parties
In the case of claims for denial of access to information based on reasons derived from the rights of third parties, they have legitimacy to participate in the process and must be summoned with the claim by the judge in the case.
Article 64. Judicial requirement
Admitted the claim, the judge ex officio or at the request of a party, may require the defendant who owns, administers or manages the file, registry or database, the remission of the information concerning the claimant; as well as requesting reports on the technical support of data, basic documentation related to the collection and any other aspect that is conducive to the resolution of the cause that it deems appropriate.
The defendant is obliged to comply with the requirement at the time of answering the claim. You can oppose the injunction if you consider that the information cannot be disclosed due to the impediment of law. The judge decides in the single hearing, giving the defendant a period of three days to comply with the requirement if he considers that what is requested is essential for sentencing. This decision is unchallenged.
Article 65. Purpose
It is the object of the compliance process to order that the reluctant public official or authority:
1) Comply with a legal norm or execute a firm administrative act; or
2) expressly pronounce when the legal norms order it to issue an administrative resolution or issue a regulation.
The administrative act that contains the recognition or payment of accrued or of obligations that must be determined in a specialized judicial body or evidence station other than the specialized constitutional courts is not the object of the compliance process.
Article 66. Applicable rules to resolve the claim
1) When the mandate is generic or unclear, the judge, after interpreting the legal norm or the final administrative act, enters to resolve the merits of the matter, having to observe the following rules:
1.1) For the interpretation of the legal norm, the judge uses the classic methods of legal interpretation; Its result must respect what is established by the laws of the matter and the Constitution itself.
1.2) The interpretation of the final administrative act must respect the general principles of Administrative Law; the jurisprudence of the corresponding administrative bodies, as well as that of the Constitutional Court.
2) When the mandate is subject to complex controversy or disparate interpretations, the judge, after clarifying the controversy, enters to resolve the merits of the matter. To do this, you must observe the following rules:
2.1) The judge applies a minimum interpretive activity to overcome the controversy, attending to the classical methods of legal interpretation, and applying the criteria of specialty, chronological and hierarchical.
2.2) Likewise, and if necessary, the judge applies a minimum evidentiary activity that, without compromising the urgent and peremptory purpose of the compliance process, allows confirming the veracity of the mandate.
3) When, in order to determine the mandatory or unquestionable nature of the mandate contained in a legal norm or firm administrative act, it is necessary to enter the merits of the matter, the judge admits the claim, and will clarify the controversy.
4) When the mandate, despite being mandatory, is contrary to the law or the Constitution, the judge must thus declare it, and consequently, dismiss the claim.
Article 67. Legitimation and representation
Any person may initiate the process of compliance with norms with the force of law and regulations. If the purpose of the process is to enforce compliance with an administrative act, it may only be filed by the person in whose favor the act was issued or who invokes interest for the fulfillment of the omitted duty.
In the case of the defense of rights with diffuse or collective interests, the legitimacy will correspond to any person. Likewise, the Ombudsman's Office can initiate compliance processes.
Article 68. Passive legitimation
The demand for compliance will be directed against the authority or reluctant official of the public administration to which the fulfillment of a legal norm or the execution of an administrative act corresponds.
If the defendant is not the obliged authority, he must inform the judge indicating the authority to whom it corresponds. In case of doubt, the process will continue with the authorities with respect to which the claim was filed. In any case, the judge must summon the authority that, according to the legal system, has competence to fulfill the omitted duty.
Article 69. Special requirement of the claim
For the compliance process to proceed, it will be required that the plaintiff has previously claimed, by document of a certain date, compliance with the legal or administrative duty, and that the authority has ratified its non-compliance or has not answered within ten working days following the submission of the application. Apart from this requirement, it will not be necessary to exhaust the administrative means that may exist.
Article 70. Grounds of inadmissibility
The compliance process does not proceed:
1) Against the resolutions issued by the Judicial Power, the Constitutional Court and the National Elections Jury;
2) against the Congress of the Republic to demand the approval or the insistence of a law;
3) for the protection of rights that can be guaranteed through the processes of amparo, habeas data and habeas corpus;
4) when it is filed with the sole purpose of contesting the validity of an administrative act;
5) when the exercise of powers expressly qualified by law as discretionary is demanded by an authority or official;
6) in the cases in which it is appropriate to file the competence process;
7) when the special demand requirement provided for in article 73 of this code was not met; and,
8) if the claim was filed after the expiration of sixty days from the date of receipt of the notarial notification.
Article 71. Withdrawal of the claim
The withdrawal of the claim will be admitted only when it refers to administrative acts of a particular nature.
Article 72. Content of the founded judgment
The judgment that declares the claim founded will be pronounced preferably with respect to:
1) The determination of the unfulfilled obligation;
2) the order and the precise description of the conduct to be carried out;
3) the peremptory period for compliance with the resolution, which may not exceed ten days;
4) the order to the competent authority or official to initiate the investigation of the case in order to determine criminal or disciplinary responsibilities, when the defendant's conduct so requires.
Article 73. Execution of the sentence
The final judgment that orders the fulfillment of the omitted duty will be fulfilled in accordance with the provisions of article 27 of this code.
PROCESSES OF POPULAR ACTION, UNCONSTITUTIONALITY AND COMPETENTIALITY
Article 74. Purpose
The purpose of popular action and unconstitutionality processes is to defend the Constitution and, where appropriate, the law, against infractions against its normative hierarchy. This infringement can be, direct or indirect, total or partial, and both in form and in substance.
For contravening article 106 of the Constitution, the unconstitutionality, total or partial, of a legislative decree, emergency decree or law that has not been approved as organic can be sued, if said provisions have regulated matters reserved to organic law or imply modification or repeal of a law approved as such.
Article 75. Origin of the demand for class action
The demand for popular action proceeds against the regulations, administrative norms and resolutions of a general nature, whatever the authority from which they emanate, provided that they infringe the Constitution or the law, or when they have not been issued or published in the manner prescribed by the Constitution or the law, as the case may be. Lawsuits against resolutions or non-normative acts are subject to the contentious-administrative process. It does not imply subtraction of the matter, the repeal of the norm that is the subject of the process, nor the subsequent validation by norm with the force of law.
Article 76. Origin of the claim of unconstitutionality
The claim of unconstitutionality proceeds against the norms that have the force of law: laws, legislative decrees, emergency decrees, treaties that have or have not required the approval of Congress in accordance with articles 56 and 57 of the Constitution, Congress Regulations, regional norms of a general nature and municipal ordinances.
Article 77. Unconstitutionality of related regulations
The sentence that declares the illegality or unconstitutionality of the contested norm will also declare that of that other to which it must be extended by connection or consequence.
Article 78. Principles of interpretation
To assess the constitutional validity of the norms, the Constitutional Court will consider, in addition to the constitutional norms, the laws that, by express reference of the constitution, have been issued to determine the competence or attributions of the organs of the State or the exercise of the fundamental rights of the person.
Article 79. Institutional relations on the occasion of the processes of control of standards
The judges must suspend the process of popular action processes based on norms with respect to which a claim of unconstitutionality has been filed before the Court, until it issues a definitive resolution.
Article 80. Effects of the founded judgment
The founded sentences relapsed in the process of unconstitutionality render without effect the norms on which they are pronounced. They are general in scope and have no retroactive effect. They are published in their entirety in the official newspaper El Peruano and take effect from the day after their publication.
When the unconstitutionality of tax regulations is declared due to violation of article 74 of the Constitution, the Court must expressly determine in the sentence the effects of its decision in time. Likewise, it resolves the pertinent with respect to the legal situations produced while it was in force.
The well-founded judgments relapsed in the popular action process may determine the nullity, with retroactive effect, of the challenged norms. In this case, the sentence will determine its scope in time. They have general effects and are published in the official newspaper El Peruano.
Article 81. Matter of judgment
The rulings of the Constitutional Court in the unconstitutionality processes and the relapses in the popular action processes that remain final have the authority of res judicata, therefore they bind all public powers and produce general effects from the day following the date of their publication.
The order that declares the prescription of the claim in the case provided for in article 86 has the same authority.
The declaration of unconstitutionality or illegality of a standard challenged by formal defects does not prevent it from being subsequently sued for substantive reasons, provided that it is filed within the period indicated in this code.
Article 82. Effects of non-retroactivity
The declaratory judgments of illegality or unconstitutionality do not grant the right to reopen concluded processes in which the rules declared unconstitutional have been applied, except in the matters provided for in the second paragraph of Article 103 and the last paragraph of Article 74 of the Constitution.
Due to the declaration of illegality or unconstitutionality of a norm, the legal provisions that it had repealed do not regain validity.
PROCESS OF POPULAR ACTION
Article 83. Legitimation
The class action lawsuit can be filed by anyone.
Article 84. Jurisdiction
The popular action lawsuit is the exclusive competence of the Judiciary. They are competent:
1) The Constitutional Chamber of the Superior Court of the Judicial District to which the issuing body belongs, when the norm that is the object of the popular action is regional or local; and if it does not exist, the room in charge of civil proceedings.
2) In all other cases, the Constitutional Chamber of the Superior Court of Lima; and if it does not exist, the room in charge of civil proceedings.
Article 85. Demand
The written demand will contain at least the following data and annexes:
1) The appointment of the court before whom it intervenes.
2) The name, identity and address of the plaintiff.
3) The precise name and address of the issuing body of the standard that is the subject of the process.
4) The petition, which includes the indication of the constitutional and / or legal norm or norms that are supposed to be violated by the one that is the subject of the process.
5) Simple copy of the norm that is the object of the process, specifying the day, month and year of its publication.
6) The grounds on which the claim is based.
7) The signature of the plaintiff, or of his representative or of his attorney, and that of the lawyer.
Article 86. Term
The term to file the demand for popular action is five years, counted from the day following the publication of the rule. Once the indicated period expires, the claim prescribes, without prejudice to the provisions of article 51 and the second paragraph of article 138 of the Constitution.
Article 87. Admissibility and inadmissibility
Once the lawsuit has been filed, the court resolves its admission within a period of no more than five days from its presentation. If you declare inadmissibility, you will specify the requirement not met and the term to correct it. If he declares the inadmissibility and the decision is appealed, he will bring the resolution to the notice of the summons.
Article 88. Location and publication of the claim
Once the claim is admitted, the court grants transfer to the issuing body of the norm that is the object of the process and orders the publication of the admission order, which will include a succinct list of the content of the claim, only once, in the official newspaper El Peruano if the The lawsuit is promoted in Lima, or in the corresponding official advertising medium if it is promoted in another judicial district.
If the standard that is the subject of the process has been issued with the participation of more than one issuing body, the one with the highest hierarchy will be summoned. In the case of bodies of the same hierarchical level, the notification is addressed to the first one who signs the normative text.
If the issuing body has ceased to operate, it corresponds to notify the body that assumed its functions.
In the case of regulations issued by the Executive Power, their defense corresponds to the Specialized Public Prosecutor's Office in constitutional matters.
Article 89. Requirement of background
The court may, ex officio, order in the admission order that the body forward the file containing the reports and documents that gave rise to the rule that is the object of the process, within a period of no more than ten days, counted from the notification of said order. , under responsibility. The room will arrange the pertinent reserve measures for the files and the regulations that require it.
Article 90. Answer to the claim
The answer must comply with the same requirements of the claim, as appropriate. The term to answer the demand is ten days.
Article 91. Hearing of the case
Once the procedural acts indicated in the previous articles have been practiced, the court will set the day and time for the hearing of the case, which will occur within ten days after the answer to the claim or after the deadline to do so.
In view of the case, lawyers can report orally. The court will issue a sentence within the ten days following the hearing.
Article 92. Appeal and procedure
An appeal proceeds against the sentence, which will contain the justification for the error, within the five days following its notification. Once the records have been received, the Constitutional and Social Chamber of the Supreme Court will transfer the appeal, granting five days for its acquittal and setting the day and time for the hearing of the case, in the same resolution. Within three days of receiving the notification, the parties may request that their lawyers report orally at the hearing of the case.
Article 93. Precautionary measure
It is appropriate to request a precautionary measure once an estimate of the first degree has been issued. The precautionary content is limited to the suspension of the effectiveness of the rule considered infringing by the aforementioned pronouncement.
Article 94. Consultation
If the sentence that declares the claim founded is not appealed, the files will be raised in consultation with the Constitutional and Social Chamber of the Supreme Court. The query will be cleared without proceeding and within a period of no more than five days from the receipt of the file.
Article 95. Judgment
The sentence issued within ten days after the hearing of the case will be published in the same means of communication in which the admission order was published.
Said publication does not replace the notification of the parties. In no case does the cassation appeal proceed.
Article 96. Costs
If the judgment declares the claim founded, the costs established by the judge will be imposed, which will be assumed by the State. If the claim is dismissed by the judge, the judge may order the plaintiff to pay the costs when he deems that he incurred manifest recklessness. In all matters not foreseen in terms of costs, the provisions of the Civil Procedure Code will be of supplementary application.
Article 97. Competence and legitimacy
The claim of unconstitutionality is filed before the Constitutional Court and can only be presented by the bodies and subjects indicated in article 203 of the Constitution.
Article 98. Legal procedural representation
To file a claim of unconstitutionality, the President of the Republic requires the approving vote of the Council of Ministers. Once the approval is granted, it designates one of its ministers to present the claim of unconstitutionality and represent it in the process. The designated minister may delegate his representation to a public attorney.
The president of the Judicial Power or the nation's prosecutor file the lawsuit with the agreement of the Plenary Chamber of the Supreme Court of Justice of the Republic or the Board of Supreme Prosecutors, respectively.
The ombudsman directly files the claim.
The congressmen act in the process through a proxy appointed for this purpose.
The citizens referred to in subsection 6) of article 203 of the Constitution must act with the sponsorship of a lawyer and confer their representation to only one of them.
The regional governors with the agreement of the regional council or the provincial mayors with the agreement of their council, act in the process by themselves or by proxy and with the sponsorship of a lawyer.
To file a claim, with the agreement of their board of directors, professional associations must act with the sponsorship of a lawyer and confer representation on their dean.
The defendant body appears in the process and compulsorily formulates its argument in defense of the contested rule, by means of an attorney appointed especially for the purpose.
Article 99. Prescriptive period
The claim of unconstitutionality of a rule must be filed within a period of six years from the day following its publication, except in the case of treaties in which the period is six months. Once the indicated periods have expired, the claim prescribes, without prejudice to the provisions of article 51 and the second paragraph of article 138 of the Constitution.
Article 100. Demand
The written demand will contain, at least, the following data and annexes:
1) The identity of the bodies or persons filing the claim and their legal and procedural address.
2) The indication of the rule that is being challenged in a precise way.
3) The grounds on which the claim is based.
4) The numbered list of the accompanying documents.
5) The appointment of the attorney-in-fact, if any.
6) Simple copy of the norm that is the object of the claim, specifying the day, month and year of its publication.
Article 101. Annexes to the application
The request is accompanied, where appropriate:
1) Certification of the resolution adopted by the Council of Ministers, when the plaintiff is the President of the Republic;
2) certification of the corresponding signatures by the senior official of Congress if the actors are 25% of the legal number of congressmen;
3) certification by the National Elections Jury, in the formats provided by the Court, and depending on the case, if the actors are five thousand citizens or one percent of the citizens of the respective territorial area, in accordance with article 203, paragraph 6 ), of the Constitution;
4) certification of the agreement adopted by the board of directors of the respective professional association; or
5) certification of the agreement adopted in the regional coordination council or in the provincial council, when the actor is a regional governor or provincial mayor, respectively.
Article 102. Qualification of the claim
Once the lawsuit is filed, the Court qualifies it within a period that cannot exceed ten days. Its inadmissibility is agreed with the affirmative vote of four magistrates.
The Court resolves the inadmissibility of the claim, if any of the following assumptions concur:
1) That the claim had omitted any of the requirements set forth in Article 100; or
2) that the annexes referred to in article 101 are not attached.
The Court will grant a period of no more than five days if the omitted requirement is capable of being corrected. If the deadline expires, the defect of inadmissibility is not remedied, the Court, in a duly motivated and unchallenged resolution, declares the claim inadmissible and the conclusion of the process.
Article 103. Liminal inadmissibility of the claim
The Court will declare the claim inadmissible with the affirmative vote of four magistrates when any of the following assumptions concur:
1) When the Court has rejected a claim of unconstitutionality that is substantially the same as to the merits; or
2) When the Court lacks competence to hear the contested rule.
In these cases, the Court in a duly motivated and unchallenged resolution declares the claim inadmissible.
Article 104. Effect of the admission and impulse ex officio
Once the claim is admitted, and in response to the public interest of the claim under discussion, the Constitutional Court will promote the ex officio process regardless of the activity or interest of the parties.
The process only ends by sentence.
Article 105. Processing
The writ of admission grants the defendant a period of thirty working days to answer the claim. The Court places with the claim:
1) To the Congress or the Permanent Commission, in the event that the Congress is not in office, in the case of laws and Congress Regulations.
2) To the Executive Power, if the challenged norm is a legislative decree or emergency decree.
3) To Congress, or to the Permanent Commission and to the Executive Power, in the case of international treaties.
4) To the corresponding bodies if the contested rule is regional or municipal.
With your answer, or if the term has expired without it occurring, the Court will consider the claim to be answered or will declare the defiance of the summons, respectively. In the same resolution, the Court sets the date for the hearing of the case within the following ten business days. The parties may request that their lawyers report orally.
Article 106. Constitutional control of repealed norms
If, during the processing of the unconstitutionality process, the challenged rules were repealed, the Constitutional Court will continue with the processing of the process to the extent that they continue to be applicable to the facts, situations or relationships produced during their validity.
The ruling issued by the Court cannot be extended to the rules that replaced those questioned in the lawsuit unless they are substantially identical to those.
Article 107. Term for passing judgment
The Court passes judgment within thirty days after the hearing of the case.
The sentence that declares the unconstitutionality of a norm requires five conforming votes. If this qualified majority is not reached in favor of the unconstitutionality of the demanded norm, the Constitutional Court will issue a judgment declaring the unconstitutionality claim unfounded.
Article 108. Legitimation and representation
The Constitutional Court hears the conflicts that arise over the competences or attributions assigned directly by the Constitution or the organic laws that delimit the areas of the powers of the State, the constitutional bodies, the regional or municipal governments, and that oppose:
1) To the Executive Power with one or more regional or municipal governments;
2) to two or more regional, municipal governments or between them; or
3) to the powers of the State among themselves or with any of the other constitutional bodies, or between them.
The powers or state entities in conflict will act in the process through their holders. In the case of collegiate entities, the decision will require the approval of the respective plenary session.
Article 109. Claim
The conflict occurs when any of the powers or state entities referred to in the previous article makes decisions or deliberately refuses actions, affecting competences or attributions that the Constitution and organic laws confer on another.
If the conflict is about a competence or attribution expressed in a norm with the force of law, the Court declares that the appropriate way is the process of unconstitutionality.
Article 110. Precautionary measure
The plaintiff may request the Court to suspend the provision, resolution or act that is the subject of the conflict. When a constitutional conflict is promoted due to a provision, resolution or act whose challenge is pending before any judge or court, the latter may suspend the procedure until the resolution of the Constitutional Court.
The approval of the precautionary measure requires the vote of five (5) conforming votes.
Article 111. Qualification of the claim
If the Constitutional Court considers that there is a matter of conflict whose resolution is within its competence, it declares the claim admissible and provides the corresponding locations. The affirmative vote of five (5) magistrates is required to declare its inadmissibility.
The procedure is subject, as applicable, to the provisions that regulate the unconstitutionality process.
The Court may request the parties to provide the information, clarification or clarification that it deems necessary for its decision. In any case, you must resolve within sixty business days after the claim was filed.
Article 112. The sentence in the jurisdictional processes and its effects
In jurisdictional processes, the sentence is obtained with the affirmative vote of five (5) magistrates. The judgment of the Court binds the public powers and has full effect against all. It determines the powers or state entities to which the controversial powers or attributions correspond and annuls the provisions, resolutions or flawed acts of incompetence. Likewise, it resolves, where appropriate, what proceeds on the legal situations produced on the basis of such administrative acts.
When a negative conflict of competences or attributions has been promoted, the judgment, in addition to determining its ownership, may indicate, where appropriate, a period within which the power of the State or the State entity in question must exercise them.
PROCESSING AT THE HEADQUARTERS OF
Article 113. Accumulation of processes
The Constitutional Court can, at any time, order the accumulation of processes when they are related.
Article 114. Numbering of sentences
The judgments issued by the Constitutional Court are numbered consecutively and annually.
Article 115. Request for information
The Court may request from the powers of the State and the organs of public administration all the reports and documents it deems necessary for the resolution of the processes within its competence. In such a case, the Court establishes a period for the parties to know about them and to claim what suits their right.
The Court establishes the necessary measures to preserve the secrecy that legally affects certain documentation, and that which, by reasoned decision, agrees to act.
Article 116. Ruling of the Constitutional Court
Within a maximum period of twenty days in the case of the denial resolutions of habeas corpus processes, and thirty in the case of amparo, habeas data and compliance processes, the Constitutional Court, under responsibility, will rule on the appeal filed. .
If the Court considers that the contested resolution has been issued, incurring a defect in the process that has affected the meaning of the decision, it will annul it and order that the process be restored to the state immediately prior to the occurrence of the defect. However, if the defect incurred only reaches the contested resolution, the Court revokes it and proceeds to rule on the merits.
Article 117. The jurisdictional decisions of the chambers
The Constitutional Court hears, in the last and final instance, the refusal resolutions of the habeas corpus, amparo, habeas data and compliance processes, through two chambers made up of three magistrates each. The sentence requires three conforming votes.
In case of not meeting the required number of votes, when any of the causes of vacancy listed in article 16 of Law 28301 occur, when any of its members is disabled or to settle the dispute, the magistrates of the chamber are called, in order of seniority, starting from the least old to the oldest and, in the last case, to the president of the Constitutional Court. In such cases, the caller can use the recording of the hearing held or summon the parties for a new report.
Article 118. Jurisdictional decisions of the Plenary
In habeas corpus, amparo, habeas data and compliance processes that are known to the Plenary in accordance with their regulatory regulations, the sentence requires four votes in agreement.
If there is a tie in habeas corpus, amparo, habeas data and compliance processes that are known to the Plenary, the president of the Constitutional Court has a deciding vote. You are not allowed to change the original meaning of your decision for the purpose of changing the meaning of the judgment. When for any reason the president of the Constitutional Court could not intervene to resolve the case, the deciding vote falls on the vice president of the Constitutional Court. If for some reason, the latter cannot intervene, the deciding vote will follow the rule of seniority, starting from the oldest magistrate to the least old until the majority necessary for the resolution of the case is found.
The deciding vote is only applicable to resolve processes of a jurisdictional nature.
Article 119. Correction of defects in the procedure
Before pronouncing judgment, ex officio or at the request of a party, the Court must correct any procedural defect that has been incurred.
Article 120. Exhaustion of national jurisdiction
The decision of the Constitutional Court to rule on the merits exhausts national jurisdiction. There is no constitutional process against the resolutions and judgments of the Constitutional Court.
Article 121. Unquestionable nature of the judgments of the Constitutional Court
Against the judgments of the Constitutional Court, there is no challenge whatsoever. Within a period of two days from its notification or publication, in the case of resolutions relapsed in unconstitutionality proceedings, the Court, ex officio or at the request of a party, may clarify any concept or correct any material error or omission that it may have incurred.
These resolutions must be issued, without further processing, on the second day after the request is made.
Against the decrees and orders issued by the Court, only the appeal for reconsideration before the Court itself is applicable. The appeal can be filed within a period of three days from its notification. It is resolved in the next two days.
The foregoing does not affect the right to appeal to the international courts or organizations established according to treaties to which Peru is a party.
Article 122. Competent international organizations
For the purposes of what is established in article 205 of the Constitution, the international organizations to which any person who considers himself or herself injured in the rights recognized by the Constitution, or the human rights treaties ratified by the Peruvian State, may turn, are: the United Nations Human Rights Committee, the Inter-American Commission on Human Rights of the Organization of American States and those others that may be established in the future and that are approved by treaties that bind Peru.
Article 123. Execution of resolutions
The resolutions of the jurisdictional bodies to whose jurisdiction the Peruvian State has expressly submitted do not require, for their validity and effectiveness, any prior recognition, review, or examination. Said resolutions are communicated by the Ministry of Foreign Affairs, to the president of the Judicial Power, who in turn, forwards them to the Court where the internal jurisdiction was exhausted and orders their execution by the competent judge, in accordance with the provisions of the laws that regulate the procedure for the execution of judgments issued by supranational courts.
Article 124. Obligation to provide documents and background information
The Supreme Court of Justice of the Republic and the Constitutional Court must forward to the bodies referred to in article 122, the legislation, resolutions and other documents acted in the process or processes that originated the petition, as well as any other element that in the opinion of the international organization it is necessary for its illustration or to better resolve the matter submitted to its competence.
FIRST. Validity of standards
The procedural rules provided for in this code are of immediate application, even to processes in process. However, they will continue to be governed by the previous norm: the rules of jurisdiction, the impugnative means, the procedural acts with the beginning of execution and the terms that have begun.
SECOND. Specialized judges
In jurisdictional districts of the Judiciary where there are no judges or constitutional chambers, the amparo, habeas data and compliance processes are the competence of the specialized civil or mixed courts, as appropriate, and, in the second instance, the corresponding civil chambers.
In habeas corpus proceedings, jurisdiction falls on the preparatory investigation judges and, in the second instance, on the respective appeals chambers.
THIRD. Publication of sentences
The final judgments and the clarifying resolutions of the same, relapsed in the constitutional processes, must be sent, within forty-eight (48) hours following the date of their issuance, to the official newspaper El Peruano for free publication, within the ten days after submission.
The sentences relapsed in the unconstitutionality process, the competence process and the popular action are published in the official gazette within three days of the receipt of the transcript sent by the corresponding body. Failing that, the President of the Court orders that it be published in one of the newspapers with the greatest national circulation, without prejudice to the responsibilities that may arise.
When the judgments deal with regional or municipal regulations, in addition to the publication referred to in the previous paragraph, the Court orders the publication in the newspaper where the judicial notices of the respective district are published. In places where there is no newspaper that publishes court notices, the sentence is made known, in addition to its publication in the official or national newspaper, through posters posted in public places.
QUARTER. Exemption from court fees
Constitutional processes are exempt from paying court fees, with the exception of amparo processes against judicial resolution filed by legal persons.
FIFTH. Validity of the reforms
The amendments to the Constitutional Procedural Code come into effect the day after their publication in the official newspaper El Peruano.
ONLY. Determination of judges and constitutional chambers
The Executive Council of the Judicial Power determines gradually and in accordance with the budgetary and infrastructure possibilities, the judges and constitutional chambers for their appointment by the National Board of Justice.
ONLY. Repeal of Law 28237, Constitutional Procedural Code
Repeal Law 28237, Constitutional Procedural Code.
Having reconsidered the Law by the Congress of the Republic, insisting on the text approved in the Plenary session held on May twenty-first, two thousand twenty-one, in accordance with the provisions of Article 108 of the Political Constitution of Peru, I order that be published and fulfilled.
In Lima, on the twenty-first day of the month of July, two thousand twenty-one.
MIRTHA ESTHER VÁSQUEZ CHUQUILIN
President ai of the Congress of the Republic
LUIS ANDRÉS ROEL ALVA
Second Vice President of the
Congress of the republic
Legal Regulations / Thursday, September 02, 2021