The constitutional precedent binding in Peru

Abstract: The Peruvian Constitutional Court has developed a constitutional doctrine that contributes to the consolidation of the rule of law in which the exercise of the action leads to predictable and enforceable, on the basis of the presence of binding precedent. A Preliminary considerations: Although the 1979 Constitution came a Constitutional Court, the application of the rights contained in the corpus juris were not generally applied in the rulings of the supreme court, in this sense, the constitutional jurisprudence addition to being scarce, was contradictory, indeed despite its existential ratification of the 1993 Constitution embodied this questionable political events after the constitutional court's legal sphere was injured by the ruling party influence, thus limiting its jurisprudence. However, as asserted by Dr. Marcial Rubio Correa, recent years have made a notable difference: our Constitutional Court has developed a constitutional doctrine that we believe strongly and accurately. Contributes to the consolidation of the rule of law in which the exercise of the action leads to predictable results, and also enforceable. An initiative such jurisprudential necessarily have to develop discussion and contention over concepts and solutions but we believe the Court's overall performance has been highly positive for Peruvian law in general and not only to constitutional law.

Following the entry into force of the Code of Constitutional Procedure, has been introduced into our legal system the concept of binding constitutional precedent. This implies, in a preliminary way, that the Constitutional Court has two basic functions: on one side resolves conflicts, ie, is a court specific cases and, on the other is a court of record, ie establishes through of its jurisprudence, politics jurisdictional law enforcement by the judiciary and judges of the Constitutional Court itself in future cases. The question to be clarified, however, is when the Court must issue a precedent. Harold J. Berman in his book "The Formation of the Western legal tradition? We expressed as the English common law is one of the legal nuances that distinguish other Western law, based on a uniform and collegiate, what words of René David, creates a cultural unity whose immediate effect is to reduce differences legal criteria. In this system one of the main sources of law (Case law) in which the authority derives from the rule of adherence to judicial precedent (stare decisis), the same as pre-publicity can only operate through the law reports.

The English judicial precedent becomes binding (Binding Precedent) when the higher courts give such, being one of his means of creating law. At this end it is narrow, there is a formula known as Distinguishing innovation that allows a judge to depart from binding precedent citing the particular differences between one case and another, which is the main way of updating the legal system. In the classic tradition of American Common Law, there are three basic assumptions which takes into account the Supreme Court to issue a binding precedent effects on the entire judiciary. A) when it became clear that lower levels of the judiciary there are different understandings or interpretations of a particular legal form or against a particular case. B) Need to fill a legislative gap or a gap in the law. It is built to address if a response from constitutional interpretation. C) Need to develop the case law setting a new precedent overrides a previous one (the known practice of overruling). The incorporation of the technique of constitutional precedent in our law share the need to set parameters that respond to our context and our legal tradition.

While, prima facie, restrictions can be assumed that it has developed to dictate American Court precedent must be taken into account also some peculiarities of our constitutional processes. Thus, for example, occurs in the constitutional processes of liberty (habeas corpus, habeas data, amparo), often are challenged in this Court rules or acts of government or public authorities that not only affect those who propose the respective process, but are contrary to the Constitution and, therefore, have general effects. However, as is known, the Court concludes, in a constitutional process of this nature, inapplicable or censoring rule that violated the act derived from it, but only in respect of the appellant, so that its effects continue for violating other citizens. Set, then a paradoxical situation: the Constitutional Court, whose main task is to eliminate certain rules of law contrary to the Constitution, does not, however, procedural mechanisms available to them the order to expunge these rules, although have had an opportunity to assess its constitutionality and its effects have proven violation of fundamental rights in a conventional process protection of rights such as those mentioned. Different reality in the Spanish law in which they consider mechanisms that allow the courts themselves can AutoPLANT, ex officio, a constitutional process in order to rule with general effects on a law that has been, in principle, through a contested guardianship process as a fundamental right under.

Thus, in the Spanish case, the call is "self-questioning of constitutionality? allowing "convert? an injunction in a constitutional process, allowing thus, issuing a statement with general effects that could eventually declare a law invalid because they violate the Constitution. While the Peruvian constitutional court system there is no such legal provision, the recent constitutional precedent forecast referred to Article VII of the introduction of the Code of Constitutional Procedure is a tool that could help meet these legal deficiencies, thus optimizing the defense of fundamental rights, work excellence corresponds to the Constitutional Court. Therefore, an additional assumption to those reported by the American Supreme Court, for the establishment of a precedent can be set, in our case, from the need for the Court, after proving that a rule has been questioned through a process that is not the abstract control, find, moreover, that the harmful or in violation of fundamental rights in general reported to affect a large group of people, or that the contested and declared contrary to the Constitution by the Court is a widespread practice of government or public authorities in general.

Thus, the rule that the Court remove from the case should be possible to nullify the acts or regulations since the establishment of a binding precedent, not only for judges but for all public authorities. The precedent is thus a tool not only to give greater predictability to the constitutional justice, but also to optimize the protection of fundamental rights, expanding the purposes of sentencing in the process of protection of fundamental rights. In this regard, and developing the assumptions made in the sentence 0024-2003-AI/TC, the Constitutional Court ruling dated November 14, 2005 materialized in File No. 3741-2004-AA/TC considered that are supposed to issuing a binding precedent as follows: a) The finding, from a case that has been under the jurisdiction of the Constitutional Court of the existence of differences and contradictions latent in the interpretation of rights or constitutional principles, or constitutional significance. b) The finding, from a case that has been under the jurisdiction of the Constitutional Court, that court or administrative operators, are resolved based on a misinterpretation of the constitutional norm, which, in its turn generates an improper application of it.

d) Where in the framework of a constitutional protection of rights, the Court finds the constitutionality of a regulatory states that not only affects the complainant, but has general effects that pose a potential threat to fundamental rights. In this case, when establishing binding precedent, the Court may proscribe the application to future cases, in part or all of the available or certain ways of interpretation derived from, or you can also set those senses that are compatible interpretive with the Constitution. e) When there is evidence of the need to change binding precedent. The distinction between case law and precedent: The Constitutional Court has determined that the addition of binding constitutional precedent, in the terms required by the Code of Constitutional Procedure, generated on the other hand, the need to distinguish it from the jurisprudence that this Court issues. The Constitutional Court judgments, since they are the interpretation of the Constitution of the highest judicial tribunal of the country, establishes it as a source of law and binding on all branches of government. Also, as stated in Article VI of the Code of Constitutional and General Provisions of the Organic Law of the Constitutional Court, No. 28301, judges and courts interpret and apply laws and regulations pursuant to the provisions of the Constitution and the interpretation of them made by the Constitutional Court through its decision in all such processes.

The case is therefore, the doctrine developed by the Court in the various fields of law, as a result of their work in front of each case is resolved. On the other hand, in order to give greater predictability to the constitutional justice the Constitutional Procedural Code legislator has also introduced the technique of the above, Article VII of the preliminary title, stating that "The judgments of the Constitutional Court the authority to acquire of res judicata are binding precedent when they express the Judgement, stating the end of its regulatory effect (...)?. Thus, although both case law and constitutional precedent have in common the characteristic of its binding effect, in the sense that no authority, official or individual can resist its binding, the Court, through the constitutional precedent, exercises general regulatory power, removing a rule from a case. Terms of use of precedent: It follows that the foregoing is a technique for the management of the case while allowing the Court to exercise real regulatory power with its own case law restrictions shall be gradually delimiting. Preliminarily be established, however, that a first constraint is referred to the relationship between case and precedent.

As in common law countries "(...) the precedential value of a decision is determined by what a judge decides the sentence effectively. More what is actually decided, is determined in relation to the case (fattispecie) concrete dispute before the trial? . In this sense, this school believes that this rule is also valid for our system, even if it is true that the configuration of the case in our legal system does not always relate to specific events but with the evaluation standards in the abstract, as in the case of control of constitutionality of the Act, for example. This, however, makes no regulatory precedent that outsource Collegiate, has no direct relationship with the central question to be decided because it has been submitted to the Constitutional Court. This is so because, even in the case of the previous legislation, the legitimacy that this school works to break into the system of sources of law is supported by the need to respond to claims that have been raised by the entities entitled to do . In other words, the Court, even when dictated "rules? through their rulings are not acts of office, but in response to the call of the protagonists of constitutional processes.

In this sense, bounded by the ruling, issuing a precedent binding policy is based on the "Existence of a relationship between case and binding precedent. In this sense, the rule that legislative effect to the Constitutional Court decides to outsource as binding, must be necessary to resolve the present case. The Constitutional Court should not set a rule under the guise of solving a case, if in fact this is not linked directly to the solution of it?. Second, as noted by the Common Law tradition, precedent should be a rule of law and can not relate to the facts of the case, although it may well from them. Third, it may seem obvious, the rule of constitutional precedent can not be a rule or interpretation of a provision of the Constitution which provides multiple buildings, in other words, the precedent is not a technique to impose certain doctrines or ideological choices or evaluative , all valid in the legal sense. If such situation arises inevitably, must be addressed by the Court through its jurisprudence, in an effort to build consensus in certain ways. The precedent in such cases, only appear as a result of the favorable evolution of the jurisprudence of the Court in a certain way.

The latter implies that the Court should not intervene by setting precedents on issues that are rather controversial and where the positions that can divide public opinion. This implies, on the other hand, a prudent practice that allows the Court to achieve the widest possible consensus on the use of this new tool, which will allow a real regulatory power, as has been said. The necessary distinction between legal precedent and constitutional precedent: In the decision dated November 14, 2005 materialized in File No. 3741-2004-AA/TC, the Constitutional Court has held that, in order that his decision, raised in form of binding precedent could become a useful tool in expanding the impact of a decision that, in principle, should have only inter partes, it is necessary to distinguish between the effects of binding precedent issued by the Constitutional Court, and which are the effects of judicial precedent in common law systems. It is known that the judicial precedent in the common law system has been developed as binding precedent in the vertical direction that is applicable from the Supreme Court (for the U.S. case) to the lower courts and tribunals throughout the judicial system.

I mean, the binding is set here primarily for the judges. Anyone who calls a precedent, so that it achieves its effects, must go before a judge, who must apply in a particular case. For this school, constitutional precedent in our system have wider effects. In his own description: "The way has established a tradition of constitutional courts in the continental law system has been established very early, the effect on all public authorities of the Constitutional Court rulings. This means that the binding precedent issued by a Constitutional Court with these features has, prima facie, the same effects of a law. That is, the rule that the Court outsourcing as a precedent from a case, is a rule for all and on all public authorities, any citizen may be invoked before any authority or officer without prior recourse to the courts, since the Constitutional Court rulings, in any process, have a binding effect against all government and against individuals. If not, the Constitution itself would be unprotected, since any entity, officer or person may be reluctant to enforce a decision of the highest judicial body?.

Limitations on enforcement of binding precedents issued by the Constitutional Court: On April 4, 2006, the Office of Judicial Control - published OCMA resolution head-JOCMA 021-2006 / PJ, which it decided that all courts of the Republic must comply with binding precedents identified by the TC. Nevertheless, and unusual way, the message was overruled by the judiciary itself. Indeed, the day after the Executive Council of the Judiciary (CEPJ) issued a statement in which the resolution Departmental disavowed the OCMA, arguing that "[...] those judges are subject only to the Constitution and the law, and state guarantees judicial independence enshrined in paragraph 1 of article 146 of the Constitution and Article 2 of the Organic Law of Judicial Power. " What I was doing a good account CEPJ-headed by the Head of the Judiciary, was to induce the judges to flout the provisions of the First Final Provision of the Organic Law of the TC (Law 28,301), when it states that: Judges and Courts interpret and apply laws and all rules with force of law and respective regulations under the statutes and constitutional principles, according to their interpretation resulting from the resolutions passed by the Constitutional Court in all kinds of processes under the responsibility " .

In fact, as Juan Carlos Ruiz has established Morella, "While disciplinary action was an option, even though it was" denied "- she was clearly untimely, it did not affect the court decision that had failed and disobeyed the CT binding precedent because it maintained that its effects. That is, this road was not the most appropriate and effective to ensure compliance with the TC binding precedents. Another possibility would have been the presentation of a constitutional process for protection against the decision ignores the binding precedent, arguing, among other things, violation of the right to equality, it is not possible to rule that justice differently-if that opposite-to two fundamental facts or materially identical situations. Another possible rationale for this "protection against protection" had been a violation of the right to effective judicial protection, in particular the right of the defendant to the court to rule on the merits and in accordance with law, as binding precedent in Article VII under the CPC, is a source of law and legal part of which are subject to all judges included. Although attractive, this response had several problems, the main time: a delay under process in the best two years to be processed, which made it a very effective instrument to ensure respect for precedent.

On the other hand, despite having outlined the importance and effects of binding precedents media, a certain sector in Peru has questioned the authority of the Constitutional Court to take positive legislative powers, under which it would violate the principle of separation of powers enshrined in Article 43 of the Constitution of the State, invaded and affected legislative powers of Congress prescribed in Article 102 of the standard normarum, especially if the latter does not give coverage to binding precedents. In relation to the criticism, we must state that the Constitutional Court is not the only court jurisprudence issuing binding. The Supreme Court, for example, issues binding jurisprudence proof is prescribed in the art. 22 of the Organic Law of Judicial Power (OLJ), which provides that decisions of the Supreme Court on any matter set jurisprudential principles, binding on all courts and case law are called, so it is not unusual or Vacuum Article 116 that the regulatory body said establishing the existence of the full jurisdiction .. For its part, Article 400 of the Civil Procedure Code speaks of "plenary casatorios? to establish binding case law or jurisprudence, on the other hand, Article 433 of the Code of Criminal Procedure allows the issuance of binding jurisprudence and even Article 34 of the Administrative Process Act (Law 27 584) states that all decisions made on appeal by the Constitutional and Social Chamber of the Supreme Court jurisprudence should be considered binding.

While there is no explicit reference to it in our Magna Charta, both interpretative judgments as binding precedent and constitutional jurisprudence are covered, as is clear from Article 201 of the Constitution, which recognizes the TC as an organ Control of the Constitution and the constitutionality of laws, and Article 202 of the Charter Policy under which belongs to the TC in the constitutional process, the role of final instance of failure in others, single instance. The systematic interpretation of both provisions indicates that the judgments of the TC "can not be ignored by the other branches or agencies of the State Constitution, and even by individuals. Another argument in favor of binding precedent is to consider that the right to effective judicial protection, which in turn contains the right to obtain a decision based on law, ie, that the legal grounds is complying with established system of sources, which is part of the jurisprudence of the Constitutional Court. Although, even here we have substantiated the rationale of binding precedent, the constitutional basis for their protection and enforcement of this, as well as the jurisprudence, "is on the right to equality and nondiscrimination in the application of the law (art.

2.2 of the Constitution), it is not possible for the judiciary to rule differently to jurisdictionally substantial two cases similar? This respect will provide certainty and legal security predectibilidad. As we can see not only binding case law is already present in our legal system, but has been integrated into the sources of law, however, that the Constitution's 93 in no time refers to the word jurisprudence. All this has led to the Constitutional Court issued a ruling (file 00006-2006-PC/TC), declaring "null" a set of judgments that had failed and unknown binding precedents of it, then putting the attention of the OCMA the judiciary to proceed in accordance with the resolution of 021-2006-JOCMA/PJ leadership, published in the newspaper El Peruano on April 4, 2006, which provides that: "[...] all the courts of the Republic, under functional responsibility, to give full effect to the binding precedent identified by the Constitutional Court. " This was the subject of criticism by the Supreme Court who said that the ruling was violated judicial independence and the guarantee of double jeopardy, which until today has become a subject of discussion.

------------ (1) Constitutional Court Gazette No. 1, January-March 2006. Page 01 (2) Harold J. Berman: "The Formation of the Western legal tradition? Fondo de Cultura Económica. Mexico 1996 René David: "The Great Contemporary Legal Systems? Editorial Aguilar. Madrid. 1953. P. 215 (3) Paul Kaup: "The rule of binding precedent application of constitutional jurisprudence of the United States? Treves Giussepino quoted in "The doctrine of binding precedent Copnstitucional Jurisprudence? Torino. 1971 p. 221 (4) www.pcm.gob.pe (5) LIVE JUSTICE: "The Constitutional Court in 2007: Analysis of relevant cases and precedents binding? Red Oak Business Group S.A.C.1ra Edition. Lima, Peru, p. 13 (6) Read article Ariano Deho Eugenia, called precedents binding and normative pyramid. The frenzies of power of the Constitutional Court, in: Law Gazette, Dialogues with the jurisprudence, No. 96, Lima, September 2006. (7) Roger Rodriguez Santander, "The constitutional precedent in Peru between the power of history and because of the rights?, In: Studies to constitutional precedent, Palestra, Lima, 22007, pg. 65 (8) Juan Carlos Ruiz Morella. http://www.justiciaviva.org.pe/justiciamail/jm0299.htm