What is the context of the legislation modified by the LGCP?

Article 23 of the NCPConst. establishes a general rule for amparo proceedings (including amparo proceedings challenging administrative acts of public entities). According to this rule, the case is initiated before a Constitutional Court (Judge) and may go on appeal to a Superior Constitutional Chamber (Court of Appeals). If a constitutional grievance appeal is filed, the Constitutional Tribunal (TC, for its acronym in Spanish) is the competent court to resolve the claim in an extraordinary manner when it is rejected in the second instance.

While it is true that there are limited exceptions to the rule, such as amparo proceedings against a court decision brought before the Superior Constitutional Chamber (Court of Appeals) going on appeal to the Constitutional and Social Law Permanent Chamber of the Supreme Court (Supreme Court) and possibly being brought before the TC as the last instance, now the 16th Final Complementary Provision of the LGCP intends to add new exceptions and modify this procedural scenario.¹

In effect, the law establishes a different procedure for amparo proceedings initiated against the actions of the OECE bodies. The LGCP states that such proceedings will now be initiated before a Superior Constitutional Chamber (Court of Appeals) and will be appealed to the Constitutional and Social Law Permanent Chamber of the Supreme Court (Supreme Court).

This procedure is not provided in the NCPConst. Article 200 of the 1993 Constitution establishes that constitutional proceedings are regulated by organic law (as is the case of the NCPConst., but not the case of the LGCP). Moreover, practical experience shows that such a scheme (Superior Chamber - Supreme Chamber - TC) only causes more overload and delays to the justice system, since, for example, in Lima there are only three Superior Constitutional Chambers, which already hear in the first instance appeals against court decisions. The LGCP now adds appeals against OECE decisions, increasing the procedural overload.

On the other hand, with respect to injunctions in these amparo proceedings, the LGCP establishes that the main case will be heard in a Superior Constitutional Chamber (Court of Appeals), but the injunction case will be heard by a Superior Civil Chamber (Court of Appeals).² In this way, the LGCP creates another very impractical exception to the rule, since the same file would be heard by a Superior Constitutional Chamber (main file) and a Superior Civil Chamber (injunction file).

Finally, despite the fact that subparagraph 4 of the aforementioned provision repeats what is indicated by Article 7.2 of the NCPConst, which is that "constitutional amparo proceedings do not apply when there is a specific and equally satisfactory judicial way to protect the threatened or violated constitutional right", it is necessary to point out that, to determine whether a controversy must be elucidated in administrative contentious proceedings (judicial review of administrative decisions) or amparo proceedings, the constitutional criteria established by the precedent "Elgo Ríos Núñez"³ must be applied to determine whether there is a specific and equally satisfactory judicial way to the amparo, i.e., whether an administrative act can be challenged via amparo or via contentious-administrative proceedings.

What are the consequences of the modification?

Undoubtedly, the issuance of the LGCP represents a significant change to the current regulations governing the processing of constitutional proceedings, specifically in relation to amparo proceedings. This situation could cause –in the short and long term– legal uncertainty for the appellants, as well as for the jurisdictional bodies themselves. For this reason, the rules of procedure must be certain, clear and express, to avoid all kinds of contradictions that will only generate more confusion at the time of litigation.

As time goes by, we will see how the LGCP will develop in the practical field of litigation and the implications that the repeated modifications to the process of proceedings will have.

We hope this information is of relevance to you and your company. Please do not hesitate to contact us if you require any advice in this regard.

Click here to read the Spanish version.

1 "SIXTEENTH. Jurisdiction for OECE proceedings […]

3. Constitutional amparo proceedings based on the alleged violation of constitutional rights, related to actions of OECE bodies, are heard in the first instance by the Superior Chamber Specialized in Constitutional Matters of the respective Superior Court of Justice and, on appeal, by the Constitutional and Social Chamber of the Supreme Court of Justice. [...]".

2 "SIXTEENTH. Jurisdiction for OECE proceedings [...]

3. [...] Requests for interim relief are heard by the Civil Chamber of the Superior Court of Justice and, on appeal, by the Constitutional and Social Chamber of the Supreme Court of Justice. [...]".

3 The criteria, by which, when all of them concur in a copulative manner, the ordinary remedy will be "equally satisfactory" to constitutional amparo proceedings, are as follows: i. The structure of the proceedings is suitable to protect the right. ii. The decision to be issued could provide adequate protection. iii. There is no risk of irreparability. iv. There is no need for urgent protection derived from the importance of the right or the seriousness of the consequences.

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