In depth

In summary, on 5 January 2018, through Resolution 001-2017-CG/INS, the instructing body headquarters instituted the Sanctioning Administrative Procedure (PAS) relapsed in File 0799-2017-CG/INS against Molinelli and other officials for allegedly committing the infractions provided for in letters a) and b) of Article 46 of Law 27785, the Organic Law of the National Control System and of the CGR. However, through Resolution 005-2018-CG/INSS, dated 20 August 2018, the aforementioned body in its report culminating the investigation stage resolved to declare the nonexistence of plaintiff's infringement.

Subsequently, the sanctioning body issued Resolution 001-799-2018-CG/SAN1, dated 15 October 2018, which, accepting the investigating body's approach, declared Molinelli's infraction nonexistent, but did sanction the other officials involved in the PAS. In this sense, since it was a favorable resolution, Molinelli did not appeal it and let it be accepted as far as she was concerned. Therefore, the aforementioned resolution became "resolute" or "cosa firme."

However, when processing the appeals filed by the officials who were sanctioned, the CGR court issued Resolution 0252 by which it declared Resolution 005-2018-CG/INSS null and void in all its aspects, despite the fact that Molinelli had not filed any appeal against Resolution 001-799-2018-CG/SAN1 so that the CGR court could review it and the file as a whole, because it evidently favored her by excluding her from liability.

In this regard, without the intention of analyzing the merits of the infraction — which is not the object of this document — nor some inaccuracies detected regarding the background and content of the resolutions, we must highlight that, in the present case, the instructing body with respect to Ms. Mollinelli declared the inexistence of liability and, therefore, ordered the dismissal of the sanctioning procedure in relation to said Molinelli. This power was expressly conferred by Article 6 of the Administrative Sanctioning Procedure for Functional Administrative Responsibility of the CGR, approved by Comptroller's Office Resolution No. 129-2016-CG.

Similarly, the sanctioning body also ruled declaring that there was no sanction against Molinelli, but it did for other officials, namely the ones who decided to challenge Resolution 001-799-2018-CG/SAN. However, as can be seen, the CGR court, at the time of resolving said appeal, issued Resolution 0252, ruling on Molinelli's exemption from liability, despite the fact that this issue had not been appealed, which is why it should only rule on the disputed matter of the sanctioned appellants.

It is in this context that the resolution of the sanctioning body that declared the nonexistence of Molinelli's liability acquired the quality of administrative res judicata. Framed in this reasoning is that the TC recalls that, in previous judgments, it has interpreted that the immutability of res judicata is part of the constitutionally protected content of the right to due process, and that this guarantee extends to final administrative acts that have acquired the quality of res judicata.¹ For this reason, the TC has stated in previous judgments that the immutability of res judicata is part of the constitutionally protected content of the right to due process.

For that reason, the TC pointed out in the subject line of the alert that "the extreme of the nonexistence of infringement (...) could not be reviewed by the CGR court and much less declare its nullity." Granting the respective constitutional protection before the harmful act committed by the CGR court, especially when there was a pronouncement and the file was closed by the investigating body, ratified by the sanctioning body.

In our opinion, the most noteworthy aspect of this sentence is that, in this case, the TC understood that the declaration of non-infringing liability of the person charged by the investigating body, or, if applicable, by the respective sanctioning body, has the consequence that subsequently the body in charge of resolving the appeals filed by the other defendants who were sanctioned is prevented from reviewing the exclusion of liability decided by the previous body (investigating or sanctioning). This would prevent the higher body hearing the appeal from declaring the nullity ex officio of what was decided by the investigating or sanctioning body with the intention of rereviewing the possible liability of the person who was excluded because they were not found liable.

During a state of emergency, the constitution is not annulled. It is an exceptional measure that allows the restriction of four rights, to face and overcome the serious circumstances that affect the country.

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1 Ground 16 of the TC ruling in Case No. 04850-201 4-PA.

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