Comments
1. Return of the liminal rejection (“outright” inadmissibility): When the New Constitutional Procedural Code came into force, one of its main changes was to prohibit the liminal rejection of the claims for amparo, compliance, habeas data and habeas corpus. That is to say, when the judge qualified the claim, despite warning that it is appropriate to be discussed in the constitutional venue, he had to admit the claim and continue with the process (notify the defendant to answer the claim, carry out the hearing, etc.).
Between 2021 and 2024, this has generated an increase in the caseload of the judicial branch and a burden on litigants, since the truth is that not all lawsuits are admissible, despite the mandate to admit them for processing.1 With the current amendment to Article 6, a liminal rejection is allowed when the claim (the request) is (i) "physically or legally impossible" or (ii) a questioning of the "legislative process." It is also specified — but not further explained — that to apply the liminal rejection, "qualified motivation" is required. Although what is meant by "qualified motivation" is not specified, it will mean that the judges must provide good and solid reasons to apply the liminal rejection.
2. Changes to the amparo against judicial resolutions (judicial decisions): In its original 2021 version, the New Constitutional Procedural Code specified that the amparo lawsuit against judicial resolutions "is filed before the constitutional chamber or, if there is none, before the civil chamber on duty of the respective superior court of justice." Later, by Law No. 31583, the same treatment was given to amparo actions against (i) arbitration awards, (ii) public works selection or execution procedures, and (iii) decisions of congressional bodies, within a parliamentary process.2
Now, with Law No. 32153, the following procedure has been specified in the case of amparo lawsuits against judicial resolutions:
It should be noted that although it is not specified what a "judicial decision on the merits" issued by the Supreme Court is, it could be understood, at least with respect to an ordinary proceeding (civil, criminal, labor, etc.), to refer to a Supreme Court decision (“casación” or cassation) that declares a cassation appeal to be founded or unfounded.
However, and with respect to ordinary proceedings, due to a problem of legislative technique, the new regulation would be leaving aside the Supreme Court decisions that declare the appeal in cassation to be inadmissible (which, strictly speaking, are not decisions "on the merits") and that therefore confirm the decision of the second instance. This bad legislative technique opens discussions on how they should be challenged, to the detriment of the parties. In our opinion, the most reasonable thing to do would be to interpret that they should follow the procedure provided for challenging Supreme Court decisions, even when they are not "on the merits"; however, this should be the subject of a legislative amendment or a judicial precedent.
3. Interpretation of the contents and scope of fundamental rights: Law No. 32153 has attempted to reduce the scope of protection of fundamental rights by specifying that these must be interpreted in relation to human rights treaties "to which Peru is a party" (and, therefore, it would not be appropriate to invoke human rights treaties to which Peru is not a party). This change is innocuous in that it does not affect the invocation of jus cogens norms or international custom.
On the other hand, the original version of the "New" Constitutional Procedural Code referred to the interpretation of constitutional rights according to the "decisions" of international courts, such as the Inter-American Court of Human Rights (IACHR. The IACHR issues decisions in a contentious function (judgments) and in an advisory function (advisory opinions). With the current change in Law No. 32153, the decisions of bodies such as the IACHR would only be judgments (no longer advisory opinions) and only in cases in which Peru is a party (defendant). The jurisprudence of the Constitutional Tribunal of Peru and of the IACHR itself would not admit such a restriction, but it remains to be seen how Peruvian judges will approach the matter, since it is finally stated that in the case of contradiction "judges will prefer the norm or decision that most favors the individual and human rights."
4. Special situation for certain acts of the Congress of the Republic: If "the legislative process" is being questioned (as it is understood, for the approval of laws), such cases may not be processed through amparo proceedings but through the process of unconstitutionality (see the new wording of Article 6). Likewise, if acts related to the election, appointment, ratification and removal of high officials, trial and impeachment, and presidential vacancy and suspension are challenged, they may be challenged through an amparo proceeding processed under a special procedure regulated in Article 52-A, which would not include the possibility of dispensing with the single hearing, issuing precautionary measures or executing the sentence in advance. Thus, in these cases, a differentiated and special treatment (not justified) is given to the Congress of the Republic.
What has changed?
We present a comparative table in the following link, highlighting the changes in red.
- Although Law No. 32153 does not expressly state it, it will become effective the day after its publication, that is, as of Wednesday, 6 November 2024. Its application, according to the Sole Final Complementary Provision of Law No. 32153, will be as follows:
- The changes will be "of immediate application" (from 6 November 2024 onward) for cases pending before the Constitutional Court.
- The changes will not apply to all ongoing proceedings, which will continue to be processed "in accordance with the procedural rules in force when they began, until their completion."
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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.
Spanish version
1 Although the Constitutional Court implied that it is possible to reject the claim when the claim refers to "a legal impossibility" or "lacks virtuality" (FJ No. 81 of TC Plenary Ruling No. 47/2023, handed down in Case No. 0030-2021-PI/TC of 31 January 2023), the truth is that the judiciary has preferred to continue admitting the claims for processing.
2 Similar treatment is given to amparos against decisions of the OSCE (now OECE, for their acronym in Spanish), according to the 16th Final Complementary Provision of the General Law on Public Contracting. In this regard, see our alert dated 27 June 2024 ("Amparo Process and Public Procurement: What changed?").
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