Can a Commission to penalize a company for refusing to carry out an inspection visit?
By Resolution No. 1906-2007/TDC-INDECOPI (hereinafter the Resolution) of 2 October 2007, the Board of Competition (hereinafter the Board) declared null and void Resolution No. 025-2007/CCD-INDECOPI, which sanctioned Hermes Courier SAC (hereinafter, Hermes Courier) to hinder the exercise of the functions of the Commission, by not allowing officials to enter their local Indecopi. This decision is important because it decides on a more invasive measures has Indecopi on the rights of the citizens, namely, inspection visits.
The central argument of the Chamber is located in section 26 of the Resolution, which literally reads:
26. While the refusal to allow entry of officials in local INDECOPI Hermes Courier implied in fact an interference with the work of the Commission, for the conduct to be classified as delinquent, it was necessary to develop a violent or by threat, situation that no evidence in this case because the person who only manifested verbally that he was not authorized to allow entry of INDECOPI officials, as recorded in the minutes prepared by the latter.
(emphasis added)
From my point of view, the Board's argument is partially correct, since Article 5 of Legislative Decree No. 807 only sanctions the interference with the work of the Commission when it was developed by a violent or threatening. Do not punish the mere refusal of the individual to leave enter your local authority.
However, do not share the position of the Board regarding the refusal is, in fact, an interference with the work of the Commission. On the contrary, such a refusal would find constitutional support the right to inviolability of domicile, as recognized in Article 2.9 of the Constitution, which nobody can enter the domicile of a person or make investigations or records without authorization from the person who lives or without a warrant, except flagrante delicto or very serious danger of their commission. Exceptions for reasons of health or serious risk are governed by law.
In that sense, if Indecopi officials wanted to enter the premises of Hermes Courier needed to approve the company or judicial authorization that would allow them entry, which could be implemented with support from the police. If the authority does not have any of these authorizations, you can not enter the premises of the undertaking concerned and, even less, punished for exercising a constitutional right.
If the company refused to let enter Indecopi officials, the only way they could enter was getting a warrant. Thus, the judge is responsible for assessing whether there are sufficient factual and legal evidence to justify conducting a due diligence inspection on the premises of the company investigated or reported, as appropriate.
The reason for this guarantee is to prevent the arbitrary exercise by instructors bodies entering the premises of the governed, without any major factual and legal on the commission of a breach by the investigation. To avoid this risk, the Constitution has established who is a judge who determines whether there is any minimum the possible commission of a breach by the administrator whose home is to inspect [2] .
foregoing does not necessarily mean that instructors Indecopi bodies can not make their research and instruction can initiate cases [3] . Efficacy and garantismo not have to be opposing concepts. The effectiveness in the work of Indecopi can go hand in hand with the protection of the rights of individuals.
In that sense, to prevent the Indecopi is limited in his instructive work is necessary for the institution starts to develop greater coordination with other public institutions that can provide information on the functioning of the market, devote more resources to teachers agencies and, above all, develop a more fluid relationship with the judiciary, which let your requests be treated with the quickness and speed desired.
Certainly the changes described above require political will and strong leadership to guide institutional efforts in this direction. Otherwise, the only responsible for the ineffectiveness of the work Indecopi instructor will not be the management - who were only exercising their constitutional rights, "but the institution itself.
[1] Persons wishing to read the resolution, I can send an email to forward it effects.
[2] should be noted that the minimum requirements shall have the authority to perform a due diligence inspection have already been defined by the Constitutional Court in the case Eiger. In this regard, see HIGA, Caesar. Case Eiger. First steps in the delimitation of the administrative authority's performance in administrative penalties. In: http://nuestrasrazones.blogspot.com/
[3] The Board seems to share a similar view. Thus, in paragraph 28 of Resolution, the Board expressly states that:
28. This does not imply that the Commission is limited in exercising the functions entrusted to it according to law On the contrary, the Legislative Decree No. 807 has provided mechanisms of action to allow staff to develop the measures INDECOPI inspection. In fact, Article 2 of the said rule, said that to enter the premises, the Commission may seek the support of the security forces and even seek judicial authorization to proceed with the forcible unlocking local if they were closed.
0 comments:
Post a Comment