Eiger Case
First steps in the delimitation of the administrative authority's performance in administrative penalties
First steps in the delimitation of the administrative authority's performance in administrative penalties
Currently, investigation, prosecution and punishment of the breaches in standards as the stock market law, telecommunications, energy, transport, taxation, competition, insolvency, consumer protection, has been delegated to various administrative bodies. Although the delegation of these powers to the Public Administration is justified on pragmatic grounds, we must also consider all risks that can lead the delegation.
Keep in mind that the organs of Public Administration, in principle, have no independence and autonomy that is the prosecutors and the judiciary, at least normatively. Another important aspect is that the Civil Service, by design, should be responsible for implementing the policy of the democratically elected Government. It is the arm of the Government policy .. However, although the Government has the power to carry out the policies for which he was elected, this power is limited to the rights of individuals.
And here comes the second danger which may be the concentration of the investigation, prosecution and punishment of offenses in the Public Administration bodies. Since Public Administration is the implementer of government policies, can achieve these priority over the rights and interests of individuals, and lead to an institutional structure whose procedures do not adequately guarantee the rights of individuals when opens up a procedure sanctions. Sometimes, for example, the same body that is charged with investigating and sanctioning, which implies a direct violation of the adversarial principle governing our legal penalties, according to the extensive jurisprudence of the Constitutional Court [1] .
also because of the close linkage of public administration bodies with the government, it often happens that when a conflict of interest, such as the increase in prices of goods sensitive to the population, the bodies Civil start to conduct research that could affect the rights of persons under investigation.
Indeed, product of research carried out by public administration bodies, they may require extensive information and documentation on individuals, on pain of sanction if they fail to meet them, in other cases, they are required to produce certain information, which can result in significant costs and, in the most burdensome steps can be performed inspections at its premises, which means the cessation of the work of the company during the inspection and the hiring of lawyers who will monitor the legality of performance of public administration. Many of these cases, are made without any evidence of possible commission of an offense.
It is therefore extremely important to the Judgement of August 29, 2006 (case Eiger) [2] , relapse File No. 3075-2006-PA/TC, by which the Constitutional Court, First Hall states a precedent that contains the rule that any measure restricting or limiting a right of individuals must be supported by facts and legal minimum.
This case is particularly relevant as this statement examines the conduct of a due diligence inspection, which is a more invasive measures that can be performed on the Civil Rights individuals. The Constitutional Court noted that to carry out such measures is necessary that the administrator has authority sufficient evidence of the commission of the offense. The mere invocation of legal rules can not serve as an argument to validate the origin of it. This last point is important given that invalidate any action by the Civil Service whose only livelihood is the simple invocation of rules. Thus, it requires government that justifies all acts that could mean a restriction or limitation on the rights of the citizen, otherwise it would be arbitrary.
The reasons for acts of public administration is a guarantee for the citizen as you would know if the reasons given by that authority to support its actions are consistent with the legal system. Otherwise, the individual concerned with the performance of public administration may challenge for violating their rights and seek remedial measures it deems appropriate [3] .
Regarding the standard of proof required to issue a move that may affect the rights of the citizens, the Constitutional Court said only that the evidence must be sufficient to consider that there is a infringement of the rights of the applicant or that the infringement is imminent.
From our point of view, the standard that would require the administrative authority will depend on the type of act in question. The greater the involvement of a right of individuals, the greater must be the foundation of the act of administrative authority. Is not the same information required to quote a given, seize property or conduct an inspection. Each of these acts not only affects individual rights of the citizens, but also has a different level of interference on their legal rights. In this regard, the Courts will establish what the different levels of reasoning to require the administrative authorities concerned according to law.
As noted, currently Public Administration investigate, prosecute and punish a number of infringements, which can affect various rights of the citizens-as property, reputation, freedom of enterprise, due process, among others, why which is necessary to define the scope within which the administration must act. In this scenario, the Eiger case constitutes an important first step in that direction.
[1] In response to the above, would not be unreasonable to think that the design of most sanctioning administrative processes would be unconstitutional.
[2] From the evidence presented in the Constitutional Court, it appears that Microsoft Corporation and others petitioned the Copyright Office of Indecopi inspection at the Private University of Tacna entity located in the town of same name, inspection, however, was suspended on the initiative of the same interest, to alter its original application in respect of another entity located within the same locality. However, subsequently, the Copyright Office, although the scope of the variance request submitted by Microsoft, arbitrarily changed by executing local inspection against Eiger, a resident of Cuba Avenue No. 699, Jesús María, Lima. The Constitutional Court notes that there is no evidence that has supported the taking of inspection by the Copyright Office.
For more information, see the following link that leads directly to the sentence the subject of comment:
http://www.tc.gob.pe/jurisprudencia/2006/03075-2006-AA.html
[ 3] In this case, one of the remedies imposed by the Constitutional Court was the annulment of the measure and, consequently, the exclusion of all material evidence collected by the measure of inspection.
Keep in mind that the organs of Public Administration, in principle, have no independence and autonomy that is the prosecutors and the judiciary, at least normatively. Another important aspect is that the Civil Service, by design, should be responsible for implementing the policy of the democratically elected Government. It is the arm of the Government policy .. However, although the Government has the power to carry out the policies for which he was elected, this power is limited to the rights of individuals.
And here comes the second danger which may be the concentration of the investigation, prosecution and punishment of offenses in the Public Administration bodies. Since Public Administration is the implementer of government policies, can achieve these priority over the rights and interests of individuals, and lead to an institutional structure whose procedures do not adequately guarantee the rights of individuals when opens up a procedure sanctions. Sometimes, for example, the same body that is charged with investigating and sanctioning, which implies a direct violation of the adversarial principle governing our legal penalties, according to the extensive jurisprudence of the Constitutional Court [1] .
also because of the close linkage of public administration bodies with the government, it often happens that when a conflict of interest, such as the increase in prices of goods sensitive to the population, the bodies Civil start to conduct research that could affect the rights of persons under investigation.
Indeed, product of research carried out by public administration bodies, they may require extensive information and documentation on individuals, on pain of sanction if they fail to meet them, in other cases, they are required to produce certain information, which can result in significant costs and, in the most burdensome steps can be performed inspections at its premises, which means the cessation of the work of the company during the inspection and the hiring of lawyers who will monitor the legality of performance of public administration. Many of these cases, are made without any evidence of possible commission of an offense.
It is therefore extremely important to the Judgement of August 29, 2006 (case Eiger) [2] , relapse File No. 3075-2006-PA/TC, by which the Constitutional Court, First Hall states a precedent that contains the rule that any measure restricting or limiting a right of individuals must be supported by facts and legal minimum.
This case is particularly relevant as this statement examines the conduct of a due diligence inspection, which is a more invasive measures that can be performed on the Civil Rights individuals. The Constitutional Court noted that to carry out such measures is necessary that the administrator has authority sufficient evidence of the commission of the offense. The mere invocation of legal rules can not serve as an argument to validate the origin of it. This last point is important given that invalidate any action by the Civil Service whose only livelihood is the simple invocation of rules. Thus, it requires government that justifies all acts that could mean a restriction or limitation on the rights of the citizen, otherwise it would be arbitrary.
The reasons for acts of public administration is a guarantee for the citizen as you would know if the reasons given by that authority to support its actions are consistent with the legal system. Otherwise, the individual concerned with the performance of public administration may challenge for violating their rights and seek remedial measures it deems appropriate [3] .
Regarding the standard of proof required to issue a move that may affect the rights of the citizens, the Constitutional Court said only that the evidence must be sufficient to consider that there is a infringement of the rights of the applicant or that the infringement is imminent.
From our point of view, the standard that would require the administrative authority will depend on the type of act in question. The greater the involvement of a right of individuals, the greater must be the foundation of the act of administrative authority. Is not the same information required to quote a given, seize property or conduct an inspection. Each of these acts not only affects individual rights of the citizens, but also has a different level of interference on their legal rights. In this regard, the Courts will establish what the different levels of reasoning to require the administrative authorities concerned according to law.
As noted, currently Public Administration investigate, prosecute and punish a number of infringements, which can affect various rights of the citizens-as property, reputation, freedom of enterprise, due process, among others, why which is necessary to define the scope within which the administration must act. In this scenario, the Eiger case constitutes an important first step in that direction.
[1] In response to the above, would not be unreasonable to think that the design of most sanctioning administrative processes would be unconstitutional.
[2] From the evidence presented in the Constitutional Court, it appears that Microsoft Corporation and others petitioned the Copyright Office of Indecopi inspection at the Private University of Tacna entity located in the town of same name, inspection, however, was suspended on the initiative of the same interest, to alter its original application in respect of another entity located within the same locality. However, subsequently, the Copyright Office, although the scope of the variance request submitted by Microsoft, arbitrarily changed by executing local inspection against Eiger, a resident of Cuba Avenue No. 699, Jesús María, Lima. The Constitutional Court notes that there is no evidence that has supported the taking of inspection by the Copyright Office.
For more information, see the following link that leads directly to the sentence the subject of comment:
http://www.tc.gob.pe/jurisprudencia/2006/03075-2006-AA.html
[ 3] In this case, one of the remedies imposed by the Constitutional Court was the annulment of the measure and, consequently, the exclusion of all material evidence collected by the measure of inspection.
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