Interesante jurisprudencia del Tribunal Constitucional sobre el principio de primacía reality and the fundamental right to "drinking water"
Principle of primacy of reality.
EXP. No.
LAMBAYEQUE 1944-2002-AA/TC
EDUARDO ENRIQUE Chinchay PUT
LAMBAYEQUE 1944-2002-AA/TC
EDUARDO ENRIQUE Chinchay PUT
(... )
3. In the present case, applies the principle of primacy of reality, which means that in the event of discrepancies between what happens in practice and what flows from the documents, should be preferred to the former, that is, to what happens in the realm of facts. In this sense, the content of the contracts referred warns an employment relationship existed between the plaintiff and the defendant of the characteristics described in the preceding basis, so the work they performed were of a permanent nature and not possible, as shown by the defendant. (...)
EXP. SANTA
No. EDWIN EDLER 04691-2006-PA/TC JARA SOTELO
http://www.tc.gob.pe/jurisprudencia/2008/04691-2006-AA.html
No. EDWIN EDLER 04691-2006-PA/TC JARA SOTELO
http://www.tc.gob.pe/jurisprudencia/2008/04691-2006-AA.html
3. The plaintiff argues that the civil contracts signed with the Municipality located concealed, in fact, a relationship of work nature as it was contracted to do gardening and cleaning service, that is, work permanent nature, reason could not be dismissed but for a reason connected with your conduct or work capacity provided for by law, duly verified, to justify such a decision.
4. In that sense, the dispute centers on whether the civil contracts signed by the applicant concealed, in fact, a relationship of labor nature, because, if so, would therefore apply the principle of primacy of reality.
5. In relation to this principle, implicit in our legal system and enforced by the aforementioned protective nature of our Constitution, this school has stated that "(...) in cases of discrepancy between what happens in practice and what flows from the documents, should be preferred to the former, that is, what happens in the realm of facts. " (Rationale 3 of the STC No. 1944-2002-AA/TC)
4. In that sense, the dispute centers on whether the civil contracts signed by the applicant concealed, in fact, a relationship of labor nature, because, if so, would therefore apply the principle of primacy of reality.
5. In relation to this principle, implicit in our legal system and enforced by the aforementioned protective nature of our Constitution, this school has stated that "(...) in cases of discrepancy between what happens in practice and what flows from the documents, should be preferred to the former, that is, what happens in the realm of facts. " (Rationale 3 of the STC No. 1944-2002-AA/TC)
(...)
fundamental right to drinking water
EXP-PA 6546-2006 / TC
LAMBAYEQUE
ZUNIGA LOPEZ CESAR AUGUSTO
LAMBAYEQUE
ZUNIGA LOPEZ CESAR AUGUSTO
Is there a constitutional right to drinking water?
3. In a preliminary to the elucidation of this controversy, it should be noted that although what he claims the plaintiff has to do with an alleged infringement of rights such as health and property, underlying that claim a much more relevant issue, namely whether the decision to cut service drinking water affects a fundamental right independent, consisting of the same enjoyment and disposition of the liquid element. It is, in other words, to verify whether, in light of value choices recognized by our constitutional system, may or may not speak of a constitutional right to clean water and if after any breach or threatened, holds the constitutional protection gives the other attributes and freedoms expressly recognized by the Constitution.
4. By first intention and purpose of first responders guide reflection, it should be noted that although the highest Constitution explicitly recognizes no or nominal fundamental right to drinking water, this situation does not mean or be interpreted as that possibility is elided or deferred. Indeed, as has been highlighted in previous opportunities, fundamental rights can be individualized not only from a strictly grammatical or positive. To the extent that the law does not create strict sense, essential rights, but simply to recognize limits, their identification can operate not only from an option valuation or principlist as recognized in Article 3 of the Constitution of Peru but also appealing to a hermeneutic exercise under a systematic basis or variant of context-deductible clauses in the instruments on international human rights, many of which contain not only additional rights expressly recognized in the Constitution, but even much broader content offering to those who already have constitutional coverage.
drinking water as a constitutional right not listed.
5) In the specific case law drinking water, consider that while this attribute is not considered a positive level, there are nevertheless a number of reasons for consideration or recognition as a fundamental right. Taking this premise is, however, to outline their identification within the context provided by some of the perspectives outlined above. To this effect to the extent that there is no express provision containing such recognition domestically and internationally are still to be developed many of the areas that comprise the attribute, it is permissible to go, for this purpose, mainly the option valuation or principlist and implicit rights clause that allows you to serve as a reference. So, using the formula described above would allow individualization legitimize the existence of a right to water as a fundamental attribute not listed. Its recognition would be directly linked to important values \u200b\u200bsuch as human dignity and social and democratic state of law. Contents
fundamental right to drinking water. Personal and extrapersonal roles.
6) The right to water, in light of the context described, would, primarily, a duty of affirmative or performance based, whose realization would correspond mainly to promote the state. His condition makes it essential natural resource, a basic element for the maintenance and development not only of the existence and quality of human life, but other such basic rights as health, labor and the environment, resulting in almost impossible to imagine that without the presence of the liquid element, the individual can to satisfy their basic needs and even those which, without being, allow the improvement and development of their living conditions.
7) The water as a natural resource, not only directly contributes to the strengthening of fundamental rights in question, but from a perspective extrapersonal influences on social development and economic development through policies that the State is undertaking a number of sectors. Such is the case of agriculture, mining, transport, industry, etc. Can be said, therefore, that thanks to its existence and use is made possible sustained growth and ensuring that society as a whole is not adversely affected in the short, medium and long term.
8) Within this context, and even when not part of the disputed issue, it is clear that consideration of the essential role of water in favor of the individual and society as a whole, to suggest their status not only at the level of a fundamental right, but a target value to the State Constitutional corresponding privilege. Assumptions
minimum right to drinking water. Access, quality, adequacy
9) As regards the position of the individual as the beneficiary of the fundamental right to drinking water, the State is obliged to guarantee at least three essential things: access, quality and sufficiency. Without the presence of these three conditions, that attribute would be denatured well apart from the existence of the resource. It is not, therefore, to proclaim that water exists, but to provide a minimum set of assumptions to ensure their enjoyment or enjoyment of the human or individual recipient.
10) Access from this perspective, you should assume that since the state must be created, directly or indirectly (via dealers), about the resource conditions for the recipient fluid. To this end, various references can be: a) there must be water, physical facilities and services close to where people live, work, study, etc.., B) water, services and facilities must be fully accessible economic terms, ie in terms of costs must be within reach of anyone, except in cases that improved or specialized nature of the service, has required greater investment in empowerment, c) in accordance with rule above should not be allowed any discrimination or distinction, when it comes to playing field in the fluid supply element, from the State must protect preferably at the most vulnerable population, d) should be promoted a policy of continuous information on water use and on the need to protect as a natural resource.
11) The quality, in turn, must mean the obligation of ensuring full sanitation conditions in the liquid component and the need to maintain optimal levels of services and facilities with which it has to be supplied. Unacceptable, therefore, be that water can be dispensed in a manner that endangers life, health or safety of persons, debiéndose for that purpose take the necessary preventive measures to avoid contamination by microorganisms or harmful substances, or even by industrial mechanisms that might be damaging in terms of natural resource. Similar criterion has to be invoked for services or facilities with natural deterioration should not be a pretext for the generation of damage on the liquid element. Fulfilled its natural period of existence, the services or facilities should be replaced by others that offer similar or better quality standards.
12) The adequacy finally must involve the need for the natural resource conditions can be waived in appropriate quantity to allow at least meet the basic or primary needs of the person, such as those related to personal and domestic uses, or even those related to health, because they depend on the existence of each individual. Water, in other words, being an asset whose existence is guaranteed, neither can nor should be provided in all lighting conditions incompatible with the basic requirements of each individual.
13) In short, the State, within its social role and irrefutable logic of protecting human beings and their dignity, promote the drinking water constitutes not only a right of permanent use and enjoyment, but at the same time, an item in the service of an endless repertoire of rights, all as of extreme importance to the realization of the individual.
3. In a preliminary to the elucidation of this controversy, it should be noted that although what he claims the plaintiff has to do with an alleged infringement of rights such as health and property, underlying that claim a much more relevant issue, namely whether the decision to cut service drinking water affects a fundamental right independent, consisting of the same enjoyment and disposition of the liquid element. It is, in other words, to verify whether, in light of value choices recognized by our constitutional system, may or may not speak of a constitutional right to clean water and if after any breach or threatened, holds the constitutional protection gives the other attributes and freedoms expressly recognized by the Constitution.
4. By first intention and purpose of first responders guide reflection, it should be noted that although the highest Constitution explicitly recognizes no or nominal fundamental right to drinking water, this situation does not mean or be interpreted as that possibility is elided or deferred. Indeed, as has been highlighted in previous opportunities, fundamental rights can be individualized not only from a strictly grammatical or positive. To the extent that the law does not create strict sense, essential rights, but simply to recognize limits, their identification can operate not only from an option valuation or principlist as recognized in Article 3 of the Constitution of Peru but also appealing to a hermeneutic exercise under a systematic basis or variant of context-deductible clauses in the instruments on international human rights, many of which contain not only additional rights expressly recognized in the Constitution, but even much broader content offering to those who already have constitutional coverage.
drinking water as a constitutional right not listed.
5) In the specific case law drinking water, consider that while this attribute is not considered a positive level, there are nevertheless a number of reasons for consideration or recognition as a fundamental right. Taking this premise is, however, to outline their identification within the context provided by some of the perspectives outlined above. To this effect to the extent that there is no express provision containing such recognition domestically and internationally are still to be developed many of the areas that comprise the attribute, it is permissible to go, for this purpose, mainly the option valuation or principlist and implicit rights clause that allows you to serve as a reference. So, using the formula described above would allow individualization legitimize the existence of a right to water as a fundamental attribute not listed. Its recognition would be directly linked to important values \u200b\u200bsuch as human dignity and social and democratic state of law. Contents
fundamental right to drinking water. Personal and extrapersonal roles.
6) The right to water, in light of the context described, would, primarily, a duty of affirmative or performance based, whose realization would correspond mainly to promote the state. His condition makes it essential natural resource, a basic element for the maintenance and development not only of the existence and quality of human life, but other such basic rights as health, labor and the environment, resulting in almost impossible to imagine that without the presence of the liquid element, the individual can to satisfy their basic needs and even those which, without being, allow the improvement and development of their living conditions.
7) The water as a natural resource, not only directly contributes to the strengthening of fundamental rights in question, but from a perspective extrapersonal influences on social development and economic development through policies that the State is undertaking a number of sectors. Such is the case of agriculture, mining, transport, industry, etc. Can be said, therefore, that thanks to its existence and use is made possible sustained growth and ensuring that society as a whole is not adversely affected in the short, medium and long term.
8) Within this context, and even when not part of the disputed issue, it is clear that consideration of the essential role of water in favor of the individual and society as a whole, to suggest their status not only at the level of a fundamental right, but a target value to the State Constitutional corresponding privilege. Assumptions
minimum right to drinking water. Access, quality, adequacy
9) As regards the position of the individual as the beneficiary of the fundamental right to drinking water, the State is obliged to guarantee at least three essential things: access, quality and sufficiency. Without the presence of these three conditions, that attribute would be denatured well apart from the existence of the resource. It is not, therefore, to proclaim that water exists, but to provide a minimum set of assumptions to ensure their enjoyment or enjoyment of the human or individual recipient.
10) Access from this perspective, you should assume that since the state must be created, directly or indirectly (via dealers), about the resource conditions for the recipient fluid. To this end, various references can be: a) there must be water, physical facilities and services close to where people live, work, study, etc.., B) water, services and facilities must be fully accessible economic terms, ie in terms of costs must be within reach of anyone, except in cases that improved or specialized nature of the service, has required greater investment in empowerment, c) in accordance with rule above should not be allowed any discrimination or distinction, when it comes to playing field in the fluid supply element, from the State must protect preferably at the most vulnerable population, d) should be promoted a policy of continuous information on water use and on the need to protect as a natural resource.
11) The quality, in turn, must mean the obligation of ensuring full sanitation conditions in the liquid component and the need to maintain optimal levels of services and facilities with which it has to be supplied. Unacceptable, therefore, be that water can be dispensed in a manner that endangers life, health or safety of persons, debiéndose for that purpose take the necessary preventive measures to avoid contamination by microorganisms or harmful substances, or even by industrial mechanisms that might be damaging in terms of natural resource. Similar criterion has to be invoked for services or facilities with natural deterioration should not be a pretext for the generation of damage on the liquid element. Fulfilled its natural period of existence, the services or facilities should be replaced by others that offer similar or better quality standards.
12) The adequacy finally must involve the need for the natural resource conditions can be waived in appropriate quantity to allow at least meet the basic or primary needs of the person, such as those related to personal and domestic uses, or even those related to health, because they depend on the existence of each individual. Water, in other words, being an asset whose existence is guaranteed, neither can nor should be provided in all lighting conditions incompatible with the basic requirements of each individual.
13) In short, the State, within its social role and irrefutable logic of protecting human beings and their dignity, promote the drinking water constitutes not only a right of permanent use and enjoyment, but at the same time, an item in the service of an endless repertoire of rights, all as of extreme importance to the realization of the individual.
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