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the provisions that were in force and had failed to comply with essential steps of the
legal procedure, and this resulted in the invalidity of the nationality title and deprived
it of legal effect. The causes established in article 12 of the Regulation to the
Nationality Law were never expressly invoked.
The acquisition of Peruvian nationality is regulated by three provisions of the
Constitution in force. Nationality is recognized as a fundamental right. Article 52
states that Peruvians by birth are those born in the territory of the Republic, and by
consanguinity, those born to a Peruvian father or mother. Nationality by option also
exists; this occurs when someone who is not Peruvian marries a Peruvian national.
Finally, nationality may be acquired by naturalization.
Article 53 of the Constitution stipulates that nationality can only be lost by express
renunciation before the Peruvian authorities. The Constitution states that the
legislation should establish the form of acquiring or recovering nationality.
Nationality Law, No. 26,574, of January 11, 1996, is currently in force. This
determines the competent organ for granting or canceling nationality, the procedure
and the requirements. This law also has a regulation that details the requirements
for acquiring nationality and establishes how it is lost. Nationality can only be lost by
express renunciation before the Migration Directorate or on the grounds established
in article 12 of the regulation to the Nationality Law. These include public interest
and national interest and also acts that could affect national security. According to
Supreme Decree No. 00497 of May 25, 1997, the fact that national security is
affected constitutes a reason for cancellation, but this is not reflected in the
Constitution, which only mentions loss due to renunciation before the Peruvian
authorities. Similarly, article 15 of the regulation indicates that the President of the
Republic may cancel naturalization, without stating the cause, when national security
so requires, a very broad and general concept, that could make the right to
nationality meaningless.
The expansion of the grounds for losing nationality contained in the said regulation is
unconstitutional. Since the above-mentioned supreme decree “does not withstand
constitutional examination”, petitions to have it annulled were filed through popular
action, but were rejected by the Public Law Chamber.
Mr. Ivcher acquired Peruvian nationality through a “supreme resolution”, and the
decision that annulled his nationality title was a “directorial resolution”. Within the
structure of the Peruvian legal system there are differences between these
administrative acts. The “supreme resolution”, issued by the Minister and signed by
the President of the Republic, ranks highest; it is followed by the “ministerial
resolution” and then the “deputy ministerial resolution”, and lastly, the “directorial
resolution”. Consequently, a “directorial resolution” cannot disregard what has been
established in a “supreme resolution”. If it does, it becomes an invalid legal act.
In Peru, administrative acts are regulated by the Administrative Procedures Law,
articles 109 and 110 of which establish the possibility of declaring de oficio that an
act is invalid when it suffers from a presumption of invalidity, but also establishes a
period of six months to do so. In this case, the annulment decision was blatantly
outside this period, because 13 years had elapsed and also, if it had been executed
within the legal period, a superior official should have declared the invalidity.