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possibilities: either absolving the official and filing the corresponding accusation, or
transferring the case to the courts to evaluate whether a crime has been committed.
The rules of procedure do not go into sufficient detail about an eventual punishment
to be applied directly by Congress, and this is established in article 100 of the
Constitution.
The impeachment proceeding against the three justices of the Constitutional Court
was initiated irregularly for two reasons. First, the proceeding arose from a
complaint by one of the justices of the Court with regard to incidents that had
occurred within the Court. However, “the proceeding changed direction and the
complainant end[ed] up as the defendant.” Second, the articles of impeachment
did not refer to the judgment delivered by the Court that declared that the reelection law was non-applicable, but to the decision clarifying this judgment,
because it was alleged that three justices could not assume to represent the full
Court and, therefore, could not deliver a decision, which, in any case, was
accessory, since the clarification requested by the Lima Bar Association was not in
order, “because there was nothing to clarify.” He emphasized that the procedures
established in the Constitutional Court’s statute form part of and complement the
provisions of the Civil Procedural Code.
In any case, the clarification decision delivered by some of the members of the
Constitutional Court did not violate provisions of Peru’s constitutional legislation,
since the decision declaring that the re-election law was non-applicable was signed
by only three justices, so that if the content required clarification, the only persons
who could be called on to clarify it were the justices who signed it. However, this is
merely logical reasoning, since this presumption is not established in Peruvian
legislation, although it exists in other legislations, such as that of Germany.
Furthermore, it was not taken into consideration that Constitutional Court justices
enjoy the same prerogatives as members of Congress and cannot be held
responsible before any authority or court for the opinions that they emit in the
exercise of their functions.
During the dismissal procedure, several constitutional provisions were violated. The
first relates to the failure of Congress to substantiate its decision ordering the
dismissal of the three justices, since, by taking this decision, Congress exercised a
function of a jurisdictional nature and, thus, in accordance with article 139(5) of the
Constitution, the decision should have been substantiated. Even supposing the
accusations had been integrated into its decision, Congress should have analyzed
the accusations, as part of the substantiation.
The reasons for the alleged
constitutional violation were not even set out in the articles of impeachment and
therefore there were irregularities in the substantiation of the decision.
First, articles 99 and 100 of the Constitution stipulate that a person may only be
dismissed for two reasons: due to a crime or a violation of the Constitution. In this
case, the articles of impeachment expressly established that it was a constitutional
violation and not a crime. Accordingly, the reason for the impeachment was that
three justices of the Constitutional Court usurped certain functions by allegedly
assuming to represent the full Court; however, although this could be a criminal act,
it is not a constitutional violation. Consequently, there was no cause for the
dismissal procedure, since no crime had been committed and there had been no
constitutional violation, or at least the articles of impeachment never indicated in
what it consisted.