for which, the defendant entities were notified.
[Ingemmet's arguments] THIRD.- That, by means of a letter dated December 9th, 2019, the co-defendant Geological, Mining and Metallurgical Institute - INGEMMET, based its OPPOSITION by stating -in essence- that: Regarding the Verisimilitude of the Right Invoked.- On the Payment of the Right Validity and Expiration of Mining Concessions: 1) Regarding the fulfillment of the payment for validity rights, according to article 39th of the TUO of the General Mining Law, it should be noted that the first payment of the validity right corresponds to the first year in which a new mining request is formulated, having to deposit the amount in the account of "code 999" of the corresponding Financial Institution, as indicated on the INGEMMET website, said option being enabled exclusively for the "formulation of petitions"; However, a different case occurs with respect to the payment for the right of validity corresponding to the second year (hereinafter), which is made from the first business day of January of the year following that in which the request was made until the June 30th of each year, whose deposit will be made using the "unique code of mining rights", assigned to the holder of the mining concession, with which he will be identified for the payment of any pecuniary obligation, achieving the automatic accreditation of payment for such fee; In this sense, once the petition is approved and the mining concession title is granted, the holder is assigned a unique code of mining rights, which must be used to make the corresponding payments for the validity right from the second year, following the formulation of the request. Regarding INGEMMET's business hours and the events that occurred on July 2nd, 2018: 2°) In the present case, on July 2nd, 2018, the plaintiff made deposits in the INGEMMET bank account without using the unique code, so the respective accreditation had to presented on the same day and within INGEMMET's business hours, attaching the original vouchers of the full deposit owed in the accounts authorized by INGEMMET and identifying the right for which each payment was made. 3°) It is not a matter of controversy that, in effect, the applicant made deposits in the bank account of INGEMMET; However, as we have already indicated, since INGEMMET was not aware of what concessions said payments referred to, the applicant was obliged to present the respective accreditation, complying with the requirements stipulated in article 37th of the Regulation of the Relevant TUO Titles of the General Mining Law, approved by Supreme Decree No. 03-94-EM. 4°) However; the applicant did not comply with the requirements of the Law; and, pretending that we offer him unequal treatment, he presented fourteen (14) payment receipts, irregularly and outside of INGEMMET's business hours, as follows: a) On July 02nd, 2018, the representative of MACUSANI YELLOWCAKE SAC went to INGEMMET facilities, during business hours, to present the accreditation request for his mining concessions, which was received with unique code No. 01-002214-18-D at 4:30 p.m., at which the original deposit slips were not attached, as indicated by the servant who received said letter in Report No. 03-2018-INGEMMET/SG/UADA-VVR, which is offered as evidence, recording the observation “NO VOUCHERS ATTACHED”; b) Subsequently, and outside of business hours, the applicant enters INGEMMET, in circumstances that are being investigated in the corresponding administrative disciplinary process, fourteen (14) vouchers of the deposits made, which are attached in an absolutely irregular manner violating the principle of procedural good faith, to the brief that he had previously submitted; and, c) In view of this, the servant who received the accreditation document, modifies the observation "NO VOUCHERS ATTACHED" to "ATTACHED 14 ORIGINAL PAYMENT VOUCHERS fFOR VALIDITY RIGHTS". 5°) The applicant had pending payment of the right of validity of the years 2017 and 2018 (that is, two consecutive years), therefore, if he did not pay within the term (using the unique mining code) or accredit within the term (for not having made the payment using the unique mining code), at least the right of validity of 2017, incurred a cause of expiration, in accordance with the provisions of article 59th of the TUO of the General Mining Law, approved by Supreme Decree No. 014-92-EM. 6°) In this sense, although the plaintiff complied with making deposits to the INGEMMET accounts on July 2nd, 2018, not having used the unique code, he had to present the respective accreditation within INGEMMET's business hours that run from 8:15 a.m. to 4:30 p.m., which was not carried out with the established requirements, therefore, his request for accreditation was declared inadmissible by means of a resolution dated October 3rd, 2018. 7°) The inadmissibility was declared, because the plaintiff did not comply with the payment of the right of validity of two consecutive years 2017 and 2018, for which it incurred a cause for expiration, and was thus declared through the resolutions whose annulment is requested in the main process. Regarding the documentary correction: 8°) The non-presentation of the vouchers cannot be a matter of subsequent documentary correction, because it does constitute the fulfillment of a substantive obligation, which is the accreditation, which is configured in itself with the presentation of the vouchers; in the assumption denied that it is conceived that the presentation of the receipts can be a matter of subsequent documentary correction, with which the accreditation is produced, then the substantive norm would be violated, which indicates that the accreditation is until July 2nd, 2018, since a period of two (02) additional days would be added, that is, until July 4th, 2018, which has not been established by the mining law. Regarding the Danger in Delay.- 9 °) Regarding the requirement of danger in delay, we must point out that the disputed resolutions have been issued after it has been determined with certainty that the applicant did not comply with submitting its accreditation document with the requirements established in the mining regulations, these resolutions having full validity, thereby eliminating the danger of delay. Regarding the Adequacy of the Measure to guarantee the effectiveness of the claim.- 10°) In the resolution granting a Medida Cautelar, it has not been fulfilled to substantiate factually and legally whether the precautionary request is adequate or reasonable to guarantee the effectiveness of the claim raised in the process, therefore, since the budgets for granting the Medida Cautelar do not concur in copulation, they request that their opposition is declared well founded and the Medida Cautelar is annulled.
[Minem's arguments] FOURTH.- That, by means of a letter dated December 10th, 2019, the co-defendant Ministry of Energy and Mines - MINEM, supports its OPPOSITION stating -among other terms- that: 1°) In point 5.3 of the resolution that dictates the Medida Cautelar, it is indicated that the plaintiff company did comply with the full payment of the right of validity for year 2017, which has not been the subject of questioning by the defendant, because the plaintiff made payments to INGEMMET's account; However, it is necessary to point out that, for the mining regulations, it is not enough to make the payment for the Right of Validity so that the mining right does not fall into default and is subject to the expiration sanction, but on the contrary, the regulatory norm requires the adminintered, when not using the unique code of the mining right, to prove the payment, for which the original voucher of the deposit made in the banking or financial system must accompany the request and identify the mining right for which the payment was made. 2°) That is, the administered makes an erroneous interpretation of the mining procedure for accreditation of payments of the Right of Validity and/or Penalty, being that the norm foresees two situations: a) The payment with automatic accreditation by making the payment in cash in foreign currency and providing the unique code of the mining right; and, b) The payment without using the unique code of the mining right, (which does not accredit the automatic payment) in which the company must submit a request for accreditation accompanying the payment vouchers and expressly indicating which is the mining right benefited for which it is paying. The two payment accreditation modalities must be carried out within the period set by the mining regulations from the first business day of January to June 30th of each year. 3°) In the present case, the company did not use the unique code of each mining right, therefore it was obliged to present the accreditation application with the documents that have been outlined above and that by express mandate of the regulatory norm have to be accompanied so that the payment is accredited; However, we have that: a) The deadline for submitting the applications with the accreditation's requirements were inexorably stablished at 4:30 p.m. on July 2nd; b) Until the time that said term expired, the company only entered the applications for mining rights without accompanying the vouchers or payment slips; and, c) Any entry after opening hours is considered not presented since the regulatory norm does not admit subsequent correction (it is not a subsequent control process). 4°) Point 5.4 of the resolution object of opposition, indicates that the norm does not refer to the expiration due to lack of accreditation; In this sense, we must specify that the accreditation of the payment of validity right bring as a consequence that the payment is validated and it is indicated for which mining concessions said payment was made and this lack of accreditation has the consequence that, having ceased to accredit, the expiration of the mining rights is provided. 5°) Regarding what was indicated by the administered regarding that it was possible to make observations on the accreditation document and even grant an additional period of no more than two (02) days to correct it, it should be specified that accreditation is an administrative procedure which is subject to the principles of application of a special norm such as article 37th of the aforementioned norm, so that it should not be claimed that a general norm is applied; the plaintiff can,t then wrongly claim that there would be a violation of rights that make the admission of the Medida Cautelar viable, when in this case only the norms to which all mining rights holders are subject have been applied. 6°) From the foregoing, it is clear that the Medida Cautelar granted by the court is not justified, neither because of the urgency of the request, nor because the infringement of the invoked rights is imminent; it has not been proven the danger in the delay - which does not exist either - and the timely action of the administration, may cause irreparable damage to the rights of constitutional roots.
[Macusani's arguments] FIFTH.- In accordance with its procedure through Resolutions N° 03 dated December 23rd, 2019 and 04 dated August 19th, 2020, the oppositions filed by the co-defendants were transferred to the plaintiff, so that within the term of FIVE (05) DAYS, express what is convenient to its right. Also by means of briefs dated January 10th and August 31st, 2020, the plaintiff acquits what is convenient to his right, alleging -basically- the following: On the Verisimilitude of the Right Invoked.- 1°) According to the text of article 59th of the General Mining Law, the expiration of mining concessions is the consequence of not paying the validity rights or penalties for two years. This is typically a substantial obligation. 2°) MACUSANI deposited in cash, on INGEMME's account in BBVA Bank, the full validity rights for year 2017 -because it had no obligation to pay the penalties- within the maximum period established for this, July 2nd, 2018. 3°) Neither INGEMMET nor MINEM have questioned or denied at the administrative headquarters: a) The material reality of the deposits made in cash in favor of INGEMMET in Banco BBVA; b) That such deposits were made to pay in full the validity rights for year 2017; and, c) The correctness of the amount paid for each of the mining concessions that corresponded to the entire validity rights for 2017. 4°) MACUSANI submitted its request for accreditation of the payments made for the referred concept, within the term established for this, that is, on July 2nd, 2018; However, on that day the staff of the Document Reception Unit only allowed MACUSANI to attach fourteen (14) of the twenty-two (22) original deposit vouchers to its request letter; The next day, that is, on July 3rd, 2018, the applicant managed to enter the remaining eight (08) original deposit vouchers, by means of a supplementary letter; it should be noted that the twenty-two (22) vouchers were issued on July 2nd, 2018. 5°) According to Law N° 27444, in force at the time the events occurred, INGEMMET's Document Reception Unit: a) Should not have rejected the entry of the original eight (08) deposit vouchers in any case; and, b) It should have given the plaintiff a period of two (02) business days to correct its written request for accreditation of the aforementioned payments made on July 02nd, 2018. 6°) It is worth noting the little or almost no legal basis for why failure to comply with the requirements of the accreditation application -in this case- to attach the originals of the deposit vouchers on time, is a circumstance that supports the declaration of expiration of MACUSANI's mining concessions despite the fact that this is not provided for in article 59th of the General Mining Law. 7°) The declaration of expiration of MACUSANI's concessions is sustained in the sole circumstance that the twenty-two (22) original deposit vouchers were not presented together with the accreditation request letter until 4:30 p.m. on July 2nd, 2018. As stated, fourteen (14) of the twenty-two (22) voucher were received -at the insistence and complaints of MACUSANI- on the same July 2nd, 2018 but after 4:30 pm , the reason that they were only fourteen (14) and not twenty-two (22) was the deposit time that appeared on the vouchers, at INGEMMET's Document Reception Unit, it was only accepted to enter those that were issued until 4:18 p.m., those that showed a later time, were not entered even though they were in possession of the person in charge of their presentation within INGEMMET office. Regarding the Danger in Delay.- 8°) It is evident the existence of the danger in delay in case the Medida Cautelar is not kept in force, from which irreparable damage would be caused to the detriment of MACUSANI; Rather, there is also the fact that an eventual judgment estimating the claim would become unenforceable, given that MACUSANI's mining concessions have been declared expired and, therefore, extinct, so that the State - if the precautionary measure is not kept in force- could dispose of the area of them in favor of one or more third parties; In view of the aforementioned, we ask the requested Medida Cautelar is kept in force since the requirement of danger in the delay is still met. On the Adequacy of the Measure granted.- 9°) The firmness of MACUSANI's right in the alleged facts is duly and sufficiently proven with the accompanying documents, the central issue to be clarified prima facie - the illegality of the declaration of expiration of mining concessions for reasons not provided for in the Law - is manifest. 10°) That in the precautionary measure obtained, it is not pretended to obtain a right or legal situation that MACUSANI did not previously have - prior to the issuance of the questioned administrative resolutions - but, on the contrary, it seeks to return things to the state previous to the illegal declaration of expiration of the mining concessions while the main process lasts, and with the purpose of guaranteeing that the favorable ruling is enforceable and avoiding irreparable damage. 11°) It should be noted that the national legislation implicitly foresees that the contentious administrative processes in which the validity of the concessions is questioned (one assumption of this is expiration, because validity, in the broad sense, evidently includes that of existence, only what exists legally can be determined if it is valid or not) are accompanied by Medidas Cautelares of suspension of effects and, therefore, maintain the obligations of the holder, as prescribed by article 54th of the General Mining Law, approved by Supreme Decree No. 014-92-EM, which reads:
“(…) Article 54th.- In the event of a judicial controversy over the validity of a concession, the obligation to pay the pecuniary obligations to keep it is still in force. The plaintiff is also obliged to comply with the pecuniary obligations within the terms established in this Law, while the trial lasts, under penalty of abandoning the instance regarding the concession in dispute. Once the payment by the plaintiff has been completed, he must prove them in the respective file. Once the controversy is concluded, the expired litigant may request the reimbursement of the amounts that he has paid. (…) ”;
In that sense, it would be unfair for the State to perceive MACUSANI to pay its obligations as the holder of the concessions and, at the same time, not maintain the Medidas Cautelares to restore the provisional validity of the seventeen (17) mining concessions and the ownership of the plaintiff over them; therefore, we ask that the precautionary measure granted be kept in force, since compliance with the requirements required by law is maintained.
[Judge's arguments] SIXTH.- After analyzing the allegations of both parties, and the review of the file, the following is concluded: i) Regarding the plausibility of the right invoked, it must be borne in mind that Article 59th of the General Mining Law, approved by Supreme Decree No. 014-92-EM, establishes that:
“(…) It causes the expiration of claims, petitions and mining concessions, as well as of benefit concessions, general labor and mining transport , the non timely payment of the Validity Rights for two consecutive years. If the payment of one year is omitted, its regularization may be fulfilled with the payment and accreditation of the current year, within the term provided in article 39th of this regulation. (…)” (Bold and underlined added);
ii) In this regard, from the reading of Presidency Resolution No. 464-2019-INGEMMET/PD dated February 20th, 2019, it is noted that INGEMMET resolved: “(…) Declare the expiration of the following mining rights for the non timely payment of the validity rights for the years 2017 and 2018: (…)” (bold added) within which are the seventeen (17) mining concessions included in the main process and precautionary request. Against the aforementioned resolution a Recurso de Revision was filed, which was resolved through seventeen (17) Resolutions of the Mining Council -already mentioned in this resolution-, by which the Recurso de Revision filed against Presidential Resolution No. 0464-2019-INGEMMET/PD dated February 20th, 2019, declaring the Expiry of –among others- seventeen (17) mining concessions owned by the plaintiff, was declared Unfounded; iii) On the other hand, contrary to what was decided by the administrative entity, from folios 221 to 242 it is verified that the plaintiff did comply with paying the full validity rights for year 2017, which has not been subject of questioning, by the co-defendant , by means of a cash deposit on INGEMMET's account in BBVA regarding the thirty-two (32) concessions, within which are included the seventeen (17) concessions that are the subject of the precautionary request; Therefore, it can be concluded liminarily that the applicant was not within some case of expiration of those regulated by the General Mining Law; iv) Regarding the verification of payments, it should be noted that according to Report N° 1924-2018-INGEMMET-DDV/L, these were made on July 2nd, 2018, their presentation results with observations by the hour in which the original vouchers had supposedly been entered; Furthermore, it states that: “(…), both the payment of the validity fee and its accreditation constitute obligations established by regulation with the force of law, which must be fulfilled by the holders of the petitions or mining concessions from June 1st to 30th of each year, to keep them in force. (…)”; under this line, although article 37th of the Regulation of Various Titles of the General Mining Law, approved by Supreme Decree No. 03-94-EM establishes that:
“(…) The holder must prove the payment for the Validity Right and/or Penalty only in the following cases: a) If it has made the payment without using the Unique Code of mining right. b) If the mining right is extinguished and does not appear in the National Mining Register, the resolution that declared the extinction of said right is judicially questioned. In order for the aforementioned accreditation to be declared admissible, a letter requesting it will be submitted, which must: (i) attach the original receipts of the full deposit owed in the accounts authorized by INGEMMET; and, (ii) identify the right for which the payment is made. The presentation of the aforementioned writing will be held until June 30th of each year at the central headquarters of INGEMMET or Decentralized Bodies. If the documentation required in the previous paragraph is not presented and within the indicated period, INGEMMET will declare the accreditation inadmissible, which can only be challenged together with the contradiction of expiration. Notwithstanding what is stated in the preceding paragraph, payments made and credited after the deadline may be reimbursed ex officio by INGEMMET. (…)” (Bold added);
In this regard, it should be noted that from a preliminary analysis of said regulation, it is not seen that it refers to the expiration due to lack of accreditation, consequently, its non-presentation could not generate the expiration of the mining concessions owned by the applicant, especially still, if the General Mining Law itself does not contemplate as a cause of expiration of mining rights the untimely accreditation of the payment of mining rights, a requirement that as inferred has been introduced by a regulatory norm; Furthermore, in accordance with article 134th of the Law of General Administrative Procedure, It was possible to make observations on the accreditation request and even grant an additional period of no more than two (02) days to correct it; Therefore, in a preliminary way, it is observed that the payments have been made within the term of the Law for the payment of the validity right for each mining concession, presumably facing a regulatory infringement; consequently, the plausibility invoked by the petitioner is verified; v) Regarding the Danger in Delay, this not only arises because of the delay in the processing of the main process, a delay that could obviously cause serious damage to the appellant, but also, because if the requested Medida Cautelar is not granted, the Mining concessions subject to litigation, could be granted to third parties, according to article 66° of the General Mining Law, becoming irreversible the situation originated by resolutions subject to challenge, generating an imminent danger if published as freely claimable making the present process ineffective, affecting the effectiveness of the sentence, so it was agreed to guarantee its effectiveness; and, vi) In relation to the adequacy, it is appreciated that the suspension of the effects of the resolution that provides for the expiration of the plaintiff's mining concessions is adequate to guarantee the effectiveness of the main claim, since it is related to the validity of the timely payment of the validity rights for year 2017, made by the plaintiff company on July 2nd, 2018.
SEVENTH: That, based on this, from the review of the files and being based on the aforementioned grounds, it is noted that the allegations presented in the Opposition briefs presented by the co-defendants are not sufficient to create conviction on this judge that the decision issued by the Court should be modified; consequently, due to the foregoing considerations, and in accordance with article 637th of the Civil Procedure Code, additionally applicable to this process, in accordance with the exposed grounds; IT IS RESOLVED: TO DECLARE UNFUNDED THE OPPOSITIONS AGAINST THE MEDIDA CAUTELAR formulated by the co-defendants INSTITUTO GEOLOGICO, MINERO Y METALURGICO - INGEMMET and MINISTERIO DE ENERGIA Y MINAS - MINEM. Being notified electronically by the principles of economy and procedural speed. BE NOTIFIED.-