https://cdn.ceo.ca/1etdg4p-Medida_cautelar_10759.pdf 6TH PERMANENT COURT FILE: 10759-2019-3-1801-JR-CA-06
SUBJECT: NULLITY OF RESOLUTION OR ADMINISTRATIVE ACT
JUDGE: HERMOZA CASTRO, MARUJA OTILIA
SPECIALIST: LUJAN RAMOS RUDDY
PLAINTIFF: MACUSANI YELLOWCAKE S.A.C.
Resolution Number Two: Lima, November 20th, 2019.-
VIEWED; this precautionary request; with the Act of Legalization of Signature that works in the present case, related to the brief dated October 29th, 2019: Received by the judiciary on November 8th, 2019, by the Documents Reception Unit of the Mansilla Headquarters: To the principal, first, second and third “OTRO SI”: To the above, with the documents attached: Keep in mind what is law and the merit of the acted; and, add to the file; so that,
ATTENDING:
FIRST: That, the appellant requests this Precautionary Measure, so that the effects of the seventeen (17) administrative resolutions of the Mining Council are suspended according to the following detail:
1) Resolution No. 359-2019-MINEM/CM ;
2) Resolution No. 361-2019-MINEM/CM;
3) Resolution No. 363-2019-MINEM/CM;
4) Resolution No. 364-2019-MINEM/CM;
5) Resolution No. 365-2019-MINEM/CM;
6) Resolution No. 368-2019-MINEM/CM;
7) Resolution No. 370-2019-MINEM/CM;
8) Resolution No. 373-2019-MINEM/CM;
9) Resolution No. 378-2019-MINEM/CM;
10) Resolution No. 380-2019-MINEM/CM; and,
11) Resolution No. 381-2019-MINEM/CM dated July 11, 2019; as well as of
12) Resolution No. 383-2019-MINEM/CM;
13) Resolution No. 385-2019-MINEM/CM;
14) Resolution No. 387-2019-MINEM/CM;
15) Resolution No. 389-2019-MINEM/CM;
16) Resolution No. 390-2019-MINEM/CM; and,
17) Resolution No. 391-2019-MINEM/CM, dated July 17, 2019; by means of which the Appeal for Review filed against Presidency Resolution No. 0464-2019-INGEMMET/PD dated February 20th, 2019 was declared Unfounded, whereby INGEMMET declared the expiration of, among others, seventeen (17) mining concessions owned by your represented; you also request that the effects of Presidency Resolution No. 0464-2019-INGEMMET/PD dated February 20th, 2019 be suspended by which INGEMMET declared the alleged Expiration; and, the effects of the Presidency Resolution W/N dated October 3rd, 2018, by which INGEMMET declared inadmissible the accreditation of the payments for Validity Rights made by your represented corresponding to the year 2017, of the seventeen mining concessions owned by your represented, be suspended; and, the validity and ownership of the 17 mining concessions be provisionally restored in favor of your represented, until the main file is finally resolved.
SECOND: You base your precautionary request, indicating the verisimilitude of the right invoked, since your represented is the sole and legitimate owner of the seventeen (17) mining concessions in question (Sillatoco, Triunfador 5, Huiquiza 3, Lincoln XXIX, Lincoln XXVI, Tantamaco 7 , Tantamaco II, Triunfador 3, Chilcuno, Chapi II, Colibr I, Corani U2, Liocco, Samilio IV, Huaritua I, Chapi V, and Triunfador 1), you add also that it proves the nullity of said administrative resolutions, the incurring of various vices, and indicate that your represented did pay the full amount corresponding to the rights of validity of the said concessions, therefore being you’re your represented has actually and effectively paid the integral of such rights, it is evident that he was not involved in a cause for expiration invoked by INGEMMET and the Mining Council; so you indicate that the credibility requirement of the right invoked is being fulfilled.
Likewise, you state that your represented did pay the full Validity Rights of such mining concessions within the period established for it; and that all payments were made through cash deposits in the account that INGEMMET owns in the then BBVA Continental, so it is shown that your represented had developed a due conduct or provision of giving to satisfy the main interest of the state; subsequently, you indicate that the company complied with timely requesting the accreditation of the payments of the rights of validity of the 32 concessions corresponding to year 2017, within which the 17 concessions subject to the demand and precautionary request are included; In the face of said request, you indicate that INGEMMET illegally, unreasonably and abusively omitted its duty which is: (i) to provide the means for your represented to comply with said presentation and (ii) verify the payments made, although the administration limited itself to declaring inadmissible the accreditation requested on July 2nd and supplemented the following day, taking into account the time at which the bank deposits were made and the time of their entry by the documents reception unit. Therefore, INGEMMET considered that such vouchers had not been entered in accordance with what is established in article 37 of the TUO Regulations of the General Mining Law.
You state that the term for the administrators to submit their request for accreditation of payments for validity and/or penalty is until June 30th of each year, however in 2018, said period was extended until July 2nd, therefore, your application has been submitted in accordance with the established deadline, in addition to this, you indicate that even Item 16 of Article 37 of the TUPA of INGEMMET provided for the possibility of a request for extemporaneous accreditation. In that sense, you refer that your represented did comply with entering the original bank vouchers despite the obstructions of INGEMMET, thereby proving the payments of the validity rights corresponding to the year 2017 for the 32 mining concessions identified in your writing presented on July 2nd, 2018, including the 17 included in the demand and in the present precautionary request.
You note that the writing dated July 2nd, 2018 was entered under the number 01-002214-18-D and registered at 4:30 pm, five minutes later it was made an observation that said “document entered without attaching the original bank deposit vouchers”, then at 5:16 pm; nevertheless, INGEMMET declared your accreditation inadmissible by means of Presidency Resolution S/N dated October 3rd, 2018, in said resolution they illegally and unreasonably declared your request inadmissible, that is, they rejected all payments made by your representative adducing the "extemporaneity" of the payments (they had been made, outside the hours of INGEMMET) and the supposed "irregularity" in the entry of the bank deposit vouchers (fourteen of them had been entered outside the opening hours on July 2nd and the remaining eight the next day, when the deadline to do so has already ended),
Likewise, you indicate that INGEMMET's decision does not withstand the slightest analysis and they rejected your request, however, you add that we must be convinced that your represented did comply with his obligation to cancel the entire 2017 rights of validity for the 17 mining concessions subject of your request, you also state that INGEMMET has been acting illegally, arbitrarily and abusively by not admitting that your represented did comply with such obligation.
In relation to the Presidency Resolution S/N dated October 3rd, 2018, they indicate that pursuant to Article 37 of the Regulation of Various Titles of the TUO of the General Mining You’re your represented could only question said resolution at the time the subsequent resolution was issued by INGEMMET, declaring the expiration of the mining concessions, however your represented submitted on October 9th, 2018 a writing requesting the nullity of the aforementioned Presidency Resolution be declared ex officio; and as a result, be taken as credited the payment of the Rights of Validity of the mining concessions of your represented, before this INGEMMET submitted your request to the Mining Council of the Ministry of Energy and Mines, body that issued Resolution No. 031-2019-MEM/CM dated January 9th, 2019, redirecting it as a request for annulment of resolution, declaring it inadmissible, indicating that the opportunity to challenge the resolution that evaluates and declares inadmissible the accreditation of the payment of the Right of Validity of a mining concession, is only with the formulation of the Appeal for Review against the resolution that declared the said expiration.
In relation to the expiration of the mining concessions of your represented by INGEMMET and subsequent pronouncement of the Mining Council; you indicate that subsequently INGEMMET issued Presidency Resolution No. 0464-2019-INGEMMET/PE by which the expiration of the 32 mining concessions of your represented was declared, among which are the 17 subject of the demand and of this precautionary request, against which you filed an Appeal for Review, which was dismissed by the Mining Council, issuing the 17 Resolutions that are subject to suspension, that is, for each mining concession, effectively exhausting the administrative channel. You point out that the concessions of your represented have been extinguished; and, therefore, your represented has been stripped of his right to property, which would result in the loss of real estate (mining concessions), over which they had been exercising various property titles, so taking into account the various arguments indicated you request the reversion of the affectation of the constitutional and legal rights of your represented and the restoration of the full validity of the 17 mining concessions subject to the demand and the present precautionary request; you state also that it is necessary the restoration of the full ownership of your represented over all and each of these concessions, who would continue to be the holder of all the rights, prerogatives, priorities, privileges, duties, obligations, limitations, restrictions and burdens that the legal system establishes and/or recognizes to the holders of concessions.
Finally, you add that your represented was assisted by the right to correct his request for accreditation, otherwise the Principles of Informalism and Efficacy would be violated, and therefore, the payments made by your represented must be credited, and that it would also be proven that, in the present case the disputed resolutions have violated the Principle of Legality, Due Procedure and Reasonableness; among other arguments on which you base to say that there is verisimilitude of law; In addition, it follows from your precautionary writing that argues about the need for the issuance of the requested precautionary measure, and the adequacy of the measure, and in your letter of correction you also expand your foundations invoking the danger in the delay every time if the effectiveness of the declaration of expiration is maintained until the final resolution of the main process, the State could dispose of the area originally assigned to such concessions, in accordance with Article 65 and 66 of the TUO of the General Mining Law approved by DS 014-92 EM and Article 106 of Supreme Decree 03-94-EM referring to the publication of free claimability; arguments for which your request the present precautionary request to be granted, in due course.
THIRD: In this context, in accordance with the provisions of article 39 of the Single Ordered Text of Law No. 27584, Law regulating the Contentious Administrative Process, the precautionary measure shall be issued in the manner requested or in any other way that it is considered adequate to achieve the effectiveness of the final decision provided the grounds set forth by the plaintiff: 1) The right invoked is considered plausible, weighing for that purpose the proportionality between the possible affectation that would cause to the public interest or third parties the precautionary measure and the damage caused to the appellant for the immediate effectiveness of the objectionable action, 2) The issuance of a preventive decision is deemed necessary because the delay in the process constitutes a danger, or for any other justifiable reason; and, 3) it is deemed appropriate to guarantee the effectiveness of what is claimed in the demand; the precautionary measures being especially appropriate in the administrative contentious process, according to article 40 of the aforementioned Law.
FOURTH: That, regarding the verisimilitude of the right, it should be noted that in order to grant the precautionary measure that is requested, first, the appellant must persuade the Judge of the verisimilitude of the right invoked in requesting his claim.
This necessarily implies that an analysis is carried out in advance of the arguments that support the precautionary request and also the demand, and of the evidence that accompanies it as sustenance, without this implying in any way an advance of opinion or criterion, because issuing a decision is not enough for the appellant to affirm the appearance of the right that it claims, but that such appearance must be supported by the facts and the right.
FIFTH: In the specific case, it must be borne in mind that Article 59 ° Single Ordered Text of the General Mining Law, approved by Supreme Decree 014-92 EM, establishes that:
“It produces the expiration of mining claims, petitions and concessions, as well as of the concessions of benefit, general work and mining transport, the non-timely payment of the right of validity during two years (consecutive or not). If the payment of one year is omitted, its regularization may be complied with the payment and accreditation of the current year, within the period provided for in article 39 of this norm (…)”. 5.1. In that sense, from the reading of Presidency Resolution No. 464-2019-INGEMMET/PE, dated February 20th, 2019, it is noted that INGEMMET resolved
“Declare the expiration of the following mining rights by the no timely payment of the right of validity for the years 2017 and 2018: (…)”, within which are the 17 mining concessions included in the main process and precautionary request.
5.2. Against the aforementioned resolution, an appeal was filed, which was resolved with the following Mining Council‘s resolutions:
1) Resolution No. 359-2019-MINEM/CM;
2) Resolution No. 361-2019-MINEM/CM;
3) Resolution No. 363-2019-MINEM/CM;
4) Resolution No. 364-2019-MINEM/CM;
5) Resolution No. 365-2019-MINEM/CM;
6) Resolution No. 368-2019-MINEM/CM;
7) Resolution No. 370-2019-MINEM/CM;
8) Resolution No. 373-2019-MINEM/CM;
9) Resolution No. 378-2019-MINEM/CM;
10) Resolution No. 380-2019-MINEM/CM; and,
11) Resolution No. 381-2019-MINEM/CM dated July 11, 2019; as well as of
12) Resolution No. 383-2019-MINEM/CM;
13) Resolution No. 385-2019-MINEM/CM;
14) Resolution No. 387-2019-MINEM/CM;
15) Resolution No. 389-2019-MINEM/CM;
16) Resolution No. 390-2019-MINEM/CM; and,
17) Resolution No. 391-2019-MINEM/CM, dated July 17th, 2019; by means of which the Appeal for Review filed against Presidency Resolution No. 0464-2019-INGEMMET/PD dated February 20th, 2019 was declared Unfounded, whereby INGEMMET declared the Expiration of, among others, seventeen (17) mining concessions owned by your represented.
5.3. Now, contrary to what was decided by the administrative entity, from folios 221 to 242, it is verified that the company (MACUSANI) did comply with paying the full rights of validity for year 2017, which has not been a matter of questioning by the defendant, by deposit in cash in the account of the INGEMMET in BBVA for the thirty-two concessions, which include the seventeen concessions that are the subject of the precautionary request; so it can be concluded that the applicant was not within any case of expiration of those regulated by the General Mining Law.
5.4. Regarding the verification of payments, it should be noted that as it appears in
Report No. 1924-2018-INGEMMET–DDV/L, these were made on July 2nd, 2018, but their presentation results with observations for the time in that the original vouchers had supposedly entered INGEMMET’s; It is also stated that
"both the payment of the right of validity and its accreditation, constitute obligations established by regulation with the rank of law, which must be fulfilled by the holders of the mining petitions or concessions from June 1st to 30th of each year, to keep them valid" (see Folio 245).
In that order of ideas, although article 37 of the Regulations of the relevant Titles of the Single Ordered Text of the General Mining Law, approved by Supreme Decree No. 03-94-EM establishes that:
“The holder must prove the payment By Right of Validity and / or Penalty only in the following cases: a) If the payment has been made without using the Single Code of the mining claim. b) If the mining claim is extinguished and does not appear in the National Mining Register, being the resolution that declared the extinction of said right questioned judicially. In order for the aforementioned accreditation to be declared admissible, a written request will be submitted, in which the administered must: (i) attach the original vouchers of the entire deposit due in the accounts authorized by INGEMMET; and, (ii) identify the right for which the payment is made. The presentation of the aforementioned letter will be held until June 30th of each year at the headquarters of INGEMMET or Deconcentrated Bodies. If the documentation required in the previous paragraph is not submitted and within the indicated period, INGEMMET will declare the accreditation inadmissible, which can only be challenged together with the contradiction of expiration. Without prejudice to the provisions of the preceding paragraph, payments made and credited after the deadline may be reimbursed ex officio by INGEMMET”. In this regard, it is necessary to specify that from a preliminary evaluation of said norm, it is not appreciated that it refers to the expiration due to lack of accreditation, consequently, its non-presentation could not generate the expiration of the applicant's concessions, moreover the General Mining Law itself does not contemplate as ground for expiration of mining rights the extemporaneous accreditation of the payment of validity rights, a requirement that as inferred has been introduced by a regulatory norm; in addition, pursuant to Article 134 of the Single Ordered Text of the General Administrative Procedure Law, it was possible to make observations on the accreditation request and even grant an additional period of no more than two days to correct:
Article 134.- Observations to submitted documentation: "134.1 All forms or writings submitted must be received, notwithstanding non-compliance with the requirements established in this Law, or which are not accompanied by the corresponding requirements or are affected by another formal defect or omission provided in the TUPA, which merits correction. In a single act and only once, the reception unit at the time of its presentation makes the observations for breach of requirements that cannot be saved ex officio, inviting the administered to correct them within a maximum period of two business days. (...)". Thus, in a preliminary way it is seen that the payments have been made within the term of law for the payment of the right of validity for each mining concession, and we would presumably face a regulatory infraction; therefore, the verisimilitude invoked by the petitioner is verified;
SIXTH: Regarding the requirement of
danger in the delay, this not only arises because of the delay in the processing of the main demand, procrastination that obviously could cause serious damage to the appellant, but also in that if the requested precautionary measure is not granted, the mining concessions under litigation, could be granted to third parties, making irreversible the situation created by the resolution in dispute, so taking into account the peculiar circumstances of the case if the requested precautionary measure is not adopted, it wouldn’t be assured the effectiveness of the sentence that in the main process will be issued in due course, then, in accordance with Article 66 of the Single Ordered Text of the General Mining Law:
“By resolution of the Headquarters of the Public Mining Registry, it will be declared the expiration, abandonment, nullity, resignation and cancellation of the concessions and petitions, individually or collectively, with the relevant registration in said Registry. The areas of petitions or concessions formulated under the UTM coordinate system referred to PSAD56 or those which acquired these coordinates in application of Law 26615, which have a resolution of firm extinction in the administrative channel, will be removed from the National Mining Cadastre. The notice of the withdrawal of these areas is made together with the publication of free claimability. These areas may be requested in grids from the first business day, after the end of the month immediately following the reporting of the said free claimability. In this normative context, in the present case it is noted that the Presidency Resolution No. 0464-2019-INGEMMET/PD dated February 20th, 2019, confirmed by the Administrative Resolutions of the Mining Council (indicated in item 5.2); whereby INGEMMET declared the Expiration of, among others, seventeen (17) mining concessions owned by your represented; they generate the imminent danger of being published as freely claimable, making the process ineffective and, especially, affecting the effectiveness of the sentence, so its effectiveness should be guaranteed.
SEVENTH: Continuing with the analysis, regarding the
adequacy, it is verified that the suspension of the effects of the resolution that orders the expiration of the applicant's mining rights, is adequate to guarantee the effectiveness of the main claim, since it is related to the validity of the timely payment of the rights of validity for the year 2017, made by the applicant company on July 2nd, 2018.
EIGHTH: Regarding the counter-caution, the plaintiff has offered sworn precaution in the amount of USD 118,800.00 in order to guarantee the possible damages that may arise with the execution of this precautionary measure, which are appropriate to the public interests, taking into account that the applicant's obligation to make payments for the validity of mining concessions subject to litigation remains.
NINTH: Consequently, due to the above considerations, and in accordance with articles 611 and 637 of the Civil Procedure Code applicable additionally to the present process, in accordance with articles 38 and 39 of the Unique Ordered Text of Law No. 27584, Law Regulating the Contentious Administrative Process, it is decided:
GRANT the Precautionary Measure requested, that is:
1) Temporarily
SUSPEND the effects of the Mining Council resolutions:
1) Resolution No. 359-2019-MINEM/CM;
2) Resolution No. 361-2019-MINEM/CM;
3) Resolution No. 363-2019-MINEM/CM;
4) Resolution No. 364-2019-MINEM/CM;
5) Resolution No. 365-2019-MINEM/CM;
6) Resolution No. 368-2019-MINEM/CM;
7) Resolution No. 370-2019-MINEM/CM;
8) Resolution No. 373-2019-MINEM/CM;
9) Resolution No. 378-2019-MINEM/CM;
10) Resolution No. 380-2019-MINEM/CM; and,
11) Resolution No. 381-2019-MINEM/CM dated July 11, 2019; as well as of
12) Resolution No. 383-2019-MINEM/CM;
13) Resolution No. 385-2019-MINEM/CM;
14) Resolution No. 387-2019-MINEM/CM;
15) Resolution No. 389-2019-MINEM/CM;
16) Resolution N ° 390-2019-MINEM/CM; and,
17) Resolution No. 391-2019-MINEM/CM, dated July 17, 2019, by which the appeal for review was declared Unfounded.
2) Temporarily
SUSPEND the effects of Presidency Resolution No. 0464-2019-INGEMMET/PD dated February 20th, 2019, whereby the expiration of the seventeen mining concessions identified in item 5.2 was declared.
3) Temporarily
SUSPEND the effects of the Presidency Resolution W/N dated October 3rd, 2018 that declared inadmissible the accreditation of the payments for the 17 mining concessions indicated in item 5.2.
4) Temporarily
RESTORE the validity and ownership of the seventeen mining concessions set forth in item 5.2 of this resolution.
5)
ACCEPT the counter-caution offered by the plaintiff in the form of a sworn bond of up to USD 118,800.00; in those processes followed by
MACUSANI YELLOWCAKE S.A.C. before the
MINISTRY OF ENERGY AND MINES - MINEM and the
MINING AND METALLURGICAL GEOLOGICAL INSTITUTE - INGEMMET.
Sent this Resolution to the
Mining Council and the
President of INGEMMET and once completed, inform this Office, under the warning of law.
Be notified.-