Macusani Yellocake's Appeal for Review (full text) File: Chachaconiza (code 010016705V)
Sumilla: Interposes Appeal of Review against the Presidential Resolution N° 0464-2019-INGEMMET/PE
TO THE PRESIDENCY OF THE DIRECTING COUNCIL OF THE GEOLOGICAL, MINING AND METALLURGICAL INSTITUTE - INGEMMET
MACUSANI YELLOCAKE S.A.C. (hereinafter, "Macusani") identified with RUC N° 20502610695, domiciled for purposes of the present proceeding in Calle Las Begonias N° 475, district of San Isidro, province and department of Lima; duly represented by its General Manager, Mr. Ulises Raul Solis Llapa, identified with DNI N ° 29399866; whose powers are registered in the registry item N° 11299674 of the Registry of Legal Persons of Lima; before you, respectfully, we express:
That, having been notified on March 5th, 2019 with the Presidential Resolution N° 0464-2019-INGEMMET/PE dated February 20th, 2019, through which it is resolved to declare the expiration of 32 mining rights of Macusani’s ownership for allegedly not having timely paid the right of validity for the years 2017 and 2018, by means of this letter we INTERPOSE APPEAL FOR REVIEW, in accordance with those established in Article 37 of the Regulations
(...) (2 pages missing)
1.2 In the same line, numeral 2 of article 148 of the Unified Ordered Text of the General Mining Law, approved by Supreme Decree N° 014-92-EM, stipulates that administrative acts contrary to the Constitution and the laws of the State are null and void:
"Article 148.- Are null and void as of right the administrative acts:
(...)
2) That are contrary to the Constitution and the laws and those that contain a legal impossibility; (...)"
1.3 Similarly, Article 149 of the same regulatory body states that it corresponds to the mining authority to declare the nullity of resolutions in the event of a substantial defect:
"Article 149.- The mining authority will declare the nullity of acts, ex officio or at the request of a party, in the event of a substantial defect, returning the processing to the state in which the vice occurred, but the tests and other actions that does not affect the said nullity will subsist." (emphasis added)
II. Regarding the contravention of the law and various principles that govern the administrative procedure
2.1 Regarding the ground for nullity contemplated in paragraph 1 of Article 10 of the Unified Ordered Text (TUO) of the General Administrative Procedure Law (LPAG), we must remember that this is consistent with the principle of legality, which governs the performance of all entities of the public administration; and, at the same time, indicates that they must act within the powers that have been expressly attributed to them by law and for the purposes for which they were conferred:
"1.1 Principle of legality.- The administrative authorities must act with respect to the Constitution and the law, within the faculties that are attributed to them and in accordance with the purposes for which they were conferred."
2.2 In this sense, it is evident that public administration entities must act in accordance with the provisions of the Constitution and the Law, without going beyond the powers expressly granted to them, since doing so would imply a violation of the principle of legality and incurring, consequently, in one of the grounds for nullity contemplated in article 10 of the TUO of the LPAG.
2.3 Now, what is the regulation that has been violated by the Resolution of the Executive Presidency W/N dated October 3rd, 2018? (W/N = without number)
"Article 37.- Payment and accreditation of the Right of Validity and Penalty
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 mining claim’s Unique Code.
b) If the mining claim is extinguished and does not appear in the National Mining Register, being judicially challenged the resolution that declared the extinction of said claim.
In order for the aforementioned accreditation to be declared admissible, a written request will be submitted, in which it will be necessary to: (i) attach the original receipts of the entire deposit due in the accounts authorized by the INGEMMET; and (ii) identify the right by which the payment is made (...)." (emphasis added)
2.4 Article 37 of the Regulation of Relevant Titles of the Unified Ordered Text of the General Mining Law, approved by Supreme Decree N° 03-94-EM (hereinafter, the "TUO Regulation of the LGM"), states in a clear and restrictive way what are the only two requirements required by the regulations so that the accreditation of payment of the right of validity is declared ADMISSIBLE; These are: i) Attach the original vouchers, and ii) State the mining right for which the payment is made.
2.5 Now, as can be seen by reading the accreditation request submitted by Macusani on July 2nd, 2018, which we attach as Annex 1-A, Macusani fully complied with the two requirements required by the aforementioned regulations, within the legal term established for it.
2.6 That is, in the present case, despite having complied with the requirements demanded by the regulation and having respected the filing period prescribed by law, INGEMMET declared inadmissible the accreditation of payment made by Macusani, sustaining said pronouncement in fundamentals at odds with the Law. Let's see:
2.7 On the one hand, the INGEMMET points out that the fact that the Macusani representative has entered its facilities on July 2nd, 2018, during the opening hours, does not imply that the INGEMMET’ documentary reception unit has to wait indefinitely to the administered until it can meet the requirements of its legal obligations.
2.8 INGEMET also stated that allowing events such as the one previously mentioned would cause the administered to enter and remain indefinitely ("until late at night and even until the next day") in its facilities, waiting until, from the outside, they get the documentation they need to present and that they do not have with them until the closing hours, receiving it from the outside afterwards.
2.9 The assumptions raised by the INGEMMET lack all sense and legal basis, since they do not obey the events that occurred in reality, and consider completely irrational assumptions that even border on the absurd, such as the possibility that the administered stay in their facilities until late at night, or even until the next day.
2.10 We must remember that the administrative procedure is based on legal principles expressly recognized by national legislation that, we reiterate, are mandatory for all entities of the public administration; principles that are included in article IV of the Preliminary Title of the TUO of the LPAG:
"Article IV. Principles of the administrative procedure
1. The administrative procedure is fundamentally based on the following principles, without prejudice to the validity of other general principles of Administrative Law:
1.4 Principle of reasonableness.- Decisions of the administrative authority, when creating obligations, qualifying infractions, imposing sanctions, or establishing restrictions to those administered, must be adapted within the limits of the power granted and maintaining the proper proportion between the means to be employed and the public purposes that must be protected, so that they respond to what is strictly necessary for the satisfaction of their mission". (emphasis added)
2.11 In this sense, given that the Resolution under comment restricts Macusani's right regarding the accreditation request submitted on July 2nd, 2018, its validity must be analyzed in light of the principle of reasonableness, in order to determine whether it is that the administrative decision that restricts Macusani's rights is proportional to the public purposes pursued by INGEMMET.
2.12 Regarding the application of the principle of reasonableness, the Constitutional Court, the highest interpreter of the Constitution, has had the opportunity to pronounce itself in the judgment handed down in file N° 1803-2004-AA/TC, in the following terms:
"13. When the Administration exercises a discretionary power, as in this case, so that it does not become arbitrary, it must be guided by criteria of reasonableness and justify in each case its acting. In this direction, 'The only power that the Constitution accepts as legitimate, in its correct exercise, is therefore that which arises as a result of a rational will, that is, of a rationally justified will and, therefore, susceptible to be understood and shared by the citizens and, in that same measure, to contribute to renew and reinforce the consensus on which the peaceful coexistence of the social group rests" (Tomas Ramon Fernandez, On the arbitrariness of the legislator.) A critique of constitutional jurisprudence, Madrid, 1998, pp. 95-96)." (emphasis added)
2.13 Once again, the actions of public administration entities must be governed by reasonable criteria, without resorting to factual assumptions that do not conform to reality, especially when, based on these hypotheses, it is intended to restrict the rights of those administered.
2.14 On the other hand, INGEMMET indicates in paragraph 5 of the conclusions of the Presidential Resolution W/N dated October 3rd, 2018, the following:
"The written request N° 0100221418D dated 02/07/2018, which states that the payment of the right of validity of 32 mining rights is credited, entered the documentary reception unit without the payment receipts, with which it occurs the accreditation of payment.
Accepting an accreditation such as this would lead to a violation of the principle of impartiality provided in subsection 1.5 of Article IV of the Preliminary Title of the Single Order Text of Law N° 27444, General Administrative Procedure Law, approved by Supreme Decree N° 006-2017-JUS, because a privileged treatment would be given to a user, which is not given to others."
2.15 Regarding the fact indicated by the INGEMMET, through which it affirms that the accreditation request of the payment of the right of validity of 32 Macusani’s mining claims entered without the corresponding payment receipts, we must point out that said statement does not match with the reality, because, finally, on July 2nd, 2018, INGEMMET agreed to receive the accreditation request of payment of the right of validity of the 32 Macuani’s mining claims, being attached only 14 payment receipts of the 22 that the Macusani’s representative carried, for the reasons that are developed later.
2.16 Likewise, the INGEMMET affirms that admitting an accreditation such as the one performed by Macusani would necessarily lead to a violation of the principle of impartiality, while granting a privilege to an administered, which is not granted to others.
2.17 In this regard, it should be specified that the principle of impartiality means the following:
"Article IV. Principles of the administrative procedure
1. The administrative procedure is fundamentally based on the following principles, without prejudice to the validity of other general principles of Administrative Law:
(...)
1.5. Principle of impartiality.- The administrative authorities act without any discrimination between the administered, granting them equal treatment and guardianship before the procedure, resolving in accordance with the legal system and with attention to the general interest."
2.18 As can be seen, the principle of impartiality prescribes that administrative authorities must act without any kind of discrimination between the administered, granting them equal treatment and guardianship.
2.19 However, in the present case there is no discriminatory treatment because the fact of admitting the payment of the right of validity only obeys to the observance of the principle of informalism on the part of the INGEMMET staff member, and that could be perfectly applicable to any administered that is in a situation similar to that of Macusani’s representative.
2.20 And why do we allude to the informalism principle at this point? Well, as you know, the principle of informalism is contained in paragraph 1.6 of Article IV of the Preliminary Title of the TUO of the LPAG, in the following terms:
"Article IV. Principles of the administrative procedure:
1. The administrative procedure is fundamentally based on the following principles, without prejudice to the validity of other general principles of Administrative Law: (...)
1.6. Informalism principle.- The rules of procedure should be interpreted in a favorable manner to the admission and final decision of the pretensions of the administered, so that their rights and interests are not affected by the requirement of formal aspects that can be corrected within the procedure, provided that said excuse does not affect the rights of third parties or the public interest." (emphasis added)
2.21 Regarding this principle, Juan Carlos Moron points out the following:
"(...)
By application of this same principle, it must also be understood that any doubt that arises in the course of the procedure referred to the formal requirements (calculation of deadlines, legitimacy, decision on whether or not to act, qualification of resources, existence or lack of legitimation in the administered, the opportunity to present documents, suitability of the recipient of a petition, exhaustion or otherwise of the administrative procedure, etc.) must be interpreted with kindness in favor of the administrator and favoring the viability of its procedural act." (emphasis added)
2.22 On this same line, Miriam Ivanega points out:
"Informalism is one of the fundamental aspects of the procedure. It is oriented to protect the individual so that he is not prejudiced by purely procedural issues, relativizing the adjective requirements. Any doubt that arises in the course of the procedure, referred to the formal requirements should be interpreted in favor of the administered and favoring the viability of his procedural act. (...)
In short, it advocates a balance between administrative action - which cannot be hindered - and the right of the administered not to be subject to rigorisms that harm him. This is because it would be unconstitutional to deny a solution to the individual for purely formal reasons." (emphasis added)
2.23 Similarly, Guzman Napuri points out the following regarding the informalism principle:
"(...) This principle actually establishes a presumption in favor of the administrator, to protect it from the mere form or rite, typical of the traditional administrative procedure. In the first place, it implies an application of the principle of indubio pro actione proper of the comparative law, which establishes the most favorable interpretation to the exercise of the right of administrative request on the part of the administered in order to ensure the decision on the merits of the matter. That is, in case of doubt regarding the origin of a request from the administered, or regarding the continuity of a specific procedure, the administrative authority prefers to process it. It can even be considered that the informalism principle arises from the conception of the administered as a collaborator of the Administration in the attainment of the common good." (emphasis added)
2.24 As can be seen, what the informalism principle seeks is precisely to avoid that with issues that are clearly linked to the forms that must be followed in the framework of administrative procedures, the administered is harmed and in this way his rights are violated. IN THAT SENSE, AND IN APPLICATION OF THE PRINCIPLE OF INFORMALISM, IS THAT SERVER VIRGINIA VASQUEZ, RECEIVED THE PAYMENT ACCREDITATION REQUEST SUBMITTED BY MACUSANI, GIVEN THAT, OTHERWISE, THIS PRINCIPLE WOULD HAVE BEEN INFRINGED.
2.25 In addition to the aforementioned, article 84 of the TUO of the LPAG establishes, within the duties of the authorities in administrative procedures, that of carrying out its functions following the principles of the administrative procedure set forth in the Preliminary Title of the LPAG:
"Article 84.- Duties of the authorities in the procedures
The following are the duties of the authorities regarding the administrative procedure and its participants: (...)
2. Perform their duties following the principles of the administrative procedure provided in the Preliminary Title of this Law."
2.26 That is to say, that all entities of the public administration must act on the basis of the principles that govern the administrative procedure, given that, otherwise, the rights of the administered would be violated.
III. Regarding the lack of one of the essential requirements of validity
3.1 As we have previously indicated, the resolution whose nullity is sought of this appeal is immersed in two grounds for nullity contemplated in article 10 of the TUO of the LPAG, one of which states that the administrative act is null and void when it suffers from a defect or omission of its validity requirements.
3.2 In this sense, Article 3 of the TUO of the LPAG, indicates as one of the requirements of validity of administrative acts the motivation:
"Article 3.- Validity requirements of administrative acts
Are validity requirements of administrative acts:
(...)
4. Motivation.- The administrative act must be duly motivated in proportion to the content and in accordance with the legal system."
3.3 The Presidential Resolution of the INGEMMET W/N of October 3rd, 2018 suffers from a serious defect of motivation, an essential element for the validity of the administrative act, insofar as it is based on the application of jurisprudence of the Ministry of Energy and Mines’ Mining Council on cases whose facts are completely different from those of the present case.
3.4 In fact, INGEMMET supports the resolution object of questioning by invoking the application of six (6) Resolutions of the Mining Council, in which the collegiate body would have pronounced on cases allegedly similar to the case in point:
- Resolution N° 317-2017-MEM-CM
- Resolution N° 318-2017-MEM-CM
- Resolution N° 319-2017-MEM-CM
- Resolution N° 320-2017-MEM-CM
- Resolution N° 321-2017-MEM-CM
- Resolution N° 087-2018-MEM-CM
Next, we will develop the main reasons why these resolutions do not apply to Macusani's case:
3.5 Resolution N° 317-2017-MEM-CM dated May 5, 2017:
The Mining Council decided to declare groundless the nullity deducted by Minera Colibri S.A.C. against the resolution dated August 19, 2016; cause in which the owner alleged INGEMMET violated his rights by declaring the inadmissibility of his accreditation request of payment of the right of validity for 2015 corresponding to the mining claim "JHONCITO VII".
The factual assumption of the aforementioned case is completely different from that of Macusani, since we are dealing with a case in which the mining owner presented, on June 30, 2016, the accreditation request of the payment of validity for the year 2015, enclosing subsequently, on July 1, 2016, the payment vouchers that accredited the respective payment for the concept of validity.
Although it is true that the holder made the payment to the bank on June 30, 2016, he presented the vouchers to the INGEMMET’s documentary reception unit on a date later than the limit established by law for the accreditation of the payment of validity and penalty .
The resolution presented as jurisprudence in the present case is foreign to the situation of Macusani, because as recognized by the INGEMMET itself, Macusani paid and presented the payment vouchers on the deadline, that is, on July 2nd, 2018, being the first working day following the last day of June that coincided on a non-working date (Saturday).
3.6 Resolution N° 318-2017-MEM-CM dated May 5, 2017:
The Mining Council decided to declare groundless the nullity deduced by "Minera Colibri SAC" against the resolution of August 19, 2016, in which the owner alleged INGEMMET violated his rights by declaring the inadmissibility of his accreditation request of payment of the right of validity corresponding to the year 2015 of the mining claim "JHONCITO VIII".
The aforementioned jurisprudence also does not relate to the situation of Macusani, since the mining owner presented on June 30, 2016, the accreditation request for the payment of validity for the year 2015, attaching on July 1, 2016, the day after term established by law, the payment vouchers that accredited the payment of the right of validity.
Minera Colibri S.A.C. made the payment to the bank on June 30, 2016 but did not present the vouchers before the INGEMMET’s documentary reception unit until July 1, 2016.
This resolution is also not valid as jurisprudence in this case because the facts are different from the situation of Macusani, because as it has been accepted by INGEMMET itself, Macusani paid and presented the vouchers of payment on the deadline, July 2nd, 2018, being the first working day following the last day of June that coincided on a non-working date (Saturday).
3.7 Resolution N° 319-2017-MEM-CM dated May 5, 2017:
The Mining Council decided to declare groundless the nullity deducted by "Minera Colibri SAC" against the resolution dated August 19, 2016, where the owner alleged the violation of his rights by INGEMMET because the latter declared inadmissible his accreditation request of payment of right of validity corresponding to the year 2015 of the mining law "JHONCITO IX".
The foundations used by the Board in this resolution allow to determine that it is not related to what happened to Macusani, since the mining owner presented on June 30, 2016 the accreditation request of payment of the right of validity for the year 2015, attaching on July 1, 2016, the day after the deadline established by law, the payment vouchers that accredited the fulfillment of the obligation of right of validity.
Minera Colibri S.A.C. made the payment of the right of validity in the bank on June 30, 2016, but did not present the vouchers before INGEMMET’s documentary reception unit until July 1, 2016.
In this sense, this resolution is not applicable to the present case either, since the facts are different from the situation of Macusani, because as it has been accepted by INGEMMET itself, and as it is accredited by the proof of presentation of the corresponding document, Macusani paid and presented the payment vouchers in the date of maximum limit, that is to say, the day July 2nd, 2018, being the first working day following the last day of June that coincided in non-working date (Saturday).
3.8 Resolution N° 320-2017-MEM-CM dated May 5, 2017
The Mining Council decided to declare groundless the nullity deduced by "Minera Colibri SAC" against the resolution dated August 19, 2016, in which the owner alleged the violation of his rights, having INGEMMET declared inadmissible his accreditation request of payment of the right of validity of the year 2015 of the mining law "JHONCITO X".
The foundations used by the Board in this resolution allow determining that the resolution is not related to what happened in the case of Macusani, since the mining owner presented on June 30, 2016 the accreditation request of the payment of validity corresponding to the 2015, attaching on July 1, 2016, the day after the deadline established by law, the payment vouchers through which it accredited the fulfillment of the obligation of right of validity.
Minera Colibri S.A.C. made the payment to the bank on June 30, 2016 but presented the vouchers to INGEMMET's documentary reception unit on July 1, 2016.
This resolution is also not valid as jurisprudence analogous to the present case, because the facts are different from the situation of Macusani, because as it has accepted INGEMMET itself, Macusani paid and presented the vouchers of payment on the date of maximum limit, ie , on July 2nd, 2018, being the first working day following the last day of June that coincided on a non-working day (Saturday).
3.9 Resolution N° 321-2017-MEM-CM dated May 5, 2017:
The Mining Council decided to declare void ex officio the Directorial Resolution N° 2801-2015-MEM/DGM dated December 7, 2015, which resolves sanctioning “S.R.M.L. El Iman” with a fine of six (6) UIT for not presenting the Consolidated Annual Statement (DAC) corresponding to the 2014 financial year.
This resolution is not only unrelated to the facts discussed in this case, but is related to compliance with the Consolidated Annual Statement, an obligation that is outside the concept of crediting the payment of the right of validity and penalty, and that, moreover, hasn’t been a matter of discussion of the present procedure.
3.10 Resolution N° 087-2018-MEM-CM dated May 5, 2017:
The Mining Council decided to declare groundless the appeal for review formulated by Minera Colibri S.A.C. against the Presidential Resolution N° 1824-2017-INGEMMET/PCD/PM dated September 15, 2017, which declares the expiration of the mining claim "JHONCITO VII".
The owner believes that the mining regulations state that the submission of the request and receipt must be made on June 30, but that it is not indicated anywhere that it must be submitted before 4:30 p.m. on June 30, which means that the holders can make the payment at any accredited bank on June 30.
The main problem identified by the authority was that, although the holder complied with paying the amount for the concept of validity right on June 30, 2016, he did so without using the unique code of mining claim, which is why it was required the presentation of the payment voucher attached to the request.
This appeal for review is not applicable to Macusani, because we are still in the case of a holder who presents the payment vouchers later, not being able to relate the facts to the case of Macusani, who did comply with submitting the letter and the vouchers of payment the last day allowed for its realization.
3.11 Gentlemen, as can be seen from the preceding paragraphs, the INGEMMET supported its decision of inadmissibility of payment accreditation of the Right of Validity invoking the application of jurisprudence impertinent to the present case, being them administrative precedents that do not bear any similarity with the facts object of evaluation in the present case.
3.12 In this way, the Presidential Resolution of the INGEMMET W/N dated October 3rd, 2018 violates the essential requirement of validity of any administrative act, the motivation. HOW CAN IT BE AFFIRMED THAT THE RESOLUTION THAT DECLARES INADMISSIBLE OUR ACCREDITATION REQUEST OF PAYMENT OF VALIDITY RIGHT IS PROPERLY MOTIVATED, IF THIS IS SUSTAINED IN JURISPRUDENTIAL CRITERIA APPLIED BY THE MINING COUNCIL IN CASES ABSOLUTELY DIFFERENT FROM MACUSANI?
3.13 It should also be pointed out that the invalidity defect incurred by INGEMMET in failing to develop an adequate statement of reasons for the administrative act that declared our accreditation request of payment of the Right of Invalidity inadmissible also fails to observe the criteria laid down by the Supreme Interpreter of the Constitution, for the application of jurisprudence. Namely:
3.14 The Constitutional Court, by means of a judgment handed down in file N° 047-2004-AI/TC dated April 24, 2006, developed the definition of jurisprudence as a source of law, qualifying it as a normative source with a different rank to law.
3.15 Now, then, what is meant by jurisprudence? The Constitutional Court, citing what was developed by MORENO MILLAN, reports the following:
"Jurisprudence is the interpretation of the law made by the highest courts in relation to the matters that correspond to them, in a certain historical context, which has the virtuality of linking the court that made them and the hierarchically inferior, WHEN FACTICAL AND JURIDICALLY ANALOGUE CASES ARE DISCUSSED, provided that such interpretation is legally correct (...)" (emphasis added)
3.16 Thus, in the words of the Constitutional Court of the Republic of Peru, jurisprudence applies when discussing factually and legally similar cases. In this line, WE CAN CONCLUDE THAT THE JURISPRUDENCE OF THE MINING COUNCIL PREVIOUSLY CITED, DOES NOT APPLY TO THE PRESENT CASE BECAUSE IT VERSES ON FACTICALLY AND LEGALLY DIFFERENT CASES; this, given that it would seek to consider in the same way assumptions that are completely different.
3.17 As it has already been developed throughout this writing, this situation is not attributable to Macusani, since Macusani complied fully with the obligation to present the payment vouchers on the last day allowed since the birth of the payment obligation of the right of validity, so it is not appropriate to relate the present case to one of non-compliance with the obligation, when INGEMMET itself recognizes that the payment vouchers were presented on the same day that the obligation expired.
IV. Regarding the other assertions of INGEMMET to support the Resolution dated October 3rd, 2018
4.1 Report N° 03-2018-INGEMMET/SG/UADA-VVR of the INGEMMET’s documentary reception unit in charge of the UADA, issued by the servant Virginia Vasquez
4.1.1 The servant Virginia Vasquez indicates through the aforementioned report that the representative of Macusani would have come to INGEMMET’s facilities on July 2nd, 2018, in order to present the accreditation request of 32 mining rights. In this regard, she stated that, when verifying compliance with the requirements and annexes mentioned in the request, she warned that the payment receipts for validity rights were missing.
4.1.2 Thus, the servant Virginia Vasquez proceeded to record this fact in the proof of receipt of the request submitted by Macusani, noting that the representative did not have the vouchers at that time. Then, the unique code N° 0100221418D, dated July 2nd, 2018 with time 4:35:32 pm, corresponding to the submitted request, was generated.
4.1.3 Subsequently, the representative of Macusani, being inside the facilities of INGEMMET, and before the attention to the public was culminated, again came to the documentary reception unit, with the corresponding accreditation vouchers, and the amount of 14 payment receipts was received. In this context, the initial observation of "NO DEPOSITS ATTACHED" was replaced by "ATTACHED 14 ORIGINAL VOUCHERS OF PAYMENT OF VALIDITY RIGHT".
4.1.4 However, it must be borne in mind that the servant Virginia Vasquez has not mentioned in her report that the 22 vouchers that the representative of Macusani had at the time of presenting the accreditation request were not accepted by her. It should also be mentioned that this fact was accredited by INGEMMET itself through Report N° 1924-2018-INGEMMET-DDV/ L, page 9:
"The 22 vouchers inserted in the file (14 + 8) have bank operating hours from 15:53 to 16:48 hours. In addition, it is observed that the 22 vouchers have correlative operation number, from 6306 to 6327, and an interval of operation of 1 minute between each of them, which also indicates that in the bank said operations were carried out without interruption." (emphasis added)
4.1.5 That is, on July 2nd, 2018, Macusani's representative entered the INGEMMET during working hours and managed to have the 22 vouchers of payment at the time that Mrs. Virginia Vasquez called her again to re-enter the request of Accreditation of the payment of Right of Validity with the attached vouchers.
4.1.6 Why did Virginia Vasquez only allow us to attach 14 vouchers to Macusani's request and not the 22 with which the company representative counted at that moment?
The answer to this question was not mentioned in the Report N° 03-2018-INGEMMET/SG/UADA dated July 12th, 2018. And what happened was that the servant Virginia Vasquez proceeded at that time to discriminate the 22 vouchers between those that were printed before 4:30 p.m. and those that were printed with an hour after 4:30 p.m., performing a qualification exercise of the resource of the administered in the documentary reception unit, an action explicitly prohibited by article 133 of the TUO of the LPAG.
4.1.7 In effect, Virginia Vasquez, as representative of an entity of the public administration, did not comply with the provisions of Article 133 of the Unified Ordered Text of the General Administrative Procedure Law (hereinafter, the "TUO of the LPAG"), which expressly states that the documentary reception units, in this case the Virginia Vasquez servant, do not have the competence to perform this kind of qualification of the documents presented by the administered:
"Article 133.- Obligations of reception units
133.1 The documentary reception units guide the administrator in the presentation of their applications and forms, being obliged to receive them to initiate or promote the procedures, without in any case being able to qualify, deny or defer their admission. (...)" (emphasis added)
4.1.8 As can be seen, the reception units do not have the faculties to qualify in advance the presentation of documentation by the administered, being obliged to receive it, even when it does not meet the formal requirements required, since it is the task of the technical departments to which it is addressed, to carry out said qualification and not of the reception units.
4.1.9 Of all the previously mentioned, it is concluded that Virginia Vasquez is not the competent servant to carry out a prior analysis of the documentation presented by the administered, and to carry out said acts leads to a breach of her functions as part of an entity of the public administration; reason why, the accreditation of the payment of the right of validity, for all purposes, should consider the 22 vouchers and not only the 14 that were admitted on July 2nd, 2018.
4.2 Complaints book of the INGEMMET
4.2.1 Due to the fact that the documentary reception unit of INGEMMET did not proceed to receive all the vouchers presented by Macusani at the time of the corresponding accreditation, the complaint sheets N° 80161R, 80162R and 80163R were generated, dated July 2nd, 2018, that is, the same day of the events.
4.2.2 These complaints were addressed by Letter N°. 012-2018-INGEMMET/SG-UADA, dated July 6th, 2018, by the Documentary Administration and Archive Unit, to which is attached the report N° 03-2018-INGEMMET/UADA dated July 12th, 2018.
4.2.3 The aforementioned report stated that Macusani must keep in mind that the obligation of attention and/or reception to the last person who appears within working hours, it is understood that it is with the documentation that the person brings with him at the time of his entrance to the institution within the hours of attention:
"In response to the virtual complaints, by Letter N° 012-2018-INGEMMET/SG-UADA dated 06/08/2018 the Documentary Administration and Archive Unit refers the administered to the Report N° 03-2018-INGEMMET/SG/UADA-VVR dated 12/07/2018 of the Servant Virginia Vasquez Ruiz, pointing out that you must keep in mind that the obligation of attention and/or reception to the last person that appears within working hours, it is understood that it is with the documentation that the person who enters brings with him at the time of his entrance to the institution within the hours of attention." (emphasis added)
4.2.4 Now, what emerges from this report is that the administered can only present at the documentary reception unit the documentation they brought with them at the time of their entrance, that is, the INGEMMET establishes an additional requirement with respect to the documentation that can be presented before a documentary reception unit.
4.2.5 That is to say, INGEMMET would deliberately restrict the rights of those administered, on the basis of conjectures or assumptions that, as we said above, do not resist logic or have any legal basis. Moreover, in this case, it is clear that by the means of an interpretation INGEMMET would be demanding an additional requirement that the law does not contemplate, which is illegal in the public administration.
4.2.6 In this sense, Article IV of the Preliminary Title of the Civil Code establishes the following:
"Analog application of the law
Article IV.- The law that establishes exceptions or restricts rights does not apply by analogy."
4.2.7 In this context, it is evident that INGEMMET is unable to establish additional requirements to those indicated by law, even more so when these requirements are established via analogue, or through interpretation.
4.2.8 In the present case, we reiterate, there is no legal norm that establishes that the documentation to be presented by the administered must be only that which the administered manage to obtain before the time when the public entity closes its doors. We ask ourselves: what is the legal basis to apply this restriction?
4.2.9 A reading such as that proposed by INGEMMET is not only prejudicial to the interests of Macusani and of any administered, but is also anachronistic and totally at odds with the multiple possibilities that, today, technology offers to dispose in real time of documentary or electronic information online or by portable printing, to name a few examples.
4.2.10 Again, Article 37 of the Regulation of the Unified Ordered Text of the General Mining Law, approved by Supreme Decree N° 03-94-EM (hereinafter, the "TUO Regulation of the LGM") indicates the requirements of admissibility of the payment accreditation request:
"Article 37.- Payment and Accreditation of the Right of Validity and Penalty
(...)
In order for the aforementioned accreditation to be declared admissible, a written request will be submitted, in which it will be necessary to: (i) attach the original receipts of the entire deposit due in the accounts authorized by the INGEMMET; and, (ii) identify the right for which the payment is made. (...)" (emphasis added)
4.2.11 Article 37 states clearly that only two requirements are required to declare the admissibility of the accreditation of payment of validity right made by the administered; i) the original receipts of the entire deposit owed in the accounts authorized by the INGEMMET; and, ii) the identification of the rights for which the payment is made.
4.2.12 In the instant case, INGEMMET declared inadmissible the accreditation request of payment made by Macusani, adducing recklessly that the vouchers of payment of the validity fees, entered "irregularly to their facilities", and so said receipts were not valid to prove the payment of the validity rights.
4.2.13 We reiterate, where has this prohibition been established, and why does INGEMMET require additional requirements that the law does not contemplate?
4.2.14 Likewise, in the conclusions of Report N° 1924-2018-INGEMMET-DDV/L, which supports the Resolution dated October 3rd, 2018, which declares inadmissible the accreditation of payment of validity made by Macusani, it is pointed the following:
"Conclusions
4. The fact that the administered MACUSANI YELLOCAKE S.A.C. has entered the INGEMMET’s facilities on 02/07/2018 within the hours of service, does not imply that the INGEMMET’s documentary reception unit have to wait for indefinite time for the administered until it can meet the requirements of their legal obligations .
Allowing events such as the one that occurred would cause the administered to enter the INGEMMET and remain indefinitely (late at night or even until the next day) in their facilities, waiting until the documentation they want to present is delivered from the outside, receiving said documentation outside the reception time." (emphasis added)
4.2.15 The aforementioned INGEMMET’s statements do not converse with reality nor do they relate to the specific case. However, based on irrational assumptions, INGEMMET has ended up restricting our right to accredit the payment of the right of validity of our mining concessions, which ends up being a great prejudice for Macusani.
4.3 Regarding the Report of the Information Systems Office
4.3.1 Memorandum N° 0428-2018-INGEMMET/SG-OSI, dated August 15th, 2018, issued by the Information Systems Office, states in paragraph 2, regarding the proof of receipt of the request N° 0100221418D, dated July 2nd, 2018, that is, the accreditation request submitted by Macusani, that it would have been submitted within the date and time established by law:
Date and Time - Print Registration: 02/07/2018 16:30 pm
Date and Time - Record of generation of the written code: 02/07/2018 04:35:32 pm
User: VVAS0789 (VIRGINIA VASQUEZ)
4.3.2 Also, by means of Memorandum N° 0521-2018-INGEMMET/GG-OSI dated October 1st, 2018, the Office of Information Systems indicated with respect to the proof of receipt indicated in the previous section, that the SIDEMCAT has assigned as a criterion to allow the generation of codes until 4:40 pm, so it is feasible to find records with hours after 4:30 p.m.
4.3.3 Likewise, the SIDEMCAT registered access with the user of the server Virginia Vasquez, from the computer assigned to her, to the option of Reprint of the Charge (Proof of Reception), corresponding to the document N° 0100221718D dated July 2nd, 2018 at 05:16:56 p.m., in order to update the information consigned in advance.
4.3.4 The aforementioned documents indicate that, on July 2nd, 2018, Macusani did appear at the INGEMMET facilities, and that it had the payment vouchers for the 32 mining rights whose payment was intended to be accredited.
4.3.5 That is, there is reliable evidence that the payment vouchers were presented on the last day of accreditation allowed by law, and that, in addition, such payment vouchers were presented within the working hours of INGEMMET given that, otherwise, the vouchers would not have been accepted and proof of receipt would not have been reprinted, in order to modify the observation indicated initially, replacing the same one from "NO DEPOSITS ATTACHED" to "ATTACHES 14 ORIGINAL VOUCHERS OF PAYMENT OF RIGHT OF VALIDITY" Why is an accreditation that meets the necessary requirements required by the applicable regulations declared inadmissible?
4.3.6 On the other hand, it must be taken into consideration that if the SIDEMCAT allows the generation of codes of reception of documents, once past 4:30 p.m., this means that it is feasible to present documents later to that time, not being possible that the attention of this entity is limited to only 16:30 in a strict manner, but it is allowed, in application of the principle of informalism that governs all public administration entities, to accept the presentation of documents by the administered, once the hours of attention have ended.
4.3.7 In this context, the principle of informalism, set forth in subsection 1.6 of the Preliminary Title of the Unified Ordered Text of the General Administrative Procedure Law, Law N° 27444 (hereinafter, the "TUO of the LPAG") establishes that :
"(...)
1.6. Informalism principle.- The rules of procedure should be interpreted in a favorable manner to the admission and final decision of the pretensions of the administered, so that their rights and interests are not affected by the requirement of formal aspects that can be corrected within the procedure, provided that said excuse does not affect the rights of third parties or the public interest."
4.3.8 In accordance with this principle, while it is true that any administrative procedure must be governed by certain formalities, it is allowed that on certain occasions such formalities cede to the administered, in order not to affect their interests, given that they must prevail over the "formalities" contemplated within a process.
4.3.9 This has also been ratified by the Constitutional Court itself in reiterated jurisprudence, such as the judgment handed down in file N° 03908-2010-PA/TC:
"For its part, the Law of General Administrative Procedure foresees among the principles of its norm IV, precisely, that 'The administrative authorities must act with respect to the Constitution and the law, within the faculties attributed to them and according to the purposes for which they were conferred.' In the same way, it establishes, within the framework of the informalism principle, that "The rules of procedure must be interpreted in a favorable manner for the admission and final decision of the pretensions of the administered, so that their rights and interests are not affected by the requirement of formal aspects that can be corrected within the procedure, provided that said excuse does not affect the rights of third parties or the public interest. It is also indicated that 'The procedures established by the administrative authority should be simple, and any unnecessary complexity should be eliminated; that is to say, the requirements demanded must be rational and proportional to the aims pursued.'" (emphasis added)
4.3.10 In accordance with this principle, article 84 of the TUO of the LPAG, has indicated as a duty of public entities in the framework of the administrative procedures that are in their charge:
"Article 84.- Duties of the authorities in the procedures
The following are the duties of the authorities regarding the administrative procedure and its participants:
(...)
2. Perform their duties following the principles of the administrative procedure provided in the Preliminary Title of this Law" (emphasis added)
4.3.11 In this sense, since the informalism principle is one of the principles that govern the administrative procedure, foreseen in the Preliminary Title of the TUO of the LPAG, it is evident that it is mandatory for all entities of the public administration, and in the particular case, it is mandatory for the INGEMMET.
4.4 Macusani did comply with its legal obligation to pay and credit the payment of the validity right from January 1 to June 30
4.4.1 The INGEMMET indicates through the Report N° 1924-2018-INGEMMET-DDV/L, that the Unified Text of the General Mining Law, approved by Supreme Decree N ° 014-92-EM, establishes that the legal obligations to pay the validity right and to credit said payment go from January 1 to June 30 of each year.
4.4.2 In this way, the INGEMMET concludes that since this is an obligation contained in a regulation with the status of law, both the payment of the right of validity, as well as the accreditation of said payment, must be made within the established term, and, consequently, there are no omissions matter of correction on the part of the administered.
4.4.3 Macusani does not ignore this obligation of payment and accreditation of the Right of Validity. However, we must also point out that this obligation has been fully complied with by Macusani, as can be seen from the presentation of the accreditation request dated July 2nd, 2018, irrefutable proof of compliance with its obligations as administered.
4.4.4 In this sense, although it is true that not all the vouchers which Macusani's representative carried had been attached, this was due to reasons totally alien to her, given that, as we have already mentioned, the servant Virginia Vasquez discriminated the payment vouchers presented, according to the time they were generated, in breach of her obligations as part of the INGEMMET’s reception unit, established in article 133 of the TUO of the LPAG and in violation of the principle of informalism, included in section 1.6 of the Preliminary Title of the TUO of the LPAG, which should govern all public administration entities.
4.4.5 In this way, we reiterate again that the obligation established in the TUO of the General Mining Law and its Regulation, was fully complied with by Macusani, which can be demonstrated by the presentation proof of receipt of the request generated in the documentary reception unit.
CONCLUSIONS
For all the arguments above mentioned, we conclude the following:
1. The Resolution dated October 3rd, 2018 suffers from defects of nullity for contravening what is established by Article 37 of the Regulation of TUO of the LGM, requiring additional requirements not provided by law for the accreditation of the payment of the Right of Validity.
2. The Resolution dated October 3rd, 2018 suffers from defects of invalidity due to a deficiency in its motivation, an essential requisite for the validity of the administrative act. The defect in the motivation would be that INGEMMET decided to declare inadmissible the accreditation of payment of the Right of Validity, basing its decision on the application of criteria set by the Mining Council in six resolutions that deal with cases whose facts are totally different.
3. The Resolution dated October 3rd, 2018 suffers from vices of nullity for contravening the administrative principles of legality, informalism and reasonableness; principles that INGEMMET (as well as any other public entity) is obliged to respect.
4. Because the servant Virginia Vasquez transgressed the provisions of article 133 of the TUO of the LPAG by discriminating among the 22 vouchers that the representative of Macusani made available to her to attach to the accreditation request of payment of the Right of Validity based on the time at which each of these was printed, Macusani proceeded to report this fact on July 2nd, 2018 through the Complaints Book of INGEMMET; however, it had no choice but to submit the remaining 8 vouchers by a second written request on July 3rd, 2018.
For these reasons and in light of the facts in the present case, it must be understood, for all purposes, that the request of July 2nd, 2018 must be accompanied not by 14 but by 22 vouchers. As previously mentioned, the remaining 8 vouchers were not attached to the letter of July 2nd, 2018, due to the illegal qualification carried out at the INGEMMET’s documentary reception unit.
PETITION:
For all the foregoing, we request that you have this appeal for review as interposed; and, in due course, proceed to elevate it to the Mining Council, so that it declares the nullity of the Presidential Resolution N° 0464-2019-INGEMMET/PE dated February 20th, 2019.
FIRST OTHER WE SAY: That, for the purposes of the present appeal for review, we designate the following persons so that they can represent Macusani Yellowcake SAC, as well as perform any management related to the processing of this file, such as managing complete copies thereof, collect personal notifications, represent jointly or individually the company in any diligence, among other functions:
- Daniel Jesus Palomino Seguin, identified by DNI N° 44761407.
- Melissa Edith Moran Farro, identified by DNI N ° 72643603.
- Marco Alejandro Pereda Zevallos, identified by DNI N ° 70272362.
- Janella Mercado Mendoza, identified by ID N° 75747046.
SECOND OTHER WE SAY: That we attach the following documentation as annexes:
- Annex 1-A: Copy of the proof of reception of the accreditation request of payment of validity right presented on July 2nd, 2018.
- Annex 1-B: Copy of the ID of Mr. Ulises Solis Llapa, general manager of the company.
- Annex 1-C: Validity of updated power of the general manager.
- Annex 1-D: Copy of the ID of Mr. Daniel Jesus Palomino Seguin.
- Annex 1-E: Copy of the ID of Ms. Melissa Edith Moran Farro.
- Annex 1-F: Copy of the ID of Mr. Marco Alejandro Pereda Zevallos.
- Annex 1-G: Copy of ID of Ms. Janella Mercado Mendoza.
Lima, March 13th, 2019
Ulises R. Solis Llapa
GENERAL MANAGER
MACUSANI YELLOWCAKE S.A.C.