A bit later than expected, but last Wednesday Mrs. Hermoza Castro approved the accumulation of cases 10759 and 10760 (main processes) through Resolution Number 5, which has been uploaded today: https://cdn.ceo.ca.s3-us-west-2.amazonaws.com/1fo8vc2-res_2019107590105936000429704.pdf 6th PERMANENT COURT.
FILE: 10759-2019-0-1801-JR-CA-06
MATTER: NULLITY OF RESOLUTION OR ADMINISTRATIVE ACT
JUDGE: HERMOZA CASTRO, MARUJA OTILIA
SPECIALIST: LUJAN RAMOS, RUDDY
DEFENDANTS: MINISTRY OF ENERGY AND MINES - MINEM; INSTITUTE GEOLOGICO MINERO Y METALURGICO - INGEMMET
CLAIMANT: MACUSANI YELLOWCAKE S.A.C.
RESOLUTION NUMBER FIVE.
Lima, October 7th, 2020.-
GIVING ACCOUNT: On the date;
(...)
On the other hand; pending resolution of the request for Accumulation of Processes presented by the plaintiff and with the acquittal of the co-defendants, a ruling is issued;
SEEN the file; and, CONSIDERING:
FIRST.- That, by means of a letter dated December 6th, 2019, the plaintiff requests the ACCUMULATION OF PROCESSES, based on the following grounds:
i) That, as evidenced by the application brief and the admission decisions attached, the process Subject of Exp. N° 10760-2019 deals with the same controversy, facts and antecedents as the current process;
ii) Both processes share identical demands regarding the nullity of the resolutions issued by INGEMMET, differing only with respect to the mining concessions involved and the resolutions of the Mining Council questioned, the latter issued separately, but on the occasion of the appeals presented by MACUSANI against Presidency Resolution No. 0464-2019-INGEMMET/PE dated February 20th, 2019 issued by INGEMMET;
iii) Consequently, it is evident -on the one hand- the need for the accumulation of both processes to avoid contradictory jurisdictional pronouncements regarding identical demands, while on the other hand, the connection between the demands that differ only with respect to the concessions involved and the resolutions of the Mining Council, as they are based on the same facts and essential legal grounds and originate from the same appeals filed by MACUSANI against the aforementioned INGEMMET resolution;
iv) It should be noted that both processes are processed in the same procedural route, they are in the same application stage, and a sentence has not yet been issued in this process or in the one that is processed before the 05th Permanent Court Specialized in Administrative Litigation, Exp. No. 10760-2019;
and,
v) Finally, it is important to note that according to article 90th of the Civil Procedure Code, it is up to this office to accumulate the process that is the subject of Exp. No. 10760-2019 to the present process, since the first summons has been made in this process.
SECOND.- That, it should be noted that the accumulation of processes is an institution created for the benefit of the defendant, preventing him from following several trials with the consequent economy, also in favor of the administration of justice, to avoid the possibility of contradictory or implicating resolutions being issued, and in favor of saving procedural and jurisdictional work; In this sense, Article 90th of the Civil Procedure Code additionally applicable to the present case states that:
“(…) The successive accumulation of processes must be requested before anyone of them is sentenced. The request prevents the issuance of a judgment until the accumulation is finally resolved. The successive accumulation of processes is requested before any of the Judges, attaching a certified copy of the demand and its answer, if any. If the request is founded,
they will be accumulated before the one who made the first summons. (…)” (bold added);
being that, although the aforementioned device does not indicate the motives or reasons why the accumulation of processes is justified, it should be noted that in accordance with articles 83rd, 84th and 85th of the same Adjective Code, for its approval it is required an element of connection and that the same parties intervene, so as to avoid opposing or contradictory jurisdictional pronouncements.
THIRD.- That, taking into account what was alleged and what was acquitted by the co-defendants, it is noted from the review of the processes, that in the present process MACUSANI YELLOWCAKE S.A.C. files a contentious administrative demand against the MINISTRY OF ENERGY AND MINES - MINEM and INSTITUTO GEOLOGICO MINERO Y METALURGICO - INGEMMET, requesting -among other points- to declare the Total Nullity of seventeen (17) administrative resolutions of the Mining Council, by means of which it declared unfounded the Appeal for Review (Recurso de Revision) filed by the plaintiff against Presidency Resolution No. 0464-2019-INGEMMET/PD dated February 20th, 2019, by which INGEMMET declared the expiration of -among others- seventeen (17) MACUSANI-owned concessions; and, confronted with the process number 10759-2019 initiated before the 05th Permanent Court Specialized in Administrative Litigation, it is verified that in said process the Total Nullity of fifteen (15) administrative resolutions issued by the Mining Council is requested with respect to the other 15 concessions, the expiration of which was declared in a single administrative act, being in total thirty-two (32) mining concessions owned by the plaintiff, from where it is concluded that it is the same request, and must be processed in the same process.
FOURTH.- That, taking into account what is stated in the preceding considerations and the review of the file, and that it is evidenced that there is a connection in the proposed demands, the parties to the process must bear in mind that the connection is understood as the link that exists between two or more petitions or processes, that is, a nexus that arises from the existence of common elements between two or more demands or processes, in which despite their diversity, they have common or interdependent elements that link them, either by the object, or by their cause or some procedural effect, as noted in the present case.
FIFTH.- In this sense, having verified the existence of the required connection between the demands raised in both processes, that the process whose accumulation is requested is processed through the ordinary procedure as well as the present case, that in both processes the Competent Judge for its resolution is a Contentious Administrative Judge, that the same subjects intervene and that the demands are not contrary to each other, it is evidenced that the requirements established in article 85th of the Civil Procedure Code are met for the approval of the requested accumulation; In that order of ideas, it is necessary for both processes to be brought together in one, so that a single sentence resolves the merits of the controversy and thus avoids opposing jurisdictional pronouncements; and finally, being that in the file to be accumulated a sentence has not yet been issued; consequently, due to the grounds exposed and in accordance to Article 90th of the Civil Procedure Code additionally applicable to this process;
IT IS RESOLVED:
TO DECLARE FOUNDED the request for ACCUMULATION OF PROCESSES raised by the plaintiff MACUSANI YELLOWCAKE S.A.C.,
and since the first summons was made in the present file, as verified by the documents and the Integrated Judicial System (SIJ), according to what is indicated in the final part of the second paragraph of Article 90th of the same Code,
IT IS DECIDED:
TO ACCUMULATE the process signed with N° 10760-2019-0-1801-JR-CA-05, initiated before the 05th Permanent Court Specialized in Administrative Litigation, to the present process, and for this purpose, TO COMMUNICATE this decision to the 05th Permanent Court Specialized in Administrative Litigation, so that it SEND the aforementioned file with its respective Administrative File and others accompanied - if any -, so that the sequel of the process can continue according to Law.
BE NOTIFIED and COMMUNICATED.-
As was ordered in the Resolutive Clause, the same day judge Hermoza Castro sent a formal letter (oficio in Spanish) to judge Sacha Flores of the 5th Permanent Court, which is in charge of Case 10760, requesting the 10760 File is sent to the 6th Permanent Court to be accumulated with (absorbed by) Case 10759 (page 5): SUPERIOR COURT OF JUSTICE OF LIMA
Sixth Permanent Court Specialized In Administrative Litigation
Lima, October 7th, 2020.
Official Letter N° 10759-2019-6thJECA/PJ
MS:
JUDGE OF THE 05TH PERMANENT COURT SPECIALIZED IN ADMINISTRATIVE LITIGATION OF THE SUPERIOR COURT OF JUSTICE OF LIMA.
Present.-
I am pleased to address you; to effect that you SEND to this Court the File N° 10760-2019-0-1801-JR-CA-05, followed by MACUSANI YELLOWCAKE S.A.C. against the MINISTRY OF ENERGY AND MINES - MINEM and the INSTITUTO GEOLOGICO MINERO Y METALURGICO - INGEMMET, with their respective Administrative File and others accompanied - if any -; In accordance with the provisions of Resolution No. 05 issued on the date, through which it is resolved:
(…) TO DECLARE FOUNDED the request for ACCUMULATION OF PROCESSES raised by the plaintiff MACUSANI YELLOWCAKE S.A.C., and since the first summons was made in the present file, as verified by the documents and the Integrated Judicial System (SIJ), according to what is indicated in the final part of the second paragraph of Article 90th of the same Code,
IT IS DECIDED: TO ACCUMULATE the process signed with N° 10760-2019-0-1801-JR-CA-05, initiated before the 05th Permanent Court Specialized in Administrative Litigation to the present process, and for this purpose, TO COMMUNICATE this decision to the 05th Permanent Court Specialized in Administrative Litigation, so that it SEND the aforementioned file with its respective Administrative File and others accompanied - if any -, so that the sequel of the process can continue according to Law. (…).
Resolution No. 05 dated October 7th, 2020 is attached in a certified copy.
The occasion is opportune to express to you, the sentiments of my highest consideration and personal esteem.
Sincerely;