Dominican Republic CONSTITUTIONAL COURT – SENTENCIA TC/0126/19
Reference : Files Nos. TC-05-2018-0219 and TC-07-2019-0002, relative to the constitutional review appeal in Amparo matter and request for suspension brought by Lifestyle Holiday Assets Holding, SRL against Sentence no. 271-2018-SSEN-00386,dictated by the First Chamber of the Chamber Civil and Commercial Court of the First Court Instance of the Judicial District of Puerto Silver, June eight (8), two thousand eighteen (2018).
In the Santo Domingo Oeste municipality, Santo Domingo province, Republic Dominican Republic, on the twenty-nine (29) day of the month of May of the year two thousand and nineteen(2019).
The Constitutional Court, regularly constituted by Magistrates Milton Ray Guevara, president; Rafael Díaz Filpo, first substitute; Lino Vásquez Sámuel, second substitute; Hermógenes Acosta de los Santos, José Alejandro Ayuso, Alba Luisa Beard Marcos, Ana Isabel Bonilla Hernández, Justo Pedro Castellanos Khoury, Víctor Joaquín Castellanos Pizano, Domingo Antonio Gil, Wilson S. Gómez Ramírez, Katia Miguelina Jiménez Martínez and Miguel Valera Montero, in exercise of its constitutional and legal powers, specifically the provided for in articles 185.4 of the Constitution and articles 9 and 94 of the Law no. 137-11 Organic of the Constitutional Court and Procedure Constitutional, of June thirteenth (13) of two thousand eleven (2011), dictates the following judgment:
I. BACKGROUND
1. Description of the sentence appealed in constitutional review of decision jurisdictional and whose suspension is sought
Sentence no. 271-2018-SSEN-00386, subject of this appeal for review constitutional law on Amparo, was issued by the First Chamber of the Chamber Civil and Commercial Court of the Court of First Instance of the Judicial District of Puerto Silver on June eight (8), two thousand eighteen (2018). Your copied device verbatim is the following:
FIRST: on the merits, it partially welcomes the present action of amparo, and consequently, orders the acted party and intervening parties volunteers (Holiday Assets Holding (Lifestyle Vacation), Markus Wischenbart, Javier Silva, Tisha Investments Overseas, LTD, Life Style Real State Holding, INC., Life Style Holydays Vacation Club INC., Quismar Dominicana, SRL, and Sparkles Managements Services, LTD), abstain immediately, once this decision is notified, of obstructing, prevent, hinder, or restrict in any way, the access of the employees, and administrative staff and contractors of the plaintiffs for the installation of drinking water pipes and underground wiring ,as well as the sanitary installations of the drinking water pipes and underground wiring, as well as sanitary facilities for said basic services, from the public network, in Costa Esmeralda and Peninsula Esmeralda, in Cofresí, from the public cart of Maggiolo and through the public road that leads to Costa Esmeralda. (sic) SECOND: orders the Attorney General of the Judicial District of Puerto Silver, provide the assistance of the public force, if necessary, for the materialization of the provisions of this decision. (sic) THIRD: declares this process free of costs, in application of the Article 66 of Law No. 137-11. (sic)
Within the documents that make up the file there is no evidence of notification of the aforementioned judgment to the appellant.
2. Presentation of the constitutional review appeal in the matter of amparo and the request for suspension of execution of judgment
The Lifestyle Holiday Assets Holding, SRL commercial company, via the Secretary of the First Chamber of the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of Puerto Plata, filed this appeal for review constitutional Amparo in the first (1 ro ) August two thousand and eighteen(2018). Likewise, the receipt of the file containing the aforementioned action recursive was received by the Secretariat of this constitutional court on the twenty-second(22) August two thousand and eighteen (2018).
Said appeal was notified to the appealed entities: Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 14, SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda Village 11, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda 12, SRL and Peninsula Costa Esmiralda 13, SRL; through Act no. 540/2018 instrumented by Gregoris de Jesús Gómez Peñaló, bailiff of the stage of the Second Special Transit Court of the Peace of the Judicial District of Santiago, on August three (3), two thousand and eighteen (2018).
On his side, the request for suspension was processed directly before the Secretariat of this constitutional court, in accordance with article 40 of the regulation jurisdictional of this court; This procedure took place on February four (4),two thousand and nineteen (2019). This request was notified to the respondents through the letters SGTC-0429-2019 and SGTC-0429-2019 both, of February five (5), two one thousand nineteen (2019), issued by the General Secretariat of the Tribunal Constitutional.
3. Grounds for the judgment appealed in constitutional review in Amparo matter and whose suspension of execution is requested:
The First Chamber of the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of Puerto Plata based its decision, among others, on the following arguments:
to. Regarding the inadmissibility because the Amparo is not applicable when it is imposed the examination of obligations and rights derived from contracts: That, in kind, the plaintiff alleges violation of the following fundamental rights: freedom of transit; freedom of business; property rights; right to living place; right to health; right to work; environmental Protection; access to public services (health services, energy and drinking water) . (sic)
b. That being the case, it is not a matter of causality, as claimed by the triggered party. of inadmissibility, since in addition to the fact that it is not provided for in article 70 of the law no. 137-11, to determine if it is necessary to examine “obligations and rights derived from contracts ”(which would force the rejection of the action of protection, because it is contrary to its summary nature), it is a question that forces a thorough analysis of the action, so your request for a declaration of inadmissibility must be rejected, without the need to repeat it in the positive part of the present action . (sic)
c. Regarding the inadmissibility for wanting the plaintiffs to replace with the present action ordinary jurisdictions, and because there are other judicial channels (Judge of Referrals), according to article 70.1 of Law 137-11 (which will be analyzed together, due to their high degree of linkage). What for him court may declare the action inadmissible due to the existence of another avenue, the same must be just as effective, and at the same time quickly guarantee the protection of the or the fundamental rights of the plaintiff . (sic)
d. That, although the demand in referrals is a protection mechanism against manifestly illicit disturbances (questions of legality), it is no less It is true that in the species, submit declaring the present action inadmissible by the The existence of another avenue would leave the plaintiff unprotected, for several reasons: a)Because due to the issues of the process and material unforeseen(voluntary intervention, out-of-court investigation measures ─ inspection of places ─, lack of physical space to hear hearings ─ this court shares a courtroom with another court ─ ), since it has more time desirable since it entered the jurisdiction; b) The figure of referral, not it is free of costs; c) The referral decision, although in principle it is enforceable provisionally, it may eventually be suspended in its execution; d) The decision on protection, can provide everything necessary for the protection of fundamental rights, so it is more effective than action in referrals . (sic)
and. That the plaintiff’s allegation that the plaintiff is wrong intends to resolve under protection issues of ordinary jurisdiction, because the object of this action is purely and simply to protect rights fundamental according to the Constitution and Law no. 137-11, since it has not requested nothing beyond what is protected via the Amparo . (sic)
F. That the allegation that “the plaintiff intends to resolve by Amparo issues pertaining to ordinary jurisdiction ”, it is not contained as a causal of inadmissibility pursuant to article 70 of Act No. 137-11, nor in law ordinary (which is supplementary in Amparo proceedings) . (sic)
g. That for all that is expressed in paragraphs 23 to 27 of this same decision, the request for inadmissibility filed by the party brought under the plea of that the plaintiffs want to replace with this action jurisdictions ordinary laws, and because there are other judicial channels, it must be rejected, without the need for repeat it in the operative part of this decision . (sic)
h. Regarding the merits of the action: That although Esmiralda, SRL (formerly SA),alleges the threat or violation of fundamental rights, by the documents deposited the court has verified, that among it, Jawara Project Development Consultancy FZC, Tisha Investments Overseas, LTD, Lifestile Holidays Assets Holding, SRL, Quismar Dominicana, SRL, there are contracts for developments of tourism projects, dating from 2008, so in terms of Esmiralda, SRL, which have generated different legal disputes, so that given the summary nature of the Amparo action, it is not possible to assess aspects relating to the fulfillment or not of the obligations of the parties, and consequently the present action must be rejected . (sic)
i. Regarding the merits of the action of the other parties (Peninsula Costa Esmeralda, SRL, Costa Esmiralda Village 1, SRL, Costa Esmiralda Village 2,SRL, Costa Esmiralda Village 3, SRL, Peninsula Costa Esmiralda 5, S. R L., Peninsula Costa Esmiralda 7, SRL, and Peninsula Costa Esmiralda, SRL, and Nilda Altagracia Sandoval): That through a service provision contract engineering professionals, dated 5-23-2018, with firms legalized by Licdo. Felipe Arturo Gonzáles Almonte, Notary Public of the number for the Puerto Plata municipality, the company Costa Esmiralda Village 1, SRL, contracted
the services of ARCS Innova Engineering Group, SRL, for the construction of earthworks (excavations, sand seat placement, classified material fill), demolitions, log constructions electrical and civil works, in the complex called “El Proyecto . (sic)
j. That by means of a contract for the installation of electrical infrastructure, Date 5-22-2018, with signatures legalized by Licdo. José Alfonso Acevedo García, Notary Public of the number for the municipality of Santiago de los Caballeros, the company Peninsula Costa Esmeralda 5, SRL, and Costa Esmiralda Village 1, SRL., hired the services of Contractors Eléctricos de Santiago, SRL, to the electric power supply facilities for said companies, in the complex called “The Project “. (sic)
k. That by means of a site inspection report, made on 4-6-2018, by the magistrate who presides over this court, the following facts could be verified: 1)The entrance to the complex is controlled by security personnel from the part triggered, before which the Judge Commissioner, had to identify himself to be able to access to the road or street; starting a journey on foot; 2) On the right side of the road, in south-north direction, there was a team of men doing construction work; specifically digging a trench, laying some plastic pipes ─ Normally used to guide or channel liquid water─, and in addition, they built a kind of container and narrow sidewalk; 3) The route down the street is lasted for 23 minutes, as we practically reached the edge marine (the sea was appreciated at a short distance), it being evident that the villas located on the left side in a south-north direction, they are suitable to be inhabited, while those located on the right side are still under construction;4) The construction works (laying of pipes, sidewalk and containers), reach no much more than half of the street, that is, there is still a section to be worked on.5) Being 11:36 am, the inspection was terminated, and at 11:55 am, we returned to court . (sic)
l. After transcribing the full content of Judgment TC / 0378/16, issued on August eleventh (11), two thousand and sixteen (2016), it was specified that: “the preceding previously transcribed, has application in the present case because it is identical situations, by virtue of the provisions of articles 184 of the Constitution of the Republic and, 31 of Law 137-11 ”. (sic)
m. That this court is of the opinion that the plaintiffs have not been violated the right to freedom of company, because it has been dedicated to the activity that you deem convenient to your interests; but the property rights, because access to their land has been limited, and they have been threatens to continue doing so, since the mechanical arm controlled by the driven part, and that is at the entrance of the street, constitutes an obstacle so that people who are going to carry out construction work circulate freely, and derived from this violation of property rights are derived serious threats to access to basic services of drinking water, electricity and sanitary services which have not been able to be installed, and it is also prevented from free access to the beach that borders your property. That the plaintiff, architect Nilda Altagracia Saldoval (sic) Castillo, is arbitrarily threatened with her right to work, when through the threat of the use of force they are prevented from perform the jobs for which she was hired . (sic)
n. That for all the above, this action will be accepted in the way it is will say in the operative part, also ordering the Public Ministry to order the assistance of the public force, if necessary, so that the protection of the fundamental rights that are protected by this decision, leaving in charge of the plaintiff the notification to the Public Ministry, all Once the court lacks the material means to do so; this without the need for repeat it in the operative part of it . (sic)
or. That although the Amparo Judge may impose astreintes (Article 93 of the Law137-11), to overcome the resistance of the driven part to comply with what is order, in the species there is no place for the imposition of any, because this decision will not impose an obligation to do on the acted party, and for an order of abstention the astreinte does not work as a coercion mechanism . (sic)
4. Facts and legal arguments of the appellant under review constitutional law on Amparo and petitioner for the suspension of execution sentence
The appellant, Lifestyle Holiday Assets Holding, SRL, requests that as precautionary measure, the effects of the appealed judgment are suspended until Learn about the appeal for review. As for the latter, that the sentence be revoked appealed and consequently, the inadmissibility of the Amparo action of in accordance with the grounds stipulated in article 70 of Law no. 137-11; in order toto justify said claims argues, in summary, the following:
to. Regarding the suspended lawsuit, it considers that
… In the present case an exceptional situation is configured that warrants that Judgment no. 271-2018-SSEN-0386 is suspended, due to (A)that the sentence suffers from manifest irregularities, and (B) that it is configure the budgets for the origin of a legal guardianship precautionary . (sic)
b. Regarding the appeal, he argues that multiple precedents of the Constitutional Court because
… In the present case, Court A-quo ordered the rejection of the media of inadmissibility due to the existence of another effective judicial means ─ promoted in
audience─ based on a series of considerations that are contrary and that violate multiple precedents of the Constitutional Court, given that This High Jurisdiction has indicated ─on repeated occasions─ that in the cases where the ordinary route has the capacity to adopt measures provisional ─or precautionary─, as in the species, the protection will be inadmissible pursuant to article 70.1 of the LOTCPC… ”. (sic)
c. Understood this way, it is that the Court A-quo, by ignoring the fact that the effectiveness of the judicial process claimed by the Lifestyle business company Holiday Assets Holding, SRL, relied on the ability to dictate measures provisional ─ reference ─, violated multiple precedents of the Court Constitutional ”. (sic)
d. Indeed, based on the criteria that have been upheld by that Tribual Constitutional on the effectiveness of the judicial process rests on the basis of the possibility of issuing provisional measures, such as the referral, to prevent imminent damage or to stop a manifestly wrongful disturbance, established by article 110 of Law No. 834 of 1978 . (sic)
and. The facts were distorted. Lack of arbitrary action or manifestly illegal, as it is a matter consented to by contract, since what
… On the occasion of the Amparo trial, the Lifestyle Holiday business company Assets Holding, SRL raised the notorious inadmissibility of the action of Amparo filed by Esmiralda, SA, because the alleged grievances claimed by the latter were the result of contractual relationships, the which had been expressly consented to. Hence the nonexistence of a illegal and, much less, manifestly arbitrary, conduct that could justify the origin of the Amparo action filed by Esmiralda, SA . (sic)
F. … the fact that the alleged grievances come from a contract, consented by the Plaintiff, generates the inadmissibility of the Amparo action, because under this assumption, the arbitrariness or manifest illegality cannot be appreciated, because the matter would merit an instruction and an examination that the process of Amparo, due to its summary nature, cannot guarantee. It, in the intelligence of that it is a matter that cannot be resolved expeditiously or exceptionally protection, because why reiterate─ deserves a greater and deeper debate .(sic)
g. For these reasons, the amparo action should be inadmissible, for be a matter that involved a complex contractual relationship, whose resolution merited the instruction of the main process. Add it to this, in addition, that the existence of the contractual consent of the Shareholder prevents that an ostensibly arbitrary and illegal conduct can be configured, which is the type of offense that the amparo judge can examine… . (sic)
h. Once the sentence is revoked, the Amparo must be inadmissible because there is another way effective judicial system, since “it is a matter that can be heard before the judge of referrals, on the basis (lacking veracity, however) of manifestly unlawful disturbance ”; Likewise, the criterion is maintained that It is inadmissible due to the notorious inadmissibility, this, by virtue of the fact that:
… The conduct denounced by the Esmiralda company through its action of amparo was contemplated in a contract that she had signed with Appellant. This implies, as the doctrine has indicated compared, the impossibility that a performance can be configured flawed with arbitrariness or manifest illegality, which is the type of infraction that ensures the origin of the amparo action . (sic)
i. In the end, the Amparo action is inadmissible, since
… In the species, the actions denounced and that have motivated the protection that concerns us, have been expressly consented to by Esmiralda, through the agreement signed on October 22, 2010 with the entities Jawhara Project Development Consultancy FZC, Tisha Investments Overseas, LTD, Lifestyle Holiday Assets Holding, SRL and Quismar Dominicana, SRL Said companies agreed, through the aforementioned legal business, among other things, establish access control to the condominium projects established and operated in them by the Maggiolo, province of Puerto Plata. This can be deduced, so irrefutable, with a simple reading of article 18 of the so-called convention of “amicable resolution of contracts and agreement on Timeshare”. From there the non-existence of any threat or infringement of rights fundamental of the plaintiffs in protection . (sic)
5. Facts and legal arguments of the respondent under review constitutional law on Amparo and defendant in suspension of execution sentence
The appealed entities: Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 14, SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda Village11, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda 12,SRL and Peninsula Costa Esmiralda 13, SRL, deposited, on August 9 (9)of two thousand and eighteen (2018), before the Secretariat of the Civil and Commercial Chamber of Court of First Instance of the Judicial District of Puerto Plata, a brief of defense requesting, mainly, the inadmissibility of the appeal and, subsidiarily, its rejection. Indeed, the reference document is found supported by the following arguments:
to. When the Constitutional Court has ruled in relation to the transcendence, dissenting votes can often be read according to which honorable magistrates point out that the sole violation of a fundamental right is transcendent in a Social State of Rights and, I share that criterion; in the In the present case, however, the question arises: What is the fundamental right thatt he appellant is violated when the judge orders her to respect the right of appealed? None . (sic)
b. There is nothing new that promotes the possibility of transcendence since that the Judge here, REJECTED the Amparo Action regarding Esmiralda SRL, whichw as the only one contractually bound to Lifestyle, in accordance with jurisprudence binding of the Constitutional Court . (sic)
c. The LOTCPC requires in its article 96, that it be stated clearly and precise, the grievances caused by the contested decision and, in that sense, it has been pronounced on multiple occasions by the court; the same appellants cite the T0308-15 and announce that they will cite the grievances: However, they do not cite a single grievance thatthe court’s decision here to protect the fundamental rights of women Respondents, who do not have any contractual relationship with the appellant, affect . (sic)
d. … the appellant tries to induce the use of “referral” as the effective way, fear that the court here, answered correctly in the sentence. Nevertheless, It should be noted that the sustained jurisprudence of the Constitutional Court is different from that cited out of context by the Complainant: The Constitutional Court, From very early on, it has established that it must be as or more effective a way .(sic)
and. The appellant focuses her second plea on an alleged contractual relationship between Lifestyle Holidays Assets Holding SRL and Esmiralda SRL, which is not worth it comment since having established the existence of this, the court here, rejected, regarding Esmiralda SRL, the Amparo Action: In summary, nogranted Amparo to Esmiralda SRL, but to, Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda 14, SRL, Peninsula Costa Esmiralda 5,SRL, Peninsula Costa Esmiralda 12, SRL, Peninsula Costa Esmiralda 13, SRL, Arch. Nilda Sandolva and Angel Lockward, who have no contractual relationship with Lifestyle and its associates, as established by the Judge here . (sic)
F. The Complainant tries to confuse the Court, since, as noted, it knows very well that he does not appeal the decision regarding Esmiralda, SRL, a company to which does not summon and does not appear in its conclusions, consequently, the allegations of its paragraphs 23, 24, 25, 26, 27 and 28 is only intended to distract attention of the Honorable Magistrates and lack any logical sense at present process . (sic)
g. After asking, that according to the theory of “procedural autonomy”, the court for his own empire know of the Amparo Action, if there are merits int he dubious Appeal for Review, takes up the means of inadmissibility established in the Article 70.1 of Law 137-11, under the allegation that the referral judge deals with “manifestly unlawful disturbance” that refers to issues of ordinary legislation, which is not the case . (sic)
h. In the case of the species, it was that “a private individual, in current form, imminent and with arbitrariness and manifest illegality, injured, restricted, altered and threatened the fundamental rights to work, free movement, freedom of property Peninsula Costa Esmiralda SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda 14, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda
12, SRL, Peninsula Costa Esmiralda 13, Arch. Nilda Sandoval and Ángel Lockward, as provided in article 65 of Law 137-11 . (sic)
i. As can be seen, these are not legal issues, nor a dispute. contractual but of threats and restrictions to fundamental rights that were VERIFIED IN THE FIELD by the Judge here, with the presence of the attorneys for both parties, contrary to what is argued by the Complainant in the paragraphs 36 and 37, it even tries to confuse with “precautionary measures”, more typical of the administrative jurisdiction . (sic)
j. The Appellant reiterates in paragraph 39 that the Referral Judge is the way to deal with “manifestly illicit disturbance” which is not the case, since that it is about violations and threats to fundamental rights, in protection of which the court must weigh the gratuity, the enforceability and the speed that make the Amparo the most effective way, as motivated by the judge here . (sic)
k. The Appellant forgets that the attribution of determining which is the most effective way, It belongs to the Judge, as provided by Law 137-11 and has established jurisprudence the Constitutional Court . (sic)
l. Nothing more correct: How the sentence narrates, the Judge reached a public road, with a sentry box and an access arm, guarded by guards ─ without permission ─ from Lifestyle and they did not let him in until he showed his card as such and the lawyers identified as such, realizes that the jobs that were being carrying out with police protection, protection that ratifies in the sentence; road the public highway ─ closed and guarded by armed persons─ to the bottom in where he warned, completed Lifestyle villas and villas that could not be concluded by lack of water, energy and sanitation services, owned by companies appealed: The violation of fundamental rights was very evident, the Judge Aquo didn’t need to see or speak anymore . (sic)
m. The Complainant requests (page 16 3.2.3) that it be declared inadmissible for not There is no threat or violation of fundamental rights of the plaintiffs, if this is true, the protection granted by Justice would lack object and, of course, THE JUDGMENT WOULD NOT CAUSE ANY HARM to the appellant, so the Appeal for Review must be rejected . (sic)
n. Regarding the request for suspension, in the defense brief that they filed for such purposes on February twelve (12), two thousand and nineteen (2019), they establish that:”… the court, since the Appeal for Review was presented on August 1of 2018, more than seven (7) months ago, please know the Suspension Request together with the Appeal for Review, as has been their religion. (sic)
6. Documentary evidence
The documentary evidence in the file of the present appeal of constitutional review on Amparo matters and request for suspension of execution of sentence, are, among others, the following:
1. Amicable resolution of contracts and agreements on timeshare subscribed, the October twenty-two (22), two thousand ten (2010), between Esmiralda, SA, Jawhara Project Development Consultancy FZC, Tisha Investments Overseas, Ltd., Lifestyle Holidays Assets Holding, SRL and Quismar Dominicana SRL.
2. Communication issued on May three (3), two thousand eighteen (2018), by the Municipal City Council of Puerto Plata; addressed to the Lifestyle business company Vacation Club.
3. Communication issued on May eleventh (11), two thousand eighteen (2018), by the Municipal City Council of Puerto Plata; addressed to Alexander Schefler and / or Esmeralda Borodi.
4. Certification issued, on May fourteen (14), two thousand eighteen (2018), by the Superintendency of Surveillance and Private Security, Ministry of Defense.
5. Communication issued on May eighteen (18), two thousand eighteen (2018),by Coelsa; addressed to the commercial company Esmiralda SRL
6. Judgment no. 271-2018-SSEN-00386 issued by the First Chamber of the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of Puerto Plata on June eight (8), two thousand eighteen (2018).
II. CONSIDERATIONS AND RATIONALEOF THE CONSTITUTIONAL COURT
7. Synthesis of the conflict
According to the documentation deposited in the file and to the facts invoked by the parties, we have realized that the conflict was generated when inside the tourist complex called “The Project”, located in the Puerto Plata province, the Lifestyle Holiday Assets Holding, S.R. L, built an iron gate guarded by security guards in order toto supervise the circulation within said complex. This was opposed by the entities Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 14, SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda Village 11, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda 12, SRL and Peninsula Costa Esmiralda 13, SRL, in their capacity as co-owners.
This opposition is based on the fact that with the aforementioned measure they could not access his property; Likewise, neither did its employees ─who carried out labor construction, underground electrical wiring and sanitary and drinking water pipes─, nor their lawyers. To this end, the City Council Municipal de Puerto Plata, on May 11, 2018, communicated to the representatives of the commercial company Esmiralda, SRL, that “the Mayor’s Office … ordered a measure which was executed by the Urban Planning Department last Saturday regarding the removal of a gate that obstructed a public road ”; however, with Later, a new portal was installed ─consisting of a mechanical arm ─ which continues to hinder the access of the respondents, their lawyers and employees to the complex.
In such circumstances, the entities Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 14, SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda Village 11, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda 12, SRL and Peninsula Costa Esmiralda 13, SRL, filed a constitutional action for amparo invoking the violation of their rights fundamental to property, housing, health, work, an environment healthy environment, access to public services and freedom of movement and business. This constitutional action was accepted by the First Chamber of the Chamber Civil and Commercial Court of the Court of First Instance of the Judicial District of Puerto Plata, on June eight (8), two thousand eighteen (2018), through Judgment No.271-2018-SSEN-00386. The previous decision supposes the object of the present appeal of constitutional review on amparo matters and of the request for suspension of execution of sentence.
8. Competition
The Constitutional Court is competent to hear the present appeal of revision, by virtue of the provisions of article 185.4 of the Constitution and the Articles 9 and 94 of Law No. 137-11.
9. Merger of files
Prior to the Court preparing to assess the different issues of the present case, such as admissibility and eventual knowledge of the merits, it should be indicated that by means of this same sentence an appeal for constitutional review will be decided on Amparo matters and a request for suspension of execution of the judgment appealed. This is because the same Amparo sentence was the subject of a appeal for review and following a request for suspension.
Therefore, upon receiving the appeal and the request for suspension separately and in complacent intervals, the Court opened files TC-05-2018-0219 and TC-07-2019-0002. In this sense, it being evident that between these mediates a link of connection that involves the same situation of facts and parties between which the dispute that resulted in the judgment appealed and whose suspension remains it is intended, their joint knowledge is imposed.
In this regard, the Court makes the following clarifications:
to. Although it is true that the merger of files is not included in our constitutional procedural legislation, it is no less true that it constitutes a practice of ordinary courts provided that between two actions there is a close bond of connectedness. This practice ─of a praetorian nature─ has as purpose to avoid the eventual contradiction of judgments and guarantee the principle of procedural economy.
b. In this sense, it is appropriate to recall that by means of judgment TC / 0094/12,dictated on December twenty-one (21), two thousand twelve (2012), this collegiate ordered the merger of two (2) files related to direct actions of unconstitutionality, on the understanding that it is about
(…) A discretionary power of the courts that is justified when it is advises a good administration of justice, provided that the fusion of several lawsuits or actions filed before the same court and against the same act can be decided by the same sentence.
c. The merging of files in the pertinent cases, such as the species, is proceeding in constitutional justice, because it is consistent with the principle of speed provided for in article 7.2 of Law no. 137-11, text in which establishes that “constitutional justice processes, especially those for the protection of fundamental rights, must be resolved within the constitutional deadlines and legally foreseen and without unnecessary delay ”, as well as with the principle of effectiveness provided for in article 7.4 of the aforementioned normative body, which establishes:
Every judge or court must apply the effective application of the rules constitutional laws and fundamental rights vis-à-vis subjects obliged or debtors thereof, respecting the minimum guarantees of the due process and is obliged to use the most suitable means and tailored to the specific protection needs of each issue raised, being able to grant a differentiated judicial protection when merits the case because of its peculiarities.
d. In this vein, it is necessary to merge the files marked with the numbers TC-05-2018-0219 and TC-07-2019-0002, in order to issue a single decision regarding of the case in question, given the connection between the constitutional processes ─resource
review and request for suspension ─ directed against the same judgment of amparo, by virtue of the principles of our constitutional justice ─celerity, effectiveness and procedural economy─ mentioned above. The above is worth a decision, without need to be recorded in the device of this sentence.
10. Admissibility of the constitutional appeal for amparo
The Constitutional Court has ruled that the present appeal for review is admissible, in view of the following reasons:
to. In accordance with the provisions of article 94 of Law No. 137-11 all Judgments issued by the amparo judge are only likely to be appealed in review and third party.
b. It is necessary to remember that in accordance with the terms of article 95 of the aforementioned text, the constitutional review appeal in the matter of amparo will be filed “Within a period of five days from the date of its notification.” On This particular person has referred to this constitutional court in its judgment TC / 0080/12, of December fifteenth (15), two thousand twelve (2012), indicating that“[T] he term established in the preceding paragraph is frank, that is, it will not be computed the non-working days, neither the first nor the last day of the notification of the sentence ”.
Term that according to the clarifications made later, in the sentence TC / 0071/13, of May seven (7), two thousand thirteen (2013), the days that they are skillful.
c. Thus, considering that the objective of the appeal for review at issue is in contesting the content of the reasons that support the judgment rendered in matter of amparo, it is possible to infer that the calculation of the term to appeal it must start with the knowledge or notification of the entire decision to the appellant.
d. Indeed, the record does not contain any evidence that the judgment appealed ─num. 271-2018-SSEN-00386─ has been formally notified to the recurring part. In cases such as the one before us, the Court has specified, according to Judgment TC / 0001/18, of January two (2), two thousand and eighteen(2018), which:
… There is no document in the file to determine that the judgment under appeal has been fully notified to the party recurrent, so it cannot be validly alleged, for the reasons indicated, that at the time of filing the appeal for review that It concerns us, the period of five (5) days provided by the indicated article 95 of Law no. 137-11 had expired.
and. Hence, in the absence of a record of notification of the sentence appealed to the appellant, it is necessary to conclude that the present appeal of constitutional review on Amparo matters was carried out within the prescribed period in article 95 of Law no. 137-11.
F. Let us now briefly examine the formal responses made by the entities Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 14, SRL,Costa Esmiralda Village 7, SRL, Costa Esmiralda Village 11, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda 12, SRL and Peninsula Costa Esmiralda 13, SRL, in accordance with the present appeal, through the brief of defense that they deposited on August 9 (9), two thousand and eighteen (2018). On Indeed, in their conclusions they raise the inadmissibility of the appeal because it does not the requirements established in articles 96 and 100 of Law no. 137-eleven.
g. Article 96 of Law No. 137-11, regarding the form of the appeal review of the Amparo judgment, establishes that: “The appeal will contain the mentions
required for the filing of the amparo action, stating in addition to clearly and precisely the grievances caused by the contested decision ”.
h. In the species, even when the commercial entities appealed claim that the recurrent did not state – much less demonstrate – clearly and precisely the grievances or damages caused by the appealed judgment, we have found that from brief containing the appeal for review filed by the commercial company Lifestyle Holidays Assets Holding, SRL, the grievances that this understands the above sentence has caused him; because he argues that the rejection of his claims of inadmissibility of the Amparo action, under the firmament of a speech that considers authorized the jurisdiction of protection to resolve the dispute and retain the existence of violations of fundamental rights, degenerates into a violation of various precedents of the Constitutional Court and in a denaturalization of the facts.
i. Likewise, the respondent argues that the appeal does not comply with the requirement of special constitutional significance or relevance.
j. By virtue of this, article 100 of the aforementioned Law No. 137-11 establishes the criteria for the admissibility of the appeal for review of Amparo, subjecting it to the issue in question involves a special significance or relevance constitutional, empowering the Constitutional Court to assess said significance or relevance, taking into account the importance of the case for the interpretation, application and general effectiveness of the constitutional text, or to determine the content, scope and specific protection of rights fundamental.
k. This court established its position in relation to the application of the aforementioned article100 in Judgment TC / 0007/12, of March twenty-two (22), two thousand twelve (2012),establishing that the aforementioned condition of admissibility is only found configured, among other assumptions, in those “that allow the Court Constitutional reorient or redefine jurisprudential interpretations of the law or other legal norms that violate fundamental rights. “
l. Therefore, the Constitutional Court considers that the present appeal of revision has special significance and constitutional relevance, since it is evidences a conflict that will allow us to continue developing our criteria in regarding the effectiveness of the amparo process for the protection of the right fundamental to property and freedom of movement when they are subject to Manifestly arbitrary and illegal limitations.
m. Thus, since the appeal for review in question satisfies the provisions provided for by articles 96 and 100 of Law no. 137-11, it is necessary to declare it admissible as to its form and, by way of consequence, reject the means of inadmissibility raised by the entities Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 14, SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda Village 11, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda 12, SRL and Peninsula Costa Esmiralda 13, SRL
11. Regarding the present appeal for constitutional review in the matter of amparo
Once the admissibility of the appeal is verified, the Constitutional Court makes the following considerations:
to. The appellant, Lifestyle Holiday Assets Holding, SRL, bases its claim to revoke Sentence no. 271-2018-SSEN-00386 in which they have the precedents of the Constitutional Court have been violated ─among them, the settled in judgments TC / 0030/12, TC / 0187/13, TC / 0144/14 and TC / 0147 / 14─ as regards the existence of another effective judicial means for the protection of rights invoked fundamentals and the denaturalization of the facts in which the judge committed.
a-quo to resolve the case in question. It is in this sense that he raises, in Consequently, once the appealed judgment is revoked, the inadmissibility of the Amparo action because there is another effective judicial means of according to article 70.1 of Law No. 137-11, namely: the jurisdiction of the referrals.
b. In opposition to the respondents, Península Costa Esmiralda, SRL and you share, they argue that the appeal should be rejected and the sentence confirmed protected the fundamental rights to property, work, access to basic services and the freedom of movement of the appealed entities and their employees.
c. As for the first means of review raised by the appellant, this is: the alleged violation of the precedents of the Constitutional Court where has specified that there is another effective judicial means to resolve the conflict presented by means of an Amparo action, it is necessary to recover the reasons on which the judge a-quo to determine the effectiveness of the Amparo action against a demand in referrals. This, in order to specify whether your speech deviates from our criterion to determine when the aforementioned ground of inadmissibility applies. Hence, in the judgment under appeal, it is stated that:
… Although the demand in referrals is a protection mechanism against manifestly illicit disturbances (questions of legality), it is no less It is true that in the species, submit declaring the present action inadmissible by the existence of another avenue would leave the plaintiff unprotected, for several reasons: a) Because due to issues inherent to the process and unforeseen events materials (voluntary intervention, instructional measures outside the court ─ inspection of places ─, lack of physical space to know hearings ─ this court shares a courtroom with another court ─ ), since it has more time than desirable since it entered to the jurisdiction; b) The figure of the referral is not free of costs; c) The decision in referral, although in principle it is enforceable in a provisional, it can eventually be suspended in its execution; d) The decision on protection, can provide everything necessary for the protection of fundamental rights, making it more effective than the action in referrals (sic).
d. The foregoing shows that the judge a-quo made a contrast between the Amparo action and the civil referral lawsuit, under the sieve of the situation occurred in the specific case, in order to infer the effectiveness of the Amparo with the purpose of guaranteeing effective protection of fundamental rights involved in the controversy that it had to resolve.
and. The Constitutional Court, in cases with similar profiles, has ruled similarly. In this regard, regarding the effectiveness of the protection against a ordinary route has been specified ─in Sentence TC / 0027/13, of March six (6),two thousand thirteen (2013) ─ that:
Any person who realizes that their fundamental rights are violated or threatened has his most opportune ally in the way of protection, and when Exercising this way has to find immediate protection. Hence, at dispense with the protection of formalities and its procedure will be preferred, it becomes the effective alternative.
F. Indeed, in order to determine whether a way is effective against the action of amparo it is necessary to analyze the specific situation, as the judge a-quo did ,in order to verify which scenario is suitable to resolve the conflict introduced before the constitutional jurisdiction of protection. Thus, in Judgment TC / 0182/13, of the October eleven (11) of two thousand thirteen (2013), it is indicated that:
… does not mean in any way that any route can satisfy the mandate of the legislator, but that they are suitable for the purposes of protect the fundamental rights allegedly violated.
Thus, it is only possible to arrive at these conclusions after analyze the situation raised in connection with the other way called provide the protection that is demanded.
. In the species it is worth noting that although it could be possible to eventually go to the judge for referrals in civil matters, for the purpose of to seek the cessation of the alleged manifestly illegal ─ transgressive disturbances of a whole dossier of fundamental rights─ that took place with the placement of a gate and, later, of a mechanical arm that prevents the free access of the owners of various properties, their lawyers and employees ─ of the construction, electrical and sanitary services─ to the tourist complex called “The Project”, no less true is that there is evidence in the file that intermediation of the Municipal City Council of Puerto Plata, the respondents ─ accionantes en Amparo─ managed the consummation of enormous measures against thein order to overcome the reluctance of the Lifestyle Holiday Assets Holding, SR entity L., without obtaining the restoration of the fundamental rights compromised.
. In effect, this court considers that the protection jurisdiction becomes the jurisdiction whose suitability and relevance is undoubtedly capable of decide the present case. This, on the occasion that according to what is specified in the sentence appealed, it is possible to note that the judge a-quo did not depart from the criterion of this constitutional court when considering that the Amparo action ─ due to the dimension protection and the advantages it represents─ is the ideal way, in situations analogous where an apparent violation of rights is quickly noticed fundamental, to guarantee an effective defense of such basic prerogatives ;not so an ordinary demand before the jurisdiction of the referrals to obtain. an ordinance susceptible to ordinary and extraordinary resources and incidents procedural that would stretch, moreover, the realization of the guardianship.
i. Thus, this constitutional court considers that the judge’s decision a-quo to reject the means of inadmissibility that was raised, in relation to the existence of another effective judicial means ─the jurisdiction of referrals─ to Resolving the dispute is in accordance with current constitutional procedural regulations and the jurisprudence issued by this collegiate. This, taking into account that the protection It is the procedural guarantee par excellence that every person has to claim protection against any violation of their fundamental rights. In that tenor, has led to reject the present means of review as a motive tending to the revocation of the appealed judgment.
j. On the other hand, in its second means of review, the appellant states that the decision of the judge a-quo must be reversed in view of the fact that a denaturalization of the facts. In this regard, in his speech, he maintains that there was no violation of any fundamental right because no action was taken clad in arbitrariness or manifest illegality.
k. In this regard, it is necessary to record that, as has been established In the previous part, the Municipal City Council of Puerto Plata ─on the third (3) of May of two thousand and eighteen (2018) ─ communicated to the party brought under protection, now recurrent under review, that the place where the conflict has occurred involves
… A public road and as such, in accordance with the Law, under the Administration of the City Council … has not authorized the placement of said gate, in Consequently, it must be removed to guarantee the rights of the persons, established in the Constitution and in the laws, within the period of one (1) free day.
l. In addition, it is essential to recover here what was warned by the judge a-quo when, in application of the broad powers conferred by article 87 of the Law no. 137-11, held the instructional measure consisting of inspection or visit of places. On this, he assumed that:
… By means of a site inspection report, carried out on 4-6-2018, by the magistrate who presides over this court, it was possible to verify the following Facts: 1) The entrance of the complex is controlled by a staff of security of the actioned party, before which the Judge Commissioner, had to identify yourself to be able to access the road or street; starting a tour to feet; 2) On the right side of the road, in the south-north direction, there was a team of men doing construction work; specifically digging a trench, placing some ─ normally used plastic pipes to guide or channel liquid water─, and in addition, they built a kind of Containers and narrow sidewalk; 3) The tour of the street lasted for space of 23 minutes, because we practically reached the sea edge(the sea was appreciated at a short distance), it being evident that the villas located on the left side in a south-north direction, they are suitable to be inhabited, while those located on the right side, are still in Building process; 4) Construction work (laying of pipes, sidewalk and containers), they reach not much more than half of the street, it is In other words, there is still a section to be worked on. 5) Being 11:36 am, it occurred After the inspection was finished, and at 11:55 am, we returned to the court.
m. Therefore, based on the previous precautions, this constitutional court has been able to verify that the appellant is wrong when he argues that in the species there was no violation of fundamental rights based on the non-existence of arbitrary and illegal actions and consequently, that there have been denatured the facts; since, without a doubt, the elements of evidence that rest in the file together with the report made on the occasion of the visit or inspection of places carried out by the judge a-quo show that the violations to the fundamental rights to property and freedom of movement of the appealed in constitutional review regarding amparo are authentically palpable.
n. The foregoing, as has been appreciated, by virtue of the fact that such prerogatives constitutional laws have been subject to arbitrary and illegal limitations that prevent their full enjoyment of blocking a public road by installing a gate and, later, with the placement of a mechanical arm, not counting on the corresponding authorization from the municipal authorities. In effect, these events have unleashed a series of conditions and obstacles so that both the owners such as their attorneys and employees ─of construction, services electrical and sanitary, can circulate freely on the aforementioned public road that gives access to the properties of the respondents.
or. The fundamental right to property and freedom of movement, both invoked by the defendants in their Amparo action, are established in Articles 46 and 51 of the Dominican Constitution. Its content establishes:
Article 46.- Freedom of transit. Anyone who is in national territory has the right to freely transit, reside and leave theitself, in accordance with the legal provisions. […]
Article 51.- Property rights. The State recognizes and guarantees the property rights. Property has a social function that implies obligations. Everyone has the right to the enjoyment, enjoyment and disposition of your assets.
p. In this sense, in Judgment TC / 0378/16, of August eleven (11), two thousand16 (2016), in relation to freedom of transit and the effective enjoyment of
property rights, in relation to a public road that includes a beach, This body specialized in constitutional justice established that:
… with the impediment or difficulty of entering the beach area occurs a limitation of the right to freedom of movement that affects the ability to the recurring company to exercise full use, enjoyment and disposition of its property…
However, seen and verified, in the way previously expressed, that the plaintiff has experienced, on occasions, access limitation to the beach area, to carry out the normal activities of its clients and personal, it is necessary to partially accept the amparo action and order the operated, Corporación Antillana de Hoteles, SRL, to the Condominium Riviera Azul and Mr. Marco Antonio Villanueva Camps, to refrain from limit or restrict in any way the free access to the beach area of the personal and clients of the plaintiff, through the control that will work on street “A” of the Playa Dorada project, so that you can carry out their own activities there that entail their tourist offer, since said violent action to the plaintiff company, their right to free transit and, consequently, affects the full exercise of the use, enjoyment and disposition of your property right.
q. Therefore, any person – who does not have any legal impediment – is assisted the right to travel or move, without any hindrance, along the roads and public or private spaces for public use that connect with your property. From made, in a similar sense, in judgment TC / 0391/18 of October eleven (11)of two thousand and eighteen (2018), we indicate that: “the right to free movement implies the possibility that everyone can move freely not only in the public roads, but in public or private spaces for public use… ”.
r. Likewise, in Judgment TC / 0126/15, of June ten (10), two thousand and fifteen(2015), we established
The right to freedom of movement constitutes one of the freedoms fundamental and a condition that is indispensable for the development of people. It can be exercised from different dimensions, such as the right to move freely, either within your country or within the country where you are as a visitor. In the latter case ─ and, of course, also in the first─, the law regulates this right, so it is not a question of an absolute right; However, at the time of being regulated, it should not nullify its essential core, since this would lead to a violation of that right. It also implies the possibility of entering and leaving a country anyone freely, and it is enshrined not only in our Constitution but also, in the international framework, we find it in the Article 13 of the Universal Declaration of Human Rights, as well as in article 12 of the International Covenant on Civil and Political Rights.
s. Thus, this court has been able to verify that in the species ─as and as a- judge acknowledged quo ─ there was a violation of fundamental rights the property and freedom of movement of those now appealed, which was verified by based on the events reconstructed from the documentary evidence and the report raised on the occasion of the inspection or visits of places carried out by the judge commissar; hence, it was not demonstrated, nor legally supported, the argument of the appellant regarding the non-existence of the indicated violation and consequent denaturalization of the facts. In that sense, there is place to dismiss the second review approach as a reason to revoke the revised judgment.
t. In conclusion, after verifying that the means of review proposed by the trading company Lifestyle Holiday Assets Holding, SRL, appellant,
lack merits, the present appeal for constitutional review has been rejected in Amparo matters and, consequently, confirm Judgment no. 271-2018-SSEN-00386, issued by the First Chamber of the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of Puerto Plata, on the eight (8) of June two thousand and eighteen (2018); every time the judge a-quo made a correct evidentiary assessment in order to determine the disputed facts and an adequate application of the law to settle the dispute.
12. On the request for suspension of execution of judgment
The appellant, after filing the aforementioned appeal for constitutional review in terms of Amparo, he requested ─ as a precautionary measure ─ the suspension provisional of the executive effects of Judgment no. 271-2018-SSEN-00386,Until the indicated recursive action is decided definitively.
The Court considers that the indicated request for provisional suspension of execution of the contested judgment in constitutional review lacks purpose, since the considerations outlined ut supra , through which it has chosen by rejecting the appeal and confirming the reference sentence, they favor its rejection; Therefore, since its consideration is not necessary, it is necessary to reject it, since it has been the jurisprudential line adopted by this court on the occasion of processes with a similar factual table [among others judgments TC / 0120/13, of four (4) of June two thousand thirteen (2013); TC / 0006/14, of January fourteen (14), two thousand fourteen (2014); TC / 0073/15, of April twenty-four (24), two thousand and fifteen (2015);TC / 0538/15, of the first (1 ro ) December two thousand fifteen (2015)]. The above available, without the need to state it on the decision device.
This decision, signed by the judges of the Court, was adopted by the majority required. The saved vote of Judge Katia Miguelina is incorporated. Jiménez Martínez. For the reasons of fact and law set out above, the Court Constitutional
FIRST: ADMIT, in terms of form, the constitutional review appeal in matters of Amparo filed by Lifestyle Holiday Assets Holding, SRL, against Judgment no. 271-2018-SSEN-00386, issued by the First Chamber of the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of Puerto Plata, on June eight (8), two thousand and eighteen (2018).
SECOND: REJECT, on the merits, the appeal for review of Amparo filed by Lifestyle Holiday Assets Holding, SRL and consequently, CONFIRM Sentence no. 271-2018-SSEN-00386, issued by the First Chamber of the Civil and Commercial Chamber of the District Court of First Instance Judicial of Puerto Plata, on June eight (8), two thousand and eighteen (2018).
THIRD: DECLARE that this appeal is free of costs, in accordance with with the provisions of articles 72, in fine , of the Dominican Constitution, and 7 and66 of Law No. 137-11.
FOURTH: COMMUNICATE this judgment by the Secretariat, for its knowledge and purpose of place, to the appellant: Lifestyle Holiday Assets Holding, S.RL; and to the respondents: the entities Peninsula Costa Esmiralda, SRL, Costa Esmiralda Village 14, SRL, Costa Esmiralda Village 7, SRL, Costa Esmiralda Village 11, SRL, Peninsula Costa Esmiralda 5, SRL, Peninsula Costa Esmiralda 12, SRL and Peninsula Costa Esmiralda 13, SRL
FIFTH: PROVIDE that this decision be published in the Bulletin of the Constitutional Court.
Signed: Milton Ray Guevara, Presiding Judge; Rafael Díaz Filpo, First Judge Substitute; Lino Vásquez Sámuel, Second Substitute Judge; Hermogenes Acosta of Los Santos, Judge; José Alejandro Ayuso, Judge; Alba Luisa Beard Marcos, Judge; AnaIsabel Bonilla Hernández, Judge; Justo Pedro Castellanos Khoury, Judge; Victor Joaquín Castellanos Pizano, Judge; Domingo Gil, Judge; Wilson S. Gómez Ramírez, Judge; Katia Miguelina Jiménez Martínez, Judge; Miguel Valera Montero, Judge; July José Rojas Báez, Secretary.
VOTE SAVED BY THE JUDGEKATIA MIGUELINA JIMÉNEZ MARTÍNEZ
With due respect for the majority criteria reflected in the judgment and According to the opinion we held in the deliberation, we feel in the need to exercise the power provided for in article 186 of the Constitution, in order toto be consistent with the position held.
I. Precision on the scope of this vote
1.1. As a matter prior to stating the reasons that lead us to raise this vote saved, it should be specified that the judge who signs, shares the criterion that the judgment number 271-2018-SSEN-00386 issued by the First Chamber of the Chamber Civil and Commercial Court of the Court of First Instance of the Judicial District of Puerto Plata, on June eight (8), two thousand eighteen (2018), be confirmed, and that it is partially accepted the amparo action. However, he proceeds to save his vote in Regarding the motivations set forth in the consensus of this Court Constitutional order to decree the admissibility of the present appeal for review of judgment on amparo.
II. On the special significance or constitutional relevance
2.1. In the species, although we agree that the admissibility is declared of the present appeal for review, the undersigned reiterates that the objective, but subjective dimension of the protection, because doing so would be left devoid to the procedure of protection of the requirement of the double instance established by our Constitution, the American Convention on Human Rights and the Covenant International Civil and Political Rights, a situation that the consensus of this court finally corrected, through ruling TC / 0071/2013 of May 7of 2013, upon discontinuing the application of the thesis established by the aforementioned judgment TC / 007/12 which is based on the assertion that the review does not represents a second instance or appeal to resolve conflicts between parts.
2.2. We reiterate our criterion that the present appeal is admissible, without matter whether or not it is relevant to constitutional interpretation and to the determination of fundamental rights, since the opposite would be to frustrate and render illusory one of the essential functions of the rule of law, such as the effective protection of fundamental rights.
2.3. Furthermore, it should be reiterated that the criterion of constitutional relevance cannot be applied restrictively, since any violation of a fundamental right is, in principle and by definition, constitutionally relevant and uniquely transcendent for the one who invokes it or demands its restitution. Hence, it was enough to verify that the appeal for review in question was filed within the period of5 days, as indeed it was done.
Conclusion: Although it is true that the undersigned concurs with the decision adopted by the consensus of this Court, in the sense that the Amparo action is accepted partially, save your vote regarding the reasons invoked by the Court to decree the admissibility of the present appeal for review of the judgment of protection.
Signed: Katia Miguelina Jiménez Martínez, Judge
This judgment is given and signed by the judges of the Court Constitutional law, in the plenary session held on the day, month and year previously expressed, and published by me, secretary of the Court Constitutional, which I certify.
Julio José Rojas Báez
Secretary