Reference: File no. TC-05-2018-0255, regarding the appeal of constitutional review of sentence of amparo filed by Carlos Mariberto Guerrero Ceballos against the Sentence no. 0195-2018-SCIV-00501, of May ten (10), two one thousand eighteen (2018), dictated by the Civil and Commercial Chamber of Court of First Instance ofLa Romana Judicial District.
In the Santo Domingo Oeste municipality, Santo Domingo province, Republic Dominican Republic, on the twenty-first (21) 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; Hermógenes Acosta de los Santos, José Alejandro Ayuso, Ana Isabel Bonilla Hernández, Justo Pedro Castellanos Khoury, Víctor Joaquín Castellanos Pizano, Domingo Gil, Wilson S. Gómez Ramírez and Katia Miguelina Jiménez Martínez, in exercise of her constitutional powers and laws, specifically those provided for in articles 185 of the Constitution, and 9 and36 of Law No. 137-11, Organic of the Constitutional Court and the Constitutional Procedures, of June thirteen (13), two thousand eleven (2011), dictates the following sentence:
I.BACKGROUND
- Description of the judgment under appeal
Sentence no. 0195-2018-SCIV-00501, subject of this appeal for review constitutional law, was issued by the Civil and Commercial Chamber of the First Instance of the Judicial District of La Romana, in attributions of protection, on May ten (10), two thousand and eighteen (2018). Its operative part expresses what following:
FIRST: REJECTS the amparo action filed by Mr. Carlos M. Guerrero Ceballos on April 16, 2018 through his attorney-in-fact Licda. Greiling Arlette Guerrero Ceballos, against the Las Orquídeas Neighbors Board, for the reasons stated above.
SECOND: DECLARES the process free of costs.
The previously described sentence was notified to the appellant via Act no. 119/2018, of June nine (9), two thousand and eighteen (2018), instrumented by Ministerial Omar Oscar Vanderhorst Sulivan, ordinary bailiff of the Court of Work of San Pedro de Macorís.
two. Presentation of the constitutional review appeal
The appellant, Carlos Mariberto Guerrero Ceballos, filed the present appeal for constitutional review of amparo on June eighteen (18), two thousand eighteen (2018).
The present appeal for constitutional review regarding amparo was notified to the appealed party, the Neighborhood Council of the Las Orquídeas Urbanization, via Act no. 125/2018, of June nineteen (19), two thousand and eighteen (2018), instrumented by ministerial Omar Oscar Vanderhorst Sulivan, bailiff ordinary of the Labor Court of San Pedro de Macorís.
3. Basis for the contested decision
The Civil and Commercial Chamber of the District Court of First Instance Judicial of La Romana, in attributions of protection, by means of Sentence no. 0195-2018-SCIV-00501, issued on May ten (10), two thousand and eighteen (2018),rejected the Amparo action, arguing, among others, the following reasons:
a. In short, the controversy is about the possible violation of the fundamental right to free movement contained in article 46 of the Dominican Constitution by which it is enshrined that every person who is in national territory has the right to transit, reside and leave freely of the same, in accordance with the legal provisions.
b. As developed in the process instruction, the sector Las Orquídeas has three access doors which have scheduled availability established by the Neighborhood Council, in accordance with a distribution that we consider feasible taking into account the frequency of its use and the characteristics of the events that led to its creation.
c. We understand that although the plaintiffs feel affected by the restrictions that implement the schedules of doors created as security measures, no less true is that by noting that one of the three access roads are available 24 hours a day not possible justify the violation of the fundamental right to free movement, in view of that their entry and exit is not absolutely impeded, but rather
This right is eventually limited to the plaintiff only to the extent that the access route that favors you due to the location of your property is one of those that is closed from 12:00 am to 6:00 am, based on security measures that, according to the criteria that we have been trained in the instruction of the process, they are useful and necessary to guarantee the life, security, harmony and peace of residents of the sector in question.
Dominican Republic CONSTITUTIONAL COURT
File no. TC-05-2018-0255, regarding the constitutional review appeal of the Amparo judgment filed by Carlos Mariberto Guerrero Ceballos against Judgment no. 0195-2018-SCIV-00501, of May ten (10), two thousand and eighteen(2018), issued by the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of La Romana. Page 1 of 23
IN THE NAME OF THE REPUBLIC JUDGMENT TC / 0083/19
Reference: File no. TC-05-2018-0255, regarding the appeal of constitutional review of sentence of Amparo filed by Carlos Mariberto Guerrero Ceballos against the sentence no. 0195-2018-SCIV-00501, of May ten (10), two one thousand eighteen (2018), dictated by the Civil and Commercial Chamber of Court of First Instance of La Romana Judicial District. In the Santo Domingo Oeste municipality, Santo Domingo province, Republic Dominican Republic, on the twenty-first (21) 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; Hermógenes Acosta de los Santos, José Alejandro Ayuso, Ana Isabel Bonilla Hernández, Justo Pedro Castellanos Khoury, Víctor Joaquín Castellanos Pizano, Domingo Gil, Wilson S. Gómez Ramírez and Katia Miguelina Jiménez Martínez, in exercise of her constitutional powers and laws, specifically those provided for in articles 185 of the Constitution, and 9 and36 of Law No. 137-11, Organic of the Constitutional Court and the Constitutional Procedures, of June thirteen (13), two thousand eleven (2011), dictates the following sentence:
I.BACKGROUND
1.Description of the judgment under appeal
Sentence no. 0195-2018-SCIV-00501, subject of this appeal for review constitutional law, was issued by the Civil and Commercial Chamber of the First Instance of the Judicial District of La Romana, in attributions of protection, on May ten (10), two thousand and eighteen (2018). Its operative part expresses what following:
FIRST: REJECTS the amparo action filed by Mr. CarlosM. Guerrero Ceballos on April 16, 2018 through his attorney-in-fact Licda. Greiling Arlette Guerrero Ceballos, againstthe Las Orquídeas Neighbors Board, for the reasons stated above.
SECOND: DECLARES the process free of costs. The previously described sentence was notified to the appellant via Actno. 119/2018, of June nine (9), two thousand and eighteen (2018), instrumented by Ministerial Omar Oscar Vanderhorst Sulivan, ordinary bailiff of the Court of Work of San Pedro de Macorís.
2. Presentation of the constitutional review appeal
The appellant, Carlos Mariberto Guerrero Ceballos, filed the present appeal for constitutional review of Amparo on June eighteen (18), two thousand eighteen(2018).The present appeal for constitutional review regarding Amparo was notified to the appealed party, the Neighborhood Council of the Las Orquídeas Urbanization, via Act
3.Basis for the contested decision
The Civil and Commercial Chamber of the District Court of First Instance Judicial of La Romana, in attributions of protection, by means of Sentence no. 0195-2018-SCIV-00501, issued on May ten (10), two thousand and eighteen (2018),rejected the Amparo action, arguing, among others, the following reasons:
a. In short, the controversy is about the possible violation of the fundamental right to free movement contained in article 46 of the Dominican Constitution by which it is enshrined that every person who is in national territory has the right to transit, reside and leave freely of the same, in accordance with the legal provisions.
b. As developed in the process instruction, the sectorLas Orquídeas has three access doors which have schedulesavailability established by the Neighborhood Council, in accordance with adistribution that we consider feasible taking into account the frequency ofits use and the characteristics of the events that led to itscreation.
c. We understand that although the plaintiffs feel affected by the restrictions that implement the schedules of doors created as security measures, no less true is that by noting that one of the three access roads are available 24 hours a day not possible justify the violation of the fundamental right to free movement, in view of that their entry and exit is not absolutely impeded, but rather This right is eventually limited to the plaintiff only to the extent that the access route that favors you due to the location of your property is one of those that is closed from 12:00 am to 6:00 am, based on security measures that, according to the criteria that we have been trained in the instruction of the process, they are useful and necessary to guarantee the life, security, harmony and peace of residents of the sector in question.
d. Regarding Ordinance No. 20-2017 issued by the City Council Municipal de La Romana on August 28, 2017, which authorizes the Urban Planning Department to demolish the sentry boxes and / or any Another obstacle on the public roads of the Las Orquídeas Urbanization is It should be noted that said decision is issued based, among other things, on that in the archives of the Las Orquídeas city council is registered as an urbanization indicating that it becomes something very different from a residential; however, it does not state which characteristics create those differences, what is the scope, delimitation and legal basis of this argumentation, lacking legitimate motivations, which in no This way creates an effective solution to the conflict, so the court does not gives sufficient validity to consider it as a reference to take the decision of the present action.
and. It is necessary to take into account that regardless of the discussion on the nature of the sector, if it corresponds to a public urbanization or private residential, it is not a controversial fact that 99% of the residents of Las Orquídeas are in agreement with the measures of security taken by the Neighborhood Council, thus imposing the welfare general, before the particular eventualities of the plaintiff, who, despite of having certain arguments about their right to free access by the three doors on an indiscriminate schedule, how often they could occur
the isolated facts of access disturbance do not justify the oppression of other fundamental rights to the detriment of public order, citizen security, coexistence and social peace of the residents of Las Orchids Analysis that follows directly from the principles of reasonableness and favor ability contained in article 74 of the Constitution and taking into account that no right is absolute, but that validly justified legitimate restriction is possible, as occurs in the present case.
4. Facts and legal arguments of the appellant under review
The appellant, Carlos Mariber to Guerrero Ceballos, at the request of June eighteen (18), two thousand eighteen (2018), containing your appeal for review of amparo, seeks the revocation of Sentence no. 0195-2018-SCIV-00501, under the following allegations:
a. Violation of Article No. 46 of the Constitution of the Republic Dominican. – Which establishes “Freedom of Transit. Any person who is in national territory has the right to transit, reside and leave freely of the same, in accordance with the legal provisions “;What happens in the present case, Honorable Magistrates? That the Board of Neighbors of the Las Orquídeas Urbanization have implemented measures that they violate the aforementioned Fundamental Law.
b.[…] Judge Karuchy Sotero, Judge of the Civil Chamber and Commercial Court of First Instance of the Judicial District of La Romana, in its In Voce Decision, do not guarantee (sic) the Right to Free Transit, by failing to recognize that the measures implemented by the Board of Neighbors of the Las Orquídeas Urbanization violate this right and others fundamental rights by putting life and personal safety at risk of the appellant, by placing gates that close the two main routes of access to the Las Orquídeas Urbanization.
c. The Civil and Commercial Chamber of La Romana did not value the Authority that has the Council of Aldermen of the Municipal City Council of La Romana, which according to the terms established by the Constitution and the Laws have normative and administrative power of land use, established in accordance with expressly by law and subject to the control power of the State and the social control of citizens; in the case of the species, the Magistrate does not took as reference Ordinance No. 20-2017, which establishes that the Las Orquídeas Sector is registered in the archives of the City Councilas an Urbanization, which is in the public domain, that its streets and passages constitute national assets of public use governed by the municipal authority and that, by its very nature, is destined to the transit of people and are, therefore, in common use, so they cannot their streets be closed, since they affect constitutional rights so much of the residents as of anyone else. Therefore, the Board of Neighbor of the Urbanization of Las Orquídeas does not have legal power to restrict Free Transit through any of the three (3) entrances that give access to the Urbanization.
d. It should be noted that the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of La Romana, valued a Survey carried out by the Las Orquídeas Neighborhood Board, which could be manipulated in their favor, since it was carried out to a certain group to make this Court understand that the Complainant was the only person who claimed to be affected. But this Court did not accredit the faculty of the Municipal Council, when it established in Recital II of Ordinance 20-2017: That the Orchid Dwellers, the Residents of the Adjacent Urbanizations, part of the community of La Romana like CARLOS M. GUERRERO CEBALLOS presented to the Municipal City Council as an Authority figure established by the laws, their complaints regarding the restriction of the Free Access of the Passerby and Freedom of Transit in the Las Orquídeas Sector.
5. Facts and legal arguments of the respondent under review
In the file sent to this court on September 25 (25), two one thousand eighteen (2018), there is no record that the respondent, the Neighborhood Council of the Las Orquídeas Urbanization, has filed a defense brief despite the fact that it was notified the appeal for review via Act no. 125/2018, nineteen (19) of June two thousand and eighteen (2018), instrumented by the ministerial Omar Oscar Vanderhorst Sulivan, ordinary bailiff of the Labor Court of San Pedro de Macorís.
6. Documentary evidence
In this file, the following documents are deposited:
1. Communication issued by the Municipal City Council of La Romana on July four (4), two thousand and eighteen (2018), by means of which they inform you that the actions taken by the Neighborhood Council of the Las Orquídeas Urbanization do not must contain in any way a prohibition or closure of the urbanization on any day of week.
2. Ordinance No. 20/2017, issued by the Council of Aldermen of the Municipal City Council of La Romana on August twenty-eight (28), two thousand seventeen (2017), by which the Planning department is authorized Urban the demolition of the sentry boxes and / or any obstacle in the public roads of the Las Orquídeas Urbanization.
3. Certification issued by the Municipal City Council of La Romana on September twenty-two (22), two thousand seventeen (2017), by which certifies the issuance of Ordinance no. 20/2017, issued by the Council of Aldermen of the Municipal City Council of La Romana on August twenty-eight (28) two thousand seventeen (2017).
4. Report issued by the Urban Planning Office of the City Council of La Romana, no date, by which they inform the Municipal Council of La Romana the technical aspects of the proposed closure and placement of Garitasin the center of the road by the Neighborhood Council of the Urbanization Las Orchids
5. Two (2) real estate property certifications issued by the Directorate General of Internal Taxes (DGII) on June five (5), two thousand eighteen(2018), regarding the property owned by Miriberto Guerrero Ceballos.
II. CONSIDERATIONS AND RATIONALE OF THE CONSTITUTIONAL COURT
7. Synthesis of the conflict
The present case originates with the installation of three (3) access gates by part of the Neighborhood Council of the Urbanization Las Orquídeas de La Romana to enter or leave the aforementioned urbanization. This measure, according to Mr. Carlos Mariberto Guerrero Ceballos, violates his fundamental right to freedom traffic, due to the fact that two (2) of the installed gates have limited hours to be able to move freely through your property located within the aforementioned urbanization. Given this limitation, Mr. Carlos Mariberto Guerrero Ceballos addressed to the Municipal City Council of La Romana, which issued, through the Council of Aldermen, Ordinance no. 20/2017, of August twenty-eight (28)of two thousand seventeen (2017), authorizing the Department of Urban Planning the demolition of the sentry boxes and / or any other obstacle on the public roads of the Las Orquídeas Urbanization, authorization that has not been finalized; for the Therefore, he decided to file an Amparo action on April sixteen (16), two thousand eighteen (2018). The Civil and Commercial Chamber of the Court of First Instance of the Judicial District of La Romana rejected, on the merits, the action of Amparo through Sentence no. 0195-2018-SCIV-00501, of May ten (10)of two thousand and eighteen (2018), this decision being the subject of the present constitutional review.
8. Competence
This court is competent to hear appeals for constitutional review of amparo judgments, as provided in articles 185, numeral 4, of the Constitution and 94 and following of Law No. 137-11, Organic of the Court Constitutional Law and the Constitutional Procedures, of June thirteen (13),two thousand eleven (2011).
9. Admissibility of the appeal for review of Amparo
a. Article 95 of Law No. 137-11 states: “The appeal for review is will interpose by means of a reasoned writing to be deposited in the judge’s office or court that rendered the sentence, within a period of five days from the date of date of its notification ”. Likewise, the Dominican Constitutional Court indicated in its Judgment TC / 0080/12, of December fifteen (15), two thousand twelve (2012),When referring to the computation of the term established in the aforementioned article 95, the following: “The term established in the previous paragraph is frank, that is, it will not be computed non-business days, neither the first nor the last day of the notification of the judgment”.
b. Sentence no. 0195-2018-SCIV-00501, of May ten (10), two thousand eighteen (2018), issued by the Civil and Commercial Chamber of the First Court Instance of the Judicial District of La Romana, in attributions of protection, was notified to the appellant on June 9 (9), two thousand and eighteen (2018),as stated in Act no. 119/2018. Enter the date of notification of the appealed judgment, on June 9 (9), two thousand and eighteen (2018), and that of filing of this appeal, on June eighteen (18), two thousand eighteen(2018), excluding the days a quo , June 9 (9), and ad quem , the eighteenth(June 18), as well as Sunday, June ten (10) and Saturday and Sunday, sixteen (16) and seventeen (17) of June, as they are non-working days, notices that five (5) business days have elapsed and, therefore, the present appeal of review was exercised within the business period for its filing.
c. Having resolved the above, we must determine if the present case complies with the admissibility requirement established in article 100 of Law no. 137-11, is that is, the special significance or constitutional relevance of the question raised, appreciated by this court considering the importance of the case for the interpretation, application and general effectiveness of the constitutional text, or for the determination of the content, scope and specific protection of the Fundamental rights.
d. After having studied and pondered the documents and facts more important aspects of the file at hand, we conclude that the This case entails special significance or constitutional relevance, whenever that will allow this constitutional court to continue with the development and analysis in regarding the right to free movement and its guarantee.
10. Regarding the merits of the appeal for review
The Constitutional Court is pleased to present the following reasoning:
a. The appeal for review in this case is filed against the Sentence no. 0195-2018-SCIV-00501, issued on May ten (10), two thousand eighteen (2018), issued by the Civil and Commercial Chamber of the First Court Instance of the Judicial District of La Romana, which rejected the Amparo action filed by Mr. Carlos Mariberto Guerrero Ceballos against the Board of Neighbors of the Las Orquídeas Urbanization, due to the fact that the gates installed for them, as well as the entry and exit times correspond to measures of security and, therefore, the fundamental right to free movement is not violated argued by the plaintiff.
b. The a-quo tribunal based its decision by establishing that
We understand that although the plaintiffs feel affected by the restrictions that implement the schedules of doors created as security measures, no less true is that by noting that one of the three access roads are available 24 hours a day not possible justify the violation of the fundamental right to free movement, in view of that their entry and exit is not absolutely impeded, but rather This right is eventually limited to the plaintiff only to the extent that the access route that favors you due to the location of your property is one of those that is closed from 12:00 am to6:00 am, based on security measures that, according to the criteria that we have been trained in the instruction of the process, they are useful and necessary to guarantee the life, security, harmony and peace of residents of the sector in question.
c. It is appropriate to indicate that when analyzing the file that makes up this appeal constitutional review, the following uncontroversial facts are verified:
Mr. Carlos Mariberto Guerrero Ceballos owns two (2) properties located within the Las Orquídeas Urbanization, stage II, in the La Romana municipality, as stated in the property certifications property issued by the General Directorate of Internal Taxes (DGII) on June five (5), two thousand and eighteen (2018).
Implementation of measures by the Neighborhood Council of the Las Orquídeas Urbanization consisting of: 1) A door in the eastern part of the residential with access and exit twenty-four (24) hours a day with a security guard private; 2) two sets, one located in the southern part and the other in the northern part, both with private guards and with hours of six in the morning (6:00 am)until midnight (12:00 am); 3) a vehicle authorization pass, after checking that they are vehicles that belong to residents; and 4) a Identification document to visitors to the residential, which is delivered to the time of your departure.
Ordinance No. 20/2017, issued by the Council of Aldermen of the Municipal City Council of La Romana on August twenty-eight (28), two thousand seventeen (2017), by which the Planning department is authorized Urban, the demolition of the sentry boxes and / or any obstacle in the public roads of Las Orquídeas Urbanization.
d. Regarding these events, Mr. Carlos Mariberto Guerrero Ceballos argues that the fundamental right of free movement that assists him is violated as the owner of two (2) properties located within the aforementioned urbanization, because the measures implemented by the Neighborhood Council have prevented move freely through its properties.
e. The judge a-quo , upon taking cognizance of the undisputed points fixed previously, understood reasonable and fair the measures taken by the Board of Neighbors of the Urbanization Las Orquídeas. However, in terms of appearance relative to the ordinance issued by the Council of Aldermen, did not value its effects correctly, ignoring that it is a public authority with power to regulate what is related to public roads.
f. The judge a-quo states that he did not take into account the aforementioned ordinance due to what is:
is issued on the basis, among other things, that in the archives of the Las Orquídeas city council is registered as an urbanization indicating that it becomes something very different from a residential; without However, it does not establish what characteristics create these differences, what is the scope, delimitation and legal basis of this argument, lacking legitimate motivations, which in no way creates a solution effective conflict …
g. In view of these considerations, this constitutional court finds that the a-quo tribunal acted incorrectly at the time of issuing its decision, for how much he did not carry out the rigor weights to determine if the actions of the Board of Neighbors of the Urbanization Las Orquídeas against the plaintiff, sir Carlos Mariberto Guerrero Ceballos, violated or not their fundamental rights and if a decision had been issued by a competent public authority, what is translates into a lack of reasons for the sentence, based on the budget that establishes article 88 of Law No. 137-11, which causes it to carry its revocation.
h. In relation to the requirement of the reasons for the amparo judgment, This specialized constitutional justice body has established:
As previously established by this court, this obligation implies the existence of a correlation between the reason invoked, the rationale and proposed solution; that is, the mere generic enunciation of the principles without the concrete and precise exposition how the assessment of facts, evidence and standards is produced planned to be applied. Likewise, it has indicated that a sentence lacks of justification when it lacks the reasons that justify the analysis of the judge regarding his decision and the legal reasons that determine it, comprising all matters submitted for decision, with a clear, complete, legitimate and logical argumentation, as well as the application of the regulations in force and applicable to the case.
In the present case, the judge empowered by the Amparo action was limited to indicate that the action was “inadmissible, as it was notoriously inadmissible, since there is no evidence of the violation of any right protected by the Constitution and the laws ”. However, he did not indicate why the action brought was notoriously inadmissible, nor why that the infringement of some right was not evidenced. That is, no It motivated the decision adopted (Sentence TC / 0187/13).
i. Consequently, it proceeds that, in application of the principle of economy procedural, and following the criteria established in the precedent set in the judgments TC 0071/13, of May seven (7), two thousand thirteen (2013), TC / 0185/13,of October eleven (11) of two thousand thirteen (2013), TC / 0012/14, of fourteen (14) of January two thousand and fourteen (2014), as well as TC / 0127/14, of twenty-five (25)June two thousand and fourteen (2014), this constitutional court is devoted to know the merits of this amparo action.
j. Regarding the merits of the amparo action, it should be specified that the party plaintiff, Mr. Carlos Mariberto Guerrero Ceballos, seeks through the present action the annulment of the measures taken by the Neighborhood Council of the Las Orquídeas Urbanization, consisting of: 1) A door in the eastern part of the residential with access and exit twenty-four (24) hours a day with a security guard private; 2) two doors, one located in the southern part and the other in the northern part, both with private guards and with hours of six in the morning (6:00 am)until midnight (12:00 am); 3) a vehicle authorization pass, after checking that they are vehicles that belong to residents; and 4) a Identification document to visitors to the residential, which is delivered to the moment of his departure, in view of the fact that he understands that the indicated measures generate violation of their right to free movement, enshrined and guaranteed in the Article 46 of the Constitution.
k. To substantiate its claims, the plaintiff in amparo establishes that, by Ordinance no. 20/2017, issued by the Council of Aldermen of the Municipal City Council of La Romana on August twenty-eight (28), two thousand seventeen (2017), the following was established:
First: Authorize how we authorize the department of Urban Planning the demolition of the sentry boxes and / or any other obstacle (sic) on public roads in the Las Orquídeas Urbanization. Second: The Public Ministry and the National Police are notified, to the purposes of obtaining public force for the corresponding purposes. Third: This ordinance is valid for any other urbanization that intends build or incur the same violations as the Urbanization Las Orchids Fourth: Notify how to this effect we notify the members of the Las Orquídeas Urbanization, to the media and to the corresponding authorities for the purposes of disclosure, entering into effective at the time of notification.
l. It should be noted that the Council of Aldermen ruled on the conflict that involves the parties, by virtue of the powers given by law no. 675, on Urbanization, Public Ornament and Constructions, in article 25,which prescribes the following:
It is forbidden to install underground or overhead pipes, or to make ditches or excavations on public roads to establish or maintain services public or private, without prior permission from the municipal authority corresponding, and provided that no provision of sanitary or ornamental and beautification character. Everything except the cases of force majeure and for as long as it lasts.
m. The powers of the Council of Aldermen to issue ordinances For compliance with the aforementioned law, they are established in letter f) of article 52of Law no. 176-07, of the National District and the Municipalities, which indicates following:
The municipal council is the collegiate body of the city council, its role is strictly regulatory and supervisory… It has the following functions: Letter f) The approval of municipal regulations and ordinances to own initiative, of the receivership and of the social instances that this law or another grant the right to present initiatives.
n. In line with the above, this constitutional justice body specialist determines that the claims of the plaintiff in Amparo They are aimed at airing what is related to the violation of the right to freedom traffic, violation that is generated with the decision of the aforementioned neighborhood council.
or. In relation to the possibility of placing a security checkpoint and if it affects or not the right to free movement, the Constitutional Court of Guatemala by judgment of August twenty-five (25), two thousand and four (2004),file no. 2021-2003, established that:
Although it is true, the supporting facts of the entity are evident contested Asociación de Vecinos Vientos del Valle, which motivated her to voluntarily constitute preventive means of protection against crime, due to the wave of violence that exists in the country, it is also true that, The National Real Estate entity, Sociedad Anónima, is the owner of the farms that are at the bottom or at the end of the Colonia Vientos del Valle, colony in which at its entrance a gate and gate have been installed for the control of entry of people and vehicles The above circumstances create conviction in this court to establish that the appealed authority violated the freedom of action and freedom of movement of the entity Amparista; violating their fundamental rights protected by the National Constitution.
If the problem is understood, it is not possible, on the one hand, to recognize aquasi-delegated administrative power to a private association of neighbors to issue police provisions on those who do not belong or adhere freely to it, and, on the other hand, the freedom of locomotion, and in the precise case, the transit of people, cannot be restricted by provisions that do not legitimately come from a authority founded on law, so the entity must be protected postulant…
p. In relation to the right to free movement, this constitutional court established that:
In this sense, it is worth noting that the right to free movement implies the possibility that everyone can move freely not only on public roads, but in public or private spaces for public use as it happens in the species, because in this square establishments operate at which should be accessed by the common citizen, as expressed in the letter t of this title.
For this reason, the Constitutional Court of Peru referred to the right to freedom transit stating: The faculty of free transit involves the exercise of the attribute of ius movendi et ambulandi. That is, it supposes the possibility of move self-determinatively according to their own needs and personal aspirations, throughout the territory, as well as to enter or exit it, when desired. Likewise, it has indicated that The right to free movement is a constituent element of freedom and a indispensable condition for the free development of the person; and what is faculty of displacement is manifested through the use of public nature or of the private roads of public use, a right that can be exercised individually and physically or through the use of tools such as motorized vehicles, locomotives, etc. However, like all fundamental rights, freedom of movement is not is an absolute right, since it can and should be limited by various reasons. (Constitutional Court of Peru File No. 2876-2005-PHC) “(Judgment TC / 0391/18).
q. In that order and in keeping with what was indicated in the previous preceding, we must specify that the power to install a security checkpoint in the demarcation of a urbanization, as intended by the Neighborhood Council of the Urbanization Las Orchids, claiming security reasons, is an exclusive power of the Council Councilors, so the neighborhood councils cannot claim a faculty
that it is exclusive of the municipal administration; this derives from the mandate set forth in article 19, literal a), of Law no. 176-07:
to. Own Competences of the City Council. The city council will exercise as its own or exclusive the competence in the following matters: Regulation of the traffic of vehicles and people on urban roads and rural.
r. In view of the above considerations, this body of justice specialized constitutional law judges that the placement of a security checkpoint, within a perimeter, which establishes restriction on two of the three entrances of the urbanization, and without the authorization of the corresponding city council, it translates into a violation of the right of free movement, enshrined in article 46 of the Constitution.
s. In view of the arguments raised above, this court proceeds to accept the amparo action filed by Mr. Carlos Mariberto Guerrero Ceballos, because the facilities of the aforementioned sentry boxes security represent an unjustified restriction of their right to free movement.
This decision, signed by the judges of the Court, was adopted by the majority required. The signatures of magistrates Rafael Díaz Filpo, first substitute; Lino Vásquez Sámuel, second substitute; Alba Luisa Beard Marcos and Miguel Valera Montero, because they did not participate in the deliberation and voting on this judgment for causes provided for in the Law. Incorporated the saved vote of Judge Katia Miguelina Jiménez Martínez.
For the reasons and reasons of fact and law set out above, the constitutional Court
FIRST: ADMIT , in terms of form, the appeal for review constitutional protection on amparo filed by Mr. Carlos Mariberto Guerrero Ceballos against Judgment no. 0195-2018-SCIV-00501, of ten (10)May two thousand and eighteen (2018), issued by the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of La Romana, for having been filed in accordance with the law that governs the matter.
SECOND: ACCEPT , regarding the merits, this appeal for review and, in Consequently, REVOKE Sentence no. 0195-2018-SCIV-00501.
THIRD: ACCEPT the Amparo action filed by Mr. CarlosMariberto Guerrero Ceballos against the Neighborhood Council of the Urbanization Las Orchids, by virtue of verifying the violation of the right to free movement contained in article 46 of the Constitution of the Republic and, consequently, The urban planning department of La Romana is authorized to demolish check points and / or any other obstacle (sic) on public roads in the Las Orquídeas Urbanization, in accordance with the provisions of the Ordinance no. 20/2017, of August twenty-eight (28), two thousand seventeen (2017), issued by the Council of Aldermen of the Municipal City Council of La Romana.
FOURTH: ORDER the communication of this judgment, by the Secretariat, to the appellant, Mr. Carlos Mariberto Guerrero Ceballos, and to the appealed, Neighborhood Council of the Urbanization Las Orquídeas de La Romana.
FIFTH: DECLARE this appeal free of costs, in accordance with the established in articles 72, part in fine , of the Constitution and 7.6 and 66 of the Law no. 137-11, Organic of the Constitutional Court and Procedures Constitutional, of June thirteen (13), two thousand thirteen (2013).
SIXTH: PROVIDE that this judgment be published in the Boletín del Constitutional Court, by virtue of article 4 of Law no. 137-11.
Signed: Milton Ray Guevara, Presiding Judge; Hermogenes Acosta de los Santos,Judge; José Alejandro Ayuso, Judge; Ana Isabel Bonilla Hernández, Judge; JustPedro Castellanos Khoury, Judge; Víctor Joaquín Castellanos Pizano, Judge;Domingo Gil, Judge; Wilson S. Gómez Ramírez, Judge; Katia Miguelina JimenezMartínez, Judge; Julio 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, to in order to be consistent with the position held.
I. Precision on the scope of this vote
1.1 As a preliminary question to state the reasons that lead us to raise this vote saved, it should be specified that the judge who signs, shares the criterion of that Judgment no. 0195-2018-SCIV-00501, issued by the Civil Chamber and Commercial Court of First Instance of the Judicial District of La Romana on May ten (10), two thousand eighteen (2018), is revoked, and that it is accepted the amparo action. However, he proceeds to save his vote regarding the motivations exposed by the consensus of this constitutional court to decree the admissibility of the present appeal for review of the judgment in the matter of protection.
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, since doing so would leave devoid of the amparo procedure of the requirement of double instance provided by our Constitution, the American Convention on the Rights Human Rights and the International Covenant on Civil and Political Rights, situation that the consensus of this court finally resolved, through the Sentence TC / 0071/13, dated May seven (7), two thousand thirteen (2013), upon discontinuing the application of the thesis established by the aforementioned Judgment TC / 0007/12 which is supported by the assertion that the review does not represent a second instance or appeal to resolve conflicts between parties.
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, as it is 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 of five (5) days, as indeed 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, save your vote regarding the reasons invoked by the Court to decree the admissibility of the present appeal for review of the Amparo judgment.
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