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,
ALZAMORA VALDEZ HEADQUARTERS,
Member:
PAREDES FLORES Nestor Fernando FA Date: U 2054630 951 soft
07/11/2023 17:11:57, Reason: RESOLUCI LIMAJUDICIAL ION,JUDICIAL
/ LIMA, DIGITAL SIGNATURE D.:
POWER OF
ATTORNE
Y
SUPERIOR COURT OF JUSTICE OF LIMA FROM
THIRD CONSTITUTIONAL CHAMBER. PERU
FILE N°: 03431-2023-3-1801-SP-DC-03.
PLAINTIFF: IMELDA JULIA TUMIALAN PINTO AND OTHERS.
DEFENDANT: CONGRESS OF THE REPUBLIC OF PERU.
SUBJECT: PRECAUTIONARY MEASURE.
RESOLUTION N° 02 H.H. FLOWER WALLS.
VELARDE ACOSTA.
Lima, November 7, two thousand twenty-three.- CABRERA GIURISICH

CARS AND SIGHTS:

SUPERIOR COURT OF JUSTICE

LIMA - SINOE Electronic
Notification System s
The application made and annexes; put the cars to dispatch to resolve and
HEADQUARTERS
ALZAMORA VAL
Z,
Superior Judge Paredes Flores intervened as the reporting judge.
Rapporteur: TACUCHE
MES RICARDO /
Judicial Dig Service of 1,Raz
Peru
Date: 07/11/2023 17:2 IMA /
RESOLUTION TRENDING:
JUDICIAL,JUDICIAL D.:
FIRST: That, Imelda Julia Tumialan Pinto, Aldo Alejandro Vásquez Riosa,
Henry José Avila Herrera, Luz Inés Tello de Ñecco, Antonio Humberto de la Haza
Barrantes, María Amabilia Zavala Valladares and Guillermo Santiago Thornberry Villarán; all of them as regular members of the
National Board of Justice;
They request the issuance of a precautionary measure, so that:

“ The legal effects of the Agreement adopted on September 7, 2023 are suspended , through which the Plenary
Session of the Congress of the Republic, approving Agenda Motion No. 7565, ordered to entrust the Justice and
Human Rights Commission with the “ Summary Investigation” to the members of the National Board of Justice
for serious reasons, with the purpose of removing us, invoking article 157 of the Constitution.

All actions taken in the Justice and Human Rights Commission of the Congress of the Republic are suspended
by virtue of the Agreement by which the Plenary Session of the Congress of the Republic approved Agenda Motion
No. 7565, as well as the suspension of all subsequent actions and agreements that may arise regarding said
motion, aimed at the removal of the members of the National Board of Justice.

Any act intended to vote in the Plenary Session of the Congress of the Republic on the removal of the members
of the National Board of Justice is suspended , as a consequence of the motion described and the reports issued
by the aforementioned Justice and Human Rights Commission of the Congress of the Republic, within the
framework of the processing of that same motion . "

Previous and general considerations.

SECOND : That, article 18 of the Constitutional Procedural Code , states that:

“ Precautionary measures and suspension of the violating act can be granted in the amparo, habeas data and
compliance processes.
The precautionary measure should only be limited to guaranteeing the content of the constitutional claim,
taking into account its irreversibility, public order and the damage that may be caused . The judge, taking into
account the requirements, dictates the precautionary measure without being transferred to the defendant . The
execution will depend on the content of the attempted constitutional claim and the adequate assurance of the final

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 decision, to which extremes it must be limited. The judge may grant the precautionary measure in whole or in
part (…) . ” (Highlighting and underlining is ours).

For its part , article 19 adds that:

“ To grant the precautionary measure, the judge must observe that the request is adequate or reasonable, that it
has the appearance of law and that there is reasonable certainty that the delay in its issuance may constitute
irreparable damage.
In everything not expressly provided for in this code, the provisions of Title IV of the Fifth Section of the Code of
Civil Procedure are of supplementary application, with the exception of articles 618, 630, 636 and 642 to 672
(…)” (Highlighted and emphasis is ours) .

That is, for the granting of a precautionary measure, the joint concurrence of the plausibility of the right, danger in delay and adequacy
or reasonableness is required; and as the Constitutional Court stated in STC 00023-2005-AI/TC :

"From the General Theory of the Process it is established that the assumptions for the granting of a
precautionary measure are determined to guarantee the effective protection of a main claim that appears to be
protected by Law (fumus boni iuris), through an appropriate measure ( adequacy), to avoid the danger that
delay in processing or emptying the respective process of its final content (periculum in mora) may entail ."
(Highlighting and underlining is ours)

THIRD: That, the right to precautionary protection is a right that has a fundamental nature; It is true that it is not expressly regulated in
the Political Constitution of the State, but that character can be extracted from the scope of protection of the constitutional right to
jurisdictional protection enshrined in article 139, paragraph 3 thereof. 1 , since the precautionary measures are intended to guarantee
that effectiveness, thus being part of their essential content. Among other attributes, it is a right that binds all public powers, so any act
of the State that violates or threatens it is unconstitutional; and as PRIORI POSADA points out:

“ Every rule of the legal system must be interpreted in accordance with the content of the fundamental right to
precautionary protection .” In this way, every time a jurisdictional body must interpret or disapply a procedural
rule, it must do so in light of said law. This also means that any interpretation of the rules must be carried out
in the most favorable sense of the fundamental right to precautionary protection .2 (Highlighting and
underlining is ours).

The right to precautionary protection is not absolute and may be limited; This limitation must be duly justified, it must not violate its
essential content and, above all, it must be in accordance with the principle of proportionality.

FOURTH: That, the plausibility of the right (fumus boni iuris) in general terms, consists of the appearance of a good right and that the
claim or claims postulated in the claim can be estimated; The Judge is not required to have knowledge of certainty, much less full and
convincing proof of the existence of the right, but rather, from the admission of the claim, to make a simple judgment of reasonable
appearance that the claim could be declared founded, or at all if it is considered that it has some legal basis that allows us to see that
what is argued by the plaintiff is debatable; like MONROY PALACIOS, corroborates it:

“The applicant for the precautionary measure must demonstrate that the main claim - which is intended to be
guaranteed - has a reasonable possibility of being declared founded when ruling on the sentence (...)
plausibility does not suggest that the Judge evaluates the foundationability of the claim in the future. but
consider, at least, that the claim has a legal basis that makes it debatable .3 (Highlighting and underlining is
ours).

1Article 139 of the Political Constitution of the State states that: “The principles and guarantees of the jurisdictional function are: (…) 3.-The observance of due
process and jurisdictional protection”
2 PRIORI POSADA, Giovanni. Precautionary protection: its configuration as a fundamental right . Ara Editores, Lima, 2006, p. 148
3 MONROY PALACIOS, Juan. Basis for the formation of a precautionary theory. Community, Lima, 2002, p. 170-173.
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So, following PEREZ VARGAS and FEIJOO CAMBIASO, in summary, the analysis of the appearance of the right by the
Constitutional Judge must involve verifying that the claim is not manifestly inadmissible and whether the controversy has
constitutional relevance; that a fundamental right whose protection is based on the Constitution, international treaties or national or
supranational jurisprudence is invoked based on its broad and dynamic interpretation; that the requester of the measure is really the
holder of the fundamental right; that the harmful act really affects the scope of protection of the fundamental right, and must
preliminarily analyze whether there is a threat or violation that justifies the issuance of the precautionary measure. 4 . In short, the
Judge, when evaluating the precautionary request and verifying this budget, cannot make a judgment on the merits of the controversy,
otherwise it would be to distort the precautionary protection.

FIFTH: That, in the danger of delay (periculum in mora) , according to the rule transcribed above, it is evaluated whether as a result of
the duration of the main process, there is reasonable certainty that irreparable damage may be generated. MONROY PALACIOS in
relation to this budget points out that:

“… refers to the threat that the process will become ineffective during the time elapsed from the beginning of
the procedural relationship until the pronouncement of the final sentence . Its existence is not necessarily based
on the possibility that malicious acts of the defendant prevent the fulfillment of what is intended by the plaintiff,
but rather the mere passage of time constitutes in itself a state of threat that deserves special protection .5
(Highlighting and underlining is ours).

From the above, it follows that the delay in the process in itself constitutes a danger that the final judgment could become
unenforceable or impossible to execute, without prejudice to the behavior of the parties, the complexity of the matter and the nature of
the claim requested. ; and it is clear that if this threat materializes and according to the severity of the danger, the damage caused will
be irreparable, the latter being understood as that situation through which things cannot be restored to the state prior to the threat or
violation of the fundamental right. On the other hand, it is necessary to point out that the risk of legal damage must be imminent,
which would therefore justify the need to grant the precautionary measure that is urgent in nature, and following PRIORI POSADA,
the determination of whether or not it exists. danger in delay does not come from an abstract generic evaluation, but from a judgment
made based on the specific case, that is, taking into account the special circumstances surrounding the situation that is submitted to the
process and, furthermore, taking into consideration the powers that the party can legitimately exercise to avoid harm, and that are not
procedural, but rather material in nature. 6 , and this becomes relevant in the constitutional protection process, since it is not only
initiated by an injury to the fundamental right, but also by the threat of injury. And what is textually maintained by the aforementioned
author regarding constitutional processes becomes relevant:

“… If [the Judge] has admitted a claim based on the allegation of a threat of injury to a fundamental right, it is
because he has concluded that there is a risk that will remain for the duration of the process; That is to say, on
the date the claim was admitted, the Judge warned that the fundamental right was at risk of being harmed and
that this risk was imminent; but the delay in the processing of the main process may allow that act that is feared to
occur in the future and that is imminent, that is consumed, to occur, thereby rendering the sentence to be passed
ineffective. In this case, it is clear then. "If the Judge has admitted the claim in this case, he has already
admitted that there is an imminent risk, and it would be extremely difficult for him not to grant a precautionary
measure alleging that there is no risk of imminent realization."7 (Highlighting and underlining is ours)

SIXTH: That, for adequacy or reasonableness, it is required that the precautionary request be consistent with what it is intended to

4 PEREZ VARGAS, Julio Cesar and FEIJOO CAMBIASO. The appearance of law analysis of certainty or probability? In New commented constitutional
procedural code. Legal Gazette, Lima, 2022, Volume I, pages 367-368.
5 MONROY PALACIOS, Juan. Ob.cit.pag.176.
6 PRIORI POSADA, Giovanni. Ob.cit. page 38.
7 PRIORI POSADA, Giovanni. Ob.cit. p. 67.
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ensure (object of the precaution) and proportional, taking into account the criteria of reasonableness and usefulness, in order not to
unnecessarily put at risk the rights or powers of the defendant; Congruence would be the logical correlation that must necessarily be
established between the precautionary measure granted and the object of protection; while proportionality refers to whether the
granting of the precautionary measure is what is reasonably necessary to achieve what it is intended to achieve; and following
ARIANO DEHO, it can be specified that the limits of adequacy are: a precautionary measure should not be issued where the active
subject of the measure obtains more than what will be recognized in the substantive guardianship headquarters, where the right its full
and definitive realization; It should be avoided to provide precautionary measures with content and effects that are objectively
irreversible or that are difficult to reverse; The interests of the taxable person must be taken into account, preventing the measure from
producing effectively harmful effects.8 , or rather, it must not only verify the congruence of the measure, but also in the event that it
has an impact on other constitutional rights or principles. And it is also worth taking into account that the Constitutional Court, in
relation to this budget, in STC No. 01209-2006-PA/TC , specified that:

"...what from a procedural perspective is known as the principle of congruence or, in precautionary theory as
the "principle of adequacy" or principle of minimum interference, serves to delimit the precautionary powers
of the judge, since it allows the measure adopted to be non only suitable for the purpose it pursues, but at the
same time not be so harmful that it even causes greater havoc to the danger of irreparable damage that is
intended to be guaranteed by adopting it. In summary, the judge who adopts a precautionary measure, knowing
the omnipotence of his powers, must try to ensure that the measure adopted is not only restricted to the scope of
the main process, but also within the possible alternatives that are presented (for example , among several types
of assets that can be affected), must choose the formula that least harms the rights of the person or persons on
whom the measure will fall. From a constitutional perspective, such principles of precautionary measures are
protected through the principle of proportionality and, specifically, through the subprinciples of suitability and
necessity. It is about optimizing the procedural techniques for the protection of rights in order to guarantee the
validity of the rights not only of those who request a precautionary measure, but also and with even greater
rigor, of those who will suffer them ” (Highlighted and underlined is ours. ).
SEVENTH: That, the Congress of the Republic in the session dated September 7, 2023, approved the Agenda Motion No. 7565 , and
agreed to the following9 :

“ 1.-AGREEMENT:
To entrust the Justice and Human Rights Commission with the Summary Investigation of the members of the
National Board for serious reasons, in accordance with article 157 of the Constitution and in response to the facts
set forth in the considering part of this motion.

2.-TERM.
The Justice and Human Rights Commission will present its report within 14 business days .

EIGHTH: That, article 157 of the Political Constitution of the State , prescribes that:

“Members of the National Council of the Judiciary may be removed for serious cause by agreement of Congress
adopted with the affirmative vote of two-thirds of the legal number of members.”

NINTH: That, even if one could assume the position that there are some acts issued by the Congress of the Republic that cannot be

prosecuted, due to the so-called “question policies ” or non-justiciable political acts, it must be clear that this does not exclude cases
when an act of Parliament (that is, a political act, such as within investigative commissions or others), directly intervenes in the
8 ARIANO DEHO, Eugenia. Problems of Civil Procedure . Jurista Editores, Lima 2003, p. 693.
9 See pages 20 to 27.
4
fundamental rights of the people they subject ; and the Constitutional Court corroborates this in STC No. 04044-2022-PHC/TC, when it

states that:

“20. Certainly this Court appreciates that in exercising its powers and powers assigned to it by the Constitution,
the Congress of the Republic has a margin of action and decision. However, in the scheme of modern
constitutional democracies this cannot mean a total abdication of control that, within the framework of a
process of protection of rights, can be carried out if it is noticed that some parliamentary conduct causes the

5
 violation of any constitutional right ” ( Highlighting and underlining is ours).

To which it must be added that this does not mean a permanent interference of constitutional jurisdiction in the
political practice of the Congress of the Republic ; What we want to reaffirm is that according to the constitutional
design, it is not abdicated to any form of control, dangerously leading to state bodies, under an alleged functional
autonomy or special jurisdictions, and upholding a freedom of discretionary perspective, making their own
reading. of the contents of the Constitution, losing its status as a legal norm and being a mere referential political
letter. And this line is not new in the highest interpreter of the Constitution, since in STC No. 358-2013-PA/TC he
also established that:

> 8 . (…) Just as there are no islands of constitutional control, it is also not possible to
maintain that there are scenarios that may ignore, without further justification, the
minimum guarantees of due process, as this means asserting, with the same emphasis, that
the Constitution has lost its status as a legal norm, to once again be a mere referential
political letter, incapable of binding the Congress of the Republic, as the majesty of public
powers is privileged over the fundamental rights of the person. However, the latter is at
odds with the logic of the current Constitutional State and, obviously, is not shared by this
Constitutional Court. ” (Highlighting and underlining is ours) .

TENTH: That, the plaintiffs support their precautionary request, contextualized, in summary, the following:

> That, in the session held on Thursday, September 7, 2023, the Plenary Session of the
Congress of the Republic approved Agenda Motion No. 7565, entrusting the Justice and
Human Rights Commission with the Summary Investigation of the members of the National
Board of Justice for serious reasons, in accordance with article 157 of the Political Constitution
of the State .

> That, they would have been summoned for Thursday, September 21 in order to provide their
statements regarding the following charges 10 :

a) For having issued a statement on May 23, 2023, on the institutional website, as
well as on the Twitter (social network) of the National Board of Justice, where
they invoke the Congress of the Republic for greater reflection regarding the
constitutional accusation that is being processed against the former Attorney
General Zoraida Avalos Rivera.

b) Due to alleged pressure exerted by the members of the National Board of Justice
Dr. Imelda Julia Tumialan Pinto, Dr. Antonio Humberto de la Haza Barrantes
and Maria Amabilia Zavala Valladares on the Judicial President Dr. Javier
Arévalo to issue a statement questioning the disqualification of the former
Prosecutor Zoraida Avalos on behalf of the Congress of the Republic.

c) Due to the alleged decision to interpret that the legal limit of 75 years,
established in paragraph 3 of article 156 of the Political Constitution of Peru, is
only for access to the National Board of Justice and not for dismissal, having
issued Resolution No. 224-2020 JNJ dated October 23, 2020.

10
See page 147.
6
 d) For alleged failure to present the annual report to the plenary session of
Congress in accordance with the provisions of section 6 of Article 154 of the
Political Constitution.

e) Due to alleged leakage of information from the National Board of Justice to IDL
Reporteros, on August 23, 2023, regarding the investigation of the Attorney
General Patricia Benavides Vargas.

> That, the first four accusations subject to the summary investigation would be the subject of
constitutional complaints that are currently underway in the Congress of the Republic .

> That, in none of the official documents for which they were summoned to “formulate their
defenses” had the legal or regulatory norm that regulates the parliamentary procedure been
cited, nor the legal norm that classifies the causes as serious, and establishes the deadlines for
the carrying out the summary investigation ; They refer to the work methodology and
schedule approved by the members of the Justice and Human Rights Commission.

> That, a first report No. 01-2023-2024-CJDDHH/CR was prepared and presented, which
concluded that there was no commission of serious misconduct and recommended urging the
National Board of Justice to avoid communications that border on possible conflicts of
interest.

> That, the members of the commission would not have voted on that report, but rather on
another non-existent one under the responsibility of drafting, which included 02 charges
considered as serious causes, against the members of the National Board of Justice,
recommending their removal .

Regarding the plausibility of the law (fumus boni iuris) .

ELEVENTH: That, in relation to the violation of functional independence , the plaintiffs allege, in summary, that
the National Board of Justice is not subject to political control, since as an autonomous constitutional body it is
not subordinated to another power or organ of the State, contravening articles 139°, numeral 2, 150° and 156°,
part in fine of the Political Constitution of the State. In effect, the National Board of Justice is an autonomous and
independent constitutional body and exercises functions in accordance with article 154 of the Political
Constitution of the State.10 ; However, on the other hand, as is known , article 157 of the Political Constitution of
the State, empowers the Congress of the Republic to remove its members for serious reasons; Therefore,

10 Article 154 of the Political Constitution of the State states that: “The functions of the National Board of Justice are:
1. Appoint, after a public competition of merits and personal evaluation, judges and prosecutors at all levels. Such appointments require
the public and reasoned vote of two-thirds of the legal number of its members.
2. Ratify, with a public and motivated vote, judges and prosecutors at all levels every seven years; and execute, jointly with the Academy
of Judiciary, the partial performance evaluation of judges and prosecutors at all levels every three years and six months. Those not
ratified or dismissed cannot re-enter the Judiciary or the Public Ministry
3. Apply the sanction of dismissal to Supreme Court judges and supreme prosecutors; and, ex officio or at the request of the Supreme
Court or the Board of Supreme Prosecutors, respectively, to the judges and prosecutors of all instances. In the case of supreme judges and
supreme prosecutors, the application of a reprimand or suspension of up to one hundred twenty (120) calendar days will also be possible,
applying criteria of reasonableness and proportionality. The final resolution must be motivated and with prior hearing of the interested
party. It has an unassailable nature.
4. Register, guard, keep updated and publish the Registry of Disciplinary Sanctions of Judges and Prosecutors. 5.Extend to judges and
prosecutors the official title that accredits them.
6. Present an annual report to the Plenary Session of Congress”
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preliminarily observing the existence of two different and constitutionally regulated areas of action, for now there
is no apparent violation of the constitutional right invoked; In any case, at the time of evaluating the merits of the
constitutional controversy, the respective statement will be issued.

TWELFTH: That, in relation to the violation of the right to due process due to the absence of a procedure pre-

established by Law , the plaintiffs allege, in summary, that the Congress of the Republic had created an “ad hoc”

procedure, contravening article 139° , numeral 3 of the Political Constitution of the State 11 and Article 8 of the
American Convention on Human Rights. In effect, the fundamental rights that make up due process must not
only be observed in the jurisdictional setting, but also in the administrative, corporate and parliamentary
sanctioning, and in whose formal scope, the principles and rules that comprise it have to do with the formalities
statutes, such as the natural judge, the pre-established procedure, the right of defense and motivation. The right to
a pre-established procedure guarantees that the rules with which a certain procedure began are not altered or
modified subsequently. Now, it is true that article 157 of the Political Constitution of the State for the removal of
members of the National Board of Justice does not establish a predetermined procedure, it is also true that the
Congress of the Republic in the exercise of its constitutional powers may constitute ordinary and extraordinary
commissions and initiate investigations on any matter of public interest, in accordance with article 97 of the
Political Constitution of the State12 and even its own regulations establish the corresponding procedures for this
purpose; In this sense, for now it cannot apparently be observed that this manifestation of the invoked
constitutional right has been violated; In any case, at the time of evaluating the merits of the constitutional
controversy, the respective statement will be issued.

THIRTEENTH: That, the plaintiffs also allege, in summary, as part of the impact on the right to due process, the
violation of the principles of typicity and legality, which the agreement adopted on September 7, 2023 would have
incurred, and each of the subsequent acts executed within that framework. In relation to the principle of legality
and typicality, it is worth remembering that article 2 of the Political Constitution of the State establishes that:
“Every person has the right: (…) 24 . To personal freedom and security. Consequently: (…)
d . No one will be prosecuted or convicted for an act or omission that at the time of its
commission is not previously qualified by law, expressly and unequivocally, as a
punishable offense; nor punished with a penalty not provided for by law. (…) (Highlighted
and underlined is ours).

11Article 139 of the Political Constitution of the State states that: “They are principles and rights of the jurisdictional function （…） 3 .
（…） No person can be diverted from the jurisdiction predetermined by law, nor subjected to a procedure other than those previously
established, nor tried by exceptional jurisdictional bodies or by special commissions created for this purpose, whatever their name.
Article 8 of the American Convention on Human Rights prescribes that: “1. Every person has the right to be heard, with due guarantees
and within a reasonable time, by a competent, independent and impartial judge or tribunal, previously established by law, in the
substantiation of any criminal accusation made against him or her, or for the determination of their rights and obligations of a civil,
labor, fiscal or any other nature （…）”
12Article 97 of the State Political Constitution states that: “ Congress may initiate investigations into any matter of public interest. It is
mandatory to appear, upon request, before the commissions in charge of such investigations, under the same constraints that are observed
in the judicial procedure. To fulfill their purposes, these commissions can access any information, which may imply the lifting of banking
secrecy and the tax reserve; except information that affects personal privacy. Its conclusions are not binding on the courts".
8
That is to say, by the principle of legality, no person can be attributed the commission of an offense if it is not
previously determined by law, and it also prohibits the application of a sanction if it is not specified by law; and
in accordance with the reiterated jurisprudence of the Constitutional Court 13 , this principle imposes three
requirements: the existence of a law (lex scripta) , that the law is prior to the sanctioned act (lex previa ) and that
the law describes a strictly determined fact ( lex certa ); It supposes the imperative need for normative
predetermination of offending conduct and the corresponding sanctions, that is, the existence of legal precepts (
lex previa ) that allow those behaviors to be predicted with a sufficient degree of certainty ( lex certa ) and that
allow us to know what to expect. regarding responsibilities and possible sanctions. The principle of typicity or
taxativity is derived from the principle of legality, but as the Constitutional Court has also pointed out in repeated
jurisprudence14 , both principles cannot be equated as synonyms since the principle of legality is satisfied when
the provision of infractions and sanctions in the Law is complied with; while, the second constitutes the precise
definition of the conduct that the law considers as an offense; However, this distinction does not prevent both
from operating together, and as illustrated in STC No. 2192-2004-PA/TC:

“The subprinciple of typicity or taxativity constitutes one of the manifestations or

concretions of the principle of legality with respect to the limits that are imposed on the
criminal or administrative legislator, so that the prohibitions that define sanctions, whether
criminal or administrative, are drafted with a sufficient level of precision that allows any
citizen with basic training to understand without difficulty that a certain legal provision is
being proscribed under threat of sanction ” (Highlighting and underlining is ours).

And he reaffirms it in STC No. 00156-2012-PA/TC , specifically regarding the parliamentary headquarters, when
he points out that:

“…not only the actions of the bodies that exercise jurisdictional functions must
be in accordance with the law, but also those of those that carry out political and
administrative functions .” It is the submission of everyone to the Law and the
prohibition of arbitrariness that distinguishes a constitutional State from one that
is not. Consequently, political controls and political sanctions are also assessed
and regulated by the Constitution and the law. Hence, the principle of legality
and the subprinciple of taxativity run through and determine the content and
dimension of the sanctioning power of Parliament (political headquarters), as
well as of the Executive Branch (administrative headquarters) .” ( Highlighting
and underlining is ours).

FOURTEENTH: That, from what has been transcribed above, it appears that article 157 of the Political
Constitution of the State establishes that the members of the National Board of Justice can be removed by the
Congress of the Republic for “serious cause.” A “serious cause” constitutes a reason or circumstance of great
importance or with serious consequences. Neither the constitutional text nor the Law describe or classify in
advance any conduct that constitutes this “serious cause.” So, if this is so, and from a summary evaluation of
what was stated and attached in the precautionary notebook, apparently in the present case, a summary
13 Like STC 005262-2006-AA/TC.
14 As in STC No. 3510-2018-PA/TC.
9
parliamentary investigation of the plaintiffs as members of the National Board of Justice would have been
initiated and followed with the imputation of a charge that would have originated in an alleged broad discretion
of the members of the Congress of the Republic, and that when transferred to them through Official Letters No.
0131-2023-2024/CDJH-CR, No. 0132-2023- 2024/CDJH- CR, N° 0133-2023-2024/CDJH-CR, N° 0134-2023-
2024/CDJH-CR, N° 0135- 2023-2024/CDJH-CR,N°0136-2023-2024/ CDJH-CR, N° 0137-2023-2024/CDJH-
CR15 For the corresponding defense, the right to defense could also have been affected, which is part of the
content of the right to due process. 16 ; Therefore, in this case, the presupposition of the plausibility of the right
invoked is met.

Regarding the danger in delay

FIFTEENTH: That, regarding the danger of delay, as explained above, it is already evident that even though the
present process is one of protection of constitutional rights, both the procedure and its resolution will be affected
by the inexorable passage of time. On the other hand, from what was stated by the plaintiffs and the attached
documents, it is noted that the summary investigation by the Justice and Human Rights Commission has not only
been carried out within the established deadlines, but also that there is already a final report No. 01-2023-2024-
CJDDHH/CR17 , and also as is public knowledge and by official version of the Congress of the Republic itself 18 ,
for next Wednesday, November 8, a plenary session has been convened for the debate and vote on the
aforementioned report, in which it was concluded, in the corresponding accusations and charges, that the
plaintiffs as members of the National Board of Justice They were in serious trouble, and had to proceed in
accordance with article 157 of the Political Constitution of the State, that is, to remove them as such; Therefore,
the existence of a more than potential and imminent danger is evident, and that if this removal is carried out, it is
certainly reasonable that irreparable harm would be caused to them, since the substitute members would be
immediately appointed and take office, and Even when the invoked constitutional rights are protected, it would
be impossible to return everything to the previous state of its threat and violation; thus fulfilling said budget.

Regarding the adequacy or reasonableness of the measure.

SIXTEENTH : That, in relation to the budget of the adequacy or reasonableness of the measure, the plaintiffs

allege, in summary, that said requirement would have been met, while through the requested precautionary
measure the restoration of the rights is sought. fundamental. The plaintiffs in the main proceedings claim:

15 See section 3.2 of Report No. 01-2023-2024-CJDDHH/CR, pages 41 and 92 back.

16 It is necessary to indicate, and in constitutional processes, the principle of iura novit curia must be taken into account, by which the
competent jurisdictional body must apply the law that corresponds to the process, even if it has not been invoked by the parties or has
been erroneously invoked. ; the principle of replacement of deficient complaints , by which Constitutional Judges have the power to
adapt the claims of the complainants, in order to grant them the protection that their fundamental rights require; and the principle of
elasticity , by which the Constitutional Judge must adapt the formalities to the purposes of the constitutional process, being able to correct
the procedural deficiencies of the claim raised.
17 See pages 84 to 143.
18Available in: ht tps://comunicaciones.congreso.gob.pe/noticias/debate-y-votacion-de-informe-final-sobre-junta-
national-justice-will-be-on-Wednesday-8 /
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 “1. Main Request : consists of, in accordance with article 1 of the Constitutional
Procedural Code, WE REQUEST that, restoring things to the state prior to our
constitutional rights to functional independence and due process , we declare the NULLITY
of the Agreement adopted on the 7th September 2023, through which the Plenary Session
of the Congress of the Republic , approving Agenda Motion No. 7565, ordered to
commission the Justice and Human Rights Commission with the “Summary Investigation”
of the members of the National Board of Justice for serious cause , with the purpose of
removing them, invoking article 157 of the Constitution and in response to the facts set forth
in the considering part of said Motion.

2. Accessory Petition: That the NULLITY of all acts in the Justice and Human Rights
Commission of the Congress of the Republic be declared , by virtue of the Agreement by
which the Plenary Session of the Congress of the Republic approved the Motion of Order
of the Day N "° 7565 , as well as the NULLITY of all subsequent actions and agreements
that may arise with respect to said motion, aimed at the removal of the members of the
National Board of Justice . "

SEVENTH: That, from the above, in principle it is observed that the precautionary measure is consistent with the
claims postulated in the main process, especially if it is taken into account, that these reach not only the nullity of
the agreement adopted on 07 September 2023, but also to all subsequent actions and agreements that may arise
from said agreement and aimed at the removal of the plaintiffs; However, what was stated above cannot be left
aside in relation to the analysis of the budget of the plausibility of the law, and above all the principle of
proportionality, under a criterion of reasonableness and usefulness. In this perspective, although the
precautionary measure requested is generally suitable and seeks to fulfill a legitimate constitutional purpose such
as ensuring effective compliance with a sentence, it turns out that granting it completely and in the manner
requested could unnecessarily affect other constitutional rights or principles such as regarding the powers and
powers of the Congress of the Republic. In this context, it is true that the Constitutional Judge must grant the
affected person appropriate procedural protection with their particular legal situation, but faced with the
aforementioned possibility, he must adapt the requested precautionary measure with another measure that equally
guarantees the effectiveness of the process. ; As LEDESMA NARVAEZ points out:

“ The adequacy of the measure is linked to the possibility of flexibility that allows the
judge, to avoid unnecessary damages or encumbrances to the owner of the assets, to have a
precautionary measure different from that requested, taking into account the importance
of the right.” that will try to protect. The reason stated is that the judge only has the
unilateral elements of judgment provided by the actor, therefore he must exercise the power
with extreme caution, limiting the substitution or limitation to those cases in which the
requested measure is manifestly exorbitant or inappropriate . "This power cannot be
exercised when the measure has already been fulfilled and notified, in which case it is the
responsibility of the affected party to request the replacement or limitation ."19 (Highlighting
and underlining is ours).

In this way, the College considers adapting the requested precautionary measure, ordering the provisional
suspension of all the effects of the imputation of charges that the Justice and Human Rights Commission of the
Congress of the Republic formulated against the plaintiffs Imelda Julia Tumialan Pinto, Aldo Alejandro Vásquez
19 LEDESMA NARVAEZ. Marianella. Ob.cit., p. 93.
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Ríos, Henry José Avila Herrera, Luz Inés Tello de Ñecco, Antonio Humberto de la Haza Barrantes, María
Amabilia Zavala Valladares and Guillermo Santiago Thornberry Villarán, as regular members of the National
Board of Justice, through Official Letters No. 0132-2023 -2024/CDJH-CR, N° 0137-2023-2024/CDJH-CR, N°
0134-2023-2024/CDJH-CR, N° 0135-2023- 2024/CDJH-CR, N° 0133-2023-2024 /CDJH-CR,N°0131-2023-
2024/CDJH-CR, N° 0136-2023-2024/CDJH-CR, respectively, as part of the initiation of the summary
investigation that was entrusted to it through the approval of the Motion of Order of the Day No. 7565, and all
other procedural acts that have derived from it; suspension that will be valid until the main process is resolved
and without prejudice to the investigations or parliamentary procedures that currently affect them or may affect
them in the future. Precautionary measure that, in the opinion of the College, also complies with the guarantee of
reversibility, since in the event of its revocation or annulment the effects can be returned to the previous state,
and respect for public order, especially because it has been carried out a weighing of constitutional principles or
rights.

DECISION :

For the aforementioned considerations, the Superior Judges of the Third Constitutional Chamber of the Superior
Court of Justice of Lima; RESOLVES: TO GRANT in part the precautionary measure requested by the plaintiffs;
and adapting it, IT IS ORDERED : TO PROVISIONALLY SUSPEND all the effects of the imputation of charges
that the Justice and Human Rights Commission of the Congress of the Republic formulated against the plaintiffs
Imelda Julia Tumialan Pinto, Aldo Alejandro Vásquez Rios, Henry José Avila Herrera, Luz Inés Tello de Ñecco,
Antonio Humberto de la Haza Barrantes, María Amabilia Zavala Valladares and Guillermo Santiago Thornberry
Villarán, as regular members of the National Board of Justice through Official Letters No.
0132-2023-2024/CDJH-CR, No. 0137- 2023-2024/CDJH-CR, N° 0134-2023-2024/CDJH-CR, N° 0135-2023-
2024/CDJH-CR, N° 0133-2023-2024/CDJH-CR,N°0131-2023- 2024/CDJH-CR, N° 0136-2023-2024/CDJH-CR
respectively, as part of the initiation of the summary investigation that was entrusted to it through the approval of
Agenda Motion N°7565 and all other procedural acts that have derived from it; suspension that will be valid until
the main process is resolved and without prejudice to the investigations or parliamentary procedures that
currently affect them or may affect them in the future; and the Secretary of this Superior Chamber COMPLIES
with officiating to the President of the Congress of the Republic, for the knowledge and execution of the
provisions of this resolution. - Being notified.
NPF

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