Article 138 of the Political Constitution of Peru provides that the power to administer justice is exercised by the Judiciary. In turn, Article 139, in referring to the principles governing administration of justice, provides that judicial protection is a fundamental right and that all individuals and legal entities are entitled to refer their conflicts to the Judiciary.
Although it is true that in proceedings brought with the Public Administration (for instance, claims filed with the Tax Administration or appeals filed with the Tax Court) the taxpayer can present its arguments and evidence to try to have an administrative resolution which is contrary to its interests declared null or void or revoked, the truth is that we cannot say that the right to effective judicial protection has been actually exercised until we reach the Judiciary.
As a matter of fact, claims filed with the Tax Administration and appeals subsequently filed with its hierarchical superior (the Tax Court) are regulated by the Tax Code, a body of law which, as defined in the Tax Code itself, contains general principles, concepts, procedures and rules pertaining to the legal-tax system; that is, it is not specifically aimed at overseeing the correct administration of justice. In fact, it couldn’t have such role because the role of administering justice exclusively lies with the Judiciary.
Within this context, it is worrying to see that the mistake made in July 2012, when Article 159 of the Tax Code was modified by Legislative Decree Nº 1121 (a legal rule promulgated by the Executive exercising the powers delegated to it by the Legislative), has still not been rectified. According to the change introduced by Legislative Decree Nº 1121, if the taxpayer receives a Tax Court Resolution which is contrary to its interests and, therefore, wants to resort to the Judiciary exercising its right to effective judicial protection, then it must necessarily pay the debt or furnish a bank letter of guarantee or pledge in the amount of the tax debt in conflict because if no letter of guarantee or pledge is granted, then the Judge will be prohibited from granting a provisional remedy to prevent the Tax Administration from collecting the debt. In practice, it implies that if someone does not have the money needed to pay for the debt in conflict or if its equity is insufficient to back its payment, then it will not have access to justice in order for the judges and magistrates of the Judiciary to be the ones who will finally resolve the conflict with the Treasury.
It’s true that Article 138 of the Constitution authorizes judges, if incompatibility exists between a constitutional provision and a legal rule, to have the former prevail over the latter (diffuse constitutional control), in which case a judge would have to grant a provisional remedy to prevent the debt from being collected without the requirements of Article 159 of the Tax Code having been met because the judge would consider that the provisions set forth in Article 159 of the Tax Code, as amended by Legislative Decree Nº 1121, are incompatible with the constitutional provision that guarantees access to effective judicial protection, it would be advisable for citizens not to be obliged to wait until the judge exercises such constitutional power, even more so if the coercive collection of the tax debt subject matter of the resolution issued by the Tax Court will continue until the provisional remedy is granted.
Any abuse which may have existed in the granting of provisional remedies to taxpayers should have been corrected with the mechanisms which already existed to control the judicial role, and not in the manner done by Legislative Decree Nº 1121. It’s like prohibiting drivers from driving their cars just because there are too many traffic accidents, instead of improving the existing control measures and punishing bad drivers.