CAJANAL: SUPERIOR COURT OF BOGOTA PROTECTS FUNDAMENTAL RIGHTS AND ATTESTED COPIES PRAVARICATO AND JUDICIAL FRAUD RESOLUTION CARE ACTION AGAINST CAJANAL: BOGOTA HIGH COURT PROTECTS FUNDAMENTAL RIGHTS AND ATTESTED COPIES PRAVARICATO AND JUDICIAL FRAUD RESOLUTION
REPUBLIC
OF COLOMBIA BOGOTA COURT OF CRIMINAL
Chamber Magistrate
:
ALBERTO PERDOMO POVEDA
Approved Minutes No. 0127
CARE - SECOND INSTANCE
Bogotá, DC, Tuesday, twenty-six (26) of October two thousand and ten (2010). Filing
11001310405420100051601
Fifty Four Coming Criminal Court Circuit plaintiff
ALONSO JOSE RESTREPO Murgueitio
Triggered National Social Security Fund in liquidation and
Fiduprevisora \u200b\u200bPAP SA
Rights Buenfuturo Dignity, equality, due process, entitlements, social security livelihood in a dignified and fair decision confirms and adds
the guardianship order requiring the competent official PAP Buenfuturo for issuing the administrative act within the term here and once ordered to return it to happen to the Manager Liquidator of the National Social Security Fund in liquidation for the firm. Is collated copies and disciplinary penalties for officials of the entity in blatantly ignored the orders in its ruling issued by the Administrative Tribunal of Cundinamarca
1. SUBJECT:
Solving the challenge presented by the National Social Security Fund in liquidation against the sentence handed down by the Court Fifty-four circuit criminal befriended for Murgueitio RESTREPO JOSE ALONSO, fundamental constitutional rights to dignity, equality, due process, entitlements, social security and livelihood in a dignified and fair.
2. BASIS OF REQUEST:
2.1. ALONSO JOSE RESTREPO Murgueitio identified with citizenship card No. 17,023,277 of Bogota, the prosecution brought in finding that the defendants in its action are unaware of their fundamental constitutional rights.
2.2. He says that since 2003 faced a series of actions by government channels, mentoring and administrative disputes, in order to consolidate the right to pension pursuant to Article 6 of Decree 546/71.
2.3. The Administrative Tribunal of Cundinamarca, Section II, Subsection B, decided the administrative proceedings in a decision dated October 27, 2006, as clarified by order of November 30, 2006 and executed on December 11, 2006, agreeing to the plaintiff's claims.
2.4. The National Social Security Fund pursuant to the decision made by Resolution No. 00517 of February 25, 2008 an administrative act is located. The board recognized the administrative decision excludes the terms of Law 100/93 and Decree 546/71 should be upheld because the court ruling:
11. Should be clear that limit or cap on pension (25 minimum wages) established by Law 100 of 1993, Act 797 of 2003 and the Legislative Act 01 of 2005 does not apply to pensioners of the scheme Special Judicial Branch and was within the so-called transition regime of Act 100 of 1993, as in this case.
2.5. Subsequently, the activated issued the Resolution No. 22417 in ignorance of the ruling issued by the Administrative Tribunal of Cundinamarca because it ruled that the board should apply the top Article 2 of Decree 314 of 1994, coupled with the position held by the claimant is not within the exceptions provided for in the Constitution and the law to disapply the limit.
2.6. By Resolution No. 00517 of 25 February 2008, the Government annulled the verdict grossly besides removing the Court of the same essential material. The plaintiff knew the explanatory act by trade PABF-GN-7367 of June 10, 2010.
2.7. Claimed their rights under final consideration that Resolution 22417 of June 8, 2009 and the office PABF-GN-7367 to 10 June 2010 were issued as a formal administrative actions and executive allegedly to comply with an act court-judgment-which is not subject to appeal through government channels, not themselves actionable in the jurisdiction of administrative litigation, other then lacking legal defense mechanism.
2.8. Asked that null and void Resolution 22 417 of June 8, 2009 issued by the Deputy of Economic Benefits (e) of the National Social Security Fund in liquidation and the trade-GN.7367 No. PABF of June 10, 2010 signed by Jaime Villaveces Bahamón. And that they return immediately sums deducted for pension payments, reporting as appropriate to the Group Payroll Assistant Manager of Economic Benefits.
3. JUDGEMENT OF FIRST INSTANCE:
3.1. Fifty-Four The Criminal Court Circuit in a decision dated July 29, 2010 protects the rights claimed by ALONSO JOSE RESTREPO Murgueitio and left without legal effect of Resolution No. 000517 of February 25, 2008, the Resolution No. 22417 of June 8, 2009 issued by the National Social Security Fund in liquidation and the office PABF-GN-7367 to 10 June 2010 Buenfuturo PAP. And
3.2. Ordered entities that within fifteen (15) days after notification of the decision to give effect to the ruling of the Administrative Tribunal of Cundinamarca of 27 October 2006, and corrected in order of 30 November 2006, recalculation of pension age in the form and terms therein.
4. BACKGROUND OF THE CHALLENGE:
4.1. Within the legal time the National Social Security Fund in liquidation challenged the ruling demanding the revocation because the present factual and legal entity and should take into account the Auto 243, 2010, the Constitutional Court.
4.2. Seen in relation to the request raised by the plaintiff which seeks the revocation of Resolution No. 22417 of June 8, 2009 and the office GN 7367 of 10 June 2010, once called the action, the agency gave the area PAP administered Buenfuturo competent official letter No. 138904 for a decision regarding the action taken on the application, since under the contract concluded between the commercial trust and Cajanal Previsora \u200b\u200bSA in liquidation assumed the obligation to advance the administrative for the effective recognition of pension rights, and once substantiated by PAP Buenfuturo and completed the quality control process, the resolution will to sign the settlement and thus proceed to issue the required response.
5. CONSIDERATIONS OF THE BOARD:
5.1. The primary object of protection is the immediate protection of fundamental rights violated through a preferential and summary procedure, by which it is possible to establish if there has been an act or omission by a public authority or an individual as provided in law, thereby causing injury to the rights claimed by the plaintiff.
5.2. JOSE ALONSO Murgueitio RESTREPO, brought the prosecution to consider the performance displayed by the National Social Security Fund in liquidation and the Trustee Buenfuturo PAP Previsora \u200b\u200bSA, unaware of their fundamental rights by failing to comply with the orders in its ruling issued by the Administrative Court Cundinamarca, Section II, Subsection B, of 27 October 2006 and clarified by order of November 30, 2006, by issuing Resolution No. 22417 of June 8, 2009 and the office of PABF 7367 of June 10, 2010 , reducing the amount of pension allowance under regulations that do not apply to be favored with the transition regime.
5.3. Determines the case that the general clause of the rule of law enshrined in the Constitution, Article 1 - requires the administration's duty to abide by the rulings given by the judicial authority, duty is based in the Article 4 Fundamental established at the head of the national and international obligations to comply with the Constitution and laws and to respect and obey the authorities. Also
enshrining rights such as: a). access to justice, Article 229 - which tends to ensure that citizens have at their disposal to demand mechanisms in pursuit of their rights and are allowed to obtain a judicial decision can be made effective and, b). due process, Articles 29 and 228 - which ensures that the corresponding process is carried out without undue delay that will make nugatory the right defendant, thereby imposing a burden on the administration because you can not excuse compliance with orders they impart the authorities of the Republic, all in harmony with the observance of the principles of morality, speed, efficiency and fairness enshrined in Article 229 of the Charter.
The Constitutional Court has concluded
a rule of law as Colombia, can not operate if judicial decisions are not respected by their recipients, or if left to the discretion of the mere will public officials charged with enforcement. Public servants may not have the authority to decide whether or not it met the mandates of the court, regardless of the reasons they can wield against, as the road to enforce them is the exercise of remedies that the legal system enshrines but reluctance to execute the orders (Emphasis was added).
And he added:
Enforcement of orders executed, besides being one of the pillars of the rule of law, is part of the right of access to the administration of justice, Article 229 Superior. This takes shape not only the possibility of going to court to decide the situation legal ruling, but in the issuance of an order and its effective implementation; suffice it to say, in applying the regulations to the specific case.
As such, when the defendant authority refuses to execute the provisions of the court order that was adverse, not only violates the rights through the latter have been recognized who invoked protection, but a decision that defies was res judicata. If such rights are fundamental, not knowing that the sentence violates the higher order covers also for that reason.
...
The accuracy and timeliness in the implementation of judicial rulings is essential to ensure not only the role of the person, who is in the fundamental right of access "materially to the administration of justice but to support the democratic principles and values \u200b\u200bof the rule of law.
...
Compliance with judicial decisions is an integral part of fundamental rights to due process and access to justice because the fact of a person to whom it was resolved to have the right, guaranteed by the State, it court ordered compliance with accuracy and timeliness.
5.4. When the public authority when executing a decision of the court resolves questions the content and counter to what ordered, rather than challenge the decision or try to revive terms by certain orders in a debate and buttoned evidence violates the right of access to justice, making their protection from through the tutela.
Thus, the Court has held that: "... The ignorance in any way the right to due process in an administrative procedure, not only violates the essential elements that comprise it, but it also involves a breach of the right of access to administration of justice, which hold all natural and legal persons (CP, art. 229), which are administered as submitted the decision of the administration, through the competent public servants ... "(Emphasis added.)
One of the cardinal purposes of due process is imposed on the charge given to observe and use all means of redress that the law puts its power to protect and enforce their rights if their behavior not only negligent or careless generate negative consequences for themselves, but are seen as managed in a position of helplessness, because are unable to impute liability to the state and even less they will be allowed to use the application for protection.
therefore not only a management must adjust its activities to the principles, mandates and regulations governing the civil service and to determine their functional competence to ensure the fundamental right to due process, but on the shoulders rests the weight given to observe and use the valuable procedural mechanisms that the law gives them, to avoid the risk of bearing the negative consequences of negligent conduct may come to ensue.
5.5. The Criminal Court of Forty-Three Circuit ruling enforcing October 8, 2003 under a transitional fundamental rights to equality, due process, minimum living and social security Murgueitio JOSE ALONSO RESTREPO unknown by the National Social Welfare and ordered that within forty-eight (48) hours of notification and until the administrative court decided in final form recognition and recalculation of pension allowance equal to 75% of allocation highest monthly its shares in the last year of service since I came to enjoy the board, giving full implementation as disclosed in Article 6 of Decree 546/71.
5.6. In observance of the decision was issued Resolution No. 6952 of November 28, 2003 reassessments and increase the pension of four million nine hundred forty-nine thousand two hundred ninety-four dollars twenty-nine cents ($ 4.949.294.29), recognized in Resolution No. 17917 of 1 September 2003 - six million five hundred seventy-five thousand four hundred ninety-four pesos and forty-eight cents ( $ 6.575.494.48) effective from 1 November 2002.
5.7. Filed petition for annulment and restoration of law, October 27, 2006 the Administrative Court of Cundinamarca, Section II, Subsection B, partially annulled Resolution No. 17917 of September 11, 2003 through which the National Social Security Fund made the recognition and payment of pension age to Murgueitio RESTREPO, not fully implement the Decree 546/71. Therefore decided that in making the reassessment should include all factors taking 75% pay the higher monthly allowance that would have accrued during the last year of service 2001-2002, likewise, the amounts at which concerned providence value adjusted in accordance with the provisions of the relevant part of the fault.
While paragraph 11 of decision was emphatic to state that the limit or cap pension of twenty (25) statutory minimum wages set out in Law 100/93, Law 797/03 and Legislative Act 01/05, does not apply to the pensioners of the special arrangements Judicial Branch that were within the so-called transition regime of Law 100/93, as is the case of the plaintiff.
5.8. For purposes of complying with the administrative ruling National Social Security Fund has issued Resolution No. 000517 of February 25, 2008, recalculation of pension age for new wage factors in amount of six million five hundred seventy-five thousand four hundred ninety-four dollars and fifty cents ($ 6.575.494.54) effective from 1 November 2002.
5.9. However by Resolution No. 22417 of June 8, 2009 the Deputy of Economic Benefits (e) proceeded to clarify the resolution No. 000517 of February 25, 2008, noting that there was an inadvertent error by the agency to reassess the old age pension in the amount of $ 6.575.494.50, without applying the top Article 2 of Decree 314 / 94, especially when the position held by the petitioner was not within the exceptions provided for in the Constitution and the law to waive that limit spending to 6.18 million pesos ($ 6,180,000), making it effective from 1 November 2002 in accordance with the terms of the administrative decision to which it was complying, but conditioned to show the original or certified copy of decommissioning.
5.10. Finally in office PABF-GN-7367 PAP Manager informs Buenfuturo ALONSO JOSE RESTREPO Murgueitio in strict compliance with the ruling of the Administrative Tribunal of Cundinamarca pursuant to Resolution No. 22417, which included it in the general list of pensioners of the month June 2010, stating that with the decrease in the amount of the monthly pension he had received no payment is generated retroactive, therefore, the pension allowance after that date will be 9.445 million four hundred and sixty four dollars and seventy-three cents ($ 9.445.464.73).
5.11. The question that arises from the actions pursued by the National Provident Fund Social issue Resolution 22147 of June 8, 2009, is whether the administration has the authority to revoke their own actions without the prior written consent of the individual concerned. The answer is no because to operate such a figure should be subject to the orders in Articles 73 and 74 of the Administrative Code.
5.12. The case law supports a peaceful manner and reiterated (T-347/94, T-355/95 and T-134/96, T-315/96, T-827/99 and T-1131/01) that management can not unilaterally revoke acts of a particular and concrete to recognize rights for the managed without the prior written consent of these:
... acts express administrative issued by the administration to recognize an individual right is not revocable by it but in the terms already indicated (articles 73, paragraph 1 of CCA). By virtue of where the administration note that an act of this nature is contrary to the Constitution or the law must come to claim his own act before the court of administrative litigation (Article 149, paragraph 1 of the CCA), but you can not directly revoke . '(T-347, 1994). The Judgement T-355/95
made explicit the need for acceptance by the affected:
be recalled that Article 73 expressly provides that CCA "When an administrative act created or changed a particular situation and specific legal or recognized a right of equal status, may not be revoked without the express written consent of their respective holders. As we see it is a waiver of the run, which constitutes a clear decline from the concerned of the rights that the act confers. It is clear that provision and therefore is a violation of all norms pretend not to know what the standard specifies that there "(bold and underlined text outside)
The Case T-315/96 referred specifically to the direct withdrawal of administrative acts For its part, reiterated:
This prerogative that particular account, as outlined by the Court through its various rooms review is aimed at, among others, to prevent the administration, use of certain powers and citing a variety of needs, unknown individual rights to be modified or ignorance requires the consent of the owner, therefore he alone, by the very nature of law, may resign. If the administration fails to obtain such consent must seek the intervention of the judicial apparatus, which decides whether it is possible to modify or disregard the rights granted to the particular.
Wanted, thus giving some balance to the relationships that arise between the administration and the particular assuring that it will not change it or disown their rights without the exhaustion of certain requirements. This prevents decisions that assail the good faith of the holder of the right and break the legal certainty.
The requirements are: the consent of the law and, failing that, the intervention of the jurisdiction of administrative litigation. Intervention is accomplished when the government demands its own act, namely the obligation to sue for the administrative body and not to the individual "(Emphasis added.)
5.13. Based on the above reason we attend to the instance when Amparo rights claimed by the actor, in finding their violation when the then Deputy Manager of Economic Benefits of the National Social Welfare motu proprio amended and consolidated the status of the actor, without legal basis under the guise of "clarification", actually producing a direct repeal administrative act, which is lined with law to be issued in strict compliance with the order issued by a judicial authority, ignoring the normativity in which it was based did not apply to the plaintiff and for which he expressly and failure Administrative Tribunal of Cundinamarca, as cited in precedence.
5.14. The how the administration has acted is a clear violation of rights of access to justice and due process because apparently marks a verdict, actually creating legal uncertainty is far from headquarters gloss over its constitutional work and noted the corrections imposed by the restraining order to be taught.
5.15. The National Social Security Fund in liquidation at the time due to legal remedies at his disposal against the ruling handed down by the contentious jurisdiction of the competent administrative authorities to rule on the alleged irregularity and not remain silent, allowing the decision enforceable charged and then, rather than comply with it proceeded at will and must take responsibility for their own carelessness and negligence.
5.16. As a corollary of the above will modify the custody order in the sense of leaving no force of Resolution No. 22417 of June 8, 2009 issued by the National Social Security Fund in liquidation as the trade-GN-7367 PABF of June 10, 2010 signed by the PAP Manager Buenfuturo.
5.17. Consistent with this within forty-eight (48) hours of notification of this decision, the PAP Manager Buenfuturo, or official under his direct responsibility, shall issue the administrative act following without questioning the guidelines of the Administrative Tribunal of Cundinamarca Case October 27, 2006, clarified by order of November 30, 2006.
5.18. Once that happens the manager immediately sent liquidator of the National Social Security Fund in liquidation to sign the administrative act and take the necessary measures to be included in payroll matters related to the pension recalculation. Compliance with the mandate should be reported to the judge at first instance, otherwise it will subject to the penalties established by Decree 2591 of 1991.
5.19. Collating copies will be available disciplinary and criminal destined for the Attorney General of the Nation and the Attorney General's Office to conduct an investigation that could incur-malfeasance through action and judicial decision-fraud Betty Salazar Elisa Gutierrez, who served as Deputy Manager of Economic Benefits - Responsible for the National Provident Fund Social 22,417 upon signing the Resolution of August 8, 2009, as substantiating attorney Diana P. H. Dávila and the legal reviewer Manuel A. Ramírez.
similar situation will be made in relation to Jaime Villaveces Bahamón Buenfuturo PAP-Manager-Child Elizabeth Rodriguez-Director of Payroll, and Andres Felipe Chaparro Silva, regarding the issue the trade-PABF No. GN-7367 of June 10, 2010.
5.20. The same shall order the judge Fifty Four Circuit Criminal exercise vigilance over the previous determination, requiring periodic reports of Public Prosecutions should be grounds for criminal investigation, which must provide the plaintiff with the purpose of verifying the status performance and inform you that if your interest may be recognized as a victim in this process.
5.21. For notice of this determination shall be in accordance with the provisions of Decree 2591 of 1991 and the 306 regulatory 1992.
A light of the foregoing, the Court of Bogotá, DC, Chamber of the Criminal, to administer justice on behalf of the people and by the authority of the Constitution,
RESOLVED:
1 º. MODIFY the first section of the sentence in the sense of leaving no force of Resolution No. 22417 of June 8, 2009 issued by the National Social Security Fund in liquidation as well as the office PABF GN-7367-June 10 2010 signed by the PAP Manager Buenfuturo.
Consistent with this, within forty-eight (48) hours of notification of this decision, the PAP Manager Buenfuturo, or official under his direct responsibility, shall issue the administrative act without questioning following the guidelines of the Administrative Tribunal of Cundinamarca Case October 27, 2006, clarified in order of November 30, 2006.
Once that happens the manager immediately sent liquidator of the National Social Security Fund in liquidation to sign the administrative act and take the necessary measures to be included in payroll matters related to the pension recalculation. Compliance with the mandate should be reported to the judge at first instance, otherwise it will subject to the penalties established by Decree 2591 of 1991.
2 º. ATTESTED copies bound disciplinary and criminal the Attorney General's Office and the Attorney General's Office to investigate the conduct that might incur, malfeasance and fraud action and judicial decision-Betty Salazar Elisa Gutierrez, who served as Deputy Manager of Economic Benefits - Responsible for the National Social Security Fund and endorsed the resolution 22417 of August 8, 2009, as substantiating attorney Diana P. H. Dávila and the legal reviewer Manuel A. Ramírez.
similar situation will be made in relation to Jaime Villaveces Bahamón Buenfuturo PAP-Manager-Child Elizabeth Rodriguez-Director of Payroll, and Andres Felipe Chaparro Silva regarding the issue of trade-PABF No. GN-7367 of June 10, 2010.
Fifty Four Judge of the Circuit Criminal exercise vigilance over the previous determination, requiring periodic reports of Public Prosecutions should be grounds for criminal investigation, which must provide the plaintiff with the purpose of verifying the status of the action and will tell you that if your interest may be recognized as a victim in this process.
3 º. In all other contested CONFIRM failure.
4 °. Send a copy of this decision to the Court of Instance to give effect to the orders.
5 º. SEND guardianship to the Constitutional Court for possible review.
NOTIFIED AND ENFORCED.
JUDGE ALBERTO PERDOMO POVEDA
LUIS FERNANDO RAMIREZ RAMIRO CONTRERAS
MAGISTRATE JUDGE RIAÑO RIAÑO
