As it is known, the second paragraph of Article 5 of the New Constitutional Procedure Code (Law 31307) provides that “In constitutional proceedings against judicial decisions, judges or magistrates of the Judiciary are not notified or summoned with the lawsuit“.
In this regard, the Constitutional Court (TC) in the order issued in Case No. 02748-2019-PHC/TC, which resolves the constitutional appeal filed against the resolution issued by the Second Specialized Criminal Court with Free Convicts of the Superior Court of Justice of Lima (which declared the habeas corpus lawsuit inadmissible) stated that the prohibition contained in Article 5 of the New Constitutional Procedural Code affects the exercise of the right of defense of judges, without further justification, because, despite the fact that the law states that they will be represented by the attorney of their entity, many times they choose not to appear, which could eventually generate defenselessness to the summoned.
Therefore, such decision must be taken by each summoned party, and not, in any way, by the legislator.
Under these considerations, in the specific case, the TC decided not to apply the mentioned paragraph of Article 5 of the Constitutional Procedural Code in force, based on the provisions of paragraphs 3 and 14 of Article 139 of the Constitution; and ordered to notify the judges who issued the contested decision in the habeas corpus process with the lawsuit.
For further information, please contact to Renzo Carrasco (Partner): Rcarrasco@estudiorodrigo.com