Right to Adequate Housing in Peru
Constitutional remedy filed against a lower court decision of March 21, 2013 (resolución de fojas 394, Sala Especializada Civil de la Corte Superior de Justicia de Cajamarca), which dismissed a complaint by a citizen of Cajamarca against the Ministry of Energy and Mines, and Minera Yanacocha S.R.L., requesting the protection of the fundamental right to live in an adequate and balanced environment. Alleged violation to the latter right by Yanacocha´s Conga mining project and the Ministry’s decision that approved the project´s Environmental Impact Assessment (EIA).
Marco Antonio Arana Zegarra filed a constitutional remedy against a ruling by Cajamarca´s Superior Court of Justice that dismissed his complaint requesting that Yanacocha´s Conga project be suspended due to the threats it posed to the right to live in an adequate and balanced environment, and on the basis of irregularities in the approval of the project’s EIA.
The complainant had argued before the lower court that the project´s impacts, combined with insufficient mitigation measures, and the deficiencies in the EIA posed significant and irreversible harm to fragile ecosystems in Cajamarca and consequently to the communities depending on them. He also argued that the EIA´s approval was incompatible with the State’s obligation to protect the right to live in an adequate and balanced environment.
The lower court dismissed the case outright for failure to exhaust administrative remedies prior to bringing the case to the judiciary. The second instance court confirmed this decision, stating that the requirement to exhaust administrative remedies would not lead to irreparable harm in this case. This was because the petition essentially requested the suspension of the Conga mining project, which had already been put on hold until the completion of a complementary hydrology study.
The Constitutional Tribunal disagreed with the lower courts and ruled that constitutional proceedings should be open and non-formalistic in nature. The highest Peruvian tribunal concluded that the lower courts had neither correctly interpreted constitutional jurisprudence regarding environmental matters, nor made adequate use of procedural mechanisms in order to assess whether a certain and imminent risk was at stake and whether such risk affected the right to live in a balanced and adequate environment.
The Constitutional Tribunal invoked some of its most relevant jurisprudence on the issue of environmental protection, reaffirming its ruling that the right to live in a healthy environment “is an essential component of the full enjoyment of other fundamental rights recognized by the Constitution and international human rights treaties.” It additionally recalled its interpretation of the right to live in a balanced and adequate environment, which includes 1) the right to enjoy a balanced and adequate environment, and 2) the right to have the environment preserved.
These principles impose certain obligations on the State to protect the environment, including observing the precautionary principle. The Tribunal noted that environmental damage does not only affect the invoked constitutional right, but also the rights of future generations, imposing a duty on all actors of the justice system to conserve and protect the environment. Judges must “be particularly attentive in the analysis and assessment of situations where petitioners claim threat or harm to the environment, as well as make use of procedural measures in order to reach a conclusion regarding the imminence of the threat.”
The Tribunal noted that the Constitutional Code of Procedure includes mechanisms that judges should use in order to assess whether particular rights have been violated or whether there is an imminent threat of such violation, but the lower court judges did not make use of such tools. The Tribunal considered that dismissing the case on the basis of the plaintiff´s failure to exhaust administrative remedies was contrary to a court´s obligation to act with special attention to cases where violations of the right to an adequate and balanced environment are alleged.
The Tribunal overturned the lower court decision and ordered the trial court to hear the case in accordance with its instructions.
As of September 2015 the case file had been sent to the trial court in Cajamarca where it is expected procedures will resume.
With this ruling the highest tribunal in Peru states its independence and impartiality by affirming the importance of the right to a live in a healthy environment, as well as the right to due process in assessing whether this right has been violated. This is a courageous decision by the Peruvian Constitutional Tribunal in a highly contested and politicized case which led not only to extensive marches and protests (which were eventually repressed with violence and which resulted in deaths), but also to the resignation of high profile government officials. With this ruling the Peruvian Constitutional Tribunal aligns itself with the most progressive courts in Latin America which have upheld the constitutional right to live in a healthy environment.