>Post your source, or else why waste everyone's time?<
THE REPUBLIC OF VENEZUELA
IN ITS NAME
THE SUPREME COURT OF JUSTICE
IN THE ADMINISTRATIVE-POLITICAL CHAMBER
Sponsoring Magistrate Dr. Cecilia Sosa G¢mez
On December 10, 1996, the attorneys at law Ricardo Henriquez La Roche
and Carlos Ignacio Aguilar L¢pez, in their capacity as judicial
attorneys for the company INVERSORA MAEL, C.A., submitted a writ
requesting this Chamber to publish the judgment dated May 9, 1991, as
well as the decision providing said publication, for the purpose of
complying with the provisions of Article 15 of the Mining Law, given
that said publication was not made within the peremptory time set by the
Court for that purpose, to be counted after the notice to the Ministry
of Energy and Mines.
Being this the time to decide on the request, this Chamber proceeds to
do so after the following considerations:
I
The petitioners point out that the Ministry of Energy and Mines has not
complied, within the time set, the final judgment of nullity issued on
May 9, 1991 by this Chamber. For that reason, they request that the
publication of said sentence in the Official Gazette of the Republic of
Venezuela be ordered, to the purpose that said the obligation to do
stated in said sentence is complied with.
For the purposes of supporting their petition, the petitioners argued
as follows:
1.- In the first place, they quote Articles 211 of the Constitution of
the Republic, 1st of the Organic Law of the Supreme Court of Justice and
531 of the Civil Procedure Code, and they point out that the omission of
the public administration is equivalent in essence to an obligation of
doing and the judgment takes the place of the action omitted by the
governmental entity which should have executed it.
2.- In second Place, the plaintiff's attorneys stated that they were
notified through Official Communication DM-DC-DPA-122 dated October 28,
1996, concerning Resolution No. 217 dated October 15, 1996 issued by the
office of the Minister of Energy and Mines, in which the opposition made
by INVERSORA MAEL, C.A., is declared contrary to law. Said declaration
of being contrary to law of the referred opposition stems from the
assumption that the mining concessions Cristina 4 and Cristina 6 are not
current since they expired on February 6, 1989 and on March 9 of the
same year, respectively. Also, in the motivation of said Resolution, it
is stated that the mandate contained in the judgment of this Chamber
dated May 9, 1991, is extemporaneous since said concessions extinguished
two years before said judgment. Relative to this reasoning the
plaintiff's sustain:
a. In the first place they point out that there exists in this case a
matter adjudged originated by the judgment of this Chamber, which must
be complied with.
b. Then they refer to Article 532 of the Civil Procedure Code, which
states the principle of continuity of the execution which has only as
exceptions the lapsing under the statute of limitations of the execution
and the exception of full payment, which is not given in the present
case.
c. They also state that the judgment must be complied without the
obliged entity being allowed to contribute new juridical reasons not
discussed in the judicial process to disturb or erase the effectivity
and authority of a judgment, without taking into account at all the
existence of the quoted Resolution No. 217 dated October 15, 1996.
d. On the other hand, they stated that the judgment issued in this
process is stating a nullity without establishing that the assignment
referred therein depends upon the publication in the Official Gazette
with respect to its juridical effects.
II
In order to decide this Chamber observes:
1. The Chamber observed in the present case, that by means of judgment
of May 9, 1991, it declared according to law the appeal of nullity due
to illegality brought by attorney-at-law Jes£s Garc¡a Arenas, in his
capacity as representative of the mercantile corporation, INVERSORA
MAEL, C.A. against Resolution No. 29 of April 14, 1988, issued by the
citizen Minister of Energy and Mines. Consequently, in said judgment it
condemned the Administration and ordered:
"... the Publication in the Official Gazette of the Republic of
Venezuela of the Notice referred to in Article 15 of the Mining Law,
with respect to the assignment of the mining concession of alluvium gold
denominated "CRISTINA CUATRO (4)" and "CRISTINA SEIS (6)", made by
citizen RAMON TORRES to the appealing company ...".
Later on, in judgment of October 16, 1996 this Chamber ordered the
enforcement of judgment issued in this cause on May 9, 1991, to the
purposes that the Ministry of Energy and Mines would voluntarily comply,
within a term of 10 working days counted from the time it would be
notified of that judgment, its duty to publish in the Official Gazette
of the Republic of Venezuela the Notice which Article 15 of the Mining
Law refers as regards the assignment of the alluvium gold mining
concession denominated "Cristina Cuatro (4)" and "Cristina Seis (6)"
made by citizen Ram¢n Torres to the corporation Inversora Mael, C.A.
On November 4, 1996, the Bailiff of this Chamber notified the
Secretariat to the Ministry of Energy and Mines the official
communication issued by the Presidency of this Chamber under No. 948
dated October 2, 1996, in which the Minister of Energy and Mines is
ordered to comply with the judgment dated May 9, 1991 and that,
consequently, proceeds to make the required publication.
As of this date it is not in the records that what was ordered by this
Chamber was complied with that, on the contrary there runs a request
from the plaintiff which requests to enforce the judgment.
Given the aforementioned circumstances, it is clear that it is
pertinent, according to the provisions of Article 526 of the Civil
Procedure Code, to enforce the judgment issued by this Chamber on May 9,
1991. And it is so declared.
2. Now therefore, the plaintiff requests that enforcement of the
aforementioned judgment is made by means of publishing it in the
Official Gazette of the Republic of Venezuela, by analog application of
Article 531 of the Civil Procedure Code referred to the obligation of
concluding contracts. In this case, the contents of the judgment of May
9, 1991 orders the Administration to publish the so many times referred
to Notice to which Article 15 of the Mining Law refers, relative to the
assignment of the concessions in question. Therefore, it is clear what
has been ordered is an obligation to do, a situation provided in Article
529 of the Civil Procedure Code pursuant to which the judge may
authorize the creditor, at the request of the latter, to enforce himself
the obligation at the expense of the debtor. Now therefore, in the case
in question the obligation to do cannot be made by the petitioner since
it refers to the obligation of publishing an official document in a
publication medium also official, a situation which is not covered in
the mentioned rule. However it is the case, that both Article 206 of
the Constitution and Article 131 of the Organic Law of the Supreme Court
of Justice, authorize the Judge in contentious-administrative matters to
provide as required to re-establish the subjective juridical situation
damaged by the administrative activity. In this case. facing the
reluctance of the Administration, it has been requested to enforce the
judgment issued in this cause by this Chamber on May 9, 1991, with
respect to the publication of the referred to Notice to which Article 16
of the Mining Law refers. Therefore, given the need to preserve the
principle of the effective judicial tutelage, and the right to the
defense which implies the need that the juridical decisions are
executed, this Chamber has available as a means to enforce the
aforementioned judgment to order the publication in the Official Gazette
of the Republic of Venezuela, the following in order that it has the
effects of the Notice referred to Article 15 of the Mining Law: (i) the
judgment of this Chamber issued on May 9, 1991 in this lawsuit, by means
of which the appeal submitted by the company Inversora Mael, C.A. was
declared according to law; (ii) of the judgment of this Chamber issued
on October 16, 1996 in this lawsuit, by means of which the pertinent
enforcement was decreed; (iii) of this judgment of this Chamber; and
(iv) of the document which runs in the records in certified copies to
folae 15 to 18 back, protocolized before the Subalternate Registry
Office of the Roscio District of Bolivar State, under number 35, folae
109 to 142 and back, of the First Protocol, Second Quarter of the year
1986, by means of which citizen Ram¢n Torres sells to the company
Inversora Mael, C.A. all the rights and shares pertaining to the former
on the alluvium gold mining concessions denominated "Cristina Cuatro
(4)" and "Cristina Seis (6)", located in the Dalla Colsta Municipality
(El Dorado), Roscio District of Bolivar State, whose boundaries are
stated therein. It is so ordered.
III
Based on the totality of the preceding considerations, this
Administrative-Political Chamber of the Supreme Court of Justice in the
name of the Republic and by the authority vested by the Law:
-ORDERS the enforcement of the judgment issued by this Chamber in this
lawsuit, on May 9, 1991 and, in consequence,
-ORDERS so that it has the effects of the Notice referred to in Article
15 of the Mining Law, that the following is published in the Official
Gazette of the Republic of Venezuela: (i) the judgment of this Chamber
issued on May 9, 1991 in this cause, by means of which the appeal
submitted by the company Inversora Mael. C.A. was declared according to
law; (ii) of the judgment of this Chamber issued on October 16, 1996 in
this lawsuit, by means of the pertinent enforcement was decreed; (iii)
of this judgment of this Chamber; and (iv) of the document which runs in
the records in certified copies to folae 15 to 18 back, protocolized
before the Subalternate Registry Office of the Roscio District of
Bolivar State, under number 35, folae 109 to 142 and back, of the First
Protocol, Second Quarter of the year 1986, by means of which citizen
Ram¢n Torres sells to the company Inversora Mael, C.A. all the rights
and shares pertaining to the former on the alluvium gold mining
concessions denominated "Cristina Cuatro (4)" and "Cristina Seis (6)",
located in the Dalla Colsta Municipality (El Dorado), Roscio District of
Bolivar State, whose boundaries are stated therein. It is so ordered.
Be this published, recorded and communicated. Proceed as ordered.
Delivered, signed and stamped in the Executive Office of the
Administrative-Political Chamber of the Supreme Court of Justice, in
Caracas, on the fifteenth day of the month of April of nineteen hundred
ninety seven. Years: 186th of the Independence and 138th of the
Federation.
of course, this is just a 'mock-up' and a 'fraud'. Speaking of wasting everyone's time....!? Get real, if you can. |
