Constitutional Jurisdiction: Habeas Corpus and Fundamental Rights in Chile
Constitutional Jurisdiction in Chile: Two Key Cases
With these defining elements of constitutional jurisdiction, there are cases in which the Recurso de Protección (RP) can be considered a manifestation of constitutional jurisdiction. This statement is very precise, as it is not being said that the RP is part of the Constitutional Court in general, as there are many cases in resolving issues of mere legality. It is constitutional jurisdiction in only two cases:
- When the arbitrariness of an organ of the state is being discussed, as the arbitrary standard is constructed directly from the Constitution: from the text of Art. 20 CPR, arbitrary conduct can be prosecuted.
- In all cases of alleged illegality when it consists only of violations of the Constitution, because if the alleged illegality is also in violation of the law, it lacks the assumption that the case be resolved exclusively in light of the Constitution.
How Far Can the Supremacy of the Constitution Be Ensured?
To the extent that the appeal is here regardless of any legal restrictions that may exist for an action, the act or omission is directly confronted with the Constitution.
The general lawlessness in the area of RP is understood as antijuricidad, that is, in contradiction with the law. Instead, the arbitrary does not say so with respect to a rule violation, but rather a form of behavior or decision that may take various forms:
- The irrational: what cannot be understood rationally in some way.
- What is not motivated, meaning any action that is not expressed or it is not possible to see a motivation.
- Lacking reasonableness: this is more complicated because what unites a reasonable standard of evaluation is complex; it has to do with the presence of plausibility.
Habeas Corpus: Protection of Fundamental Rights
Finally, we have the habeas corpus, something that we mistakenly refer to as “protection”. This is incorrect because, in comparative law, in general, it is referred to under the special protection of fundamental rights. Within this concept of protection, in Chile, other figures would fit other than habeas corpus (RP itself, the economic basis, the agreed orders injunction against Art. 93 CPR).
Why the Shift from “Recurso de Protección” to “Habeas Corpus”?
Until the end of the 19th century, Chile had a good legal culture, and in fact, regulators of habeas corpus projects at the time called it that. However, in the CPP, where the matter was governed without a name, some time was put into the title of the relevant provisions on the processing of this action, and it was baptized as amparo. It was named so because they identified the part with the whole, because the only action that existed in Chile for the protection of constitutional rights was habeas corpus.
Action Under Habeas Corpus and the Right to Freedom
Source
It is advisable to consider habeas corpus in combination with such rights to understand its context. Habeas corpus is the oldest lineage action on constitutional protection. It existed before the constitution, even before any talk of fundamental rights.
This action, some dating back to the action that existed in Rome (who did not speak of rights but deductible in court actions). The hypothesis that drove the Romans was that if he lost a slave to an individual, what he had to do was chase the slave property, as this, from a technical standpoint, was a thing. But in terms of free people, that did not exist, so what happened if a person stole from another? There was an exhibition action of a free man, where you went to the prefect and told him to shut Gaius Titius, then the praetor should ask that exhibited Gaius Titius.
More importantly, it is then another action that is becoming recognized in English common law in the Middle Ages, in the 11th-12th centuries, which was intended to obtain an order of the court, which even today is called a writ (meaning it is a written order). It is called the writ of habeas corpus because the order was written in Latin and began with the term “habeas corpus subjecendi NN” (“bearing in mind this person”… will be questioned, etc.), so in the language of the time, it meant “NN, bring my presence and will be questioned.” Behind that, there are two important aspects:
1. Appearance of protection: The individual’s presence in court involves a measure of security for this person. Because if the person is deprived of his liberty unlawfully and is brought before the judge, this person goes out of scope and arbitrariness of a third party in possession may be. In fact, the individual submits to the judge, and he is protecting while removing the subject from a place that could be abused.
2. Review on the legality of the deprivation of liberty: The aim of the individual’s presence in court is that the individual will be questioned about the causes of their deprivation of liberty. And before long, it evolved in the sense that not only would be questioned who was in custody, but was also obliged to report or testify in court, the person deprived of liberty.
This action takes place mainly in England, where its regulation was not only of principles and declarations but also addressed the practical aspects.
Chilean Constitutional Tradition of Habeas Corpus
In Chile, the first constitutions were concerned enough about personal safety issues. However, habeas corpus as such is relatively late. There is a habeas corpus action in the 1833 Constitution that is only going to have legislative development through a bill of individual rights by the end of the 20th century. The action as we know it today appeared in the Constitution of 1925. (Reference to Article professor Aldunate on habeas corpus).
Purpose of the Action Concerning Individual Liberty
In our constitutional tradition of habeas corpus, there has been an emphasis on a review of the legality of detention.
To explain how it operates habeas corpus, it is necessary to explain before a freedom and a right of Art. 19:
1. Freedom of Movement: The Constitution speaks of “personal freedom”. It puts another name because the letter A review of 19 No. 7, the manner in which personal liberty is specified, this is basically what the doctrine is known as the freedom of movement (power to enter and leave the country to move; to reside anywhere in the republic until it is against the law and not penalize others).
Aspects that Could Be Affected by Freedom of Movement
“The freedom of movement comes from a time when individuals could not leave the place where they were born (8th to 15th-16th centuries) unless your landlord gave him permission, something that never happened because the wealth was in land and labor was needed.
- Acts involving restrictions on travel. In the Soviet Union, it was required to pass to move within their own country.
- Another example is that in India, people came out but could not re-enter (period 1973-1989).
The distinction between freedom of movement and personal freedom was made because of personal liberty, whenever it was felt that understanding of what today is called dogmatic general liberty right (contained in the Declaration of the Rights of Man and Citizen, ss. 4 and 5. It is important to manage the general concept of freedom that results from these articles. It is perhaps the most forgotten of the Constitutional right, despite being the most important.
The basic idea of this right is that people are entitled to do whatever the law does not prohibit, and the law can prohibit actions harmful to others or society. Therefore, the law has no right to protect ourselves against ourselves.
The general right to liberty is said to have been the “alpha” of rights since all other freedoms are only ways to protect individuals against specific issues that have been affected. The reason is that at some point, individuals were punished by opinion, building a temple, etc. So the other rights arise.
This will then move to the freedom of movement, as during the French National Assembly, it was estimated that if the decision was given to a democratic assembly, the assembly, in general, would not take any decision contrary to the interests of the individual. That is why that the general idea of freedom mentioned in the aspect that if it was restricted by the executive authority, so the emphasis is on the freedom of movement.
When the Constitution speaks of personal liberty and content specified in 19, pointing to No. 7, it is argued that gender is related species, i.e., personal freedom could be understood in our country as broader than the freedom of movement and could lead to arguing that our Constitution incorporates the principle of general freedom.
2. Individual Security: The right not to be deprived of liberty or, in the sense that is a guarantee, is that the person may be detained, subject to certain conditions. Such a legally proper, is expressed when the Constitution says that no one can be deprived of liberty except the cases and manner established by the Constitution and laws. That is, it regulates the conditions of the intervention in the fundamental right of individual freedom.
The deprivation of freedom of movement leads, in fact, to a much broader deprivation of liberty, not only to the inability to move but also many other things: here is the connection between individual liberty and freedom of movement.
Individual Security Requirements by the Constitution
1. The deprivation of liberty is based on an order, except in flagrante delicto, and therefore, the legal definition of flagrante delicto is as relevant to individual security since the concept is not abstract. We must study the concept to see if it is constitutionally protected. For example, if a law in flagrante delicto defines not only the crime currently being committed but which has committed only until 180 days after its commission, it would flout the requirement of a prior order (we could pursue all people on suspicion of fragrance).
2. This order must be intimated, the order should be made known to the person to be arrested or deprived of liberty. It has raised a practical discussion on the criminal proceedings as to whether the order should be shown physically. This time it made sense to move the odds were much lower; however, not now. The Constitution does not require showing the order.
Intimating the order, in the theoretical aspect, is an essential element of the rule of law is to allow citizens to comply with the law without state coercion to it. Theoretically, the injunction means to inform the person that there is a warrant against him so that citizens obey the order. However, this does not happen in reality. (Which does not deprive him of importance in conceptual terms in the sense that the use of coercion in the rule of law should be reserved for those who do not abide by the law, not that it is prepared to comply).
3. The person should be deprived of liberty in certain places: At home, in jail, or in certain public places for such purposes. Regarding the public place, it must be public so that the person is not abused. This also relates to another requirement: not enough advertising of the site (for example, which is known to be a prison or detention center), but it must also be publishing the fact that the person is in custody there, what is obtained by recording the entry in the quality of arrested or detained. Here in Chile, there is one of the biggest problems with deprivation of liberty because one of the biggest problems in Chile is the deprivation of liberty without registration, where no record that the person was deprived. The person is not registered because if not registered, there is no record of his detention, and this prevents the person is brought before the judge (who could control the legality of the deprivation of liberty). The action to control not practiced are the surprise visits of the ministers of the CA, since they, every time they go to places of detention, always announce their visits so that everything always “block.”
4. Registration Requirement: You must register in the place of detention:
- The same income.
- Order (in case there is deprivation of liberty) or expression (if the person has been deprived of liberty in the act).
5. Conduction or brought before a court: All detentions must end before a judge within 48 hours. It is expandable, but our criminal procedural law reduced it to 24 hrs.
What is the Utility of Habeas Corpus?
1. Habeas corpus is the guarantee of a guarantee. It is said that personal safety is a guarantee of personal liberty, and therefore, habeas corpus as collateral, which in turn looks after the requirements of individual security. This is basically an action that seeks to examine whether they have attained the constitutional and statutory requirements for a person is deprived of freedom; this corresponds to Article 21, paragraphs 1 and 2. The action point 3 has somewhat different characteristics.
2. There is also another original aspect of habeas corpus in its paragraph 2 that reads, “may order that the individual is brought before him”. The other aspect concerns the protection of the affected in paragraph 1, which reads, “and take the necessary measures … to ensure adequate protection of the affected.”
The court also may have to correct the legal defects of detention (for example, which practices the detention registration was omitted). In practice, usually only use habeas corpus to obtain the freedom of the person and not to correct these defects.
Subsections 1 and 2 of Art. 21 have several differences from clause 3. Paragraph 3 provides no specific figures of the person detained, arrested, or imprisoned, but the figure generic deprivation of liberty. Therefore, the figure is not necessarily linked to an institutional person deprived of liberty. Hence in this paragraph 3 also are covered figures imprisonment from individuals.
This section 3 also includes the figures of threat and disruption.
With regard to this subparagraph 3, when the Constitution refers to the threat, disruption of individual security, there are cases where the law has broadened the interpretation of the idea of individual security, extending to life and personal integrity.
It is important to handle the differences between habeas corpus Art. 21 I. I and II, and habeas corpus i. III.
Legal regulation of constitutional habeas corpus: is found in Article 306 317a of the Criminal Procedure Code (should take a look to get a general idea).
Once the person has been deprived of freedom, then, has engaged in a successful process of habeas corpus, the legal regulation that is in the CPP, provided that it welcomed the action of habeas corpus, pass the background to the ministry public, to pursue the responsibility of the official who has been involved in the privacyion of liberty unlawfully. Exceptionally, the CPP gave an opportunity for the Court to declare that for the case, there was no reason to pursue the administrative officer. The problem is that there are in Chile, the courts always state that there is no place to pass the background to the prosecutor. Never lay the responsibility for the unlawful deprivation of liberty in its authors; it then generates a sense of impunity.
Habeas Corpus Law
Along with the constitutional habeas corpus, habeas corpus, there is a legal character. In Art. 95 of the CPP, is entrusted to the judge to the cognizance of cases of deprivation of liberty contrary to law. This article deserves several comments:
- First, it is discussed whether a habeas corpus only in the field of investigation and criminal proceedings or if it is open to all figures in prison, although they are not from criminal prosecution (see good art. 95 C. Criminal Procedure).
- The judge leading the allocation of collateral to examine conditions of detention.
- Thirdly, this Art. 95 CPP generates a reflex effect in Art. 21 of the Constitution, as this indicates that judgments may be challenged only by the means crossing the law, without prejudice to Art. 21 of the Constitution. Then gives us to understand that Art. 21 of the Constitution also serves to challenge court decisions. This is not within the logic of habeas corpus since habeas corpus was intended to provide the affected before the judge, and therefore, when I have a court order for a person deprived of liberty, it is understood that this low the rule of law, so that means that habeas corpus is a way of challenging judicial decisions. Today, the increased use that has the Art. 21 in the area of the new criminal process is the review of custodial sentences for individuals. In comparative law, this expansion of habeas corpus has been used to revise materially custodial resolutions (USA).
Freedom of Religion and Others
Religious freedom is the mother of all rights because, in the historical development of the rights of individuals, exactly the theme of religious freedom emerges as a dynamic generator of a series of other rights.
Historical Background
The Protestant Reformation (16th century) allows territorial rulers, rulers continue governing as Christians, without relying on the Pope. What was once a single Christian unity, and therefore subject to the authority of the papacy, now may be fragmented into leaders who remain Christian but no longer depend on the Roman Catholic papacy. Henry VIII had anticipated some of this in England for practical reasons and not religious.
The importance of the Reformation was political. For now, there is a military confrontation because the allies of the Catholic Church were not prepared to lose power, so there is a religious war, so to whet your political arrangements, there are a number of rights that formed the content religious freedom. These contents were:
1st Stage
1. Ius reformandi: First to devote himself. The right which the prince had only to change his religion. Originally, only among the Catholic faith and the Augsburg Confession (Lutheran Protestant). Then add the faith of the Reformed Church, which corresponded to the doctrine of Calvin.
2. The problem is that, strictly speaking, it was not religious freedom for the subjects as they were still on the principle cuius regio eio religio, which means that religion will be their king or prince. Therefore, it meant that the subjects did not have religious freedom. As this was a bit embarrassed, she begins to devote the following law: Ius emigrandi: the subject had the right to leave the territory of the king if he did not agree with the religion of their king.
3. It is recognized as a right of corporations or religious affiliations, organizational autonomy: they could organize and appoint the ministers of his own faith since in the case of the Protestant ministers, wanted to be autonomous from the civil power.
4. Related to religious corporations was jus ergendi, which consisted of the right to produce temples.
2nd Stage
1. Then in the historical process, is the first individual right, it was the right to private devotio, which was the right to hold private worship, i.e., at home. This law institutes a right to inviolability of the home (now not associated with the right of religious freedom) because when you negotiate the right to private worship, it also enshrines the ban for officials of the prince, enter the homes of the subjects to control what the religion they were professing.
2. More recognition devotio right to publish: that is what we know as freedom of worship, even though, in this context that (up to the 17th and 18th centuries), it was always thinking about Christian cults were not broad freedoms to any other religion.
3. Equality before the public offices has two variants:
a. Religious origins: only those who share a religion could be involved in public office.
b. Revolutionary: Refers to the charges not associated with a particular establishment or who were not only of the nobility.
4. Freedom of education: it is perhaps the most important manifestation of religious freedom since the characteristic of freedom of education is not to convey any knowledge, but that a certain doctrine. What protects the freedom of teaching is the transmission of information, but that training, which sought to convey were certain values, ethical beliefs, behaviors, and so on.
Content of Religious Freedom
Read Act 19,638 Arts. 6, 7: refers to the content, in normative terms, of religious freedom.
If you compare this law to Art. 19 N º 6 CPR, one notices that they do not fit. But should not fit, it would suffice for the 19 No. 6 says that is guaranteed to all people religious freedom, however, does not say that, but says he is devoted to all persons freedom of conscience. This happens for a historical reason. Chile was not, as in the case of Europe, problems of religion. Even when it was established right in the Constitution of 1925, the majority of the population was Catholic in Chile: the separation of the State from the Church, and consecrated this right without much technical knowledge about its meaning. The only thing that was consecrated in religious freedom and the right to choose churches.
The free expression of all faiths is not part of religious freedom since all beliefs are not religious, nor was an issue discussed historically in Chile.
It also produces a technical problem because when freedom of conscience enshrined in the Constitution of 1925, it is assumed, as in the Study Commission of the new Constitution of 1980, that the relationship between freedom of conscience and freedom of education is a genus-species relationship. But this is not so since both have very different content. Freedom of conscience, which pursues, is to prevent an individual is placed in a dilemma between state coercion and obedience to his own conscience for behaviors that are required by the state. Modern example: today, the freedom of conscience is absolutely unrelated to religious reasons, which can be invoked by atheists with conscientious objection. Such is the case of conscientious objection to military nature against the requirement of the state over a person to exercise military service, even if it is against their conscience and ethics. The person shall comply with military service, though repugnant to his conscience, and will prefer it to be jailed. Conscientious objection seeks to avoid this.
Historical example: swear in a religion in which one did not participate. The case of Thomas More refuses to swear allegiance to Henry VIII, not swear allegiance to no king, but that was against the belief swear allegiance England. This one was not being asked to change religion but only to swear allegiance to the king. As he did, was decapitated.
Differences Between Freedom of Conscience and Religious Freedom
1. Freedom of conscience protects me about making me a state requires; however, religious freedom, I do guarantee opportunities.
2. Freedom of conscience does not require a religious foundation; no one has ever claimed that people who are not part of a religion are without a highly developed ethical consciousness. As freedom of conscience to be claimed does not require a religious basis.
3. He claims religious freedom, must, at least implicitly, arguing that there is the religion to which he belongs, but religion is always a social phenomenon, a religious denomination is a specific group that adheres to a particular faith. For there to be a religion, there must be at least two people. Instead, he argues freedom of conscience does not require a reference to a particular group.
In short, we set:
- Freedom of conscience
- Only two aspects of religious freedom: religion and belief
- Free expression of beliefs
- The Constitution establishes a provision incidentally, derived from the time of the change in the constitution of 1925, a system of official state religion, derived from the secular state, which is the subject of tax exemption to those places derived exclusively for public worship.
Freedom of Education
It is the freedom to train individuals in ethical terms and in a particular worldview. This means as the main dimension, the possibility of establishing educational institutions, where the idea is not only associated with a particular doctrine but also the requirement of a particular behavior, e.g., rules of discipline. When the state restricts the disciplinary functions of the agents is lacking educators to academic freedom.
However, the state has the power to shape the extent of this release from teaching, as far as the Constitution itself limits assigned to it in the 19 N º 11. When, for example, it undermines morale, the state can deny the protection of academic freedom.
Academic freedom is a freedom of indoctrination, not be met solely as the freedom to inform.
In return for the freedom of education, parents have the right to choose the establishment of their children. This cannot go against the teaching options of an establishment to the extent that they themselves have chosen.
Freedom of Expression
Freedom of expression does not have a generic expression in the Constitution. Just specific manifestations in the 19 No. 12 paragraph 1, item 4, and 19 N º 25.
These safeguards are:
- Freedom of opinion and news without prior censorship;
- Freedom of the press;
- Freedom to create and disseminate the arts.
In comparative law, it distinguishes between opinion and the dissemination of information: something that is a crime if such information is disseminated may not be so if it spreads like an opinion. In Chile, there is no distinction is made; both are in the same status.
It is relevant that there is a discussion on the concept of censorship since, according to the concept of censorship is taken, it will be the level of protection of this right.
A first concept of censorship, defending Professor José Luis Cea, and that the time taken important part of the case law says that censorship is an administrative practice deliberately seeking to restrict the expression of thought.
A second concept of censorship, which is subscribed to the professor, is that censorship is any action by public sources, preventing access to an intersubjective field of communication.
If we compare what Cea says and compare it with the 2nd concept, Cea is something you can do that in the 2nd concept cannot do. The concept is more protective the 2nd. According to Cea’s concept of censorship, it is recognized that a judge may prohibit a person report because it is not considered censorship.
According to the 2nd concept itself, because it is an act that prevents an individual came to an intersubjective communication. One thing different is that after the issuance of the relevant opinion or information can punish the abuse, as indeed he himself says i. 19 n º 12 I.
Note: one thing is the protective scope of action (omission of censorship), and a different thing is the protection that can be given to the messages themselves.
In Chile, we have protected only the former. Regarding the second, eventually, the legislature could choose any figure or a message to describe the abuse. We have protected the concept of censorship; however, Which information can not punish the legislature later. Thus, the legislature may say, “is an offense a spread of views critical of the authority.” Our Constitution sets no limitations, so the legislature can choose any hypothesis to sanction further abuse. The only way we have here a restraint is in Chile’s international obligations in respect of international treaties; they do have this protection.
Press Freedom
It is a separate guarantee for the freedom to express opinions or report, which has its historical origin in a time when the press was a means of disseminating relevant, in fact, was the only relevant mass media (15th century). As originally, making the authority with the press was monopolized, i.e., there was no freedom of press because not everyone could have a printing press. Today the meaning has changed so much from this that, to deprive someone of a printer or copier, it would claim the right to economic freedom or property, as today the political connotations of the press is lost, as there are many other ways communication more important than printing. So the idea of keeping newspapers, magazines, and other types of communications was originally opposed to freedom of expression because today there are other types of communications.
Freedom of Artistic Creation and Dissemination
Then we have a new, recent, a product of a reform to the original text of the Constitution of 1980, which arises from the following. If, for example, I’m in a photo exhibition where police abuses show the Mapuche conflict, and my photos or requisition authority prevents me from opening the exhibition, be claimed through Art. 19 N º 12 i. I?
Provisions were introduced abrogating the film censorship classification today only this film in 19 final paragraph No. 12. Then he wanted to ensure the freedom to create and disseminate the arts, in 19 No. 25, which refers to the intellectual creations of art, which ultimately relates to copyright. It was reasonable to have put this guarantee in any part of the Art. 19 No. 12. By placing in Art. 19 No. 25 the freedom to create and disseminate the arts, no longer protected by the absence of prior censorship. So this is not under the same defense that freedom of opinion. And therefore, artistic expressions could be censored.
Difference Between Freedoms and Rights
Unlike the freedoms that exist independently of law and may be legally protected, there are rights that exist only insofar as the law provides. For example, the marriage that exists from a legal standpoint, it requires the right. The same applies to the property; if not, my property regulation, the powers I have just about anything material.
Right of Assembly
In this field of freedom, is also called the right of assembly, which in reality is a freedom which shares some features with the freedom of the press, because at the time was one of the most important political freedoms, and that frees her from meeting was the only way to communicate and coordinate political behavior in a current (at a time and place). And in times when there were no technological means of communication over long distances, the only way to discuss politics was together in one place and time.
As usual, this coordination of behavior, often wear some kind of concrete political action, is also included within this freedom of assembly, freedom of expression.
This is one of the few rights that the Constitution itself describes what it stands for, something unusual, as normally references are generic. Here the Charter states that people have a right to assemble without prior permission, unarmed, and in a peaceful manner.
A meeting of people from the conceptual standpoint, it differs from mere aggregates of people, in the sense that the pattern of meetings is associated, in its origins, is the only possibility for a larger group of people communicate now, the mere attendance at a place is not strictly speaking meeting. Therefore the meeting is associated with the idea of a debate or public exhibition that brings together those who are resumed or a joint activity as a demonstration, a march, etc.).
This is important because when you are limiting the fields of rights, you must see which rules apply (including those relating to restrictions).
In the same provision of Art. 19 No. 13 in its subsection 2 says that “meetings in the squares, streets, and other public use shall be governed by general provisions of police” police these provisions are not the orders of the police (Carabineros). The general rules of police, rules of origin refers to administration, is one of the few cases where the exercise of fundamental rights is allowed to be regulated by a kind of obligation that is not of legal origin and is therefore an exception to the legal reserve in regulation of such rights. Disposition is the DS 1086 of 1983 of the Ministry of Interior.
Year the first protests occur, so it is ironic that it has regulated the exercise of the right of assembly under authoritarian rule, a period which first arises opposition to existing government. The trick is in having a small aspect relevant from a constitutional point of view (see DS 1086 and find two things: why the DS actually has a regulation that is being implemented as today, is unconstitutional, then see how, from the DS one might arrive at an interpretation that was compatible with the Constitution).
In the same DS 1086, reflected the sense that freedom of assembly also has traditionally been understood as freedom to demonstrate.
This law is the only alternative left to the citizens to show their discontent to the government, which always brings a cost, which is willing to suffer, so long as to express discontent.
The Right of Association
Article 19 No. 15 CPR involves two aspects:
- Freedom of association, which is a freedom
- The right of association, which is an area set by law.
1. Freedom of Association (as a Negative Liberty)
As for freedom, one speaks of the right to associate in a negative sense is that nobody can be forced to belong to an association, and grace is that this provision of Article 19 N º 15 is also reinforced by provisions of other numerals, as in No. 16 on labor law, which prohibits the establishment of compulsory requirement to develop some kind of activity and at No. 19, which governs the right to organize, set just freedom of association, so that nobody can be compelled to join a union.
The explanation lies in a historical reality medieval, which forced people to take part in various trade associations and corporations. That is, to engage in certain activities should be determined to belong to the guild or corporation. The guild regulated so as to be played by the respective union activity, regulating the quality of work produced, regulated tariffs could be charged, knew of complaints against its members, and finally, was the school where they formed the respective profession and also took care of the risks from work activity. In some cases, it was mandatory to belong to them by affiliation (e.g., if I am the son of a blacksmith, I have to be a blacksmith), and in other cases, closely linked to the development of the activity (to get to learn and practice had to be admitted by the guild, assuming that there was a vacancy).
It happened that came Rosseau, thinker of modernity, important in contemporary political thought, which among other things developed the idea of popular sovereignty and the idea of general will. The importance is that Rosseau notes that to achieve a general willingness on the part of the sovereign people, this will not be interfered with by groups or intermediary bodies. That is, along with the thinking of popular sovereignty and will usually emerges the idea that the middle class are negative. (This statement is anomalous with respect to what happens in our doctrine on the basis of the institutions, while in Chile are valued intermediary bodies).
That’s why from the French Revolution (1789), which then causes the Declaration of the Rights of Man and Citizen, we take the ideals of Rousseau, enshrines the principle that nobody may be compelled to belong to an association.
This planet in different problems in Chile ámbitos.Ej. is a complex area of ethical control of the professions, since normally the way to manage professional ethics, is given through trade associations or professional bodies. If I do voluntarily participaciion in these schools, the question is how to control school achievement that these people who are practicing who are not affiliated?, the solution reached is unsatisfactory, The Constitution in 19 No. 16 tried to solve the problem, saying that those collegiate governing their professional conduct by the respective schools and what are not affiliated with a college, are controlled by special courts to be created.
The question is, assuming that the law create special courts for control of professional ethics, it is assumed that the courts apply the law and professional ethics court however, ethical rules should apply where the state does not can attribute the creation of ethical standards, and we would be facing a totalitarian state. As if state courts to implement the ethics, the question is what are they going to implement, since grace is that they know to apply ethics, which the courts do not know.
2. right of association: we speak of freedom of association, because freedom of association as a mere possibility of coordinating behavior with other individuals, requires no further legal or constitutional protection because they can be distinguished from what they could do isolated individuals. For example, if a Ping Pong club, where members do not seek any other legal form they are all members of a club, in fact: if you buy a Ping Pong table, purchase it with the legal form of community, so Thus, the figure is not creating something different from the figure that typically occurs when two or more individuals take action using the normal rules of law.
It is important to the association as stated, beyond individual liberty when it leads to an activity legally separate from its members individually considered. That’s why the right of association aims to ensure individuals, the possibility of a legally effective coordination of behavior. For this, the law contemplates the figure of the legal personality granted to collective entities.
If you see the art. 19 No. 15 on the right of association without prior permission, outside the legal sphere that is not nothing but manifestation of the principle of general freedom.
However, what matters is that partnerships have legal personality, must be established under the law. This point is relevant because, if read superficially, the possibility of access to legal personality is completely surrendered to the legal regulation. However, the law can not remove the substance to be associated.
As the substance of subsection 2 of 19 No. 15 is that there must be some form of legal regulation, which allows me to access, under a legally useful configuration to a form of legal personality.
Just the correct interpretation of paragraph 2, of No. 15 in the light of No. 16 is that the law is absolute freedom to regulate as you want the right of access to legal personality. Should generally have some regulation that allows people access to a legal personality and legal personality that have useful content, or have a property and legal powers of action different from that of its partners (ask at trial: sense the right of association.).
Importantly, the Constitution contains a general limit for all types of association, which is in 19 No. 15 paragraph 4: contrary to morality, public order and national security.
The important thing is that this prohibition applies to the case of associations that have legal personality, as well as those associations that do not have legal personality, therefore, the association has no legal personality, is irrelevant for useful purposes , in legal terms, but it is relevant for assessing illicit objectives that may have a de facto association. Put another way, the associations are constitutionally relevant fact, only in the sense that you can pursue if they seek illicit purposes, hence the foundation of the criminal conspiracy, which is that no penalties to the individuals for the crime committed, but to organize to commit a crime, which obviously needs no legal personality.
April 28
Constitutional protections of property
1. Brief History
Constitutions originally contemplated only very few provisions relating to property. They consisted of a provision that protected the property under the law, which prohibited a person were private property if it was not because of interest or the public interest and with compensation, where the standard of compensation varied constitution constitution.
This eventually faced a problem which is that the property could be regulated and protected by law. As, from the 2nd half of the s. Begin to appear XIX of socialist parties, they see that can create changes in the regulation of property without the need to expropriate, and thereby achieve the changes they deemed necessary for their political agendas. For example, a law that limits how much you can charge for leasing, that certain duties were imposed or not to build in a field, to establish a duty to allow someone to occupy a house that a person was unemployed, and so on.
So, this problem will then pose a constitutional problem, the idea that the legal regulation of property can empty it of content, ie, regulate, up to a vanishing figure of the property.
In parallel, it also raises another problem: in the society of s. XX, no goods to become almost more important than traditional credit rights and tangible property on which was structured civil law, which originally is a right of landowners. The special status of land ownership accounts for this.
With the development of the economy, in the s. XX are much more important in a first stage movable, then the rights, under different names: currently we are at a stage where they are very important intangible assets. Eg owning a brand.
This implies that the individual’s position in respect of such property, which is calledpropietorial position, it becomes very relevant. It says “propietorial position” in the sense that the notion of ownership, now is not unitary.
This historical development leads in the constitutional level, to several things:
1. In the classical idea of property protection against expropriation.
2. The formula invented the constitutional right to protect property against legislative activity (depletion).
3. The way it gives constitutional protection to these new hypotheses of property that are not the traditional forms of domination imposed on goods.
2. Current regulation
If we talk of property in general, we found a name that is the whole issue of public domain, which must be cleared.
The public domain really has little to do with property or with the domain itself. Just share the name. In general, when speaking in the public domain, one should be placed in categories closer to public powers to property rights. This can be seen through two examples:
– 19 No. 24: to examine the state monopoly over the mines, the Constitution uses the expression domain, but then the attributes on this domain pointing them away from the notion of domain as property. Because the domain and property refers to the attributes of use, enjoyment and disposition: This article refers to a domain uncommon because there is no need for the provision of state dominance over the mines.
– Domestic goods for public use, which have a status that even if the state exercised powers on you can not sell them as national property for public use, can disaffected and then sell, but sell them as national assets such public use .
Then: we have to distinguish different properties, which the Constitution refers without special technical precision of language.
Traditionally, we have designationsOn Genres owned, we might say that generally refers to legal forms of protection of the economic use of a hypothesis “x”, meaning that legitimates the economic exploitation of a particular hypothesis, which is a generic category. And we have the concept of domain is the property that is on tangible property, according to the definition domain of the Civil Code.
As can distinguish between:
– Property-domain
There is also a property protection of intangible property such as real rights other than the domain (This explains the dichotomy that has the CC when speaking for example, the domain and several other “species of property”) and includes property on personal rights. (Eg if I sell my car, I am entitled to receive the money, this right is a claim on the property you have) and possibly on other figures which are not real rights other than the domain, No credits may be considered intangible property (eg alcohols patent, assuming that the law defines and gives it its own entity licenses to sell alcohol. This means that with that patent, one may dispense alcohol. This was evident in the background creates a privilege of people who have been excluded. If you can transfer patent on it, which generates a unique economic advantage, generates a protection of intangible property).
The importance of this segmentation is that only in respect of the domain makes sense preach certain powers and attributes. That is, not all properties, but property-domain only leads to powers of use and enjoyment and disposition of property attributes such as its expansive nature (spreads to other rights of use while there are no other real rights over a well as those not intersected), perpetual, and so on.
If all property preach the powers and attributes, it would be unusual, as such we should speak of the use, enjoyment and disposition of a claim, which makes no sense.
In 19 No. 24, it is clear that the Constitution is not art in the use of their language, for example when the Charter speaks of “domain” on their mining concession holder (which is a real right of use).
3. Property Protection
The constitutional protection of property basically includes 3 Arts.
· 19 No. 23
· 19 No. 24
· 19 No. 25, except the first section.
3.1. Right of access to property ( “freedom” to acquire all assets)
To understand the No. 23, one must understand the historical context, since this article what it says on the bottom line is that goods can be purchased there. This can only be understood in a historical moment when the state wanted to retain certain assets that could not be subject to domination by individuals.
Assets excluded from this provision are grouped in three categories:
· Assets that nature has made common to all men. Eg air, water, etc..
· Assets that must belong to the whole nation and a law declaring it so. Eg, squares, bridges, etc.
Homepage More declaring the Constitution. Eg mining property.
For all other goods mean one is on the legal position of power purchase, the State may not reserve.
Art. 19 N º 23 rightly dividing the word right, in the sense that it means “something capable of economic use and ownership equity.”
Subsection 2 of 19 No. 23: says that you can set special requirements or restrictions for reasons of national interest. Ex appropriation of fish that are res nullius, which are acquired through the purchase of way through the fishing occupation. But in Chile to buy fish you need a fishing permit, a requirement to purchase fish.
As for the 19 No. 24: the item 1 contains the general statement on broader protection to the property, which contains some redundancy in the idea that the property provides many types of property:
Property-domain, property rights, on credit, on other intangible assets, and so on. The redundancy is that the Constitution says “about all sorts of tangible and intangible assets.
We will follow a reverse order that is the Constitution, and we will agree to a historical order.
3.2. Property protection in the subjective sense (Art. 19 N º 24, paragraph 3).
There is talk of property protection in the subjective sense because it refers to the protection of property from one person can have in their heritage. It refers to the possibility that one or more specific individuals affected, more precisely operated property. This is summarized in the constitutional requirements of expropriation, according to which nobody can be deprived of his property, the property on which it rests, or any of its powers or essential attributes if not through expropriation that meets with the requirements prescribed by the Constitution itself ..
Expropriation to be constitutionally permissible requires:
1. Legal authorization. In the days of classic constitutionalism called for a special law for each expropriation. Today is also accepted that the law generally enable expropriations. Eg Act enables municipalities expropriations necessary to comply with the regulatory plan. The Constitution allows for expropriation as the legal authorization by special law and legal.
2. Constitutional grounds.
This statutory power in Chile, can only occur for two reasons:
a) national interest is difficult to define a cause. Example: expropriation as a museum to preserve the home of a historical hero or an important cultural figure.
b) Public utility, causing more simple as just the expropriation based on the need for the corresponding good order for a public use.
3. Then he gives a measure of expropriation, which is an administrative act, usually a decree of the MOP, municipalities, etc..
4. Moreover, the expropriation must include compensation for legal legitimacy, which is a payment of compensation for expropriation. Very important is the standard compensation in Chile, which is based on actual property damage caused. That is:
-Property damage: no other damage, as the moral.
“Indeed caused: we are not against an unlawful action, which involves much higher compensation for the damage. Here the act is lawful, and therefore, the constitutional standard only points to the integrity of heritage, namely that this is not impoverished. Thus it excludes the idea of repairing the damage typical of the emerging tort or tort liability.
5. The compensation itself is subject to a guarantee scheme, the product of past experiences.
a. You must pay in cash and cash, in the absence of agreement.
b. In any case, you must pay before taking possession of the good material, just to avoid the state to take possession and dilate the payment of compensation.
c. Regarding the amount may also be agreed on. If there is no agreement, you can go to trial on the amount of the appraised property damage actually caused by the administration (through a technical process). If the person is not satisfied with the amount, has an action to claim the amount or value of compensation and this is determined by the court. It may be fixed in the amount of interim compensation claim case, which must be paid before taking possession of material, then the trial proceed. If the judge in the final sentence says you have to pay less, the person must return money.
6. There is a complaints procedure for the legality of the expropriation: depending on what the customer wants, both actions can be raised together, one in the other grant. So if the customer does not want to be expropriated, brought a claim of illegality, and if not accepted, in an action for allowance for the amount claimed. Otherwise the action brought only claim for the amount of compensation.
3. 3 Protect the property in the objective sense
This protection takes place against the possibility of voiding of the property, regardless of whether a particular person concerned. We encounter three basic elements of property protection in the objective sense:
1. Legal reserve: 19 N º 24 paragraph 2: only the law can determine how to acquire, use, enjoy and dispose of the property. The action of the law against statutory authority, as to its limitation, is a subject variable
2. Limits or restrictions on the property: to establish this must be done under the social function, which our Constitution has the distinction of not being an open standard, since it covers only 5 items: requirements for health and public utility preservation of the environment, national security, and general interests of the nation. So if you want to set limits on the property, they necessarily must be linked to these defining criteria of social function of property.
3. Protection of the gist: Even if I operate by law, and even if I am acting in the field of social function of property, I can not regulate property so that it be emptied, it becomes unrecognizable. The idea behind the protection of the substance (19 No. 26), starts from the premise that when the Constitution provides for certain figures and particularly certain legal institutions such as dominance, it does from a recognition that these institutes have content, and that is pre-constitutional, or not created by the Constitution, but pre-exist in the legal system. Ie domain law, inheritance rights, the right to marry. A law could not regulate the domain so completely deprive the individual of the right to use, enjoyment and disposition, since the domain is defined as the right to use, enjoy and dispose of tangible property. That is, the regulatory domain is made can not be made unrecognizable domain
The impropriety of the Constitution is to put everything on the 19 N º 24 to protect the 19 N º 26, being that the substance is identifiable only in respect of the domain: the ownership of other property ownership is reduced and the content assets (but not to a particular “form” regulatory).
These 3 elements I can evaluate even when there is no subject affected, so called protection in the objective sense of ownership.