Due Process of Law: Rights, Procedures, and Judicial Error
**The Art of Due Process of Law**
Article 19, Number 3, subsections 4 and 5 of the Constitution guarantees the right of any person to appear before a court. Upon exercising the right of action, individuals are entitled to be tried by a tribunal established by law, within the timeframe stipulated by the Constitution. This process must be legally conducted, rational, and just.
Key Elements of Due Process
- Right to prior action.
- Courts legally established to adjudicate cases. This is derived from CPR section 77.
A court can never be established by presidential decree.
Exceptions to Legally Established Courts
- Cases where the Constitution itself establishes the court (e.g., the Constitutional Court, the Electoral Court, Congress, and the Comptroller General of the Republic during account trials).
- Courts created within intermediate bodies of society (e.g., disciplinary courts of political parties or professional associations).
Timing of Court Establishment
The timing of a court’s establishment is crucial for it to properly exercise its jurisdiction. The 1925 Constitution lacked clarity on this matter. Article 12 stated that no one could be tried by special commissions but by a court designated by law and previously established. However, it did not specify “before what.”
Three interpretations emerged:
- The court should be established *before* the events to ensure impartiality.
- The court could be established *after* the events, provided it took cognizance before the trial began.
- The court could be established *after* the events and the opening of the trial but *before* sentencing. This interpretation, though offering fewer guarantees, was widely applied as it favored those in power.
The 1980 Constitution initially reproduced the ambiguous wording of Article 12 from the 1925 Constitution in Article 19, Number 3, subsection 4. This was not amended until the 2005 reform.
The Ortuzar Commission proposed that the court be established at least prior to the commencement of the trial. The Governing Board, however, retained the ambiguous wording of the 1925 Constitution.
The Supreme Court initially adhered to the doctrine that the court should be established before the fault. The Constitutional Court later adopted the interpretation that the tribunal must be established *before* the events.
Practical Implications
Under Patricio Aylwin’s government, “fulfilled laws” transferred human rights cases from military to ordinary courts. This was based on the third interpretation (allowing court changes as long as no decision had been made).
The assassination of Orlando Letelier, involving General Manuel Contreras and Brigadier Pedro Espinoza, challenged this law. They argued unconstitutionality based on the Constitutional Court’s interpretation of Article 19, Number 3, subsection 4. However, the Supreme Court rejected their appeal, adhering to the pre-failure thesis.
The 2005 Reform
To resolve the chaos, the 2005 reform explicitly stated that the court must be established *before* the events (Article 19, Number 3, subsection 4). A court not established by law or not established prior to the events is considered a “pseudo-tribunal” or “special commission,” lacking impartiality and independence.
Previous Legal Process
Article 19, Number 3, subsection 4 mandates a prior legal process, ensuring a reasonable opportunity for individuals to defend themselves, assert their claims, and refute charges. This applies not only when someone is convicted without any process but also when a process is established but lacks proper notification to the affected party.
Legally Conducted Process
A legally conducted process must adhere to procedures established by law. The constitutionality of procedures established through various means, such as Supreme Court resolutions (Auto Acordados) and procedures for protection and judicial error actions, has been challenged. The Supreme Court, based on Article 82 of the Constitution, has attempted to constitutionalize procedures established via Auto Acordados, arguing that it helps ensure prompt and effective administration of justice. However, this has been criticized for violating the principles of constitutional supremacy, judicial review, and legality.
Fair and Rational Investigation and Procedures
A fair procedure provides equal opportunities for parties to enforce their claims. It must be reasonable, allowing parties to pursue their interests while respecting those of the opposing party. The Constitution delegates the task of establishing guarantees for a fair and rational procedure to the legislature.
Minimum Guarantees for a Fair and Rational Process
- Notice of the application.
- Notice period to respond.
- Bilateralism of the audience.
- Access to a lawyer.
- Ability to present evidence, defenses, and claims.
- Possibility of judicial review of decisions.
- Issuance of a decision within a reasonable timeframe.
Reasons for Legislative Determination of Guarantees
- The multiplicity of procedures necessitates tailored guarantees.
- Fear of not exhaustively listing all guarantees in the Constitution.
- Adding new guarantees would require constitutional amendments.
- Constitutional guarantees could lead to challenges against procedural laws.
The Constitution does address some guarantees in a dispersed manner, known as the constitutional bases of the process. These include:
- Article 19, Number 1: Prohibits illegitimate pressure, including torture.
- Article 19, Number 3, subsections 2 and 3: Guarantees the right to legal defense, even for those who cannot afford it.
The constitutionality of provisions regarding duty lawyers has been questioned, as requiring them to work without pay may violate equality before the law and the principle of equal allocation of public burdens. In the military sphere, the right to legal defense is recognized, except in administrative and disciplinary matters where a superior officer may represent the accused.
Right to Parole or Provisional Release
This is a constitutional guarantee allowing individuals arrested or in custody in connection with criminal proceedings to apply for temporary release while their ultimate fate in the process is decided. It is based on the principle that every person is innocent until proven guilty. The law determines the requirements for obtaining parole, and any offense is bailable if the requirements are met.
Individuals accused of terrorism were ineligible for parole until a 1991 constitutional reform. However, obtaining parole in such cases is difficult, requiring unanimous confirmation by a Court of Appeals panel composed solely of justices. Continuous monitoring of the released individual is also mandated.
Circumstances Where Parole is Not Appropriate
- When it may hinder the success of the investigation.
- When it endangers the safety of victims.
- When there is a risk to the safety of society.
Judicial Error
This institution applies when a judge makes a mistake in the trial of a person, but it only applies in criminal proceedings, not civil ones. It appears as a constitutional guarantee, allowing the affected party to seek compensation for moral and material damages. The action is brought against the state, represented by the State Defense Council.
Who Can Invoke Judicial Error?
- An individual who was initially processed and later definitively dismissed.
- An individual who was prosecuted (charged) and later acquitted at the end of the criminal proceedings.
- An individual who was convicted but later acquitted through an appeal.
The individual must demonstrate to the Supreme Court the existence of judicial error, showing that the dismissal was erroneous or arbitrary (in the first two hypotheses) or that the conviction was unjustifiably wrong or arbitrary.
Unjustifiably wrong means that the judge admitted the charge despite a lack of evidence reasonably leading to indictment or conviction. Arbitrary means that the accusation was accepted or a conviction was issued despite evidence supporting acquittal, indicating bad faith or capricious action.