Action for Judicial Error Before the Supreme Court: Procedure & Principles
Action for Judicial Error Before the Supreme Court
Introduction
This action addresses judicial error before the Supreme Court, distinct from an action for damages. It follows a simple procedure established not by the CPR, but by unanimous agreement. The procedures, based on legal articles, are outlined below.
Legal Basis
The Supreme Court’s authority rests on Article 82 of the CPR, granting financial supervision over courts. This power ensures prompt and complete administration of justice. Establishing a procedure for action in error fulfills this mandate, addressing the legislature’s omission. However, Article 7 of the CPR, Inc. 2, states: “Not even extraordinary circumstances justify authority beyond legally established rights.” Thus, legal protection of individual rights takes precedence over legality or constitutional supremacy.
Procedure
Victims of unreasonable or arbitrary convictions have six months to petition the Supreme Court for dismissal or acquittal, providing all relevant record evidence. The Supreme Court contacts the Treasury, which has 20 days to respond. Regardless of the response, the Court requests a fiscal court report, submitting it to the prosecutor. The Supreme Court then resolves the case, considering only relevant information. After obtaining a declaration of error, the applicant can sue the tax lawyer or judge for damages under a summary procedure.
Article 19 No. 3 and the Accusatorial System
Since the 1997 constitutional reform, a new accusatorial criminal procedure system replaced the old inquisitorial one. Criminal investigations are now conducted by an officer other than the judge. Previously, the judge investigated, accused, and judged. Now, the prosecution and its prosecutors handle investigations, ensuring victim protection. The judge’s role is now solely judicial.
The CPR establishes fair and rational judicial proceedings and investigations. Art. 83, Inc. 3, ensures justice and rationality in investigations. The prosecutor requires court authorization before taking actions against the accused or third parties affecting fundamental rights. Police actions like raids and arrests require prior fiscal court approval.
The justice and rationality mandated by the CPR apply not only to judicial processes but also to any trial involving prosecution, based on Art. 19 No. 3, Inc. 2: “the requirement of due process and justice and rationality applies to any process involving prosecution of a person.”
Principle of Non-Retroactivity of Criminal Law
Article 19 No. 3, Inc. 2 states: “No one can be convicted of a fact if not by law established prior to it.” This principle, also enshrined in international treaties and Art. 18 C. Criminal, applies to any law with punitive measures (civil, tax, criminal). Immoral acts not punishable at the time of commission remain unpunished. New laws apply only prospectively.
The Pinochet Case
The Pinochet case in England, based on Judge Garzón’s order, involved torture charges. Two treaties were relevant: the 1984 international treaty on preventing and repressing torture and the 1986 OAS treaty on the same subject. These treaties promote torture’s punishment and establish universal jurisdiction. The London Court ruled against applying the torture charges retroactively, as the alleged acts occurred in 1981.
Exception: Punitive laws can be applied retroactively only if more lenient than the previous law.
Constitutional Guarantees of Public Office: Equal Distribution
Equal distribution implies applying the law equally to all in the same situation. True equality requires a foundation of reason, justice, common good, and proportionality. Non-compliant taxes are unconstitutional and can be challenged through appeals of unconstitutionality or unenforceability.
When is a Criminal Statute More Benign?
According to Section 18 C. Criminal, a statute is more benign when it reduces the original sentence or removes a sentence altogether. This benefits the accused. The more benign law supersedes previous stricter laws, even if the offense occurred under the stricter law. If a more benign law is enacted during the trial, it applies. The sentencing judge must amend rulings to reflect a more benign law enacted after the ruling. Civil effects remain unchanged.
Ultra-Activity of the More Benign Penal Law
A repealed law can still apply if it was the most benign law in effect at the time of the offense.
Blank Criminal Law and Article 19 No. 3
Article 19 No. 3 relates to blank criminal law. The principle of legal reserve in criminal matters states that both crime and punishment are defined by law (nullum crimen nulla poena sine legem). This principle derives from the Constitution’s final Inc. 6, final Inc. 7, and 19 Inc. No. 3. Blank criminal law, referenced in subsection 19 No. 3 final, partially describes criminal behavior, leaving the complete description to administrative regulation. While generally unconstitutional, the TC ruled that blank criminal law is constitutional if the administrative regulation only completes secondary aspects of the criminal conduct, leaving the substance defined by law.
The TC reasoned that the Ortúzar Commission and the Council of State proposed fully describing criminal conduct in law. However, the Governing Board removed “totally” and kept “expressly” in the final draft, indicating an intention to allow administrative regulations to complete less substantial aspects of the offense. Blank criminal law becomes effective upon issuance of the completing administrative regulation.