Constitutional Rights and Protection in Chile
Constitutional Rights
What are Human Rights and Their Characteristics?
Human rights are inherent to all human beings, regardless of nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We all possess the same human rights without discrimination. These rights are interrelated, interdependent, and indivisible.
Human rights are characterized by:
- Inherent: They originate from human nature and the recognition of the dignity of each person simply for being human.
- Universal: They are possessed by each and every human being by virtue of their humanity.
- Inalienable: They cannot be taken away as they are part of the essence of being human.
- Inviolable: They cannot and should not be violated. If violated, the state may be required to provide reparation or compensation for damages suffered.
Protection of Human Rights in Chile and the International Community
Human rights are protected in Chile through the Constitution, which establishes mechanisms to ensure their observance by the state and individuals. For example, habeas corpus is used to prevent violations of fundamental guarantees. The international community also protects human rights through treaties that require states to uphold them. International courts, such as the International Criminal Court, have been established to punish crimes against humanity, regardless of where they occur or who is responsible.
Human Rights and the State
Human rights are considered to be above the state because their respect and implementation are requirements for all states. States must adapt their legislation and actions to respect these rights. Failure to do so can lead to international condemnation, political isolation, and economic sanctions.
The Remedy of Amparo
What is Amparo?
Amparo is a constitutional action available to any person who is arrested, detained, or imprisoned in violation of the Constitution or law, or who suffers any deprivation, disruption, or threat to their right to personal liberty and security.
What is the Purpose of Amparo?
Amparo allows the affected individual to be brought before a judge to review the legality of their detention. If the detention is found to be illegal, the judge will order their immediate release or transfer to a competent judge. The overall goal is to restore the violated right and ensure adequate protection for the affected person.
Types of Amparo
There are two types of Amparo:
- Corrective: Seeks to rectify an arrest, detention, or imprisonment that violates the Constitution or law.
- Preventive: Seeks to prevent any disruption or threat to personal freedom and individual security.
Who Can File an Amparo Appeal?
Any natural person can file an appeal, either on their own behalf or on behalf of another person.
Is a Lawyer Required to File an Amparo Appeal?
No.
Where Should an Amparo Appeal Be Filed?
For corrective Amparo, the competent court is the Guarantee Judge or the judge where the issue arises. For preventive Amparo, the competent court is the Court of Appeals for the affected person’s domicile.
Are There Special Requirements for Filing an Amparo Appeal?
Amparo has no formal requirements for filing. The only requirement is that no other legal action is being pursued.
What is the Time Frame for Filing an Amparo Appeal?
There is no deadline for filing an Amparo appeal as long as the deprivation of liberty, threat, or disturbance persists.
Resource Protection
According to Article 20, individuals who suffer deprivation, disruption, or threat to the legitimate exercise of the rights and guarantees established in Article 19, numbers 1, 2, 3 (paragraph four), 4, 5, 6, 9 (final paragraph), 11, 12, 13, 15, 16 (with regard to freedom of work and the right to free choice and free contract as set out in paragraph four), 19, 21, 22, 23, 24, and 25, may appeal themselves or through someone else on their behalf to the Court of Appeals. The Court shall immediately take all necessary measures to restore the rule of law and ensure adequate protection for the affected person, without prejudice to any other rights they may enforce in the courts or relevant authority.
Unlawful or Arbitrary Act or Omission
Both illegality and arbitrariness are considered anti-juridical. Illegality is generally understood as a violation of a formal legal text, while arbitrariness is an absence of a rational basis, essentially a manifestation of the agent’s whim. In cases of illegal or arbitrary omission, there must be a legal obligation for the agent to act. Only then can a wrong be committed through inaction.
Chilean higher courts have stated that “an act is illegal when it is not covered by the rules that should govern it or when a court exercising exclusive authority acts improperly, contrary to the law.” Arbitrariness, on the other hand, “implies a lack of reasonableness in the act or omission, a lack of proportionality between means and ends, a lack of fit between the means employed and the aim to be achieved, or an absence of facts supporting an act.”
Deprivation, Disruption, or Threat to the Legitimate Exercise of a Right
Another element of Amparo is the denial, disruption, or threat to the exercise of a right. Deprivation means to take something away or to render something possessed unusable. Disruption means to disturb the order and harmony of things, to upset peace and tranquility. Threat must involve imminent danger, a serious and not illusory future harm that is current, precise, not vague, and with concrete consequences.
Rights Protected
According to Article 20, the following rights listed in Article 19 are protected by Amparo:
- The right to life and to physical and mental integrity.
- Equality before the law.
- The right to a competent tribunal.
- Respect and protection of privacy and honor of the person and their family.
- The inviolability of the home and all forms of private communication.
- Freedom of conscience, the expression of all beliefs, and the free exercise of all religions that are not contrary to morals, good customs, or public order.
- The right to live in an environment free of pollution. Whenever they are acts or omissions attributable to a perfectly individualized subject and are arbitrary and illegal.
- The right to choose the health system one wishes to join, whether state or private.
- Freedom of education.
- Freedom to express opinions and to inform without censorship.
- The right to assemble peacefully without permission and without arms.
- The right to associate without prior permission.
- Freedom to work and the right to free choice and free contract. […] In addition, any kind of work can be prohibited only if morality, security or public safety, or national interest demands it and a law so declares.
- The right to organize in the cases and manner prescribed by law. Trade union membership is voluntary.
- The right to develop any economic activity that is not contrary to morality, public order, or national security, respecting the legal rules that govern it.
- No arbitrary discrimination in the treatment given by the State and its bodies in economic matters.
- The freedom to acquire ownership of all goods, except those which nature has made common to all or that should belong to the entire Nation and are declared as such by law.
- The right of ownership in its various forms for all kinds of tangible or intangible goods.
- The freedom to create and disseminate the arts, and the right of the author over their literary and artistic creations of any kind, for the time stipulated by law, which shall not be less than the life of the author.
Procedure
In line with the nature of the appeal, the 1992 regulation establishes a summary procedure free of formalism to expedite the exercise of this action.
Competent Court
The Amparo action must be brought before the Court of Appeal in whose jurisdiction the arbitrary or unlawful act or omission causing the deprivation, disruption, or threat to the legitimate exercise of constitutional guarantees occurred.
Term
Initially, there was a 15-day limit to file an Amparo appeal before the Court of Appeal, starting from the implementation of the act or omission or its occurrence, depending on its nature, or from when it was heard of or known about. Currently, the limit has been increased to 30 days.
One of the biggest problems with the issue of timing relates to the possibility of appealing against permanent actions or those that occur over time.
- Case of permanent injury: The Court has stated that “the period begins to run when the activity ceases or the disorder is resolved.”
- Reiteration of consecutive events: Courts have indicated that the “time limit begins to run from the time the last of them was committed.”