PRINCIPAL PETITION: Protective action;
FIRST MOREOVER: Document attached;
SECOND MOREOVER: Motion to Stay;
THIRD MOREOVER: Power of attorney.
Honorable Court of Appeals of Santiago
January 27, 2005
Lorena PIZARRO SIERRA, Viviana DIAZ CARO, Mireya GARCIA RAMIREZ,
GABRIELA RIVERA, in our capacity as members of the Board of
Directors of the Association of Relatives of the Disappeared,
domiciled at 1161 Ricardo Cumming Street, municipality of
Santiago, hereby state:
this action we file petition for injunction against the Supreme
Court, public incorporated entity, domiciled at Plaza Montt
Varas, Santiago, represented by its president Mr. Marcos LIBEDINSKY
TSCHORNE, for having agreed upon measures that infringe upon
rights set forth in article 19, clause 2 of the Constitution
of the Republic.
evidentiary facts and principles of law that motivate this
constitutional action are the following:
On January 25, 2005 majority vote of the Supreme Court agreed,
first, that judges who investigate criminal cases of human
rights violations must close their investigations within six
months, and second, the extraordinary mandates of judges exclusively
assigned to these cases must conclude.
The reasons the Supreme Court posed for reaching this agreement
are essentially two: a) the alleged existence of the right
to a speedy trial, and b) "an inefficiency of the courts"
as a consequence of assigning numerous judges exclusively
to human rights cases.
The majority vote was not uniform regarding the establishment
of a peremptory six month time limit to close the investigations.
Justice Morales disagreed with establishing a specific time
limit and Justices Oyarzun and Rodriguez Espoz did not share
all the criteria regarding the responsibility of judges in
prolonging criminal proceedings.
The Supreme Court agreement was not unanimous, with serious
and reasonable discrepancies from two judges, who express
that such measures may lead to impunity.
PRINCIPLES OF LAW
order to present a protective writ, article 20 of the Constitution
of the Republic requires that the act or omission injure
by deprivation, breach, or threat of the rights set forth
in this article.
nature of the constitutional action, as described by the Honorable
Supreme Court "is a judicial action of true effectiveness
for the necessary and adequate jurisdictional protection of
individual rights and guarantees subject to the protection
of this constitutional guarantee" (cfr. Order agreed by the
Supreme Court on the procedure regarding protective writs
for constitutional guarantees, Published in the Diario Oficial
of June 27, 1992), it is properly exercised against the respective
authority, even as a cautionary measure, but in this case
due to the injury inferred by the majority vote of the
Justices of the Honorable Supreme Court that threatens and
places in risk the rights guaranteed by the Constitution,
referred to previously.
threat to which article 20 of the Constitution refers must
be understood in its natural and obvious meaning. The term
"threat" implies the idea of imminent danger or foreboding
future (thus it is defined by VERDUGO, Mario; NOGUEIRA, Humberto;
PFFEFER, Emilio, in "Derecho Constitucional", p. 335, Tomo
I, Editorial Juridica de Chile, 1994). Jurisprudence has understood
that "for the threat to legitimate exercise of rights protected
by article 20 of the Constitution to be sufficient to warrant
a protective writ, it must be serious and not imaginary, current,
precise and not vague, and concrete in its effects." (Supreme
Court, January 2, 1988, in Revista de Derecho y Jurisprudencia,
Tomo 85, seccion 5 p. 307). Each and every one of these
presumptions is present in the agreement issued by the High
EDUARDO SOTO KLOSS recognizes the propriety of the constitutional
recourse (art. 20), against an action of the Judicial Branch
that is arbitrary (infringes the Constitution) or illegal.
The action (or omission) must have caused a deprivation, breach,
or threat of legitimate exercise of certain rights and guarantees
set forth or ensured for all persons by article 19 of the
is the constitutional right threatened by the Supreme Court
It is equality before the law, as guaranteed in article 19,
clause 2 of the Constitution.
How is the threat to this right of equality before the law
A. The Supreme Court established a judicial period for
closing criminal cases, but only for criminal cases involving
what the agreement calls "violations to human rights."
Precisely, in this case the Supreme Court has created a six
months time limit for judges to close the investigations.
idea that judges create law was repulsive for the jurist Andres
Bello. In his view, a "judge was a slave to law," which means
a judge cannot create time limits. This authority is solely
and exclusively of the legislator. On an exceptional basis,
the judge is allowed to create time limits but a regulation
must exist to permit it. In this specific case, no judicial
regulation exists that allows the Supreme Court to establish
a time limit for the investigative stage of criminal procedure.
investigations in criminal human rights violations proceedings
would be restricted to six months, when no such time limit
for closure is placed on other criminal cases. Clearly, this
is a discriminatory treatment that has no logical basis in
law. Rather, the decision derives from the mere desire to
close cases involving human rights violations in order to
return the judges to their habitual work.
agreement in question, allegedly derived from the authority
conferred article 79 of the Constitution and article 96 N4,
contains several clauses that seriously affect the rights
of the petitioners in proceedings underway in Courts of Law.
In fact, number 1 of whereas 11 of the agreement states: "regarding
the cases to which this resolution refers that are in the
investigative, both Special Investigative Judges or judges
as well as judges with competency in criminal matters must
declare their investigations closed within a maximum time
period of six months, counting from the date of this decision."
This represents an illegal intervention in proceedings, as
the Supreme Court does not have authority to establish any
kind of time limits in criminal proceedings. All the more
grievous considering that the discourse of the judiciary justifies
the measures as alleged respect for fundamental rights of
agreement is clearly illegal, as it infringes upon the stipulations
of article 7 of the Constitution and lacks force of law, as
it assumes greater authority than is provided by the Constitution
and law, as only the legislator can establish a procedure
by law. It is out of bounds of its authority for the Supreme
Court to establish a time limit not set forth by law.
Deprives family members of the disappeared of an inalienable
6, of law 19.123 that created the Corporation of Reparation
established the right to demand that the State seek family
members who are disappeared subsequent to detention. That
inalienable right is threatened by limiting the search to
six months and ending the mandate of special judges.
The alleged existence of the right to speedy trial.
this important concern, we must state as follows:
The Supreme Court never has been concerned with judicial expedience
for poor prisoners who fill Chilean jails and spend years
in preventive custody;
2. The agreement failed to acknowledge the existence of politically
motivated prisoners who have had cases open for more than
fourteen years, in preventive custody with no sentence.
3.The Supreme Court did not have a similar concern for proceedings
under the military courts, that to this day have cases open
since the years of the military regime, even with arrest warrants
that date from the time of the ad-hoc military prosecutor
other words, NEVER before has our Honorable Supreme Court
been concerned with the defendant right to a speedy trial.
The Criminal Procedural Reform is a reaction to international
questioning of Chile due to the existence of a high percentage
of prisoners who have not been sentenced. This questioning
was appropriated addressed to the Judicial Branch, which now
tells us it is concerned that the worst criminals in Chilean
history have a speedy trial.
we are told that those individuals who violated human rights
have the right to a speedy trial. One should ask oneself the
question: was the Honorable Court interested in the right
to a speedy trial when practically no criminal prosecution
existed of those who committed the crimes? The answer is NO.
Now that the crimes are about to be solved, the Court aims
to avoid it by hurrying the judges to prevent them from finishing
their work and return them to their habitual tasks.
circumstances impose an unequal treatment of victims before
the law that favors the individuals who committed the crimes.
The Honorable Court raises itself as representative of the
interests of the repressors, and that surely is discriminatory.
the "principle of speedy trial" or "trial without undue delays"
or "the right to be tried (and heard) within a reasonable
period of time" that Whereas eight incorrectly and with unacceptable
Honorable Supreme Court aspires for efficiency in the criminal
procedural system in cases of human rights violations. The
objective is completely legitimate and desirable, but as posed
here the objective lacks this legitimacy because it fails
to adhere to principles of the constitutional state. (Or,
as the Inter American Human Rights Court indicates, it results
in the exclusion of other basic guarantees of greater importance.)
We reach this conclusion as the quest for truth does not reside
only in the public interest, but also represents a threat
to all parties in criminal proceedings, not only the defendant
(HASSEMER Wienfried, "Criticas al derecho penal de hoy", 1998,
Ediciones de la Universidad Externado de Colombia, pp.79).
Precisely, in the search for truth the concept of procedural
efficiency posed by the Supreme Court, the procedural or
forensic truth or the lack thereof in this case, is a direct
threat against basic rights and guarantees of the victims.
In placing the priority on efficiency, victims are deprived
of their legitimate aspiration to justice (art. 8.1 of the
Pact of San Jose), understanding the victims as one of the
parties of criminal proceedings.
this sense, when we analyze the concept of truth in the criminal
proceeding from the perspective of constitutional rights,
we see that the limits of the search for material truth are
welcomed, not regrettable. (Hassemer Wienfried, p. 79) The
aim of the Honorable Supreme Court to accelerate human rights
cases in conformance with the constitutional provision of
article 19 N3 that "guarantees reasonable and fair procedure
and investigation" and international treaties Chile has
ratified that "Every person has the right for his case to
be heard within a reasonable period of time" is an understandable
protection for defendants. However, this intent becomes arbitrary
and illegal when the benefit is not extended to all criminal
cases that extend over long periods of time, or to pre-trial
incarceration that seem endless. For this reason, the ruling
of the high court is arbitrary, illegal, and unconstitutional,
as well, as it violates equality before the law enshrined
in article 19 N2 of the Constitution.
Supreme Court agreement also states that the excessive delay
in such cases is causing a permanent congestion and backlog
that negatively affects the judicial system. According to
the high court, these are sufficient grounds for establishing
a time period for closing cases now in investigative stage,
and subsequently dismissing them. The noted German Professor
of Law Claus Roxin (ROXIN, Claus, "Derecho Procesal Penal"
(Strafverfahrensrecht), p. 117, translated to Spanish by Gabriela
E. Cordoba and Daniel R. Pastor, revised by Julio B. Maier,
25th German edition, first Spanish reprinting, Editores del
Puerto s.r.l, Buenos Aires, 2000) stresses that "a procedural
obstacle that excessively prolongs a proceedings is sufficient
grounds for dismissing that case. However, cases in which
procedural delay can be attributed exclusively to negligence
of judicial officials cannot be subject to dismissal, as the
delay is the direct consequence of the judicial structure
itself." This analysis is completely applicable to the period
from 1973 to 1989, as it was impossible to sustain human rights
cases in the courts in a "reasonable and fair" manner." Thus,
it is misleading to trace the origin of human rights violation
cases to the dates the crimes were committed (1975-1976) because
the concrete conditions for justice were absent in those years.
Moreover, it is a well-known and notorious fact that whenever
a judge, in the correct exercise of his function, charged
defendants for violation of fundamental rights, this high
Court immediately disciplined those judges who simply fulfilled
their rightful duty. Victims thus were left absolutely defenseless,
as this high court recognized recently in relation to the
Report of the National Commission on Political Imprisonment
The ruling of the high court is illegal and arbitrary. It
infringes constitutional principles described above as well
as international law, which it maliciously declares to respect.
The ruling violates the interpretation clause set forth in
article 29 of the American Convention of Human Rights that
states: "No provision of this Convention may be interpreted
in order to a) permit a member State, group or individual
to suppress the exercise of rights and freedoms recognized
by the Convention, or restrict those rights in any way unforeseen
by this Convention; b) restrict the enjoyment and exercise
of any right or freedom that may be recognized in conformance
with laws of any State party to the Convention or in conformance
with any other treaty to which one of said States are party;
c) exclude other rights and guarantees that are inherent to
the human being or that derive from democratic, representative
government, and d) exclude or restrict the impact of the American
Declaration of Rights and Obligations of Man and other similar
In regards to the facts, the court incurs in two imprudent
a) It alleges that undue delay has occurred in criminal cases
concerning human rights violations, when the high court itself
failed to act during the years following the crimes under
b) The evident injustice consists in by protecting one guarantee,
others of greater relevance are violated.
The resolution of the Supreme Court affects the principle
of equality under the law. In endeavoring to protect a
procedural privilege of the defendants, it inflicts injury
upon the victims, who are also parties to criminal procedure
with a series of guarantees, among which is access to justice.
a) From the standpoint of the victim, the time period is illegally
limited for providing courts with evidence for accrediting
the crime under prosecution;
b) The possibility is weakened for determining the material
facts that are the source of injury as a fundamental right
of reparation for the victim;
c) Undue pressure is exerted upon the judge to close the investigation;
d) Discrepancy in procedural practice results, with no legal
basis for it, regarding all who are passive subjects of other
criminal cases under investigation for crimes of less magnitude
as far as injured judicial effects than the crimes that concern
the Supreme Court in its ruling;
the above is contrary to the spirit of the constitutional
guarantee of equality before the law, as set forth in article
19 N2 of the Constitution. It would establish a differential
system for authors and participants in the most serious crimes
contemplated by our judicial framework, and violate the principles
set forth in the Constitution and international treaties in
regards to human rights.
that the proposed system would interfere in the cases of more
than 356 disappeared persons and executed political prisoners,
the agreement incurs in a massive interference by the High
Court in judicial cases when the Constitution confers exclusive
responsibility to hear and judge cases to the judges assigned
to each case. The High Court Justices cannot abrogate or interfere
in cases or proceedings underway without violating article
73 of the Constitution. Actions it may take in this regard
are constitutionally null and void, as they exceed their competency
as set forth in article 7 of the Constitution. In addition,
as indicated previously, under our legal system "the authority
to modify procedure and establish time limits pertains to
the legislator." Such is the opinion in comparative law. As
states Professor Roxin, "only the legislator may make binding
decisions in the field of tension between exhaustion and expediency
of criminal procedure" (ROXIN, Claus, "Derecho Procesal Penal"
(Strafverfahrensrecht), p. 117, translated by Gabriela E.
Cordoba and Daniel R. Pastor, and revised by Julio B. Maier,
25 German edition, first Spanish printing, Editores del Puerto
s.r.l, Buenos Aires, 2000).
in light of the aforementioned and the provisions of article
20 of the Constitution of the Republic and the decision of
the Honorable Supreme Court on procedure for the protective
writ for constitutional guarantees and other provisions,
the confirmation of this petition for injunction against the
Honorable Supreme Court, represented by its president Mr.
Marcos LIBEDINSKY TSCHORNE, due to the agreement dictated
January 25, 2004, and declare the petition admissible, proceed
as corresponds, and upon report from petitioner, make known
the injunction, and set aside the agreement that orders the
closure of investigations within six months and conclude the
mandate of special judges and judges assigned exclusively
to human rights cases, in order to reestablish the reign of
law and ensure due protection of the plaintiffs.
Moreover May Your Honor note that a simple photocopy of
the text of the Supreme Court agreement of January 25, 2005
accompanies this writ.
Moreover We petition Your Honor to decree motion to stay,
with urgency, in order to prevent the threat to constitutional
rights from materializing, drawing from the grounds formed
by the following facts:
1. Important rights safeguarded by our Constitution are seriously
threatened and justify that the court accept our motion to
2. The right of equality before the law, as described previously,
is one of the most basic rights of all human beings. The importance
lies also in that the possible damage to this guarantee could
3. The nature and purpose of the motion to dismiss is CAUTELAR
(EDUARDO SOTO KLOSS, "El recurso de Proteccion", Editorial
Juridica de Chile, 1982), that is, it prevents the possibility
that damage be inflicted or in the case that the damage already
exists, it prevents it from expanding.
4. The danger to equality before the law is REAL, and we are
Moreover May Your Honor note that our attorney of record
is Mr. HUGO GUTIERREZ GALVEZ and power of attorney is shared
with law graduate ENRIQUE ALDUNATE ESQUIVEL, both of whom
are domiciled for these purposes at 63 Serrano Street, office
61, municipality of Santiago.