(12th Civil Court of Justice)


SYLVIA MORALES GANA, Attorney General for Santiago, on behalf of the defendant, in complaint entitled "LETELIER LINQUE LEOPOLDO Y OTROS contra FISCO DE CHILE" (Leopoldo and Others against the State of Chile), file N0 5119-00, I hereby state:

That in time and form I come forth to dismiss, and reply to each and every one of the arguments set forth in the Answer, in the same order presented in that document: (pages 1-7 are omitted)


V. Regarding the legality of the action.

The plaintiff founds the lack of legal standing on the following basis: 1) Illegitimacy of origin of the instrument and consequently of all its actions; 2) The act lacks legitimacy because the Military Junta violated its own legality by appropriating authority solely and exclusively pertaining to the Judicial Branch; 3) By means of law 18.994 the State granted the plaintiffs legal standing as exiles, and in so doing, acknowledged the damage caused them.

Regarding this point, we reiterate as stated in our Answer that the prohibition to re-enter the country was issued by competent authority, in exercise of authority conferred by regulations of that period of time and supported by the Decree Laws dictated during the years the events transpired.

That is, the administrative authority conformed to the legal order that existed during the time the action challenged here was taken.

These were administrative measures of the corresponding authority, which did not attribute powers of the Judicial Branch. It did not judge any crime, nor issue any conviction, but only employed its authority to prohibit certain individuals from re-entering the country.

The Complaint and the Answer sustain that in prohibiting these individuals from reentering the country, the Junta infringed upon their constitutional rights and gave itself jurisdictional authority proper and exclusive of the Judicial Branch.

In fact, through Decree Law 81, which was modified several times and repealed through Law 18.903 published in the Diario Oficial of January 19, 1990, administrative sanctions were taken, including those set forth in article 32, stating:

"Those who have left the country by means of political asylum, those who have left the country in violation of established regulations, those who have been expelled or compelled to leave the country, those whose prison sentences were commuted to exile, shall not reenter without authorization from the Interior Ministry, to which reentry must be requested through the respective Consulates."

"The Interior Ministry may deny the request for re-entry on the basis of reasons of State security."

The Interior Ministry’s denial to enter the country was not in the nature of conviction as punishment for a crime, but rather, an administrative measure dictated in conformity with existing law, and did not imply appropriation of jurisdictional authority of the Judicial Branch.

On this issue, we must point out that, in conformance with D.L. 128 of 1973, and article 80 of the Constitution of 1925, in force at that time, the Junta exercised Representative, Legislative, and Executive authority but not Judicial authority, as expressly stated: "The Judicial Branch shall exercise its attributes in the manner and with the independence set forth in the Constitution."

Also — without affecting the fact that the measures that prohibited reentry to the country constituted administrative measures and were not an appropriation of Judicial Branch authority — we must add that if Decree Law N.81 of 1973 had been contrary to the Constitution in effect at that time, it would have become a law with preeminence over the Constitution.

Decree Law 788, published in the Diario Oficial of December 4, 1974, provided that all laws that might be considered contrary to the Constitution, are to be considered laws that modify the Constitution.

The first article of the law stated: "Decree laws dictated to this date by the Junta, which may be contrary or contradictory or different to a provision of the Constitution shall be declared modifying regulations, whether expressly, or implicitly, partially or completely, of the corresponding precept of said Constitution."

Thus, if D.L. 81 had been contrary to the Constitution of 1925, it went on to become a constitutional regulation, and therefore it is judicially possible to sustain that measures adopted in application of this decree law could have been contrary to the Constitution.

In this way, the decrees that denied authorization to reenter the country have not infringed upon attribution that pertain to the Judicial Branch, as set forth in art. 80 of the Constitution of 1925, as, by means of these decrees, no crime was judged nor convictions issued, but only administrative measures were imposed. Therefore, these decrees are legally valid, as they were dictated in conformance with the existing judicial order.

It is also important to note that, in relation to the dismissal of the complaint, Decree Laws dictated by the Military Government as of the year 1973, just as laws that governed us in other periods of abnormality, had as objective the regulation of the State administrative activity during lapses of time when the country experienced de facto periods. Unless a later legislative action was dictated, once the institutional framework had been restored, decree laws were understood to be legitimate.

Decree Law 81 was expressly recognized through modifications made to the law and via the aforementioned Law 18.903 that repealed it.

On numerous occasions, our Courts of Justice have recognized the validity of Decree Laws, applying them in cases under their jurisdiction.

Therefore, regardless of the opinion as to the action challenged here, it is unquestionable that it conformed to the existing legal structure of the time.

The arguments set forth above are not in any way altered by the passage of Law 18.994, invoked in the Answer. What that law does is to include among its regulatory beneficiaries those persons affected by the prohibition to reenter the country. But this does not mean that the actions for which compensatory damages are demanded, are not entirely administrative — dictated in keeping with the legality in existence at the date they were dictated or came into effect — and are not judicial actions.

By means of that law, financial benefits were granted to exiles, among others — I do not know whether to this specific set of individuals — who had no right to it, as a law should have been dictated precisely for that purpose, to grant benefits for social reintegration.

Individuals party to the Complaint cannot attempt to extrapolate from that legislative action an obligation of the State to compensate them for damages.

THEREFORE, we pray that the Answer be dismissed on the grounds here set forth.


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