Propuesta Constitucional

29. CONSTITUTIONAL ACTIONS IN THE DRAFT NEW CONSTITUTION (PART II – THE CONSTITUTIONAL INJUNCTION – “TUTELA ACTION”)

  • In this edition we will focus on the Constitutional injunction (“Tutela Action”) contemplated in the Proposed New Constitution. This action introduces important modifications with respect to the current constitutional injunction (“recurso de protección”), significantly broadening its scope of application.

The new action for the protection of fundamental rights

Leaving behind the current constitutional injunction (“recurso de protección“), the Constituent Convention proposes the constitutional consecration of an “action for the protection of fundamental rights“, which, beyond the renaming, includes a series of relevant substantive and procedural modifications:

Any person who, as a result of an act or omission, suffers a threat, disturbance or deprivation in the lawful exercise of his fundamental rights, may bring an action, either by himself or on his behalf, before the court of first instance determined by law, which shall immediately take whatever steps it deems necessary to re-establish the rule of law. This action may be brought as long as the infringement persists. The action shall be processed summarily and in preference to any other case before the court.

How does the Tutela action differ from the constitutional injunction already provided for in the current Constitution?

  • Expansion of the catalogue of rights protected by means of the action

Among the most important innovations introduced by the Proposal, we find the considerable broadening of its scope of application. The action may be exercised with respect to any “fundamental right“, without limitation, leaving behind the restrictive enumeration of rights that currently allow for the filing of a recourse of protection.

This is especially relevant considering the incorporation of new rights in the catalogue of the new Constitution, such as the right to housing, the right to the city and territory, the right to proper nutrition, among others, which, if the bill is finally approved, would be protected through this action. This will probably result in increased litigation and will place a budgetary burden on the State.

In addition, the Proposal incorporates the possibility of filing this action against administrative acts or resolutions that deprive or deny Chilean nationality.

  • The Tutela Action will proceed with respect to any action or omission that may infringe fundamental rights.

The Proposal suppresses the reference to an “arbitrary or illegal” act or omission, which is what the current recourse of protection requires. Therefore, the tutela action will apply in the case of any action or omission that involves a threat, disturbance or deprivation of fundamental rights.

This amendment will also broaden the scope of application of the tutela action, as it will be less strict in terms of requirements.

  • Procedural changes: court that will hear the action and appeal system

Perhaps one of the changes that has generated most debate is the modification of the court that will hear the Tutela Action. The proposal removes its knowledge from the Courts of Appeals -where it is currently filed-, and entrusts it to the courts of first instance, which will be responsible for hearing and resolving the referred action.

Regarding the procedure, the Proposal indicates that the tutela action will be processed “summarily and in preference to any other cause“, without giving further details.

An appeal may be filed before the respective Court of Appeals against the judgment rendered by the court of first instance. Exceptionally, this appeal may be heard by the Supreme Court only “if there are contradictory interpretations of the subject matter of the action in two or more final judgments rendered by the courts of the National Justice System,” thus relegating this court to asecondary role.

A series of remarks have been made in connection to these changes:

  • While handing over the knowledge to the first instance courts favors the principle of the proximity of the court, there is concern regarding the fact that it will not provide the rapid and timely solution required for the protection of fundamental rights, given the well-known overload of the courts of first instance. In addition, this will have repercussions on the other matters that come under the jurisdiction of these courts that will be postponed, extending proceedings that are already lengthy.
  • In addition, removing these matters from the jurisdiction of the Courts of Appeals will naturally result in greater jurisprudential dispersion. At the same time, it has been pointed out that the Courts of Appeals, which for more than 40 years have been responsible for hearing these matters, have accumulated an important tradition and jurisprudence.
  • Express establishment of new limits and exceptions

The draft of the new Constitution innovates in another aspect, by expressly incorporating a limit to the exercise of this precautionary action, which will only be applicable when the affected person has no other action, recourse or procedural mean to protect his right, with the exception of those cases in which, due to their urgency and seriousness, may cause a serious imminent or irreparable damage to the individual. Therefore, the new text directly addresses the issue of the appropriate remedy, which has been debated on several occasions in our higher courts of justice.

  • Opportunity for its filing

Although the current Constitution does not establish a specific time limit for the filing of the recourse of protection, the regulations on the matter established that it must be presented before the competent court “within a time limit of thirty calendar days from the execution of the act or the occurrence of the omission or, depending on the nature of these, from the time that news or certain knowledge of them has been obtained“; this regulation has been focus of various debates in the doctrine.

On this matter, the draft of the new Constitution establishes that an action for the protection of fundamental rights may be filed “for as long as the infringement persists“.

What about the economic amparo recourse?

Although the economic amparo recourse is usually studied as a constitutional action, it is not contemplated in our Fundamental Charter, but in Law No. 18.971, of the Ministry of Economy, Development and Reconstruction. In this sense, the fact that this action is not part of the current Proposal cannot be understood as an innovation with respect to the current Constitution, nor as an intention to suppress it.

However, the way in which such action is regulated in the law1, makes its survival under the New Constitution uncertain. This considering that the Proposal conceives the State undertaking a more active role in the economy, which will have public initiative in the economic activity and will be able to develop entrepreneurial activities.

In any case, the violation of the freedom to undertake and develop economic activities may be protected by means of the Tutela Action.

Footnotes

1 The law refers to the articles of the current Constitution, establishing the applicability of the recourse for infringements of Article 19, number 21 of the Constitution.

Contacts

Gonzalo Jiménez gjimenez@cariola.cl
Florencio Bernales fbernales@cariola.cl
Verónica Cuadra vcuadra@cariola.cl
Lorena Avendaño lavendano@cariola.cl
28. ACCIONES CONSTITUCIONALES EN EL PROYECTO DE NUEVA CONSTITUCIÓN (PARTE I)
33. LAS NORMAS TRANSITORIAS EN LA PROPUESTA DE NUEVA CONSTITUCIÓN

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