- In this edition we will focus on the regulation of the due process of law in the Proposal presented by the Constituent Convention (CC) to “strengthen the guarantee of equality before the law in the exercise of rights”.
A bit of history: the regulation of due process of law in the current Constitution
The due process of law consists of the set of principles and institutions that aim to guarantee equality before the law and protection in the exercise of people’s rights.
The 1980 Constitution deliberately omitted to detail the content of the concept of due process of law, considering that specifying it could end up restricting this guarantee. Under this logic, it was determined to entrust the legislator to “always establish the guarantees of a rational and fair procedure and investigation“1.
This was stated in the minutes of the Ortúzar Commission, pointing out that the due process of law “is a concept which, firstly, is already incorporated into universal legal doctrine and, secondly, is a concept whose clarifications can evolve over time and be picked up and clarified by jurisprudence, so that a field is left open in this respect. “2.
Thus, the requirements of the “rational and fair” procedure have been determined by the legislator and developed by national doctrine and jurisprudence. It has been said that its fundamental content considers: (i) the notification and hearing of the affected party, (ii) the presentation, reception and examination of evidence, (iii) the ruling within a reasonable period of time, and (iv) the possibility of appealing the ruling before an equally impartial and objective higher instance3.
The Proposal: specification of constitutional due process guarantees
The draft new Constitution regulates the due process of law in more detail than the current Constitution.
• Right to due process of law
The constitutional Proposal maintains a recognition of the right of every person to a rational and fair trial in which the guarantees provided for in the Constitution are safeguarded, in addition to those established in law and international treaties. However, there is a shift in focus by emphasizing the right of individuals to the due process of law, rather than prescribing it as a direct obligation of the legislator.
The Proposal then provides for specific due process requirements4:
- That it be brought before a competent, independent, and impartial tribunal “previously established by law“. It is not specified prior to when the court must be established, unlike the current Constitution, which specifies that it must be established “prior to the perpetration of the act“. This lack of definition could undermine the guarantee not to be tried by special commissions.
- Provide for the right to be heard and tried on equal terms;
- Guarantee the right to be tried within a reasonable time.
- That it be decided by a well-founded judgment;
- To ensure the existence of an adequate and effective remedy.
Although these guarantees have been developed at the legislative and jurisprudential level, their express incorporation at the constitutional level is a novelty – with the exception of the proscription of special commissions. It is striking that no mention is made of the right to provide evidence and to have it duly examined.
On the other hand, the Proposal alludes to due process’ guarantees with strong judicial language that raises the question of whether they can also be asserted in non-judicial proceedings.
• The process should be adjusted and appropriate to the age or disability of the persons concerned.
Another new feature of the proposal is the guarantee of assistance and adjustments to procedures that are necessary and appropriate to the age or disability of the persons concerned.
• Specification of minimum safeguards in criminal proceedings
In criminal matters, the current Constitution is concerned with ensuring that the law cannot presume criminal liability as a matter of law, and that no crime can be punished by a penalty other than that established by law before it was committed, unless the new law is favorable to the person concerned. This is maintained in the Proposal.
For their part, the minimum guarantees of criminal procedure are currently regulated in the Code of Criminal Procedure, especially in Title I of Book One, entitled “Basic Principles”.
The Proposal, however, elevates several of the provisions of the Code of Criminal Procedure to the status of constitutional guarantees and defines a list of “minimum criminal procedural guarantees”, including the following:
- Investigative actions that deprive, restrict, or disrupt the exercise of rights must have prior judicial authorization;
- The right to know the background of the investigation, subject to the exceptions set out in the law;
- Presumption of innocence until a final conviction.
- Freedom is the general rule, and precautionary measures are exceptional, temporary, and proportional. The law shall regulate their procedure and requirements.
- “Ne bis in idem”: The right not to be subjected to a new procedure, investigation, or criminal prosecution for the same act for which there is a conviction, acquittal or final dismissal by an enforceable judgement;
- Exceptionality of detention or internment of juveniles, which in any case ought to be for the shortest appropriate period of time.
Constitutional injunction and due process
The current Constitution does not formally contemplate the possibility of filing a constitutional injunction for the violation of the due process of law but restricts such a possibility to violations of the guarantee not to be tried by special commissions.
For its part, the Proposal contemplates a constitutional injunction that would be admissible against any threat, disturbance, or deprivation “to the legitimate exercise of fundamental rights“. It is not clear which rights are being referred to, but if it is understood that the reference is limited to those guarantees provided for in the chapter entitled “Fundamental Rights“, due process guarantees would be left out, as they are found in the chapter on “Justice Systems“. This is an aspect that will have to be reviewed once the work of the Harmonization Commission has been completed.
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Footnotes
1 Political Constitution of the Republic, Article 19 N°3.
2 103rd Session of the Ortuzar Commission, 16 January 1975.
3 EVANS, Enrique (2004) p. 144, quoted by BUCHHEISTER, Axel and CANDIA, Gonzalo (2007) “Sociedad libre y debido proceso: una relación necesaria. Comentario de fallos de inadmisibilidad en el caso ‘Tocornal'”, Sentencias Destacadas 2007, Anuario de Doctrina y jurisprudencia (Santiago, Instituto Libertad y Desarrollo) p.211.
4 Paragraph 396 of the Draft.
