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(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and repealed through Law 18.903 published in the Diario Oficial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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