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:

In 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.

The evidentiary facts and principles of law that motivate this constitutional action are the following:

I. THE FACTS

1. 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.

2. 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.

3. 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.

4. The Supreme Court agreement was not unanimous, with serious and reasonable discrepancies from two judges, who express that such measures may lead to impunity.

II. PRINCIPLES OF LAW

In 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.

The 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.

The 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 Court.

Professor 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 Constitution.

What is the constitutional right threatened by the Supreme Court agreement?
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 conformed?

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.

The 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.

Then, 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.

The 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 the accused.

The 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.

B. Deprives family members of the disappeared of an inalienable right.

Article 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.

C. The alleged existence of the right to speedy trial.

Regarding this important concern, we must state as follows:

1. 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 Torres Silva.

In 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.

Now 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.

These 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.

Regarding 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 superficiality mentions:

The 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.

In 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.

The 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 and Torture.

III. CONCLUSION

1. 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 international treaties."

2. In regards to the facts, the court incurs in two imprudent affirmations:
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 investigation.
b) The evident injustice consists in by protecting one guarantee, others of greater relevance are violated.

3. 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;

All 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.

Considering 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).

THEREFORE, 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,

NOTIFY 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.

FIRST Moreover May Your Honor note that a simple photocopy of the text of the Supreme Court agreement of January 25, 2005 accompanies this writ.

SECOND 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 stay.
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 be irreversible.
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 quite concerned.

THIRD 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.

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