lack of service attributable to the Public Ministry The statement transcribed below (I am aware that it is almost a year, and I am also aware that not secured) defines the system of State responsibility for acts attributable to the Public Prosecutor.
The solution is self-explanatory. However, it is worth drawing attention to two points.
1. The liability regime is heir to the prevailing around judicial error.
The words of the law are virtually the same as using the Constitution in Art. 19 No. 7, letter i). While the compensable judicial error is defined in terms of a court decision unreasonably erroneous or arbitrary, the Attorney General undertakes the responsibility of the State when incurred unreasonably erroneous or arbitrary conduct.
Undoubtedly there will be variation between land law and other. The Supreme Court regarding the prosecution used the same firm hand that has dominated judicial error are the judges of letters and the Courts of Appeals who resolve the matter, and there is a risk of a wide range of solutions the Supreme Court may order, but probably not rigorously monitored on appeal.
But, considering the necessary coherence of law is salutary to note that in this decision, the Court of Concepcion has recorded the orientation of ancient jurisprudence. The rule of liability must "be interpreted strictly in the sense of ensuring the minimum of action required to comply with the objectives and purposes" committed to public prosecutors (cons. 8).
Therefore, "the unjustified error allude to a blunder for which he did not attend a just cause and, therefore, has been caused without any bad faith." And correspondingly, the arbitrariness will be understood as "a production-oriented behavior of an injury, ie, there is a precise determination of the age-fiscal agent" in order to exercise the function of persecution apart from both the minimum basis of logic and rationality as their own purposes office, in order to cause unjust harm to the person or property of a citizen "(idem). We, similarly to what happens with judicial error, compared to a system subject to contest a
negligence, bordering on fraud.
2. Responsibility plays a much wider field than in the case of judicial error .
The terms used are sufficiently abstract law to extend the application of the liability to cases outside the affected interests of the accused.
Here are the direct heirs of the victim of a criminal offense who complain about the disruption of the repressive apparatus of the state, in this case-think-he was unable to stop in time the realization of a death threat.
Ultimately, the responsibility of the state is invoked as in ordinary cases of poor performance, late or nonexistent public services either. The plaintiffs assume, and the Court also, that the case can be tried as if it were the establishment of a lack of service attributable to the Attorney General. Is in some ways the realization of the idea of \u200b\u200b"lack of judicial services" that the doctrine spoke a few decades ago (E. Soto K., "Responsibility of States for the judicial activity. Notes for a unitary approach to tort liability State ", Rev. Chilena Law 10, 1983, p. 45 s., available online through the University of La Rioja
).
course, in a system of liability based on negligence, the possibilities of enforcement of liability are less dependent on user expectations on the performance of a state agency that the margen de maniobra que el ordenamiento reconoce a ese organismo para el cumplimiento de ciertas misiones. Tratándose de la persecución del delito, este margen de maniobra es bastante amplio.
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Corte de Apelaciones de Concepción
Concepción, 27 de mayo de 2009.-
Visto:
En el motivo séptimo letra a) se intercala entre las palabras "de" y "cónyuge" el pronombre posesivo "su"; en el raciocinio noveno en el apartado tercero que se inicia con la frase "El 14/7/2004" se agrega luego de la palabra "amenazó" lo siguiente "de muerte, diciéndole que le quedaba una semana de vida"; se eliminan los raciocinios duodécimo y décimo third, is reproduced in the rest and there is also this:
1) That the final sentence against car has won on appeal counsel for the plaintiffs on the grounds that it does not conform to the merit of the process or the law. He says that is recognized by the ruling that the prosecution violated its legal obligation to investigate the crime that was reported by Ms. Fields and failed to comply with its obligation to protect the victim, an omission that resulted and had the effect that the complainant murdered by her husband ended. This obligation says, is established in Article 83 of the Constitution and reproduced by Articles 3, 6, 77 and 78 of the Code of Criminal Procedure. He claims that causation occurs in the case and that the damage suffered by the plaintiffs and whose compensation claim must be upheld.
2) That the other hand, the Treasury is attached to the appeal for having the decision made statements that are inconsistent with the merit of the process and are an insult to their hand: those of the points 12 º and 13 º in stating that the prosecutor had an obligation to pursue the complaint which was of characters in crime and that he acted wrongly or arbitrarily and unreasonably, away from law and reason deciding to abandon his duties. These arguments, says, are constituted an infringement of Article 160 of the Code of Civil Procedure and offensive to you. The complainant added was not derived by the Civil Court of Talcahuano and attended personally to make the complaint, then the public prosecution is not consistent with Article 5 of Law 19,640 and further that the Prosecutor has no power to directly provide detention one other measure of constraint against the aggressor. The victim, says, he was given the attention that the stable status of the Public Ministry. Ends requesting that the sentence is confirmed deleted paragraphs 12 and 13.
3) Any claim for damage to cars has been directed against of a State organ, as is the Attorney General, for the responsibilities that fits in a harmful outcome: death of Ana Maria Campos Garrido. Is attributed to the Public Prosecutor does not fulfill its legal and constitutional obligation to investigate the crime of threats reported by the deceased, not adopting any measures to protect it.
Summons and legal foundation of its application of Article 5 of Law No. 19,640, which states that "The State shall be liable for unreasonably erroneous or arbitrary conduct of the Public Ministry." On the petitions mentioned libel Articles 2314 and 2329 Civil Code, relating a delict or tort liability.
4) That the actor was required to prove that the harmful event would not have occurred without the action it describes as erroneous and unwarranted prosecutors.
Indeed, even the prosecutor who received the complaint would have entered and processed, the equally harmful event would have occurred. The First Civil Court of Talcahuano had already enacted measures to protect the victim in the case 468/04 Role of Domestic Violence. At present Dona Ana María Campos Garrido on 14/7/2004 to the court stating that her husband had received death threats and asking it "to police to officiate notified that they must meet above point No. compromise ", the Court agrees, dispatching the letter No. 1104 on 15/7/2004 to the Second Police Station. It has not been proven, that the Court send the Mrs. Fields to file a complaint for the crime of threats to the local prosecutor.
5) That, traditionally, to allocate liability is an essential requirement, the existence of a causal link. There is a causal link between an illegal act and a particular injury, if the first begets the second and this can not happen without that. In simple terms, the nexus or causal link is required as an essential element that can claim responsibility civil, refers to the fact harmful, ie, that the conduct to which in principle direct our criticism should be the generator and, therefore, cause damage, which also in principle, consider unfair.
6) That, however, the Hon. Supreme Court, has been varying line and case law and court, on 26/1/2004, said "That, however, causality is a matter of pure fact in its first aspect, the naturalistic-that is, understood as necessary condition of responsibility, but the attribution rules of wrongful damage (direct damage) contains elements and aspects of law. " "The first involves a relationship natural causation, which is expressed in a nexus of cause and effect, and second, that the injury attributed normatively to the fact "(Law Gazette No. 283, PG. 121).
Then, set the harm, in the case, we must establish if the cause appears retrospectively as objectively apt to provoke it.
has been identified by stakeholders that the prosecutor failed to act as expected or required by the regulations. What he regards as unjustified and wrong action. When conditions developed by normal human beings are established, a deviation from them is seen as exceptional and can be considered the cause of the damage.
7) That the Law Constitutional Public Ministry develops the principle of accountability of state bodies, contained in Articles 6 and 7 of the Constitution of the Republic in its Article 5 which states: "The State shall be responsible for the conduct unreasonably erroneous or arbitrary Ministry Public. "
State responsibility necessarily be linked to damage to an individual product of their application for their rights. But we know that the Attorney General can only take intrusive measures, as previously without the authorization of the supervising judge (Article 9 of the Criminal Procedure Code) except in cases of flagrante delicto.
That article 9 provides that "Any action of the procedure that deprives the accused or a person from exercising the rights the Constitution guarantees, what we restricted or disturbs, require prior judicial authorization."
8) That we know that the Public Ministry is an autonomous, autonomy plays in coordination with the principle of legality or prohibition of arbitrary and hence the responsibility. Accordingly, the liability regime of the Public Ministry is a limit to its constitutional autonomy of action and, simultaneously, an exception to it, all Once through the observance of the principle of responsibility of the courts may review the actions of the persecutor and even body such conduct will be prosecuted error value as unreasonable or arbitrary. However, judicial review of the activities of the Attorney General, to be an exception to the autonomy determines that she must be interpreted strictly in the sense of ensuring the minimum of action required to fulfill the goals and objectives mandated by the Charter Fundamental.
unjustified error allude to a mistake for which no assists and just cause, therefore, has been caused without any bad faith. Arbitrariness is a production-oriented behavior of an injury, ie, there is a precise determination of the age-fiscal agent "in order to exercise the function of persecution apart from both the minimum basis of logic and rationality as the proper purposes of the post, In order to cause unjust harm to the person or property of a citizen.
9) That all is said, is that the legislature recognizes the natural fact that in the course of a criminal investigation can make mistakes, this injunction to the normal functioning of body persecutor and autonomy, but At the same time, estimates that some errors can not be tolerated constitute grave breaches legal order.
Then, to generate the actions of Fiscal responsibility should be enacted or omitted actions that lack a minimum of logic and rationality in the context of records held by the investigation.
10) to analyze the performance of the Attorney General within the context of the events that the fact that the prosecutor failed to follow up the complaint of Mrs. Fields, an error can not be considered unreasonable. Indeed, the Prosecutor, had no record that the version of Mrs. Fields and by pointing out that it remained a cause for Domestic Violence in Civil Court on 1 of Talcahuano, where he had enacted a measure of protection, prohibiting your spouse to approach her (folio 93) found that the violation of this measure should know that court, giving no seriousness or gravity of the threats, and to start another cause.
11) That neither arbitrary we can estimate the performance of the Prosecutor, as they are not departed from its purpose, or it seems that his intention was to cause harm. And so, believing that the facts should continue hearing the First Civil Court of Talcahuano, sent the background as it appears on fs. 91. There may be a misinterpretation of the seriousness or dangerousness of the situation I was Mrs. Campos, but not arbitrary. Surely, he felt that the measures ordered by the court was sufficient.
Furthermore, after initiating the proceedings, the prosecutor could not impose the spouse of the victim or other restrictive measure perturbation of their constitutional rights, without prior approval of the Guarantee Judge.
12) That this way of interpreting the error incurred by the national persecutor was excusable.
contractual liability of Public Prosecutions is subjective in nature because of the service must attend.
For these arguments, legal citations and also taking account of the provisions in Articles 186 et seq Civil Procedure Code, it is confirmed, the decision of 14/8/2007, written to fs. 172 et seq.
not pay the costs to the appellant (actors) on the ground that has plausible reasons to win.
Register and refunded. Drafting
Minister Mrs. Sara Victoria Herrera Merino. Role
No. 332-2008.
Cruz Campos, Judith A. and others vs State of Chile
against the ruling was deducted knowledge of which appeal to the Supreme Court hangs in the file No. 4252-2009
neighbors 
