In one of his last rulings, the Constitutional Court against the Constitution of the Sanitary Code rule that allows the arrest of those who do not pay a fine imposed on a health summary (Role 1518, to October 21 , 2010).
is certainly well-intentioned failure, but for the reasons on which it is disappointing. If your understanding is complex, because hasty rests on an assumption: that the arrest is a penalty. This rating seems conceptually wrong and the error could have been avoided without much difficulty. The consequences of this classification appear to be serious for several aspects of public law.
I. Arrest as a
is true that the terminology will employ the legal text is ambiguous censored (there was less radical way to deal with the ambiguity). The rule provides:
Code Health, art. 169. If within the period prescribed in the preceding article, the offender has not paid the fine, will suffer, by way of substitution and pressure, one day in prison for each tenth of monthly tax unit that includes the fine.
To carry out this measure, the Director of the relevant Health Service or the Public Health Institute of Chile, where appropriate, request the Mayor or Governor concerned the help of the police, who shall without further delay the arrest of offender and their respective entry into the penal institution to which effect issuing the appropriate orders in accordance with general rules, accounting acted as the health authority ".
The mechanics of the text is quite simple: if the fined not pay the fine may be imprisoned until it does, from the amount on which he was deprived of liberty (valued in proportion to a monetary unit).
However, at least two signs seem out of place in a regulation like this: applies to fined one or more days of "imprisonment", which must face by way of "relief and urgency." The apparent archaism of regulation would seem excusable in the context of a rule is in general from the years 1930, even called a "statement" the administrative act that puts an end to summary health (art. 167 et seq.).
The Court considered not only excusable terminology, but that does not understand. Or want to read it in the most literal sense and less sensible as possible, "Article 169 ... automatically converted fine to imprisonment" (cons. 5 and 30), that is, means that after 5 days, the unpaid fine is replaced by a custodial sentence whose name, typical of other criminal penalties of imprisonment, is prison.
Sometimes judges remember the risk of nominalism (eg Constitutional Court, January 11, 2007, Docket No. 591) and are guided by the nature of institutions rather than by the words used by the legislature. "Prison is synonymous with imprisonment?, In other words, is deprivation of liberty is synonymous with deprivation of liberty?
The intensity of deprivation of liberty is always the same, regardless of how it is imposed. Preventive detention is not a penalty, but that is not a shame not physically do more or less severe than imprisonment. The same is true for the arrest, physically, for the sufferer, a day arrest should not hurt much as a day ... and probably also sentenced one day kidnapped, but better not Always follow the deprivation of freedom is represented as an evil, so that the material conditions of their application is not a criterion to discriminate between one institution and another.
The difference between them is reflected in the grounds of justification for each type of deprivation of liberty. Thus, the precautionary nature of custody (depending on the security of society or the success of the criminal investigation) is sufficient to justify it. In terms of urgency, also be justified, because it seeks to force an individual to comply with a legal obligation.
dissenting vote (cons. 30) explains in detail the consequences emerge from this conceptual distinction between one type and one of deprivation of liberty. Beyond its purpose divergent formal differences surrounding its adoption (the "prison" of the Health Code requires the administrative authority in an administrative proceeding and therefore subject to administrative remedies, with the possibility of being suspended) irresistibility is a note that makes a crucial difference between them. "Prison must be met by the victim, but may not do anything to avoid it. Unlike the above, in the rush, if it works, put an immediate end to the deprivation of liberty. " The pressure is always provisional: operates on the condition that the penalty has already paid the fine, but only when you are not paid, may weaken at any time just by paying.
what extent the arrest "replaces" the fine? Just as time served in custody serving a sentence of fertilizer, applied each day of arrest under the Health Code may be deducted for administrative sanction. As it is pecuniary (a fine), the discount required to carry out a monetization of freedom, according to a formula fixed by law. Indeed, this recovery may be questionable, but failure is not the slightest hint of a method abstract evaluation of this point, which suggests that the Court might be permissible in 0.1 UTM quantify some lose a day of fresh air. The "replacement" is not subrogation, nor is it temporary implementation as suggested by the failure, is something else, but it does not follow that the sacrifice represents not due to compliance with applicable sanction that ultimately (as a form of compensation).
There is a conceptual error in the assimilation of the urgency of the Health Code to criminal penalties. This error explains the immediate termination of the fault, but there are several other points in the sentence incurred questionable assertions.
II. The arrest and illegal force
A major argument of the sentence is the notion of illegal force : the arrest in this case would be unlawful coercion.
That is a very extensive interpretation of the term, traditionally, the idea of \u200b\u200billegal force is smaller, and realize the use he makes of it the Penal Code to refer torture (reference also shows the unlawful coercion as supplementary to the deprivation of liberty). Of course, not be ruled out that our beliefs as a political community and decide one day change deprivation of liberty per se unfair, unreasonable or illegal, but how about what we are? Above all, are the courts called upon to solemnize this change of belief?
Personal freedom is a precious value of man. Traditionally it has been a well protected right (as shown, for example, age of habeas corpus in Chile, compared with the extent of protection of other fundamental rights). However, in itself is not an untouchable value, and it is risky to infer from the Constitution a rule that would prevent passing it on to take all event.
So one of the most striking aspects of the sentence is the statement that "any deprivation of it, in the form of imprisonment, is the subject of exclusive judicial restraint" (cons. 31). Did judicial restraint? Shamelessly affirms the cons. 18: "... imprisonment can not be considered compliant with the Constitution, attended complained that the provision does not require the intervention of judicial authority that [the] decree ... then to determine, pursuant to the merit of a process, the common features of conduct, unlawfulness and guilt of the subject. " Whence derives this standard? In vain you search the Constitution itself. Some will see here a "breakthrough." Probably it is in several areas, but think clearly: is it a legal or a political breakthrough? The possible impact of the proclamation of a principle of this nature is enormous for the time being I think the difficulties can have on this alleged principle to dispose Prison in solitary confinement for unruly prisoners. No wonder the Constitution does not set, nothing prevents to be recognized in certain cases by the legislature ... not by the Constitutional Court.
Now it might be assumed that the pressure is, the way you planned, irrational and disproportionate. This is a crucial aspect of failure, but neither is very well addressed. The proportionality is not necessarily measured between crime and punishment (as the failure of the cons. 28), because the arrest is not a penalty. Instead, you should evaluate this proportionality between means and ends or, as the ruling: "between the restriction of the fundamental right to liberty and constitutionally valid objective that seeks to pursue" (cons 14, citing the roles 519 and 576). In this sense, it is incorrect to say that this constraint is unlimited (as in the construction. 20), quantitatively, the arrest is always proportional to the amount of the fine, and the limit is then determined precisely by the extent of it, not is infinite. Rather, they could set a standard that allowed apreciar si la libertad de alguien vale 0,1 UTM al día, pero ya se sabe que el Tribunal no entró en esa materia (que seguramente depende de consideraciones de oportunidad).
III. Garantías procedimentales del arresto
¿Hay un problema de debido proceso con esta regla?
Una preocupación que recorre toda la sentencia tiene que ver con la importancia de las formas en un caso como este.
El debido proceso ¿es exigible en las operaciones administrativas? Siempre llama la atención que se invoque la garantía del debido proceso para enfrentar problemas de derecho administrativo, pero poca veces se repara en que esa garantía está pensada para la jurisdicción, the process and the sentence, words, all of which lead back to the world court unequivocally. Due process is not an enforceable standard directly and without further action by the administration, notwithstanding that one purpose of legal rationality also order the administration to ensure that the decisions it takes (in general as the "judge and part ") are free from the objection of arbitrariness. Therefore, the Constitutional Court's case management only requires this standard where, as in the exercise of sanctioning powers, occupies a similar position to judge.
In a rather confusing argument, the Court accepts penalty administration that is subject to due process, to retract and then positing that due process prevents the administration to impose a constraint (cons. 24 and 25). If it were a new sentence, maybe they would understand the decision, demanding a new investigation or an extra toilet training or just interested in hearing prior to the imposition of the constraint. But by the nature of no such constraint and then the inevitable question is to determine how bilateral is required in these cases.
course in administrative procedures contradictoriness a principle prevails, but this does not exclude the inquisitiveness predominant in this class procedures. Do not forget, moreover, that the criminal proceedings had in Chile until not long ago a strong inquisitive nature, although improved, in itself did not break with the logic of due process. As once was the "detention", the deprivation of liberty unilaterally and a citizen is not in itself contrary to due process.
subsequent intervention interested in the administrative proceedings in this case, does not meet the requirement of due process? The dissenting opinion emphasized in several passages that at no time the requesting party invoked the possibility of suspending the execution of the measure of constraint. In fact, the contestability of the measure and its suspensibility are probably the main procedural safeguards. The requesting not requested the suspension of the fine or the urgency. But the majority opinion of the decision came to her defense, correcting the effect of procedural errors in their strategy.
IV. The administrative law Chilean authoritarianism
most sensitive Absence ruling is a sensible analysis of the traditional status of the administrative act. The ruling ignores the logic of Chilean administrative law, which is structured on the basis of the unilateral decision of the authority as a tool for action. In
Chilean tradition, the administrative act is an authoritative tool. The Basic Law on administrative procedures only served to confirm a long line of jurisprudence and doctrine that attributes to the administrative action against the outrageous characters coordination tools traditionally associated with private law. The attributes of an administrative act (says the Law) is a presumption of legality, and enforceability empire against its target, so you automatically authorize execution by the administrative authority, unless it had ordered their suspension. This means that, as vicar general interest, the administration is in a structural position that allows you to rise above individuals, to impose its decisions and even take them to execution, without prejudice to their right to contest the ruling assists in the venue that they deem appropriate.
Of course there are different models of administration. Outlining say Dicey on English administrative law is already outdated, but many believe that there is a possible model, other, less brutal than the one that has traditionally prevailed in Chile. However, legally (not politically), the question has nothing to do with what other models are available, but what is Chilean.
And the Constitution says almost nothing, because for her administration is largely a pre-existing data (that holds the Chief administration of state together with the governmental function - art. 24 -, the general administration whose bases are not even addressed by the Constitution but to surrender to law Constitutional Organization - art. 38). I'm not saying that the traditional theory of the administrative act be constitutional or anything, but it's not the Constitution who has defined the features of the Chilean administrative law and that no decision can only be understood as a range of legislators in the matter.
is why it is abnormal it may be disallowed without a whose value is the rule of law itself, which unequivocally decides on the mode of execution of an administrative act and that further guidance is consistent with the generally accepted theory in administrative law in Chile. Does an administrative act can not be executed by the same administration? The historical challenge of administrative law at this point has been legally recognized public powers to carry forward the implementation. That rule satisfying this requirement.
The security of the citizen in the administration, in the classic design that is still to our administrative law is in the review of administrative acts. Court, that always works review ex post (preventive control, such as the taking-over by the Comptroller, is a figure unmatched elsewhere.) Here the Court is given to other verbal excesses. Contends that the enforcement of administrative penalties "may be made only when they are final or final, as would materialize before any practical effect deprive a subsequent favorable ruling (cons. 8), an idea which later insists stating that "although the legal claim to prosper, the favorable ruling could eventually become entirely safe or devoid of real significance, to be consummated before and produced all the irreversible effects of imprisonment "(cons. 36). I confess I do not understand. "It is no demand? Is there no way to make the law prevail in a case that has consumed an illegal action of the administration? Is there no way to obtain the repayment of illegal fines paid unnecessarily (by way of repetition of the non-payment due)? Is there how to obtain compensation for damage suffered by an arrest that revealed ex post unfair? One would expect the Court more than rhetoric. Or a bit of consistency, because if it is to avoid the materialization of damage that may be irreversible, which is contested on time and request the suspension of the act, administrative or judicial, the exact opposite of what "as reported by the dissent-was the strategy of the requesting party.
With this decision on sanctioning administrative law is increasingly blurred in its specificity. The little formula style that supports the ruling - the famous nuanced application of the principles applicable to the exercise of the right to punish state - delivery to the Court a margin of maneuver and it would any legislator: what are the nuances to referred? Surely the Court did not draw up a list of these shades, and probably can not be criticized for that, but what seems strange is that makes the extension of the principles of the right to punish administrative law sanctions, to cease to be provided administrative law.
0 comments:
Post a Comment