Constitution

Chile 2022 Draft Constitution

Table of Contents

Chapter IX judicial systems

Article 307

  1. Jurisdiction is a public function that is exercised in the name of the peoples and that consists of knowing and judging, through due process, conflicts of legal relevance and enforcing what has been resolved, in accordance with the Constitution and laws, as well as international human rights treaties and instruments to which Chile is a party.
  2. It is exercised exclusively by the courts of justice and the authorities of indigenous peoples and nations recognized by the Constitution, or the laws enacted under it.
  3. The exercise of jurisdiction must ensure the protection and promotion of human rights and nature, the democratic system and the principle of jurisdiction.

Article 308

Courts of justice are structured according to the principle of judicial unity as the basis for their organization and functioning and are subject to the same legal status and principles.

Article 309

  1. The State recognizes the legal systems of indigenous peoples and nations, which by virtue of their right to self-determination coexist in coordination on an equal footing with the National Justice System. They must respect the fundamental rights established by this Constitution and the international human rights treaties and instruments to which Chile is a party.
  2. The law shall determine the mechanisms for coordination, cooperation and resolution of conflicts of competence between indigenous legal systems and State entities.

Article 310

  1. Judges exercising jurisdiction are independent of each other and of any other power or authority, and shall act and rule impartially. In their providences, they are only subject to the rule of law.
  2. The judicial function is exercised exclusively by the courts established by statute. No other organ of the State, person or group of persons, may exercise the judicial function, hear pending cases, modify the grounds or content of judicial decisions or reopen concluded proceedings.
  3. Judges may not perform any other function or employment, except academic activities in the terms established by law.
  4. Judges shall only exercise the judicial function, and may not perform any administrative or legislative function.
  5. Judges may not serve in political parties.

Article 311

  1. The jurisdictional function should be exercised under an intersectional approach and should ensure substantive equality and compliance with international human rights obligations in this area.
  2. This duty extends to all judicial and auxiliary bodies, to officials of the National Justice System, throughout the course of the process and in all the actions they carry out.

Article 312

  1. The judicial function shall be governed by the principles of parity and a gender perspective. All bodies and persons involved in the judicial function must ensure substantive equality .
  2. The State guarantees that appointments to the National Justice System respect the principle of parity in all organs of jurisdiction, including the appointment of presidencies.
  3. The courts, whatever their competence, must rule with a gender perspective.
  4. Justice systems must adopt all measures to prevent, punish and eradicate violence against women, sexual and gender dissidents , in all its manifestations and areas.

Article 313

Judges may not be charged or deprived of their liberty, except in cases of flagrante delicto, if the proper court of appeal does not declare one or more chapters of the respective indictment admissible. The decision that is pronounced on the complaint of chapters will be appealable to the Supreme Court. Once the decision accepting the complaint is final, the criminal proceedings will continue in accordance with the general rules and the judge will be suspended from the exercise of her functions.

Article 314

Judges are immovable. They may not be suspended, transferred or removed, except in accordance with the grounds and procedures established by the Constitution and the laws.

Article 315

Judges are personally liable for the offences of bribery, failure to comply with the laws governing the procedure in substance and, in general, for any prevarication, refusal or crooked administration of justice. The law shall determine the cases and the manner in which this responsibility is to be enforced.

Article 316

Judges cease to hold office for reaching the age of seventy, for resignation, for a finding of supervening legal incapacity or for removal.

Article 317

  1. Once their intervention has been requested in the legal form and on matters within their jurisdiction, the courts may not excuse themselves from exercising their function in a reasonable time or even in the absence of an express legal norm that resolves the matter submitted to their decision.
  2. The exercise of jurisdiction is non-delegable.

Article 318

  1. In order to enforce decisions and to carry out or have practiced the proceedings determined by law, the courts of justice may issue direct orders or instructions to the security forces. These must comply with the mandate quickly and expeditiously, without being able to qualify its basis, timeliness or legality.
  2. The sentences handed down against the State of Chile by international human rights tribunals whose jurisdiction has been recognized by it shall be complied with by the courts of justice. in accordance with the procedure established by statute, even if they contravene a final judgment pronounced by them.

Article 319

  1. Opinions should always be substantiated and written in clear and inclusive language. The law may provide for exceptions to the duty to substantiate judicial decisions.
  2. All stages of proceedings and court decisions are public. Exceptionally, the law may establish its reservation or secrecy in qualified cases.

Article 320

  1. Access to the judicial function shall be free of charge, notwithstanding to the judicial proceedings and procedural sanctions established by statute.
  2. Arbitral justice will always be voluntary. The law may not provide for forced arbitration.

Article 321

The jurisdictional function is based on the guiding principles of open justice, which is manifested in transparency, participation and collaboration, in order to guarantee the rule of law, promote social peace and strengthen democracy.

Article 322

  1. The judicial function is defined in its structure, integration and procedures in accordance with the principles of plurinationality, legal pluralism and interculturality.
  2. In the case of indigenous persons, the courts and their officials shall adopt an intercultural perspective in the treatment and resolution of matters within their competence, taking due account of the customs, traditions, protocols and normative systems of indigenous peoples, in accordance with international treaties and instruments. of human rights to which Chile is a party.

Article 323

  1. It is the duty of the State to promote and implement collaborative conflict resolution mechanisms that guarantee active participation and dialogue.
  2. Only the law may determine the requirements and effects of alternative dispute resolution mechanisms.

Article 324

  1. Persons who exercise jurisdiction in single-member or collegiate bodies are called judges. There will be no hierarchy among those who exercise jurisdiction and they will only be differentiated by the function they play. In addition, they will not receive any honorary treatment.
  2. Only the law may establish positions of judges. The Supreme Court and the courts of appeals may only be composed of persons who have the status of judges or titular judges, interim, alternate or subrogant.
  3. The staff and internal administrative organization of the courts shall be established by statute.

Article 325

The National Justice System shall enjoy financial autonomy. Annually, the necessary funds for its proper functioning will be allocated in the Budget Act.

Article 326

Courts must comply with the principle of proximity and roaming. In order to guarantee access to justice and effective judicial protection, they may operate in localities located outside their place of residence, always within the territory of their competence.

Article 327

The National Justice System is composed of the neighborhood justice, the courts of instance, the courts of appeals and the Supreme Court.

Article 328

  1. The Supreme Court is a collegiate body with jurisdiction throughout the country whose function is to ensure the correct application of the law and standardize its interpretation, as well as the other powers established by this Constitution. and the law.
  2. It shall be composed of twenty-one judges and shall function in full or specialized chambers.
  3. Its judges will last in their positions for a maximum of fourteen years, without the possibility of re-election.
  4. The presidency of the Supreme Court shall be exercised by a person elected by his peers. He will remain in office for two years without the possibility of holding office again. Whoever holds the Presidency may not be members of any of the Chambers.

Article 329

The Supreme Court will hear and resolve remedies filed against the decisions of the indigenous jurisdiction, it will do so in a specialized room and assisted by a technical counsel composed of experts in their culture and own law, in the form that establish the law.

Article 330

  1. Courts of appeal are collegiate bodies with jurisdiction over a region or part thereof. Its main function is to resolve the challenges of decisions issued by the courts of instance, as well as the other powers established by the Constitution and the law.
  2. They will operate in full or in preferably specialized rooms.
  3. The presidency of each court of appeals shall be exercised by a person elected by his peers. It will last in its functions two years.

Article 331

  1. Courts of instance are civil, criminal, family, labor, common or mixed jurisdiction, administrative, environmental, neighborhood, execution of sentence and others established by the Constitution and law.
  2. The organization, powers, competence and number of judges who make up these courts are determined by statute.

Article 332

  1. The administrative courts hear and resolve actions directed against the State Administration or promoted by it and the other matters established by statute.
  2. For its knowledge and resolution, the law will establish a unified, simple and expeditious procedure.
  3. There will be at least one administrative court in each region of the country and they will be able to function in specialized chambers.
  4. Matters within the jurisdiction of these courts may not be submitted to arbitration.

Article 333

  1. The environmental courts will hear and decide on the legality of administrative acts in environmental matters, the action to protect the rights of nature and environmental rights, reparation for environmental damage and the others indicated by the Constitution and the law.
  2. There will be at least one environmental court in each region of the country.
  3. The law shall regulate the integration, competence and other aspects that are necessary for its proper functioning.
  4. Actions to challenge the legality of administrative acts that rule on environmental matters and the request for precautionary measures may be filed directly before the environmental courts, without the prior exhaustion of the administrative remedy being required.

Article 334

  1. Neighborhood justice is made up of neighborhood courts and neighborhood justice centers .
  2. In each commune of the country that is the seat of a municipality, there will be at least one neighborhood court that will exercise the jurisdictional function with respect to all those legal controversies that arise at the communal level that do not fall within the jurisdiction of another court and of the other matters entrusted to them by law, in accordance with a short, oral, simple and expeditious procedure.

Article 335

  1. Neighborhood justice centers are bodies responsible for promoting the resolution of neighborhood and small disputes within a community determined by statute, on the basis of social dialogue, peace and participation of the parties involved. Priority should be given to its installation in rural areas and places far from urban areas.
  2. The neighborhood justice centers must guide and inform the public in legal matters, making the necessary referrals, as well as exercising the other functions that the law entrusts to them.
  3. The organization, powers, matters and procedures that correspond to the neighborhood justice centers will be governed by the respective law.

Article 336

  1. The courts for the enforcement of sentences shall ensure the fundamental rights of persons convicted or subject to security measures, as recognized in this Constitution and international human rights treaties and instruments, seeking their integration and social integration.
  2. They shall exercise judicial functions in matters of execution of sentences and security measures, judicial control of the disciplinary power of the penitentiary authorities, protection of the rights and benefits of inmates in penitentiary establishments and others that it indicates. the law.

Article 337

  1. The system for the enforcement of criminal sanctions and security measures shall be organized on the basis of respect for human rights and shall have as its objectives the execution of the sentence and the integration and social integration of the person serving a judicial sentence.
  2. It is the duty of the State, in its special position as guarantor vis-à-vis persons deprived of liberty, to ensure the protection and effective exercise of their fundamental rights enshrined in this Constitution and in international human rights treaties and instruments.

Article 338

  1. Only the State can execute the execution of sentences and measures depriving of liberty, through public institutions specially established for these purposes. This function may not be fulfilled by private individuals.
  2. For the insertion, integration and reparation of persons deprived of liberty, penitentiary establishments must have spaces for study, work, sport, arts and cultures.
  3. In the case of women and pregnant persons and mothers of infants, the State shall adopt the necessary measures, such as infrastructure and equipment, in the closed, open and post-penitentiary control regimes.

Article 339

  1. The Election Qualification Tribunal shall hear the general count and the qualification of the elections of the authorities elected by popular vote at the national level, resolve the complaints that arise and proclaim those who are elected and elected.
  2. In addition, it will hear and resolve administrative complaints against acts of the Electoral Service and decisions issued by supreme courts or equivalent bodies of political organizations.
  3. It will also know and decide on the inabilities, incompatibilities and causes of cessation in the position of deputies or regional representatives. In the same way, it will qualify the resignation of these when they are affected by a serious illness, duly accredited, that prevents them from performing the position.
  4. This Court shall also hear national plebiscites and shall have the other powers determined by statute.
  5. The Court will evaluate the evidence according to the rules of sound criticism.
  6. It will be constituted by five judges, appointed by the Council of Justice, who must apply in the form and opportunity determined by the respective law. They will last six years in their functions.
  7. A statute shall regulate the organization and functioning of the Election Qualification Tribunal, its staff, remuneration and staff regulations.

Article 340

  1. The regional electoral tribunals are responsible for hearing the general count and qualification of elections at the regional level, communal and civil society organizations and other organizations recognized by this Constitution or by statute, as well as to resolve the claims to which they give rise and to proclaim the candidacies that are elected.
  2. They shall also be aware of regional and communal plebiscites, notwithstanding to the other powers determined by statute.
  3. Its resolutions will be appealable and its knowledge will correspond to the Election Qualification Tribunal in the manner determined by law. Likewise, they will be responsible for knowing the qualification of the elections of a union nature and those that take place in those organizations that the law indicates.
  4. The regional electoral tribunals shall consist of three judges, appointed by the Council of Justice, who shall apply in the manner and at the time determined by the respective law. They will last six years in their functions.
  5. These courts will evaluate the evidence according to the rules of sound criticism.
  6. A statute shall regulate the organization and functioning of regional electoral tribunals, plants, remuneration and staff regulations.

Article 341

The administrative management and the directive and correctional superintendence of the Electoral Qualification Tribunal and the regional electoral tribunals shall correspond to the Council of Justice.

Council of Justice

Article 342

  1. The Council of Justice is an autonomous, technical, parity and plurinational body, with legal personality and its own assets, whose purpose is to strengthen judicial independence. He is in charge of appointments, governance, management, training and discipline in the National Justice System.
  2. In the exercise of its powers, it must consider the principle of non-discrimination, inclusion, gender parity, territorial equity and plurinationality.

Article 343

The powers of the Council of Justice are:

  1. Appoint, after public competition and by reasoned resolution, all judges , officials and officials of the National Justice System.
  2. Adopt disciplinary measures against judges, officials and officials of the National Justice System, including their removal, in accordance with the provisions of this Constitution and the law.
  3. Carry out a comprehensive review of the management of all the courts of the National Justice System, at least every five years, which will include public hearings to determine their proper functioning, in accordance with the provisions of the Constitution and the law. This review shall in no case include judicial decisions .
  4. Evaluate and qualify, periodically, the performance of judges, officials and officials of the National Justice System.
  5. Decide on promotions, transfers, swaps and cessation of functions of members of the National Justice System.
  6. Define budgetary needs, execute and manage resources for the proper functioning of the National Justice System.
  7. To pronounce on any legal modification in the organization and powers of the National System of Justice. The Congress of Deputies must officiate to the Council, which must respond within thirty days from its receipt.
  8. Propose to the competent authority the creation, modification or abolition of courts.
  9. Ensure the empowerment, training and continuous improvement of those who make up the National Justice System. For these purposes, the Judicial Academy shall be subject to the direction of the Council.
  10. Ensure the initial education and continuous training of all officials and auxiliaries of the administration of justice, in order to eliminate gender stereotypes and ensure the incorporation of the gender approach, the intersectional approach and human rights.
  11. Issue instructions regarding the organization and administrative management of the courts. These instructions may be national, regional or local in scope.
  12. The other powers entrusted to this Constitution and the law.

Article 344

  1. The Council of Justice is composed of seventeen members, according to the following composition:
    1. Eight full judges elected by their peers.
    2. Two officials, officials or professionals of the National Justice System elected by their peers.
    3. Two members elected by indigenous peoples and nations in the manner determined by the Constitution and the law. They must be persons of proven suitability for the exercise of the position and who have excelled in the public or social function.
    4. Five people elected by the Congress of Deputies and the Chamber of the Regions in joint session, after determining the corresponding shortlists by public tender, by the Council of Senior Public Management. They must be professionals with at least ten years of the corresponding degree, who have excelled in the professional, academic or public service.
    5. They will last six years in office and will not be able to be re-elected. They will be renewed for partialities every three years in accordance with the provisions of the law.
    6. Its members will be elected according to criteria of gender parity, plurinationality and territorial equity.

Article 345

  1. The Council of Justice may function in plenary or in committees. In both cases, it will make its decisions for the majority of its members in office.
  2. The Council will be organized in a concentrated manner. The law shall determine the organization, operation, procedures for electing members of the Council and shall determine the staff, the remuneration system and the statute of its staff.

Article 346

  1. Members of the Council may not exercise any other function or employment, whether remunerated or unpaid, to the exclusion of academic activities. The law may establish other incompatibilities in the exercise of the office.
  2. Those referred to in points (a) and (b) of the Article on the composition of the Council shall be suspended from the performance of their duties for the duration of their duties.
  3. They may not compete to be appointed to judicial positions until one year has elapsed since they cease to hold office.

Article 347

  1. Members of the Council shall cease to hold office at the end of their term, on reaching seventy years of age, on removal, resignation, supervening physical or mental incapacity or conviction for an offence punishable by affliction.
  2. Both the resignation and the supervening incapacity must be accepted or verified, as appropriate, by the Council.
  3. The removal process shall be determined by statute, respecting all the guarantees of due process.

Article 348

  1. The Council shall make appointments through public tenders regulated by law, which shall include public hearings.
  2. To access a position of judge within the National System of Justice, it will be required to have passed the course of habilitation of the Judicial Academy for the exercise of the jurisdictional function; to have three years of practice of the profession of lawyer or lawyer for the case of courts of instance; with five years for the case of the courts of appeals, and with twenty years for the case of the Supreme Court, and the other requirements established by the Constitution and the law.

Article 349

  1. The disciplinary procedures will be known and resolved by a commission composed of five members of the Council that will be chosen by lot, a decision that will be reviewable by its plenary at the request of the affected party.
  2. The resolution of the Council terminating the procedure shall be open to challenge before the Constitutional Court.
  3. Decisions taken in accordance with the preceding paragraphs may not be reviewed or challenged before other organs of the National Justice System.