Difference between revisions of "Chile"

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The Chilean legal system is said to be influenced by the Napoleonic Code and is governed by the Constitution of 1980 as well as the subsequent amendments which have been made.  This Constitution guarantees rights and provides protection for individuals. Legislation passed creates a hierarchy system of importance with institutional acts, being followed by special and order acts (encompassing both decree and ordinary law).
 
The Chilean legal system is said to be influenced by the Napoleonic Code and is governed by the Constitution of 1980 as well as the subsequent amendments which have been made.  This Constitution guarantees rights and provides protection for individuals. Legislation passed creates a hierarchy system of importance with institutional acts, being followed by special and order acts (encompassing both decree and ordinary law).
 
    
 
    
 
 
==Sources of Defendants' Rights==
 
==Sources of Defendants' Rights==
 
Defendants' rights are supported by the Constitution of 1980.
 
Defendants' rights are supported by the Constitution of 1980.
 
  
 
==Defendants' Rights==
 
==Defendants' Rights==
 
    
 
    
 
There are a number of rights which are to be guaranteed to individuals during the trial process following a major reform of the criminal justice system. Previously, proceedings could take a number of years, this has now been reduced to a few months. There is a presumption of innocence and the law by which individuals are being brought before the court must already be officially enacted. The actions of the individual must carry the necessary elements for the act to be regarded as a ‘crime’ highlighted under article 19 of the Constitution which states “The law cannot presume de jure criminal liability”. Under Article 19 of the Constitution, there must also be “equality before the law” and in order to ensure this, every individual has a right to be represented by a legal defence team. If an individual is unable to provide their own defence, the Criminal Public Defender will ensure the defendant is provided with free legal defence. A principle similar to that of ‘habeas corpus’ applies involving rights such as those which affect physical liberty under Article 20 of the Constitution. There is a right to an impartial judge but no right to a trial by jury. These provisions are enacted to ensure a fair trial, but the system is not without its criticisms.
 
There are a number of rights which are to be guaranteed to individuals during the trial process following a major reform of the criminal justice system. Previously, proceedings could take a number of years, this has now been reduced to a few months. There is a presumption of innocence and the law by which individuals are being brought before the court must already be officially enacted. The actions of the individual must carry the necessary elements for the act to be regarded as a ‘crime’ highlighted under article 19 of the Constitution which states “The law cannot presume de jure criminal liability”. Under Article 19 of the Constitution, there must also be “equality before the law” and in order to ensure this, every individual has a right to be represented by a legal defence team. If an individual is unable to provide their own defence, the Criminal Public Defender will ensure the defendant is provided with free legal defence. A principle similar to that of ‘habeas corpus’ applies involving rights such as those which affect physical liberty under Article 20 of the Constitution. There is a right to an impartial judge but no right to a trial by jury. These provisions are enacted to ensure a fair trial, but the system is not without its criticisms.
 +
 
====Pre-trial====
 
====Pre-trial====
 
    
 
    
 
The ‘Carabineros de Chile’ is the name given to the police force within Chile. Under article 19 of the Constitution an arrest must be “served in a manner prescribed in law” – this leaves a very wide scope and whilst this agency does fall within the scope of responsibility of the prosecutor, the police force do have the authority to arrest those with outstanding warrants, collect evidence, identify witnesses and perform “identity checks” under article 81 of the Code. It is the Office of the Public Prosecutor who will investigate the crime, and with this responsibility comes the option to close the case and suggest alternatives to court proceedings.
 
The ‘Carabineros de Chile’ is the name given to the police force within Chile. Under article 19 of the Constitution an arrest must be “served in a manner prescribed in law” – this leaves a very wide scope and whilst this agency does fall within the scope of responsibility of the prosecutor, the police force do have the authority to arrest those with outstanding warrants, collect evidence, identify witnesses and perform “identity checks” under article 81 of the Code. It is the Office of the Public Prosecutor who will investigate the crime, and with this responsibility comes the option to close the case and suggest alternatives to court proceedings.
 +
 
Once an individual has been arrested, they must be brought before a judge within 24 hours who can then extend this to 5 days detention. There must be a record in the public register of the individual being detained and bail should be ordered unless it is necessary for the protection of the investigation, victims or society in general.  
 
Once an individual has been arrested, they must be brought before a judge within 24 hours who can then extend this to 5 days detention. There must be a record in the public register of the individual being detained and bail should be ordered unless it is necessary for the protection of the investigation, victims or society in general.  
 +
 
====Trial====
 
====Trial====
  
 
Cases begin before Guarantee Courts where the power to investigate the case is granted, or where simple cases are heard (those involving a guilty plead for example). There are tribunals of first instance and Courts of Appeals with the Supreme Courts being at the top of this hierarchy system (there are no special commissions). The trial will involve a hearing by 3 judges who have no previous knowledge of the particular facts of the case. The defendant is obliged to testify during the case. Evidence which is transparent can be presented, and to ensure the quality of evidence, the state ensures to provide protection to the victims and witnesses participating in the trial proceedings under article 83 of the Constitution. This reformed accusatory system still receives criticism.  
 
Cases begin before Guarantee Courts where the power to investigate the case is granted, or where simple cases are heard (those involving a guilty plead for example). There are tribunals of first instance and Courts of Appeals with the Supreme Courts being at the top of this hierarchy system (there are no special commissions). The trial will involve a hearing by 3 judges who have no previous knowledge of the particular facts of the case. The defendant is obliged to testify during the case. Evidence which is transparent can be presented, and to ensure the quality of evidence, the state ensures to provide protection to the victims and witnesses participating in the trial proceedings under article 83 of the Constitution. This reformed accusatory system still receives criticism.  
 +
 
There will be an initial complaint hearing under Article 229 of the Criminal Procedures Code and the defendant is required to attend this hearing which is regarded as the “formalisation of investigation”.  A charging instrument must be created and this will include details of the defendant, case, sentencing and witnesses.
 
There will be an initial complaint hearing under Article 229 of the Criminal Procedures Code and the defendant is required to attend this hearing which is regarded as the “formalisation of investigation”.  A charging instrument must be created and this will include details of the defendant, case, sentencing and witnesses.
 +
 
During the trial, the clerk will begin by calling the court to order, the administration procedures will follow with the opening remarks followed by witnesses being cross-examined.  The trial will conclude with final remarks. The judges will hear the proceedings and then make their decision, the whole case will be heard in one hearing include the verdict, unless the case has taken a long time and therefore the verdict may be delayed by up to 24 hours. If guilty, the defendant will be detained and sentenced in separate proceedings. During these proceedings, a summary of the case and decision will be heard.
 
During the trial, the clerk will begin by calling the court to order, the administration procedures will follow with the opening remarks followed by witnesses being cross-examined.  The trial will conclude with final remarks. The judges will hear the proceedings and then make their decision, the whole case will be heard in one hearing include the verdict, unless the case has taken a long time and therefore the verdict may be delayed by up to 24 hours. If guilty, the defendant will be detained and sentenced in separate proceedings. During these proceedings, a summary of the case and decision will be heard.
  
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The Civil Administration courts cannot order sentences which deprive individuals of their liberty. The sentencing procedure involves mandatory sentences which are influenced by aggravating and mitigating circumstances surrounding the defendant. Article 19 of the Constitution states that “the death penalty may only be instituted for a crime considered in a law approved by a qualified quorum”.
 
The Civil Administration courts cannot order sentences which deprive individuals of their liberty. The sentencing procedure involves mandatory sentences which are influenced by aggravating and mitigating circumstances surrounding the defendant. Article 19 of the Constitution states that “the death penalty may only be instituted for a crime considered in a law approved by a qualified quorum”.
 +
 
Criminal proceedings are brought by the Public Prosecutor and the trial will be held in public, involving oral proceedings and evidence from both parties. The procedures of the Chilean judiciary are governed by Chapter Six of the Constitution of 1980. Article 73 ensures the President is not involved in the exercise of judiciary duties and the appointment of judges is covered by Article 75. Under Article 76, judges will be liable if they avoid a substantive area of law. Whilst the judiciary are meant to be independent, there are concerns as to the extent of whether or not this is true.
 
Criminal proceedings are brought by the Public Prosecutor and the trial will be held in public, involving oral proceedings and evidence from both parties. The procedures of the Chilean judiciary are governed by Chapter Six of the Constitution of 1980. Article 73 ensures the President is not involved in the exercise of judiciary duties and the appointment of judges is covered by Article 75. Under Article 76, judges will be liable if they avoid a substantive area of law. Whilst the judiciary are meant to be independent, there are concerns as to the extent of whether or not this is true.
 +
 
Cases are reviewed by the Courts of Appeal and can progress to the Supreme Court, the highest court in the hierarchal system, if the court decides that the decision of a lower court has been “unjustifiably erroneous or arbitrary” under Article 373 of the Code of Criminal Procedure or if there has been a “serious procedural breach” (under Article 374). Article 21 of the Constitution also ensures individual rights are protected through the reinstating of the rights which are violated by an unlawful act, for example in the arrest procedure. Such an appeal must be before a competent judge and these legal faults should be corrected. There is no appeal available for decisions made by the Supreme Court but they can correct errors made.
 
Cases are reviewed by the Courts of Appeal and can progress to the Supreme Court, the highest court in the hierarchal system, if the court decides that the decision of a lower court has been “unjustifiably erroneous or arbitrary” under Article 373 of the Code of Criminal Procedure or if there has been a “serious procedural breach” (under Article 374). Article 21 of the Constitution also ensures individual rights are protected through the reinstating of the rights which are violated by an unlawful act, for example in the arrest procedure. Such an appeal must be before a competent judge and these legal faults should be corrected. There is no appeal available for decisions made by the Supreme Court but they can correct errors made.
 +
 
====Prisons in Chile====
 
====Prisons in Chile====
 +
 
The conditions in  the prisons in Chile are very poor. There is a lack of clean, safe  water and food providing sufficient nutrition. There is a poor  sanitation which has led to poor health and numerous diseases. This  problem is further worsened by a lack of medical care. Chile has a very  high number of individuals incarcerated in its numerous prisons, and  some prisons house far more prisoner than originally designed for, this  had devastating consequences, such as the riot in the San Miguel prison  which led to the death of 81 prisoners. Supreme Court prosecutor, Monica  Maldonado has said the prisoners are treated in an “inhuman, degrading  and cruel” manner.  
 
The conditions in  the prisons in Chile are very poor. There is a lack of clean, safe  water and food providing sufficient nutrition. There is a poor  sanitation which has led to poor health and numerous diseases. This  problem is further worsened by a lack of medical care. Chile has a very  high number of individuals incarcerated in its numerous prisons, and  some prisons house far more prisoner than originally designed for, this  had devastating consequences, such as the riot in the San Miguel prison  which led to the death of 81 prisoners. Supreme Court prosecutor, Monica  Maldonado has said the prisoners are treated in an “inhuman, degrading  and cruel” manner.  
 
   
 
   

Revision as of 13:45, 1 March 2011

ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

Cuba

Type of System

The Chilean legal system is said to be influenced by the Napoleonic Code and is governed by the Constitution of 1980 as well as the subsequent amendments which have been made. This Constitution guarantees rights and provides protection for individuals. Legislation passed creates a hierarchy system of importance with institutional acts, being followed by special and order acts (encompassing both decree and ordinary law).

Sources of Defendants' Rights

Defendants' rights are supported by the Constitution of 1980.

Defendants' Rights

There are a number of rights which are to be guaranteed to individuals during the trial process following a major reform of the criminal justice system. Previously, proceedings could take a number of years, this has now been reduced to a few months. There is a presumption of innocence and the law by which individuals are being brought before the court must already be officially enacted. The actions of the individual must carry the necessary elements for the act to be regarded as a ‘crime’ highlighted under article 19 of the Constitution which states “The law cannot presume de jure criminal liability”. Under Article 19 of the Constitution, there must also be “equality before the law” and in order to ensure this, every individual has a right to be represented by a legal defence team. If an individual is unable to provide their own defence, the Criminal Public Defender will ensure the defendant is provided with free legal defence. A principle similar to that of ‘habeas corpus’ applies involving rights such as those which affect physical liberty under Article 20 of the Constitution. There is a right to an impartial judge but no right to a trial by jury. These provisions are enacted to ensure a fair trial, but the system is not without its criticisms.

Pre-trial

The ‘Carabineros de Chile’ is the name given to the police force within Chile. Under article 19 of the Constitution an arrest must be “served in a manner prescribed in law” – this leaves a very wide scope and whilst this agency does fall within the scope of responsibility of the prosecutor, the police force do have the authority to arrest those with outstanding warrants, collect evidence, identify witnesses and perform “identity checks” under article 81 of the Code. It is the Office of the Public Prosecutor who will investigate the crime, and with this responsibility comes the option to close the case and suggest alternatives to court proceedings.

Once an individual has been arrested, they must be brought before a judge within 24 hours who can then extend this to 5 days detention. There must be a record in the public register of the individual being detained and bail should be ordered unless it is necessary for the protection of the investigation, victims or society in general.

Trial

Cases begin before Guarantee Courts where the power to investigate the case is granted, or where simple cases are heard (those involving a guilty plead for example). There are tribunals of first instance and Courts of Appeals with the Supreme Courts being at the top of this hierarchy system (there are no special commissions). The trial will involve a hearing by 3 judges who have no previous knowledge of the particular facts of the case. The defendant is obliged to testify during the case. Evidence which is transparent can be presented, and to ensure the quality of evidence, the state ensures to provide protection to the victims and witnesses participating in the trial proceedings under article 83 of the Constitution. This reformed accusatory system still receives criticism.

There will be an initial complaint hearing under Article 229 of the Criminal Procedures Code and the defendant is required to attend this hearing which is regarded as the “formalisation of investigation”. A charging instrument must be created and this will include details of the defendant, case, sentencing and witnesses.

During the trial, the clerk will begin by calling the court to order, the administration procedures will follow with the opening remarks followed by witnesses being cross-examined. The trial will conclude with final remarks. The judges will hear the proceedings and then make their decision, the whole case will be heard in one hearing include the verdict, unless the case has taken a long time and therefore the verdict may be delayed by up to 24 hours. If guilty, the defendant will be detained and sentenced in separate proceedings. During these proceedings, a summary of the case and decision will be heard.

Post-Conviction

The Civil Administration courts cannot order sentences which deprive individuals of their liberty. The sentencing procedure involves mandatory sentences which are influenced by aggravating and mitigating circumstances surrounding the defendant. Article 19 of the Constitution states that “the death penalty may only be instituted for a crime considered in a law approved by a qualified quorum”.

Criminal proceedings are brought by the Public Prosecutor and the trial will be held in public, involving oral proceedings and evidence from both parties. The procedures of the Chilean judiciary are governed by Chapter Six of the Constitution of 1980. Article 73 ensures the President is not involved in the exercise of judiciary duties and the appointment of judges is covered by Article 75. Under Article 76, judges will be liable if they avoid a substantive area of law. Whilst the judiciary are meant to be independent, there are concerns as to the extent of whether or not this is true.

Cases are reviewed by the Courts of Appeal and can progress to the Supreme Court, the highest court in the hierarchal system, if the court decides that the decision of a lower court has been “unjustifiably erroneous or arbitrary” under Article 373 of the Code of Criminal Procedure or if there has been a “serious procedural breach” (under Article 374). Article 21 of the Constitution also ensures individual rights are protected through the reinstating of the rights which are violated by an unlawful act, for example in the arrest procedure. Such an appeal must be before a competent judge and these legal faults should be corrected. There is no appeal available for decisions made by the Supreme Court but they can correct errors made.

Prisons in Chile

The conditions in the prisons in Chile are very poor. There is a lack of clean, safe water and food providing sufficient nutrition. There is a poor sanitation which has led to poor health and numerous diseases. This problem is further worsened by a lack of medical care. Chile has a very high number of individuals incarcerated in its numerous prisons, and some prisons house far more prisoner than originally designed for, this had devastating consequences, such as the riot in the San Miguel prison which led to the death of 81 prisoners. Supreme Court prosecutor, Monica Maldonado has said the prisoners are treated in an “inhuman, degrading and cruel” manner.


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