190 Chile CHILE 1 I. General Information Chile is a democratic republic divided into 13 administrative regions 2 with a total continental area of 756,950 km 2. According to the National Statistics Bureau, 3 in 2007 the country s total population rose to 16,598,074 inhabitants, 86.6% of whom live in urban areas. 4 The same source reported the following age group distribution in 2005: 24.9% between 0 and 14 years of age; 31.9% between 15 and 34; 22.1% between 35 and 49; 13.1% between 50 and 64; and 7.9% over 65. Population growth for 2000-2005 was close to 5.6%, with a projected growth of 5.1% for the next five years. 5 In 2003, 18.7% of the population lived below the poverty line and 4.7% were indigent. 6 Chile is ranked 38th on the Human Development Index, the second in Latin America with a medium development index, following Argentina. 7 The Gini Coefficient for 2003 was 0.55. 8 In 2005, the country had an estimated unemployment rate of 8.1% 9 and an illiteracy rate among its over-15 population of 3.5%. 10 In 2005, the GDP stood at US$ 95.66 billion, showing an increase of about 28.22% for 2000-2005. 11 Per capita GDP based on purchasing power parity in 2004 was US$ 10,874, 12 while regular per capita GDP for 2005 was US$ 5,870, 21.28% higher than in 2000. 13 II. Judicial System Highlights The justice system budget has increased in recent years. The sector received approximately 366 billion pesos (or US$ 523,161,428) in 2003; approximately 394 billion (equal to US$ 668,413,559) in 2004; and about 500 billion pesos (or US$ 892,671,428) in 2005. In 2004 the justice sector budget represented 4.5% of total public sector spending. It increased to 5.3% in 2005. The new criminal procedure system came into force in the Metropolitan Region on June 16, 2005. The total cost of implementation was 341 billion pesos (US$ 608,928,571), of which 199 billion (US$ 355,357,142) was invested and 142 billion (253,571,428) were earmarked for the system s yearly operating costs. Chile s new Civil Union Law came into force on November 18, 2004. It makes divorce possible through dissolution of the civil union. New family courts began operating on October 1, 2005. 2005 saw the approval of the Constitutional Justice Reform, which replaced the old system of double constitutional control (by the Constitutional and Supreme Courts) with one that essentially concentrates mixed control within the Constitutional Court. Four new prison concessions were opened in four regions of Chile in 2005-2006. On March 1, 2006, collections courts for labor and pension matters began operating through the Appeals Courts of Santiago, San Miguel, Concepción, and Valparaíso. In December 2006 the Ministry of Justice presented the first draft of a new Criminal Procedure Code prepared by panel of experts set up especially for this purpose. On June 8, 2007, the new Juvenile Criminal Responsibility Law came into force. The new labor courts will enter into operation on March 1, 2008. III. Institutions 1. Overall Structure and Operation of the Judicial System Chile s judicial system is composed of the ordinary courts, the Constitutional Court, the Ministry of Justice, a Public Defenders Office (Defensoría Penal, staffed by public defenders and private attorneys hired through procurement processes), the Public Prosecutor s Office (Ministerio Público), and the State Defense Council (Consejo de Defensa del Estado). Other agencies support the work of these central 1 Sources for this report include, among others, the Judicial Branch Administrative Corporation, the Ministry of Justice, the Public Prosecutor s Office and the Public Defender s Office (Defensoría Penal Pública) along with information available on the Websites of the country s justice sector institutions.
Report on Judicial Systems in the Americas 2006-2007 191 institutions, including: the Judicial Academy, the Civil Registry and Identification Service, the Medical Examiner s Office, the Judicial Assistance Corporation (legal aid), the Bankruptcy Prosecutor s Office, the National Youth Service, and the Prison Guard Administration. 2. Judicial Branch 2.1. Institutional Structure The independence of the Judicial Branch is enshrined in the country s Constitution, wherein it is stated that: The power to take cognizance of civil and criminal cases, to resolve them, and enforce compliance with judgments is vested exclusively in the Courts established by law. Neither the President of the Republic nor the Congress may, in any case whatsoever, exercise judicial functions, take over pending cases, revise the grounds for or contents of the decisions or reopen closed cases. Additionally, the courts have been granted the authority to enforce their rulings, a power also established in the Constitution, which affirms that: To enforce execution of decisions and carry out or have carried out instructions as decreed, the ordinary and special Courts of Justice comprising the Judiciary may issue direct orders to law enforcement or exercise means of action available for the enforcement thereof. The Judicial Branch is comprised of the ordinary courts that may only exercise jurisdiction in the areas assigned to them by law, which include: Hearing and ruling on civil and criminal cases and ensuring sentences are enforced Non-contentious actions in which the law expressly requires their intervention Effectively upholding the protective, disciplinary and economic powers assigned to these courts by the Court Statutes (Código Orgánico de Tribunales). The number of courts for each instance is shown in the following table: Judicial Branch employees are classified according to two seniority scales: First scale: includes Supreme Court justices and the Prosecutor of the Supreme Court; judges and prosecutors of the Appeals Courts; professionally trained judges (jueces letrados), rapporteurs, court clerks and official (letrado) court clerks; and the official court clerk; and the prosecutor s clerk of the Supreme Court. Second scale: includes public defenders, notaries, registrars (conservadores), records managers, criminal court administrators, assistant administrators and departmental heads, court attorneys (procuradores del número), court secretaries (receptores), technical advisors, and librarians. Table 1 Number of Courts per Instance and Area Instance Jurisdiction Number 1 st Instance Professional Civil Courts 51 Professional Criminal Courts 31 Oral Criminal Trial Courts 44 Criminal Supervisory Courts (Juzgados de Garantia) 91 Professional Juvenile Courts 45 Family Courts 60 Professional Labor Courts 20 Labor Collections Courts (Juzgados de Cobranza Laboral) 4 Mixed Courts 176 Total - First Instance Courts 522 2 nd Instance Courts of Appeal 17 Supreme Court 1 Total 540 Courts
192 Chile There is also a seniority scale for court employees that governs court clerks, and staff assigned to the court prosecutors and public defenders. The Supreme Court is the highest court in the Judicial Branch. It is composed of 21 justices referred to as ministros. The Chief Justice or Presidente, is elected by his or her peers for a two-year period. Chile s Constitution provides that members of the Supreme Court be appointed by the President with Senate confirmation. They are chosen from a short list of five candidates proposed by the Supreme Court. The Court oversees administrative, discipline, and financial matters of all courts except the Constitutional Court, the Electoral Review Board, and the regional electoral boards. The Supreme Court may sit with a full bench or in special chambers. The first case requires the presence of all 11 justices; chambers require the presence of no less than five justices. One of the most important tasks of the Supreme Court is to act as an annulment court (tribunal de casación), which helps to standardize case law. Unlike countries with Anglo-Saxon legal systems, Chile s court rulings, including those of the Supreme Court, only are binding over the cases to which they apply. However, the jurisprudence of the Supreme Court annulment hearings sets important precedents for the application of the law in similar cases, making a significant contribution to the interpretation and application of the Law. Judicial Branch Administrative Corporation Through this body the Supreme Court manages its human, financial, technological and material resources, along with those of the appeals, professional, juvenile, labor, and pension courts. The Corporation is regulated by section XIV of the Court Statutes (Código Orgánico de Tribunales) and the rules governing public administration financial management. The body is led by a Supreme Board presided over by the Chief Justice and four other justices elected for a two year period, at the end of which they may be reelected. The Supreme Board of the Administrative Corporation has a director, assistant director, head of finance, head of purchasing and maintenance, head of computer technology, head of planning and development, head of human resources and an internal comptroller. Finally, the Corporation has Area Offices (Oficinas Zonales) associated with each of the 17 appeals courts and their respective jurisdictions. Each Area Office is headed by an Area Administrator (Administrador Zonal) who is answers to the Corporation Director. The main tasks of the Offices include providing direct assistance to courts for the administration of human, financial, technological and material resources in the respective area. 2.2. Government and Management 2.2.1. Eligibility Requirements Sixteen of the 21 Supreme Court justices must come from the judiciary and five must be attorneys outside of the justice administration system with at least 15 years of professional service behind them and an outstanding record as professionals or academics. They also must meet all other requirements set down in the Constitution. Six places for Supreme Court justices became available in 2006, and eight new vacancies will come up in the next three years. 2.3. Transparency and Oversight 2.3.1. Internal Oversight Oversight regulations for the Judicial Branch come into effect as soon as someone enters the judicial service and remain throughout their service as a judicial employee. The appointment of judges and court staff requires previous approval by the General Comptroller of the Republic (Contraloría General de la República), who must confirm the individual s fitness for the post and record the statement of assets. While performing their duties, judges and court employees are subject to the oversight of their superiors. First instance court judges are answerable to the respective Court of Appeals judiciary, and Court of Appeal judges answer to the Supreme Court bench. Disciplinary action exercised by hierarchical superiors can also be initiated by a party to a suit or persons linked to a case. For example, court service clients may submit a complaint that may lead to the modification of a judicial ruling if it is deemed to contain an error or violation, together with the adoption of the appropriate disciplinary measures.
Report on Judicial Systems in the Americas 2006-2007 193 Disciplinary powers are exercised as part of the judiciary s regular work and may include regular visits by a higher court judge to the lower instance courts under his or her purview. Additionally, each year the Judicial Branch grades its members through a performance review by their superiors. A court administrator will therefore evaluate his or her staff, and appeals court judges the first instance judges under their jurisdiction. This helps to maintain proper control over the performance of judges and court officials. Moreover, the Supreme Court has formed an Ethics Committee composed of justices who hear complaints or public comments regarding judicial conduct. This Committee then presents recommendations for disciplinary measures to be adopted in each case. 2.3.2. Access to Information In general, all judicial interventions are public, which guarantees access to parties to the case and third parties. However, the law does establish cases of confidentiality for third-party intervention (e.g. adoption procedures) and even for parties themselves (e.g. in the investigation stage of the old criminal procedure system). The recently updated Judicial Branch Website includes a service by which users can check case status online, though with the incorporation of computer systems still pending in some courts, such information may be lacking for family, labor, and pension court proceedings. 2.4. Legal Aid In general, parties to a case must be accompanied by an attorney. However, legal representation is not mandatory in a few cases (e.g. for some family matters). A bill is currently being processed that will make legal counsel mandatory in all cases. For those lacking the resources to pay for a private defense attorney, various legal aid corporations provide decentralized, not-for-profit public service under the purview of the Ministry of Justice (Executive Branch). The aim of this service is to provide social and legal assistance to those with low incomes. It also gives law students a chance to gain the professional experience required to obtain a law degree. Additionally, the Public Defender s Office (Defensoría Penal Pública) was created through the Criminal Procedure Reform. It serves those unable to hire a private attorney. 14 2.5. Reform Projects Underway Criminal Procedure Reform: On June 16, 2005, the new Criminal Procedure Reform came into force in the Metropolitan Region. For the Judicial Branch, the modernization process represented an investment of approximately 180 billion pesos (equal to US$ 321,428,571). Among other aspects, this covered the cost of hiring 809 new judges and constructing 84 buildings to house courts, most of which are investigative and oral criminal trial courts. 15 New Youth Offender System: This initiative was approved by Congress on July 14, 2004. In May 2006 the system s introduction was postponed for one year and it will now come into force on June 8, 2007. The new Juvenile Criminal Responsibility Law sets the age of criminal responsibility at 14 and seeks the social reinsertion of youth offenders via special programs and detention centers that include workshops, education and sports. A sentence enforcement system was established, and is led by an investigative judge from the pertinent court. Non-custodial sentences are to be applied when deemed more favorable for social integration. Non-custodial sentences mainly include specially assisted release, community service, compensation for damages, fines, and warnings. All judicial system officials who work with juvenile cases should have educational and professional experience in this area, be aware of the Convention on the Rights of the Child, and be familiar with characteristics and specifics of youth and the legal sanctions system. 16 Labor Courts: Law 20.022, passed on May 16, 2005, doubled the number of judges who handle labor matters and created special labor and pension collection courts. This complements Law 20.023, which established an executive procedure for pension collection. Together with Law 20.087 modifying ordinary labor procedures, this forms part of a legislative initiative that seeks a complete overhaul of labor and pension justice provisions to make them more effective and efficient in safeguarding workers rights. Specifically, Law 20.022 increases the number of labor courts from 20 to 40 and creates nine new labor and pension collections judges. This means that more than 80% of cases can receive specialized attention, transferring the power to order pension collection from the labor courts (juzgados de letras del trabajo) to the new pension courts. Additional sentence
194 Chile enforcement and executive trials established for other areas have also been transferred to this new area. The new labor courts and procedures began operating in Chile on March 1, 2007 (Article 16, Law 20.022; Transitory Article 1, Law 20.087). 17 The labor and pensions collection courts and their respective procedures have been in operation since March 2006. At present, 80% of cases filed in the labor courts are for pension collection or executive procedures. This has created an excessive workload and delay in case processing. It is estimated that first instance processing of an executive case for pension collection may last a year and a half, with a high level of attrition or abandonment, leading to slow processing. Law 20.023 improves procedures for executive collection of pension and social security contributions (Law 17.322, Article 19 of Decree 3.500, 1980). The main aspects modified include: waiving the requirement of legal representation to initiate legal action; empowering the individual or respective union to collect pension contributions directly; make the judge responsible for advancing the suit through the courts; and incorporating a preventive measure whereby the judge following a motion filed by the distrainer (ejecutante) may order the General Treasury of the Republic to garnish funds from the tax returns of an employer who owes pension contributions. The last reform (Law 20.087) to the subsystem of labor justice updates labor procedures included in Book V of the Labor Code, in regard to the following points: New Labor Procedures: based on the principles underlying the labor process, which provide for oral and public hearings, concentration, immediacy, sua sponte advancement of the case, speediness, good faith, and free service. The filing of the lawsuit must be in writing. Protective procedures guaranteeing basic rights: includes precautionary measures for cases where a party s work situation threatens an employee s basic rights. 18 Monitory procedures: established for small claims initiated through a complaint made to the Labor Inspectorate. 2.6. Budget The Judicial Branch budget grew nominally by a total of 110% between 2000 and 2006, with an average annual growth rate of 14% (see below): These increases are due to the implementation of the Criminal Procedure Reform, which has involved almost doubling the number of judges, along with other major investments. 2.7. Human and Material Resources Between 2004 and 2006, the number of judges in Chile increased by 63%, rising from 629 to 1023. This can be explained by the implementation of the Criminal Procedure Reform in Santiago and the establishment of family courts, both in 2005. In 2004, 56% of all judges were women, a figure that rose to 61% in 2006. There was a 20% increase in court staff between 2004 and 2006. The staff rate per judge dropped from 10.5 staff per judge in 2004 to 7.7. This change, which actually reflects an increase in the number of judges in relation to support staff, is due to the new form of criminal and family court administration, where an oral procedural process has been implemented that requires a greater number of judges for its proper operation. Table 2 State Budget Law for the Justice Sector (in millions of pesos per year) Law 19.651 Law 19.702 Law 19.774 Law 18.842 Law 19.915 Law 19.986 Law 20.083 2000 2001 2002 2003 2004 2005 2006 Courts 74,115 71,897 79,673 90,841 96,385 126,843 147,230 Administrative Corporation 17,678 20,842 22,828 28,183 26,638 54,565 45,167 Total 91,793 92,739 102,502 119,023 123,023 181,408 192,397
Report on Judicial Systems in the Americas 2006-2007 195 Table 3 Information 2006 2005 2004 Total number of judges 1023 860 629 Total number of male judges 402 347 278 Number of staff working directly in the courts 7906 7431 6611 Number of staff working in other support areas (non-court) 253 187 179 2.8. Case Movement The number of cases filed annually before the courts increased by only 2.3% between 2003 and 2005. However, a significant decrease can be observed in criminal cases filed under the old criminal court system, with a corresponding increase in cases filed under the new oral trial and investigative court system. This is due to the implementation of the reform in the most populated regions (June 16, 2005 in the Metropolitan Region of Santiago). Table 4 Cases Filed 2003 2004 2005 Civil 871,059 994,266 982,192 Criminal 19 534,257 357,645 173,792 New Criminal Procedure Reform system 20 83,395 184,591 267,609 Youth offenders 21 - - - Commercial 22 - - - Traffic violations 23 - - - Family 24 179,072 184,801 249,218 Contentious-Administrative 25 - - - Labor Social 175,031 174,470 217,057 Other (claims) 266,631 264,962 269,755 TOTAL 2,109,445 2,160,735 2,159,623 In order to meet its objectives, the Academy delivers educational programs, including training (for attorneys wishing to enter the first level of the judiciary); continuing education (for those in the first scale of the judiciary or court staff); and capacity building (for judges aspiring to higher positions). The Judicial Academy also has implemented a Criminal Procedure Reform training system for first scale staff and other employees. The training program is targeted at attorneys wishing to become judges. It focuses on court internships where each student is assigned a judge-mentor who is expected to share a significant amount of his or her practical and personal experience. Students must spend a specific amount of time in court with their judgementor in order to gain first-hand experience of daily court routine. The program also provides theoretical instruction and offers opportunities for discussion. Teaching staff includes Judicial Branch officials, university professors, private attorneys, and professionals from other areas. The continuing education program for members of the Judicial Branch basically consists of a series of courses offered annually on a diverse range of topics related to jurisdictional work. The main objectives are to update and expand the knowledge and skills required for judicial work. One feature that sets this program apart is the fact that it is open to all members of the Judicial Branch (not just judges), including employees from different levels and support staff. Course topics change each year in response to the concerns of those who make up the different scales of the Judicial Branch, and through interaction with those linked to the justice system, such as bar associations and universities. Selection of teaching staff is procured though a competitive tender process in which interested institutions and individuals present proposals that meet the criteria set by the Academy. Selection is by expert panels that choose the offer that best meets the training needs of each specific area. 3.1. Budget 3. Judicial Academy The Judicial Academy is a public corporation (Corporación de Derecho Público) set up in 1994 in fulfillment of a longstanding plan to create an institution dedicated to training Judicial Branch members according to its specific needs and expectations. 26 Between 2000 and 2006 the Judicial Academy budget increased by 58% in nominal terms. Nevertheless, some significant fluctuations can be observed from year to year, due mainly to the gradual implementation of the Criminal Procedure Reform process, which has caused year to year variations in the number of people needing to be trained.
196 Chile Year Table 5 Annual Budget of the Judicial Academy Budget (M pesos) 2000 1229 2001 1790 2002 1868 2003 2168 2004 1572 2005 2512 2006 1940 4. Public Prosecutor s Office (Ministerio Público) The Public Prosecutor s Office is an autonomous, hierarchical agency whose purpose is to exclusively direct the investigation of criminal acts, carry out criminal prosecution in accordance with the law, and offer protection to crime victims and witnesses. 27 The institution s highest-ranking office is the National Public Prosecutor (Fiscal Nacional), who is responsible for all operations, while a National Executive Director organizes and supervises the agency s administrative units in accordance with the general guidelines issued by the National Public Prosecutor. 28 The Public Prosecutor s Office (PPO) is divided into regional and local prosecutor s offices distributed throughout the country. There are sixteen Regional Offices one for each region and four in the Metropolitan Region. Each regional office is led by a Regional Public Prosecutor who exercises the functions and attributes of the PPO in a region or geographical territory personally or through the assistant prosecutors working under him or her. The work of regional offices is divided up among local offices. Regional and local offices were gradually introduced as the new criminal procedure system was implemented throughout the country. Implementation stages, together with respective population coverage, are described in the following table: Each regional office has the following administrative units: Management Evaluation, Oversight and Development, Human Resources, Administration and Finance, Technology, and Victim and Witness Assistance. A Regional Executive Director organizes and supervises these units as per the instructions of the respective Regional Public Prosecutor. Local Public Prosecutor s Offices have a variable number of assistant prosecutors and support staff. Each local office has a Chief Prosecutor, who is appointed by the National Prosecutor upon the recommendation of the Regional Prosecutor. The following chart shows the administrative structure of the Public Prosecutor s Office: Table 6 Population Distribution per Stage and Implementation of Criminal Procedure Reform Implementation Stage Regions 2006 Population (INE) % of total Stage 1 IV, IX 1,614,559 9.8% Stage 2 II, III, VII 1,795,579 10.9% Stage 3 I, XI, XII 732,716 4.5% Stage 4 V, VI, VIII, X 5,682,015 34.6% Stage 5 Metropolitan Region 6,607,805 40.2% Overall Total 16,432,674 100% INE Instituto Nacional de Estadísticas (National Statistics Bureau).
Report on Judicial Systems in the Americas 2006-2007 197 4.1. Material and Human Resources In 2006 the Public Prosecutor s Office had almost 100 computers connected to the Internet. Each staff member also has access to a range of computer applications for work, including programs for central case management, office automation, document management, human resource management, and statistical administration. The table below shows the evolution of human resources within the PPO: An increase in both staffing levels and budget resources can be observed following the implementation of the Criminal Procedure Reform in the Metropolitan Region. Table 7 Public Prosecutor s Office Human Resources Level 2002 2003 2004 2005 2006(*) National Public Prosecutor 1 1 1 1 1 National Executive Director 1 1 1 1 1 Regional Prosecutors 10 16 16 16 16 Regional Executive Directors 8 13 16 16 16 Unit Heads 42 58 69 70 70 Assistant Prosecutors 164 349 625 647 647 Professionals 275 507 626 855 860 Technical Staff 119 282 321 500 517 Administration Staff 278 550 684 1.061 1.113 Support Staff 123 218 254 363 379 Total Staff 1021 1995 2613 3530 3620 Cases Filed 160,111 220,790 485,838 710,642 784,151 (*): Information corresponding to the January-October 2006 period.
198 Chile 4.2. Budget Table 8 Public Prosecutor s Office Budget Year 2006 2005 2004 Chilean Pesos 77,876,780,000 67,414,501,000 52,977,906,000 US dollars 144,216,259 107,863,202 89,269,555 4.3. Case Movement Administration by local prosecutors allowed a total of 941,735 cases to be resolved. This represents 99.7% of all cases filed (944,547) for 2006. This is an improvement over 2005, during which only 85.6% of cases were concluded. In relation to the total number of cases filed and resolved since the initiation of the new system, between December 16, 2000 and December 31, 2006, the percentage of cases resolved (2,375,548) corresponds to 90.8% of the total number of cases filed (2,614,375). 5. Ministry of Justice (Ministerio de Justicia) This Ministry represents the Executive Branch in the area of justice and acts as liaison between the Executive and Judicial Branches. The law assigns it numerous functions: 29 To critically assess constitutional norms and civil, criminal, commercial and procedural legislation and propose reforms to the President. To devise sectoral policies, plans and programs, particularly those related to the defense of State interests; to oversee the treatment and rehabilitation of prisoners; to supervise the legal status/organization of families and identification of persons (records office); and to oversee social welfare programs for minors requiring guardianship or with custodial problems, behavioral problems or who are in conflict with the law. To meet the courts organizational and functional needs. To ensure access to free legal aid as stipulated by law. To propose measures for preventing crime through social protection plans To establish prisons and treatment and rehabilitation centers within the penitentiary system. The Ministry of Justice is headed by its Minister, who is appointed by the President, followed by the Undersecretary of Justice (Subsecretario de Justicia). The Ministry also oversees justice sector institutions including: the Medical Examiner s Office (Servicio Médico Legal); the Prison Guard Administration (Gendarmería de Chile), and the National Children s Service (Servicio Nacional de Menores). Additionally, the Public Defender s Office, Civil Registry and Identification Service, Office of the Superintendent of Bankruptcy, and the Judicial Assistance Corporation are linked to the Executive Branch via the Ministry of Justice. 5.1. Budget The budget set aside for the Ministry of Justice, its agencies, and others linked to the Executive Branch via this particular Ministry Table 9 Justice Sector Budget Institution 2000 2001 2002 2003 2004 2005 2006 Ministry of Justice 24,198 36,312 50,375 42,781 48,350 64,408 79,228 Civil Registry and Identification Service 20,772 20,747 22,142 23,520 29,309 38,179 39,666 Medical Examiner s Office 4,182 4,530 4,997 5,374 5,903 8,068 9,076 Prison Guard Administration 70,056 78,118 88,258 87,704 101,222 113,590 123,395 Superintendent of Bankruptcy 638 676 727 758 844 900 944 National Children s Service 51,929 55,261 60,303 61,985 64,839 70,835 81,355 Total 171,776 195,644 226,802 222,121 250,467 295,979 333,664
Report on Judicial Systems in the Americas 2006-2007 199 (except the Public Defender s Office) increased in nominal terms by 94% between 2000 and 2006, with an average annual growth rate of 12%. The institutions with the greatest budgetary increase for the aforementioned period include the Ministry of Justice itself (227%) and the Medical Examiner s Office (117%). The following table shows these figures in millions of pesos for each year. 6. Public Defender s Office The Public Defender s Office is a public service with legal status and independent budget that reports directly to the President via the Ministry of Justice. The agency was set up in 2001 under the framework of Criminal Procedure Reform. Its purpose is to serve defendants or those accused of committing a crime or misdemeanor who have been brought before an investigative or oral criminal trial court or other court and who have no attorney. It is headed by a National Public Defender, who directs, organizes, manages, oversees, and ensures the fulfillment of the agency s objectives. He or she also establishes the criteria for the institution s performance. The Public Defender s Office, which is decentralized, consists of a National Office located in Santiago and regional and local offices distributed throughout the country. Regional Public Defender s Offices, which are located in the respective regional capitals, manage the resources required to offer public criminal defense at the regional level. These units are overseen by a Regional Public Defender selected by the National Public Defender through a public competition. They serve for a renewable five-year term. Public Defenders represent defendants who do not have an attorney from the first procedural act and in all cases prior to their first hearing. They also assume this function whenever a defense attorney is absent, regardless of the case or stage of proceedings, as provided by the Criminal Procedure Code. They continue to represent the party in question until the attorney chosen by the defendant takes over, except in cases where the defendant has been authorized to represent him or herself. Public defense services are administered through a mixed system. They are provided by official defense attorneys called local defenders, and by attorneys and private citizens selected through a competitive procurement process to work on behalf of the Public Defender s Office. The Public Defense Procurement Council is responsible for overseeing the procurement system. This panel sets the fees for this service, approves and publishes the invitation to tender, and terminates contracts, among other duties. In principal, criminal public defense is free of charge, except for defendants who have the financial resources to pay part or all of the costs incurred. Such persons are assessed according to their income, ability to pay and number of family dependents. Fees for these services are set on a yearly basis using criteria such as the institutional cost of offering this service and local market rates. Local Public Defender s Offices are operational units staffed by local public defenders reporting directly to their respective Regional Office. If the local office has two or more attorneys, however, one is appointed Chief Defender. 6.1. Material and Human Resources When the Criminal Procedure Reform was fully implemented, the number of Regional Public Defense Offices rose to 14, local offices to 120, and criminal public defenders to 345. There are an additional 40 public defenders working with youth offenders. In the Metropolitan Region, two regional (north and south) Public Defense Offices were set up and staffed by 53 justice department criminal defense attorneys and 113 private defenders hired through procurement processes. Nationally, the institution employs 589 attorneys in approximately 100 offices. 6.2. Budget The budget assigned to the Public Defender s Office between 2001 and 2006, in millions of pesos for each year, is as follows: Year Table 10 Public Defender s Office Budget Budget (M $ CLP) 2001 0 2002 9,256,235 2003 13,428,777 2004 19,546,103 2005 23,604,558 2006 29,719,174
200 Chile In nominal terms, the budget increased by a factor of 2.2 between 2002 and 2006 due to the gradual implementation of the Criminal Procedure Reform. 6.3. Reform or Improvement Projects On December 7, 2005, Law 20.084 on Juvenile Criminal Responsibility was published, establishing for the first time in Chile a special justice system for offenders between the ages of 14 and18. The bill set aside resources for creating a Juvenile Criminal Defense Unit, which was implemented in January 2006, and the placement of cases in this sub-section, which occur once the juvenile justice regime has been established nationwide. 30 In order to contribute to the creation of basic standards for exercising criminal public defense, a Court Unit specialized in criminal defense for appeals and first instance cases heard by the higher courts of justice began functioning in April 2006. Lastly, during the first few months of 2005, a process was developed for the selection of private attorneys in the Metropolitan Region. Of the approximately 174 attorneys who will work in public defense in the aforementioned region, 120 will be selected through procurement. 7. Judicial Assistance Corporation The Judicial Assistance Corporation (JAC) is a not-for-profit legal entity with legal standing and its own resources. It has two main objectives: to provide free legal aid to low-income individuals and to offer law students opportunities to carry out the internships required to obtain a law degree. Permanent legal advice offices have been set up in all communities containing a court and are open to all those who fall under the court s jurisdiction. Their staff basically consists of attorneys, social workers, secretaries, and in some cases law students (postulantes). The number of employees depends on the size of the population served. In the country s bigger regions, some legal advice offices handle specific types of cases. There are also mobile legal advice offices that provide legal aid to people living in remote areas. These teams, which teams consist of an attorney, social worker and driver/secretary, provide guidance and information on parties rights and alternative dispute resolution, and undertake prevention and educational work within the communities they visit. Where local conditions require it, they also provide legal advice and representation (patrocinio judicial). Special centers provide more specific, timely and high quality service. They include second instance offices, juvenile legal advice offices, the Labor Advice Office, Human Rights Advice Office, and the International Office, among others. These are complemented by arbitration centers and primary assistance centers for victims of violent crimes. 7.1. Budget The JAC budget is mainly provided by state contributions transferred from the Ministry of Justice, along with funds provided through agreements with municipal authorities and judicial fees. On average, State funding accounts for almost 82% of the budget for this institution. Each year, the Ministry of Justice informs the corporations the amount of State funding they will receive, corresponding to installments that are mainly to cover staff costs; these funds are transferred to the respective corporations on a monthly basis. Each corporation subsequently provides the Undersecretary of Justice with an annual budget report. 7.2. Assistance Provided The total amount of assistance provided by the Judicial Assistance Corporation rose from 319,380 cases in 1996 to 1,234,023 in 2005, a four-fold increase over a 9 year period. Year Table 11 Total Assistance 1996 319,380 1997 430,403 1998 520,036 1999 525,889 2000 644,605 2001 705,957 2002 727,368 2003 764,149 2004 1,198,003 2005 1,234,023
Report on Judicial Systems in the Americas 2006-2007 201 If only cases involving legal representation are considered, there were 221,270 consults in 2006, 57% of which were related to family rights and 11% to labor issues. Of the 49,702 cases filed during that period, 55% were for family matters and 20% for labor issues. 8. Constitutional Court The reforms that were implemented in 2005 expanded the powers of the Constitutional Court. One of its main responsibilities is now to rule on appeals related to the unconstitutionality of legal provisions, allowing it to declare inapplicable any law in force that is used as grounds for any ruling issued by an ordinary or special court. The court also holds erga omnes powers of unconstitutionality. Other functions of this court include overseeing the constitutionality of regulatory decrees issued by the Supreme Court, Courts of Appeal, and Electoral Review Board governing constitutional issues or those related to the Supreme Court Charter. It also oversees international agreements that contain constitutional statutory regulations. During 2006 the number of cases filed before the Constitutional Court increased six-fold to 236, with a monthly average of 20. Of this total, 206 were appeals for inapplicability, 15 for preventive intervention, 10 for unconstitutionality, one was a jurisdictional dispute, one was on the constitutionality of supreme decrees, and one was on the constitutionality of a regulatory decree. 31 The outcomes of these cases were as follows: 32 admissible, 108; inadmissible, 77; rulings handed down, 33; one voluntary dismissal; four withdrawals; six dismissals; and eight involved failure to appear. It is important to mention the sentence passed on January 24, 2007, which declared unconstitutional Article 116 of the Tax Code, which allowed Internal Revenue Service (Servicio de Impuestos Internos) officials to hear and rule upon complaints and accusations as delegates of the service s regional directors. Modification of the charter governing the Court s new powers is pending. Procedural rules have been drawn up for proceedings and rulings related to matters such as the establishment of chambers, case distribution, attention to the public, and court sessions. The main aspects included in the proposed charter relate to public hearings, the purview of chambers and the court plenary, judges, incompatibilities, time limits, litigation, and staffing level, along with specific procedures for the use of new powers conferred on the judges of this court. 9. State Defense Council The State Defense Council (Consejo de Defensa del Estado) is a decentralized public service with legal status that reports directly to the President and is independent of all government ministries. 33 Its main purpose is to defend, represent, and provide legal counsel to the Chilean government in cases of interest, and to represent the State in court. This body also assists the President or the head of any public service in high level defense of all legal matters provided for in the State Defense Council Statutes. It is composed of 12 attorneys appointed by the President who serve until the age of 75 unless relieved of their duties by Senate approval. 34 Any agreement signed by the Chilean government to terminate a trial must be approved by at least three-quarters of the Council s active members. The Council s President is also appointed by the Head of State for a three-year renewable period. He or she is the legal Superior Council Chief and directs the Council according to the duties and responsibilities set down in the law. These include legally representing the government in all cases and proceedings before the courts, regardless of their nature, except where the law expressly stipulates otherwise for specific matters. 10. Police There are two institutions in Chile responsible for maintaining internal order and security: Carabineros de Chile and Policia de Investigaciones. This duality is set down in the country s Constitution, Article 90 of which states that: Law Enforcement and Public Security consist of the Armed Police and Bureau of Investigations only; they constitute the law enforcement agencies and their function is to uphold the law and guarantee public order and internal security, in the manner determined by their respective charters. Thus, the Armed Police (Carabineros) provide security throughout the country through primarily preventive actions supported by ongoing community outreach. Specialized areas support investigative work in criminal cases. The Bureau of Investigations (Policía de Investigaciones) focuses on the scientific and technical investigation of crimes.
202 Chile 10.1. Bureau of Investigations (Policía de Investigaciones) This civil, hierarchical public service focuses on the scientific-technical investigation of crimes. Its relationship to the Judicial Branch is set down in the Criminal Procedure Code, which establishes that its officers support the Public Prosecutor s Office in investigative work and undertake the tasks deemed necessary to fulfill the agency s objectives, as well as use force when requested. The Bureau has a Public Security Division that answers to the Ministry of the Interior. It is responsible for designing public policies that contribute to the efficient management of public security. The statutes of the Bureau of Investigations are set down in Legal Decree 2.460, which provides the constitutional basis for this institution s administration. Article 5 establishes that the Bureau has a special responsibility to contribute to maintaining the peace, preventing the perpetration of criminal acts and other acts that may threaten the stability of essential State institutions; obey the orders issued by the Public Prosecutor s Office regarding investigations, along with those given by judicial and administrative authorities in cases where they intervene as special courts; cooperate with the criminal courts; control the movement of people across Chile s borders and entry points; monitor the permanency of foreigners in the country; represent Chile before the International Criminal Police Organization (INTERPOL); and fulfill other tasks as established by law. The Bureau has a training division the Police Investigations School the aim of which is to fully prepare future detectives who will enter the ranks of the force. In 2007 the force recruited professionals from different educational disciplines as part of its modernization process, creating a more professional police force that is trained in a one year instructional program. It also has a Professional Training Center that provides technical education to support the force s professional officers. The Bureau of Investigations includes 13 specific areas, including: homicide, fraud, drug trafficking, organized crime, foreign nationals (extranjería), and international police. 10.1.1. Human Resources The number of officers increased by 12% between 2004 and 2006. In 2004, female officers represented 17% of the force, a percentage that dropped to 12% in 2006. During the same period, the number of officers working in the fight against drug trafficking rose by 21%. 10.1.2. Budget The total budget allocated to the Bureau of Investigations grew in nominal terms by 54% between 2000 and 2006, with an average annual growth rate of 8%. Table 12 Information 2004 2005 2006 Number of police officers 3,438 3,697 3,841 Number of female police officers 573 392 442 Ratio of inhabitants to police officers in rural areas 589 548 528 Ratio of inhabitants to police officers in urban areas 4,397 4,089 3,936 Number of arrests carried out 51,279 56,772 42,350 Number of disciplinary administrative procedures applied 511 572 425 Number of disciplinary administrative procedures applied leading to expulsion/discharge from the force 1 6 0 Number of officers assigned to the fight against drug trafficking 309 338 375 Source: INE Census 2002; Head of Staff of the Chilean Bureau of Investigations (*) Arrests for 2006 cover the period up to August of that year.
Report on Judicial Systems in the Americas 2006-2007 203 Table 13 Investigations Police Initial Budget 35 (In millions of Chilean pesos for each year) Year Wages Others Total 2000 43,479 12,825 56,304 2001 48,892 10,369 59,261 2002 53,198 13,707 66,906 2003 56,296 13,191 69,486 2004 58,246 11,643 69,889 2005 63,403 15,810 79,213 2006 69,135 17,334 86,469 10.2. Carabineros de Chile The Armed Police or Carabineros is a technical, paramilitary law enforcement agency. Its objective is to guarantee and maintain public order and security throughout the country and fulfill the other tasks assigned to it by the Constitution and the law. The institution primarily carries out preventive work and is constantly building ties with the community. Carabineros maintains a professional development system that includes instilling, complementing, updating, and building the knowledge, skills, and abilities of officers. It also offers technical training, and is authorized to implement courses in areas related to police responsibilities and to confer diplomas, professional degrees, and academic qualifications in specific areas in accordance with the law. Carabineros offers four modes of education: formation, training, development, and specialization. This agency includes the following departments: transit, special operations, pilots, drugs, vehicle search, persons search, VIP protection, canine, mountains and borders, criminalistics, and organized crime. 10.2.1. Human Resources The total number of Carabineros rose by 7% between 2004 and 2006. The percentage of female officers represented 12% of the total force in 2006. 11. Registry and Notary System Unlike Chile s other legal traditions and provisions, taken from Spanish culture, from the beginning Chile s registry system was based on the French model, specifically on that country s Civil Code. As a result, the jurisdiction of registries is territorial, meaning that each property is registered in a geographic area and has its own reference number/folio in the corresponding Registry Book. These books record the entire history of each property, thus ensuring that entries can be contested, authenticated, and publicly affirmed. The data is based solely on the information submitted by the individual who presents, registers, and publishes under his or her responsibility the rights over each property. For the transfer of ownership, Chilean law adheres to the Roman system, under which there must be an instrument (título) and a procedure (modo). The instrument is the legal act that establishes the terms and conditions of ownership, while the procedure is the legal act that effectively bestows ownership. The Chilean notary and registration system is mainly State-run, and consists of notaries and registrars. Notaries are public authenticating officers responsible for authorizing and maintaining in their files instruments signed before them, providing interested parties with statements upon request, and undertaking other procedures defined by law. For their part, registrars are clerks of the court responsible for maintaining registries of real estate, mines, businesses, joint stock mining companies, irrigation canal associations, chattel Table 14 Information 2006 2005 2004 *Carabineros Number of police officers 34,210 33,110 32,011 Number of female police officers 4,164 3,915 3,626 Ratio of inhabitants to police officers in rural areas 470 530 620 Ratio of inhabitants to police officers in urban areas 1,161 1,380 1,555
204 Chile mortgages for farms, and industry, as well as other special chattel mortgages and other legally commissioned matters. Regarding property titles that must be registered, such as instruments transferring property ownership, mortgages on property or any ruling prohibiting the acquisition or any of the above rights on property; the purpose of registration is to establish a procedure for conferring ownership. Fees for such services are set by the Ministry of Justice (Executive Branch). They are calculated using a base value and taking into account the complexity of the procedure, the length of the document and value of the transaction. Outside of the purview of the Judicial Branch, other goods that must be registered, such as brands in the Ministry of the Economy s Department of Industrial Property and copyrights in the Ministry of Education s Department of Intellectual Property. Also, motor vehicles must be registered in the Civil Registry and Identification Service, under the direction of the Ministry of Justice (Executive Branch). This is a public registry that maintains public, historical records of all motor vehicle ownership across the country, and includes the initial registration of a vehicle and all transfers of ownership and related annotations. IV. Criminal Procedure 1. Description The new Criminal Procedure Code, which came into effect throughout the country in June 2005, places responsibility for investigating crimes with the prosecutor in direct collaboration with the police. Prosecutorial evidence-gathering activities are informal: there are no mandatory deadlines and the Public Prosecutor s Office may choose the most efficient way of handling this stage. Preparations for trial are overseen by an investigative judge (juez de garantía), who is responsible for resolving any dispute that may arise between the prosecutor and the defendant, particularly those related to individual rights. This activity constitutes preparation for the trial, which is the main stage of the process. As a result, the evidence gathered by the prosecutor has no evidentiary value whatsoever until he or she presents it in court. 36 During the investigation stage, the prosecutor is required to go before a judge each time he or she wishes to carry out an activity that could affect the defendant s rights. This requires prosecutors to precisely define the basis for their charges, which may not be expanded without due warning in the indictment. Once the investigation stage ends, the prosecutor closes the investigation and may propose that the judge dismiss the case or lay formal charges. In the latter case, the prosecutor may formally charge the defendant, who is then granted time to prepare his or her defense, after which a preliminary hearing is held before the same judge. During this hearing, the possibility of using alternative sentences or shortened procedures is considered. If none of these alternatives is adopted, the case is prepared for trial and a resolution is drafted outlining the following: the charges to be considered at trial, the parties, the court with jurisdiction over the case, and the evidence that has been declared admissible by the judge. The trial is held in a court presided over by three professional judges. All admissible evidence should be presented at this point. The court has some limited powers to accept new evidence and examine witnesses once both sides have questioned them. After the examination of the evidence, the court listens to closing arguments, offers the defendant an opportunity to make a final statement, and then retires to deliberate and reach a decision. Once the verdict is delivered, a period is set for submitting the grounds for the decision and sentencing. Only cassation appeals may be brought to challenge a definitive ruling. A 2003 study demonstrated that the new system reduced case duration by 61% on average over the old one. The following data, which lists case duration for specific types of crimes and overall dismissals, exemplifies the differences between the old and new systems: 37 Robbery: 167 days versus 127 days Rape: 310 days versus 171 days Rulings: 38 591 days versus 193 days Dismissals: 39 174 days versus 108 days 2. Prison Population The agency responsible for prison administration in Chile is the Prison Guard Administration (Gendarmería de Chile). This entity, which is a Ministry of Justice agency, serves, protects and assists inmates and contributes to their reintegration into society. 40