Chile, Constitutional Court, 18 January 2022, Rol. 11475-21
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The Plaintiff, a person currently detained pretrial for robbery, filed a request for inapplicability of a criminal procedural provision, alleging that applying it to his case would be unconstitutional. The provision stated that, in criminal cases where a person was detained pretrial, the suspension of hearings due to the COVID-19 pandemic could only occur if the parties had an “absolute” obstacle, impeding them from exercising their rights.
For the Plaintiff, applying this “absoluteness” requirement to his case would be unconstitutional. According to the Plaintiff, during virtual hearings, there was no possibility of spontaneous and continuous communication between the defendant and his counsel. Likewise, in virtual hearings, there was a difficulty for cross-examining the witnesses and other evidence presented by the public prosecutor. Thus, for the Plaintiff, despite these obstacles not meeting the “absoluteness” standard to suspend the hearing in the present case, they violated his fundamental rights to a fair trial and to counsel.
The Court declared the inapplicability of the “absoluteness” requirement as it considered it an unreasonable and an excessively high standard to determine the suspension of a hearing. For the Court, this requirement, which was only temporary due to the COVID-19 pandemic and the need for holding virtual hearings, violated due process. According to the Court, this provision failed to consider “non-absolute” obstacles that would be relevant for the suspension of hearings. Hence, it hindered the possibility for judges to balance, on a case-by-case basis, procedural criminal rights of the defendants and the principles of promptness and efficiency of the criminal justice system.
Facts of the case
In 2020, the COVID-19 pandemic forced Chile into a general state of emergency. In April 2020, during this state of emergency, Law 21226 was issued to establish transitory legal rules for trials and other judicial procedures. This law authorized the conduction of virtual hearings for criminal cases. It also established the possibility of suspending them when the parties could not exercise their rights due to the COVID-19 pandemic. However, this exception was limited for criminal trials with pretrial detainees, as it only allowed the suspension for “absolute” obstacles.
The Plaintiff filed a request for inapplicability of the provision, alleging its unconstitutionality, as he was currently detained and could not correctly exercise his rights to a fair trial and to a counsel. On January 18, 2022, the Court granted the request and barred the application of this “absoluteness” requirement to the case.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court reasoned that the “absoluteness” requirement for the suspension of virtual hearings was excessively high. Indeed, for the Court, the right to a counsel and to due process established certain guarantees and principles that must not be violated, even in times of the COVID-19 pandemic. The Court recognized that virtual criminal hearings on their own, by virtue of a state of emergency, were negatively affecting defendants’ rights and the principles of the criminal trial. Hence, according to the Court, judges must specially consider every obstacle that the parties may have for the correct exercise of their procedural rights.
Pursuant to the Court’s reasoning, this “absoluteness” requirement completely restricted the possibility for the judge to balance the rights of the defendant, that may have “partial” or “non-absolute” obstacles to exercise them, against the principles of promptness and efficiency of the criminal justice system, which mandate certain performance in the administration of justice.
Conclusions of the deciding body
The Court concluded that this “absoluteness” requirement was unconstitutional and declared its inapplicability in the present case.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Due process
Balancing techniques and principles (proportionality, reasonableness, others)
- Due process: For the Court, the “absoluteness” requirement violated the right of the Plaintiff to due process. Specifically, it barred the possibility of suspending virtual hearings for “non” absolute obstacles that could hamper the exercise of the criminal procedural rights of the Plaintiff.
- Proportionality: For the Court, the “absoluteness” requirement was unconstitutional because it did not allow judges to balance the procedural rights of the defendants against the principles of promptness and efficiency of the criminal justice system. According to the court, these two fronts must always be balanced, even in cases where the obstacles for the exercise of procedural rights are not “absolute”. In the present case, the rights of the Plaintiff had to prevail, as there was a negative impact on the right to counsel and other judicial guarantees, such as the right to cross-examine, due to the virtual conduction of his criminal trial.
On "type of procedure": request for inapplicability of a legal provision for being unconstitutional (Art. 93.6 of the Chilean Constitution).