Chile, Supreme Court of Chile, 27 September 2022, Rol No. 77.522-2021
Case overview
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Case ID
Decision date
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Deciding body (Original)
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Type of Court (material scope)
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Type of Court (territorial scope)
Instance
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Link to the full text of the decision
General Summary
The plaintiff filed an annulment action (cassation-review) against a judicial decision convicting him for the crime of “jeopardizing public health,” provided in article 318 of the Criminal Code. The plaintiff was spotted in a public street, at night, without any permit during the national emergency of the Covid-19 pandemic. The plaintiff argued that his action did not amount to a real danger to the public or individual health, as it was only a violation of an administrative measure at night. Hence, no legal interest was harmed (a requirement in Chilean Criminal Law to convict a person). The Court accepted the arguments of the plaintiff, stating that criminal law required proof beyond a reasonable doubt that the plaintiff had effectively jeopardized public health (by creating a concrete risk) and harmed a legal interest. Rather, in the present case, according to the Court, the plaintiff only violated an administrative measure (only creating an abstract/formal risk). The Court held this violation was not enough for a criminal conviction and annulled the decision.
Facts of the case
On March 26, 2020, the President of Chile declared a national emergency due to the Covid-19 pandemic, which established certain administrative measures such as a nocturnal lockdown for every citizen with the exception of people that had a special permit. On May 24, 2020, the plaintiff met with friends at night in a public street to celebrate the anniversary of a university club. He did not have any special permits. The police arrived and arrested him. He was charged with a criminal count of “jeopardizing public health” and convicted on September 21, 2021. The plaintiff requested an annulment before the Supreme Court and on September 27, 2022, the Court accepted his claim.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court reasoned that the plaintiff did not harm any legal interest related to public health. According to the Court, while it was true that he violated the administrative lockdown order, he did so without concretely creating a risk for public health (as it was at night, without many people around). As criminal law requires proof of both a harm and the creation of a concrete risk, which were not present in this case, so said to the Court, it was inappropriate for the lower Court to convict the plaintiff.
Conclusions of the deciding body
The Court concluded that the lower court had wrongfully convicted the plaintiff and annulled its decision.
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
Balancing techniques and principles (proportionality, reasonableness, others)
The Court implicitly analyzed whether a criminal conviction was proportional to the wrongful action conducted by the plaintiff. According to the Court, as criminal law requires the creation of a concrete risk to public health and a harm to a legal interest, which were not present in this case, convicting the plaintiff for violating a lockdown measure was incorrect. According to the Court, and following Chilean principles of criminal law, there was no real threat or danger to public health and therefore criminal conviction was excessive.
Other notes
On the type of procedure: Ordinary procedures (annulment of a conviction – Art. 373 of the Procedural Criminal Code).
