On 9 October 2023, the Court of Appeals of Santiago, Chile annulled several fines imposed by the National Immigration Service on two airlines for transporting foreigners into the country during the COVID-19 pandemic without meeting the necessary health requirements. The court deemed that applying the penalties for actions taken before the enactment of the law was arbitrary.

The court’s decision emphasized the principle of non-retroactivity of criminal law, stating that no offense can be punished with a penalty other than what a law in effect at the time of the act prescribes, unless a new law benefits the offender. This principle was reinforced by the Chilean Constitution and the Criminal Code. Additionally, the Administrative Procedure Law stated that administrative acts should not have retroactive effects unless they are favorable to those involved and do not infringe on the rights of third parties.

The ruling also referred to the opinions of legal experts and recognized that the requirement for a prior law applies to administrative sanctions, emphasizing the importance of legal certainty and allowing individuals to understand the rules and the legal consequences of their actions. It concluded that the fines imposed on the airlines, British Airways and Iberia, were illegal because they violated the non-retroactivity principle, as these penalties were based on actions that occurred before the enactment of Law No. 21.325 on 12 February 2022.

The court rejected the argument that the new law (Law No. 21.325) was more favorable to the airlines, as the comparison between it and the 1974 decree (D.L. 1.094) was primarily about the severity of the sanctions, and the new law imposed higher penalties. It also dismissed the reference to the Retroactive Effect Law, emphasizing that constitutional norms take precedence over procedural rules in the context of penalties or punishments. Consequently, the fines against the airlines were annulled based on the non-retroactivity principle and constitutional provisions.

Full text of the decision available at es