The political country is debating whether it is actually experiencing the greatest risk in its history in terms of ethics and probity in the functioning of the Judiciary. The Signos Survey has published, on three occasions so far this year, the high rate of poor citizen perception regarding corruption and trust, both in the Public Ministry and in judges and Courts of Justice, a corollary of the security crisis that the country is experiencing and which has become evident with the scandals involving undue favors and influences in the actions of that State power.
In the corruption scandals and conflicts of interest that have affected the justice sector for some time, the Supreme Court’s neglect in controlling activities outside the judicial chamber itself and that are part of its powers, and the probity gaps, are notorious. in the appointment of positions. This is particularly serious not only in the actions of the highest courts, but also in the operation of the Administrative Corporation of the Judiciary, CAPJ. It has direct interference in the logistical, technical and administrative supports that allow the judicial processes to function, and the problems they present do not guarantee a correct application of justice.
The criminal prosecution of the country’s politicians, which is now common, obscures other aspects of justice that are less newsworthy or without public opinion scandals, although they undermine the application of the law as much or more than the judicialization of politics, since they harm the entire country in matters of constitutional rights. Civil, commercial, labor or other cases from any legal jurisdiction would require the same strict guarantee of objectivity and equality as criminal matters. But that is relative today and an obvious problem of the crisis of the entire judicial system.
The Anglo-Saxon doctrine calls procedural justice to the environment of facts, practices and norms, procedural or administrative, that directly influence the functioning of the judicial chamber until the final pronouncement of a sentence. For decades, this doctrine has given them particular attention to ensure the inter-institutional coherence of the legal system and the healthy functioning of society, with mandatory methods and standards of conduct in determining the facts of a particular case to obtain a good appreciation and a fair court ruling.
In Chile, the concern to avoid distorted or discriminatory use of the procedure is less than two decades old and has little practical application. Much less in the mess that is being experienced and only with a theoretical and conceptual twist on two constitutional rights that are understood to exist by constitutional derivation from others, since neither of the two is expressly recognized in the Constitution. Its about right to judicial protection and the right to due process, both with profound meaning for a rule of law.
Judicial protection and due process, incomplete Creole equivalents of Anglo-Saxon procedural justice, draw attention to the essential guarantees of the criminal process and the conditions of the citizen’s legal security against the coercive power of the State. This is because criminal jurisdiction is the most established and is even today determined in a universal jurisdiction with ethical and legal principles regarding crimes against humanity and violations of human rights, with justiciability and adjudication by the States and, in subsidy, by an International Criminal Court.
But judicial protection and due process are equally or more important in other jurisdictions of the legal public order. For example, the insolvency and bankruptcy regime, interdictions, free competition or civil and administrative disputes between citizens and the State. In them, the daily lives of citizens are resolved in a social moment marked by new technological perspectives, the development of free societies, broad constitutional rights and free market and competitive economies, something that has been powerful in Chile in recent decades.
The constitutional systems of mature democracies have gone far beyond the criminal dimension and have brought procedural justice to broader jurisdictional spheres. With models of justice that extend due process to broader subjects using specialized sciences such as economics, sociology, the use of statistics and big data.
But in Chile this has not happened like that. And the gap between economic and social development and the legal system has filled the country with examples of arbitrariness and carelessness in matters of procedural justice, transforming it into a serious problem. The worst thing is that this occurs in the midst of political disorientation and litigious practices and conflicts among its ruling elites, and a negative tendency to instrumentalize institutions instead of improving them. In less than 10 years, the gaps in procedural justice are a substantive part of the institutional anomie of the State and the ultra-judicialization of national political life.
There are dozens of cases. Some as paradigmatic as corruption of legal operators such as the so-called Hermosilla Case or insolvency processes such as the bankruptcy of Curauma SA that show chains of illegitimate or illegal acts with manipulation of all procedures, due to the lack of clear rules and the lack of concern real in terms of procedural justice by the responsible authorities.
The most serious thing is that in cases like those mentioned there is enough information and evidence of manipulation by State control bodies, for example that of the Judiciary’s case distribution algorithm in the Curauma case, for it to fall in a predetermined court. of Santiago, which both the Public Ministry and the Judiciary do not investigate thoroughly in an inexplicable manner. Even through complaints admitted for processing without responsibilities being applied, in this case to the Administrative Corporation of the Judiciary or regulatory entities such as the CMF.
A society organized under minimum rules of democracy, decency and transparency resolves its conflicts in processes of institutionalized jurisdiction; That is, with standardized methods and where winners and those affected by the resolutions of an impartial judge abide by them equally. This is the most solid basis of stability and cohesion in that society.
On the contrary, autocratic or low-transparency societies remove corrupt officials or illegitimate interests from public scrutiny, apply procedures, norms, rites and secret languages that destroy the judicial public space and transform it into a world of “experts” or “operators.” influential” capable of determining appointments or decisions because “they know and influence judges.”
