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inapplicable, possible denial of justice and procedural problems: role

In Case October 4, 2007 (role 542) the court rejects the request filed by Telemundi Electronics Limited one in the series against the art. CT 116. But this time the Court based its rejection solely on the CIRCUMSTANCES of "absence of management where it can be implemented pending the inapplicability requested." The wording of the ruling is curious: one would have expected a rejection "because there is no pending management can take place the application of the precept." However, this curiosity could be explained by circumstances that are not fully clarified in the decision at issue. And this by the following: the action is filed on July 20, 2006. The Court does not result in the cancellation. Subsequently, (in fact the May 23, 2007) is certifica que la Corte de Apelaciones que conocía de la causa, la de Santiago, había fallado y devuelto los autos al Servicio de Impuestos Internos con fecha 17 de Noviembre del año 2006. Lo que no queda completamente claro de la sentencia del Tribunal es la fecha del fallo de la Corte de Apelaciones; sin embargo, es de presumir que no fue anterior a Octubre, o, con mucho, Septiembre del 2006, si es que para Noviembre ya había sido devuelto el expediente al Servicio. Eso significaría que a la fecha de interposición de la acción, y un tiempo después, hubo gestión pendiente en que podía incidir la aplicación del precepto.
Quisiera dejar este punto abierto, por lo gravitante que me parecen las consecuencias in the case of taking it as true. This is for the following: if the action was filed before the Court on July 20, 2006, and he did not order the suspension of proceedings, the action referred to in art. I. 93 I No. 6 could become entirely ineffective by the same procedure of the Tribunal. In general, sufficient to avoid ruling on any matter which the court denied a stay of proceedings of the respective management and await the decision of the respective instance and then fail, as it does in the role in consideration, rejecting the no action management exist yet. Obviously, "pending management which may take effect the inapplicability requested "because the management does not yet where he could have, and it took place, the application of the precept that motivated the claim of the actor.
As I said, I do not assume that this is the case, because, if so The figure seems very close to that of denial of justice, the same court procedure act constitutes a cause for rejection of the intended action.
However, the problem does not end at this point: the question raised other procedural issues. As I said Eduardo Cordero: What happens if the Court, without order suspension of the proceedings, decided to rule on the inapplicable once the matter has already been decided? How do you articulate rules of procedure (civil, criminal, etc.). delaración on this? Could it be a cause of invalidity in respect of the sentence, and if so, under what rules Shall be processed the same?

The adequacy of the Constitutional Act of the Constitutional Court for constitutional reform of 2005 does become increasingly urgent need.

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542 Response to previous post: Raul Letelier

Dear Eduardo,
First of all congratulations on your Blog.
As always your questions are always interesting. But I think in terms of current pronouncements of inapplicability of Art. 116 should not generate much alarm especially with the understanding that the attitude is having the TC is precisely correct. Although its foundation no great clarity is expected that over time will refine his argument on this point.
In fact, the CT has been clear when stated in 724-07 Role that what he has to determine is whether "Article 116 of the Tax Code, legal provision challenged in this process, you may receive management application pending, if it is crucial, then, if it produces effects contrary to the Constitution. "
Moreover the same statement emphasizes that in its fifth recital earlier ruling that no retroactive repeal. So, we've come to wonder constitutional judges is whether that repealed Art. 116 continues to receive application in the sense of current source of law and not simply a justification of past effects. And his answer is so simple: while this art. 116 did not apply for having revoked the delegation of powers and especially since been withdrawn as this can not be considered irrelevant. Thus the formula employed by the Tribunal is to reject the appeal because they no longer exist constitutional conflict "so that the judiciary is inappropriate to rule on the unconstitutionality of it."
lighter the Court when it states that "he could only make pronouncements on the disapplication request and, a contrario, does not include deciding on the validity of actions and decisions of the tax process followed before a court-appointed prior to the revocation of the delegation or the publication in the Official Journal of the ruling of unconstitutionality ". Why have the constitutional judges should not rule on each are proceedings before the revocation but this does not mean that these actions are zero but instead are entirely valid in both have been generated under the legitimate purposes of a law only subsequently repealed. And it will be precisely this validity which must be recognized now by the judges know the respective ordinary process.

embrace Raul Letelier

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The Constitutional Court would you like a fuzzy control system constitutional? Role

In a series of recent rulings, the Constitutional Court (hereafter CT) requirements has commented on the inapplicability of Art. 116 of the Tax Code, relating to claims initiated prior to the declaration of unconstitutionality of that provision (role 681, 26/03/2007). The Court used as arguments considerations to date and are standard: the reference to the revocation of delegations made under art. 116 of the CT, and the repeal of that provision. That paragraph 7 of the sentence in role 714: "... the constitutional conflict raised by the applicant has ceased to exist, since, revoked the delegation of powers of Article 116 of the Tax Code, this rule does not receive application, especially if it is withdrawn, which is inappropriate for the judiciary to rule on the unconstitutionality of it. " TC Case says precisely that the petition be declared inadmissible inapplicable. This line of jurisprudence has addressed the dissenting ministers and Fernández Baeza Correa Sutil who stand on the one hand, the inconsistency of the argument for revocation of delegations based on the art. 116 CT in relation to cases earlier that the Tribunal met and decided the inapplicability of that provision, notwithstanding such revocation. On the other hand, point out that "... outstanding management, called the tax court officer was appointed and ceased acting role was in full force while Article 116 of the Tax Code which calls inapplicable." It is from this argument it is clear that the TC, by refusing to address the inapplicability, is giving retroactive effect to the repeal of art. 116, against the express constitutional text.
However, the central question is another: to fail in this way the TC returns the issue to court will have to solve the matter. This court is faced with a legal provision is effective with the emergence of the facts and the matter submitted to it, and therefore has to consider, but, on the other hand, knows unconstitutional, and declared as well. The judge has to resolve in this chute in which the judiciary has forced constitutional. What argument can use model?
What gives the Constitution the TC is the power to declare unenforceable a legal requirement as unconstitutional application in a case. Therefore, this option aims to relieve the body of the request, or to the respective hearing the appeal, the issue of conflict between the legislation and the Constitution. Eliminates the inapplicability to the court hearing the case, the problem of an unconstitutional provision. It is, therefore, a way to resolve the antinomy in the instance, but to prevent it. Therefore, the power granted in Art. I. 93 I No. 6 of the Constitution is not a provision which can be understood to deprive the court of an option attached to it, which is the ruling on the antinomy when it occurs. Still less could be estimated that the consecration of the appeal waiver was inapplicable to the judge of the instance of their duty to comply fully with article 6 CPR and give primacy to the Constitution on the contrary precepts. With its jurisprudence on art. 116 CT, the Constitutional Court seems to want to push the other courts of the nation to recognize its power to prevail directly the Constitution against legal precepts that have not been declared unenforceable. Who would have thought that the theory of fuzzy control, the doctrine advocated by authors such as Lautaro Ríos and José Ignacio Martínez, would find an ally at precisely the organ in which, with the 2005 reform was intended to concentrate the powers constitutional control!