role in ruling in 707, the Constitutional Court rules on an inapplicable requirement referred to it by the Supreme Court on the occasion of the orders on appeal al rol N° 54.187-96 del Primer Juzgado Civil de Coronel, Forestal Mininco con Luis Méndez Faúndez, acción reivindicatoria. En dichos autos incide la aplicación del D.L. Nº 2695 de 1979, respecto del cual la Corte expresa, según la parte expositiva de la sentencia del TC “que en la causa ...(en la cual) ...se impugnan, entre otros, los artículos 15 y 16 del Decreto Ley N° 2695 (...) se debatió respecto de la eventual incompatibilidad de las normas citadas del Decreto Ley aludido con el artículo 19 N° 24 de la Constitución Política, entendiendo que su aplicación puede resultar decisiva en la resolución del recurso de casación que esa Corte conoce.” El origen de la duda the Court continued, "is based on the jurisprudence of this Court's opinion that articles 15 and 16 of Decree Law in question, (...) could affect the constitutional guarantee of property rights." According to the court, nobody could be deprived of his possessions except in the manner established in the Constitution itself, so that in the instant case "may appear meager and diverse normal deadlines set by the legislator, for what could be in the presence of a contradiction with Article 19 N ° 24 of the Constitution. " In short: the Supreme Court requires the Constitutional Court to rule on the applicability to the case you know, the arts. 15 and 16 of DL 2695, finding that the terms set out therein, for short, could constitute a deprivation of property contrary to the regulations of the Constitution. The Court welcomes the requirement on the grounds that the challenged provisions would be unconstitutional as applied to the case for going against the prohibition of arbitrary discrimination, noting, in the only paragraph of its statement that underlying this statement (13 º) the following: "That even in the abstract, as has been said, the process of cleaning up the domain of small rural and urban property regulated by Articles 15 and 16 of Decree Law No. 2695, 1979, appears as a special mode of acquiring ownership legally established and has a reasonable cause which makes specialty versus general rules for possession and ownership of real estate of the Civil Code, which might be involving unconstitutional deprivation of property, in its specific application to the case before it today the First Chamber of the Supreme Court is contrary to the Constitution, it would resolve a dispute over possession and ownership of rural real estate in accordance with legal requirements, the Articles 15 and 16 of Decree Law No. 2695, 1979 - Miscellaneous general provisions contained in the Civil Code, without, in the opinion of the Court, concur in the kind of reasons justifying the application of those special rules, which, should be used, would constitute an arbitrary difference and could lead to an unconstitutional deprivation of property . '(Emphasis mine)
dissenting vote, the minister Correa Sutil, contains an extensive argument to rule against the injunction and declare the provisions consulted. Its grounds, which are spread over a third of the preamble to the sentence, can be summarized as follows:
a) the order of CS and of the parties, only has referred to the possible unconstitutionality of the contested provisions under an injury to Article 19 No. 24 (and not the art. 19 No. 2 which is behind the failure of the TC) and may not qualify the requirement for a service not invoked in respect of which, if considered, should have listened to the parties
b) that the challenged provisions of Decree 2695 does not violate either in abstract or applied to this case, the right to property enshrined in Article 19 paragraph 24 of the Constitution, as are a manifestation of the prerogative of the legislature to regulate the field and contain at least one procedure that allows the concerned to defend their rights. "Within a year to avoid the registered holder to acquire new prescription, which is shorter than the general term of the Civil Code can not be estimated so short that prevents the former registered holder to enforce their rights. The legislature, empowered by the settlor to establish the means of acquiring the property, justified such a difference and as soon as the statute of limitations, on grounds of equity and social development that give it justification and reasonableness, such as transcribed in the tenth recital of the ruling. "
c) that the challenged provisions are not contrary to the Constitution in solving conflicts between ownership and property, thus providing a way to provide certainty to the domain: "What the mechanism does not lead to contested property disputes, but resolve them in favor of the holder who has benefited from the mechanism established by Decree Law"
d) in the absence of allegations of the parties on the vice of arbitrary distinction not reach a conviction that "in this particular case and the benefit of one of them, involving social goals away from pursuing this regulatory body, which considers constitutionally legitimate, and cause thereby against the other party dispute rule, a discrimination that has an arbitrary character, as required by a declaration of unenforceability.
This ruling raises questions interest. What procedural treatment should receive high requirement inapplicable by the parties or the court in the cases of art. I. 93 I No. 6 CPR? Is not this a procedural claim that annotates or delimit the jurisdiction of the court pursuant to the constitutional expression "matter" is subject to their knowledge (art. 93 i. XI "the question may be raised"?) How to implement the provisions of art. 3 of the Constitutional Organic Law of the Constitutional Court, which refers to exercise its jurisdiction at the request of national (constitutional) interested? One way of understanding this is that the court did not clearly understand linked the requirement inapplicable to the cause of action (the alleged defect.) How do you deal, then the prohibition of ex officio action if the Court means enabled for search-and-find no constitutional defects raised by the parties, or doubtful in the concept of requesting court? Or better how the court retains his impartiality when he himself is responsible for raising a complaint of unconstitutionality to the implementation of a law, criticism that has not even affected part in the respective instance?
Another interesting issue is the structure of the argument on the basis of an arbitrary application, used by the Court, noting that the application of DL 2695 would resolve a conflict: " without, in the opinion of the Court, concur in the kind of reasons justifying the application of those special rules, which, if it is used, would constitute an arbitrary difference and could lead to an unconstitutional deprivation of property . "(Emphasis continues to be mine) According to the doctrine of deference to the legislature recommended by the Court itself seems more likely that is required to justify or identify how, in this case, the application of the provision could be arbitrary, rather than requiring the reasons to show that its application is not arbitrary, especially when, as is apparent from its decision, the Court did not give the bodies concerned and the parties an opportunity to rule on this point, which otherwise could not have foreseen prior to the issuance of the ruling.
In closing, one last question: for whom and in what sense, can be considered arbitrary application of the provision to the case sublite, host to a possible deprivation of property? The ruling does not say: but Shall have said it, because the answer to this question is anything but obvious.
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