would have wished to devote the time spent on these lines to hot issues of our present constitutional and political reality model, living in what might be called parademocrático union regime in Chile. However, once again, duty calls.
role in its decision No. 943 of June 10, 2008, the Constitutional Court has declared inapplicable in a civil claim for compensation for damages, Art. 2331. According to the Court, this provision, by denying the right to compensation for injurious accusations that do not cause financial damage, contains a limitation that would undermine the right to privacy enshrined in Article 19 No. 4.
a comment for this failure, more elegant and better wording as presented here can be found in www.decive.blogspot.com. Take here to congratulate Professor Raul Letelier W. for its creation and at a time sober and attractive design of this blog. For my part, I limit myself to play only those aspects of the reasoning of the Court seem to be weaker in this sentence.
The first is that the Court finds that the injury to constitutional rights would be a source of liability. However, this assertion, which is a central pillar of the matter, the Court dispatched the following way in paragraph 16: "That, as we know , liability and duty to compensate the damage caused to other is also the case from the injury of a constitutional right "(emphasis mine). What happens if the unsuspecting reader does not know? Furthermore ... what if he has discussed this matter, "not know"? (The author of these lines, I thought "knowing something", he felt that the issue of civil compensation for injury by individuals with fundamental rights, was a complex issue into the already complicated topic of horizontal effect of the same. Al Apparently, the issue was much simpler, and myself, in a supine ignorance). But there's more on this point: the Court should be aware that the trick to give for granted the central question is to argue in a court decision may not, without more, unnoticed. So gross. Would the Court itself tomorrow, a requirement inapplicable where alleged basis "as it is known ..." below to add a conclusion that was just to argue?
However, this trick, apart from unsophisticated in this case, moreover, has failed. Not for two reasons. First, if the issue was the extent of liability which may result in insulting expressions, is the Constitution which refers to the law to determine the responsibility that will come as a case of abuse of freedom of review and reporting. Art. 19 No. 12 clearly states that such abuse is liable "in accordance with law", and therefore, confesses that she (the Charter) does not assume a specific standard of responsibility. Secondly, the trick is not to something more clear. It is the same court where the rule states that any damage should be compensated, which stands to this rule ... at legal! . In fact, says at paragraph 19: "That, as mentioned above, the general rule of our legal system is that any damage caused by a wrongful act should be compensated, that is, both property damage and moral damage, may have occurred, must be repaired by the Officer. This rule has been derived from the text of the first paragraph of Article 2329 Civil Code does not distinguish between property damage and emotional harm by providing: "However, all damage that may be attributed to malice or negligence of another person, must be repaired by it.. " The Court itself acknowledges that the general rule is civil in nature. To reach the constitutionality of an exception to this rule must show that the same rule was constitutional source, which obviously could not. The Constitution takes care of rebutting this possibility in several provisions, either when specifically excludes compensation for damage moral, by limiting compensation to property damage (19 N º 24 i. III), either by expressing the compensability of moral damage as a sign of a lack of understanding included "silence" of the Constitution (19 N º 7 lit . i).
The second prong of the apparent weakness of the Court's decision is its treatment of constitutional rights. The Court does not stop a line (in what should be a harmonious interpretation and systematic) that the Constitution does not secure to all persons "the right to privacy" (see, for example paragraphs 25 and 36 ° of the fault), but "respect for and protection of life privacy and honor the person and his family. " This subtle but important distinction emphasizes a constitutional option to impose a duty to respect and protect the State, the option in which just expands the freedom of configuration of the legislature. It is curious that the Court flaunt the principle of deference rationale and interpretation as to save the constitutionality of a legal rule "the interpretation" that allows you to survive constitutional, but not interpret the Constitution, leaving the legislature the same space that it has delivered in some cases-such as the 19 N º 4 -, with greater latitude. It is also curious that, as given by known certain rules of nature colossal in the field of constitutional rights (the aforementioned the cons. 16 º), when it comes to getting into the subject that was relevant, from the dogmatic point of view - the theory of the duty of protection on human rights Constitution - the Court is content, in paragraph 34, with the following reference to the dictionary of the English Language .... "Protection, in turn, is" action and effect of protection "and protection is" protect, promote, defend "... ..
Anyway. An indefinable sense of unease comes to end this comment. In closing, something valuable: the dissenting vote Minister Fernández Fredes is concise and forceful. While not an absolute criterion, these features are often a good indicator of proper constitutional interpretation. For something short and the Charter is fundamental.
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