the Comptroller Jorge Bermudez with tralor referred to the Court of appeals of Santiago the background required to replicate to the application for protection filed by the destitute subcontralora Dorothy Pérez to reverse his departure from office.
In its reply, Bermúdez exhibits a series «a history of fact and fundamentals of law», requesting that the Court dismiss the action injunction filed by Perez.
In the letter, the Comptroller reaffirms the validity of the procedure worked against Perez, pointing out as a top boss of the Comptroller General «has the broader powers of appointment, promotion and removal» of the audit institution officials .
In this context, it points out that «according to the express wording of article 3 ° of the law N ° 1 0.336, all officials of the Comptroller General, included the Deputy Comptroller, are exclusive confidence of the Comptroller General, taking the latter the power to appoint them, promote them and remove them, regardless of any other authority.»
Also points out that the figure of the Deputy Comptroller is «of exclusive confidence» by the controller and as such «retains its stability while it has the confidence of the authority which appointed them».
In this regard, notes that in the event of a loss of confidence «can be removed by one the request of non-voluntary resignation, that is not filed within 48 hours, the Declaration of the vacancy makes from», procedure It was in the case of Dorothy Pérez.
«Key article article 4 ° of the law not 10.336 of organization and powers of the General Comptroller of the Republic – that Dorothy Pérez calls in your resource protection-is central to the Court between the controller and his former subordinate dispute, who has catalogued of» illegal and arbitrary»its removal.
The article says verbatim to the «Comptroller General and the Deputy Comptroller shall enjoy the privileges and immunity from laws point to the members of the justice superior court. The removal of the Comptroller General and the Deputy Comptroller will correspond to the President of the Republic, prior judicial decision dealt with in the manner established for trials of removability that follow against Ministers of the higher courts of Justice and for the reasons mentioned for the Ministers of the Supreme Court».
In that article the defense of Perez relies to raise in its appeal of protection that «the position of Subcontralora and only judge of accounts can stop, not voluntarily, through the removal of the person in the position, through the judicial procedure «in article 4 of law N ° 10.336, which establishes that the Deputy Comptroller enjoys security of tenure and can only be removed from his post by Decree of the President of the Republic, prior court judgement handed down by the courts of Justice in a judgement of removability».
However, in his reply the Comptroller responds that «article 4 or 10,336 No law is irreconcilable with constitutional and legal norms established subsequently, and, therefore, pursuant to article 52 of the Civil Code, is repealed» tacitly».
In its reply, Bermudez recalled that you one of the functions of the post of Deputy Comptroller «is the Administrative Court as a judge of first instance accounts, which, in any case, does not form part of the power Judicial nor subject to the Statute of that» power of the State».
He adds that the current implementation of article 4 of the, law No 10.336 «brings associated with absurd practical consequences, by assigning him to the post of Deputy Comptroller a legal status privileged, to transform it into life, and impose its permanence who named him Despite the total loss of confidence, and even future controllers that not even participated in its designation».
In this regard, reports that «the way in which ceased in office almost all of the subcontralores throughout history, has been, precisely, by resignation presented on request of the respective Controller General».