in its inaugu address ration of the Judicial year on 1 March last, the President of the Supreme Court, Haroldo Brito referred to contradictory tensions generated by judgements of the Constitutional Court of the Supreme Court, in a same trial. He alerted public opinion on the issue, suggesting that the legislature should seek solutions to resolve the situation in constitutional terms satisfactory, and temper the growing institutional tension between both Tribunals. The raised specific dispute is referred to the Constitutional Court suspended, without legal basis to do so, the fulfillment of a ruling by the Supreme Court, and that at the time act TC, that procedure was already devoid of legal existence in the absence of any pending true judicial management.
The Constitutional Court, on 12 March this year (role no. 6019-19-INA), with the majority vote of the Ministers Cristian Letelier, Miguel Angel Fernandez and María Luisa Brahm, decided to suspend the enforcement of a judgment in a case already filed in court Supreme (role N ° 254-2019), and which only required compliance. He did the opposition founded the Ministers Gonzalo García Pino and Nelson well Silva, who argued to fund the legal inconsistency of the proceedings by the majority of the TC.
It was specifically a resource of the National Corporation of consumers and users of Chile “CONADECUS” who claimed against the decision of the Court of the free competition that granted a subsidy appeal, made by Entel, against enforcement of the judgment of a trial term, and which in the opinion of Conadecus was inappropriate because it is a review mechanism to special regulation established in D.L. 211 that norm the functioning of the Court of Defense free Competition.
When was established by a ruling of the Supreme Court (role 73.923-2016) that Entel, along with other companies should get rid of the same amount of radio spectrum acquired in the contest of the 700 band, being already Conadecus filed their appeal to their the choice of the band that would be alienated option. That ruling instructed, moreover, the Undersecretariat of telecommunications administrative measures in this regard. In July of 2018 CONADECUS asked the TDLC the fulfillment of the sentence, which was accepted, “citation”. Making use of this “citation”, Entel opposed exceptions to the execution, which was rejected by the Court in November 2018. Then Entel appealed claim and appeal in subsidy, which was declared inadmissible by the Court in December 2018 (role no. 31.521-18.)
In such a State of things, January 17, 2019 the Court’s defense of free competition “had by lodged” the subsidiary appeal “in the only devolutive effect”, and ordered the Attorney Secretary prepare a certified copy of the background necessary for the understanding and resolution of the resource interposed. Elevated those cases to the Court, were admitted under the role # 254-2019, i.e. the same digital file where previously were declared inadmissible the subsidiary resources of appeal presented by Claro Chile S.A. and Telefónica Móviles, S.A., and that in the opinion of Conadecus never should have been declared admissible.
It is in the processing of that resource (254-2019 role) involved the TC by sending copy of “requirements of inapplicability by unconstitutionality” presented by Entel and Telefónica, and the resolutions that support them to processing. In synthesis, illegally locked a contest between the TC which takes the arguments of the companies that challenge the applicability in the case of article 27 of the D.L. Nº 211, which would prevent the revision of judgments in the stage of execution of a sentence of term, this criterion which is held by the hierarchical superior of the Court’s defense of free competition, this is the Supreme Court.
Article 27 of the DFL No. 1 of the Ministry of economy, development and reconstruction, which sets the text revised, coordinated and systematized in Decree Law N ° 211, States that: “the decisions handed down by the Court of Defense of free competition, except the” final judgment will be issued the appeal, which may be incidental proceedings or be solved plane. “Will only be susceptible of remedy of complaint, for the Supreme Court, the final ruling imposed any of the measures referred to in article 26, as also the court-martial of the application of such measures”.
As it can be seen, the resolution objected to by way of the subsidiary appeal is not provided for in the aforementioned precept, and according to the provisions of article 98 of the organic code of courts in its paragraphs 4, 6 and 10, is clear that knowledge of asun cough in second instance is exceptional and that, in any case, it requires express standard that it provides for the possibility of review by way of appeal. None of this takes place against the operation than de facto by the TC.
By this time the Supreme Court hosted the resource actually deducted by Conadecus against the resolution by the Antitrust Court, and left without effect and denied the appeal of appeal subsidiary Entel PCS Comunicaciones S.A.
However, the Constitutional Court, by judgment of 12 March 2019, suspended the effects of the judgment by the Supreme Court and the ruling by her, in an unusually illegal act and without constitutional support, since it was something concluded and no pending judicial management. It openly violates the provisions of articles 6 and 7 of the Constitution itself.
As acted by TC clearly generates a head-on collision with the Supreme Court, the President, the Minister Brito described as in his account of March 1, as “tensions between the two public bodies”.
But as you can see, it’s a greater projection constitutional conflict, which affects very significant economic and commercial matters since, by means of the resources presented by the petitioners societies it’s prevent execution to a judgement delivered by the Court of the free competition, that obliging them to actions consistent with a sound performance of the fundamental markets for economic public order in that act as telecommunications. Serious with the addition of this generates a conflict constitutional which powerful economic interests rely on inhibiting the application of the law with the consent of the Constitutional Court.
Many argue that the Constitution contains no express rules to solve this type of conflict, and that in the future it would be desirable that it carried out a constitutional reform to address and solve the issue.
In our view, article 93 N ° 12, Chapter VIII of the Constitution, in which the Constitutional Court, is standard contains clear provisions on competition it has to resolve the strife between political authorities or Administrative and justice authorities, and “not corresponding to the Senate”. Article 53 N ° 3 of the Constitution, chapter V, relative to the National Congress, designated as exclusive attribution of the Senate: “know Bates of competition arising between the political or administrative authorities and courts of” Justice”.
There is no doubt that the Tribunal is a political entity, since it must ensure the full implementation of the Constitution politics. Faults must contain legal reasoning, insofar as the Constitution is the legal expression of political and social events of the country, especially the constitutional pact. Despite this, and holding their legal quality, does not seem appropriate to try to exercise a role of ordinary competence to solve particular contests, assuming you actually have a priority above the judiciary in the area of judiciary of jurisdiction It is common that the Constitution does not give.
It has to be interpreted as finalist, following the principles and values of its organic and functional form. Thus, the concept of higher courts of Justice that she used, in an integral evolutionary interpretation and background, should not be exclusively circumscribed to the Supreme Court and the courts of appeals, but also encompass the Constitutional Court, with all its specificities, in the solution of the competition problems that they present. Therefore, in the case treated more above, corresponds to the Senate of the Republic, in exercise of its agreed custodial powers in the Constitution, to decide on the matter and settle the problem.
Poured in this op-ed content is the sole responsibility of the author and do not necessarily reflect the editorial line nor the counter position.
