2016 Global Review of Constitutional Law

the case to the corresponding court. Both the
administrative and judicial actions were rejected.
Colhue appealed to the Rancagua’s
Court of Appeals (Corte de Apelaciones de
Rancagua) and, during the appeal process,
asked the CC to declare that the rules governing
the administrative procedure that led
to the fine be inapplicable because they violated
the Constitution. If the rules regulating
the procedure were declared unconstitutional
by the CC, then the Rancagua Court of Appeals
would not be able to use those rules to
decide the case against Colhue.
The CC declared that the challenged legal
provision did not sufficiently describe the behavior
to be penalized by the administrative
agency. This lack of precision allowed the
agency to qualify as an infraction a behavior
Colhue could not predict that was illegal.
Moreover, the challenged rule authorized the
agency to establish a fine without providing
a criterion for calculating the amount of
money to be paid—the rule only contained
a maximum. Thus, the agency could use its
power to establish fines in an unpredictable
and disproportionate way. The challenged
rule violated the due process elements of
tipicidad and proportionality. Tipicidad is a
constitutional requirement (Article 19, Nº 3)
that requires legislative statutes to describe
the illegal behavior and the penalty with
precision, so that individuals can effectively
avoid committing an infraction. Tipicidad
is traditionally considered to be a requirement
for criminal statutes, but the CC has
extended this requirement for administrative
regulations that aim to penalize individuals
with fines. The Constitution’s purpose is to
protect individuals against the state’s power
to punish (potestas puniendi or ius puniendi)
and, in this regard, the distinction between
criminal law and administrative law is not
relevant.
to justify its final decision. The CC’s inapplicability
decision is important because it confirms
that administrative regulations should
follow the requirements that the Constitution
establishes for criminal law, and provides
some specific criteria regarding the tipicidad
and proportionality principles.
CONCLUSION
In this report, we have shown five selected
cases that illustrate how the CC is becoming
an increasingly consequential actor in the
Chilean constitutional system. The first case
shows how the CC can affect an important
legislative reform in a politically complex
scenario while the second is an example
of “constitutional dialogue” in its Chilean
version, and how that idea (which includes
legislative practices) reaffirms the CC’s interpretative
authority. The case regarding
constitutional dialogue is probably the most
interesting case for scholars working on
comparative constitutional law.
In the other three cases, the CC challenges
legal provisions and orders not to apply them
to the specific case. In the three cases, the
state tries to punish an individual (or a firm)
using its ius puniendi (the power to punish)
in a way that violates the Constitution. According
to the CC’s doctrine, the constitutional
limits of the ius puniendi do not only
operate against the state in criminal cases but
also against administrative agencies imposing
fines.
Although the Rancagua Court of Appeals
has not yet released a final decision on this
case, its jurisdiction would be limited by the
CC’s ruling because it would not be able to
use the legal provision declared inapplicable
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