Chilean Supreme Court Research Articles

Chilean Supreme Court ruling on the protection of brain activity: neurorights, personal data protection, and neurodata.

This paper discusses a landmark ruling by the Chilean Supreme Court of August 9, 2023 dealing with the right to mental privacy, originated with an action for constitutional protection filed on behalf of Guido Girardi Lavin against Emotiv Inc., a North American company based in San Francisco, California that is commercializing the device "Insight." This wireless device functions as a headset with sensors that collect information about the brain's electrical activity (i.e., neurodata). The discussion revolves around whether neurodata can be considered personal data and whether they could be classified into a special category. The application of the present legislation on data (the most obsolete, such as the Chilean law, and the most recent EU law) does not seem adequate to protect neurodata. The use of neurodata raises ethical and legal concerns that are not fully addressed by current regulations on personal data protection. Despite not being necessarily considered personal data, neurodata represent the most intimate aspects of human personality and should be protected in light of potential new risks. The unique characteristics of neurodata, including their interpretive nature and potential for revealing thoughts and intentions, pose challenges for regulation. Current data protection laws do not differentiate between different types of data based on their informational content, which is relevant for protecting individual rights. The development of new technologies involving neurodata requires particular attention and careful consideration to prevent possible harm to human dignity. The regulation of neurodata must account for their specific characteristics and the potential risks they pose to privacy, confidentiality, and individual rights. The answer lies in the reconfiguration of human rights known as "neurorights" that goes beyond the protection of personal data.

COMPENSACIÓN DEL DAÑO MORAL “PURO” DE LAS VÍCTIMAS SECUNDARIAS O POR REBOTE. COMENTARIOS COMPARADOS EN DERECHO INGLÉS Y FRANCÉS CORTE SUPREMA, 24 DE ENERO DE 2019, ROL N.° 38.037-2017

Moving away from the traditional cases dealing with death or injury of the primary victim, the Chilean Supreme Court compensated the non-pecuniary losses suffered by the wife and children of a man who was wrongly accused of being the author of a crime in the evening news emission of a national television broadcaster. A review of the current framework of protection given to honour and reputation will be useful to assess the structure of the compensation of non-pecuniary losses, distinguishing between normative and consequential ones, as well as highlighting to what extent “pure” moral losses are redressed. Additionally, the limitations imposed by other jurisdictions such as English and French law will be outlined, focusing on both the cases where secondary victims can claim such losses, as well as the restrictions imposed on the class of persons who can make such claims. All this will expose how the Chilean legal system shows signs of being one of the most liberal of the world regarding the breadth of the compensation of non-pecuniary losses, this being only one example among many others.

El principio de interpretación conforme a los derechos fundamentales a la luz de la jurisprudencia chilena

Una de las características del constitucionalismo contemporáneo es el desarrollo de técnicas específicas de interpretación de los derechos fundamentales. Una de éstas es la interpretación conforme a los derechos fundamentales. Este trabajo tiene por objetivo principal analizar críticamente la incorporación de la interpretación conforme en la jurisprudencia de la Corte Suprema de Chile. Nuestra hipótesis es que existen indicios crecientes de que el juez nacional recurre a este principio de interpretación para optimizar y extender la protección de los derechos fundamentales.

Analysis of Chilean Supreme Court rulings in medical malpractice cases, 2014–2015

ObjectiveThe objective of the present study is to characterise the epidemiological and legal data on medical malpractice ruled by the Chilean Supreme Court (CSC) in the years 2014 and 2015. Material and methodA search of the CSC electronic database was conducted to identify and analyse CSC rulings for criminal and civil medical malpractice cases. ResultsA total of 110 malpractice cases were identified. The CSC received only civil cases of medical malpractices during the studied period. The average duration of the trial was 39 months. Gynaecologists faced suits more frequently than any other type of specialist. The majority of cases were associated with the public health system. More claims were associated with scheduled than with emergency care. Likewise, more claims were associated with non-surgical treatment than with surgical procedures. More than a third (39%) of the cases resulted in the patient's death. The majority of CSC rulings were in favour of the defendants. ConclusionsAn urgent analysis of the risk factors is necessary, not only of the occurrence of malpractice, but also of doctor–patient conflicts by judicial means, especially in the gynaecological-obstetrics area. In addition, considering that the trials not only involve a high economic cost, but also psychological and emotional one, for all involved, an analysis of the judicial mechanisms of these types of cases could help resolve them, and when possible, in preliminary courts or in shorter judicial processes, benefiting all parties.

Análisis de los fallos de la Corte Suprema de Justicia de Chile en casos de responsabilidad médica, años 2014 y 2015

ObjectiveThe objective of the present study is to characterise the epidemiological and legal data on medical malpractice ruled by the Chilean Supreme Court (CSC) in the years 2014 and 2015. Material and methodA search of the CSC electronic database was conducted to identify and analyse CSC rulings for criminal and civil medical malpractice cases. ResultsA total of 110 malpractice cases were identified. The CSC received only civil cases of medical malpractices during the studied period. The average duration of the trial was 39 months. Gynaecologists faced suits more frequently than any other type of specialist. The majority of cases were associated with the public health system. More claims were associated with scheduled than with emergency care. Likewise, more claims.were associated with non-surgical treatment than with surgical procedures. More than a third (39%) of the cases resulted in the patient's death. The majority of CSC rulings were in favour of the defendants. ConclusionsAn urgent analysis of the risk factors is necessary, not only of the occurrence of malpractice, but also of doctor-patient conflicts by judicial means, especially in the gynaecological-obstetrics area. In addition, considering that the trials not only involve a high economic cost, but also psychological and emotional one, for all involved, an analysis of the judicial mechanisms of these types of cases could help resolve them, and when possible, in preliminary courts or in shorter judicial processes, benefiting all parties.

Buscando al “juez mediano”: estudio sobre la formación de coaliciones en la tercera sala de la corte suprema

This work adapts the traditional methodology of dissent analysis for approaching to the judicial behavior of the Chilean Supreme Court between 2009 and 2013, particularly its Third Section. Although the high proportion of unanimous decisions (90% of the total) and the huge workload (500 cases per judge) generate limitations, our analysis finds robust coalitions in an environment of variability with over 10 different compositions per year in the same court. Within this period, the behavior of the court seems dominated by the coalition of justices Pierry, Carreno and Araneda, who form the majority when the court splits. Regarding the dissenting justices, the first part of the period features an opposition with Brito, and the second with Munoz. Whereas both justices appear in a solitary position as the minority, Pierry seems to behave as a “median justice.”

ESTADO DE DERECHO Y CONTROL JURISDICCIONAL: DESAFÍOS Y TENSIONES

This article seeks to explain how judicial review of administrative action can have a negative impact in the application of the law itself as well as in its capacity to limit the discretion of public authorities. This transpires when courts adjudicate cases ignoring the demands of the rule of law, which represent a standard of action for any court. Two basic demands of the rule of law are distinguished here and both are at stake when courts review decisions made by public authorities. The article also explains how the jurisdictional control can satisfy one of those demands and at the same time compromising the capacity of the law for satisfying the other. The authors illustrate their point by analyzing a relatively recent judgment from the Chilean Supreme Court concerning a “writ of protection” that challenged the decision of the CEA of Atacama which approved the Study of Environmental Impact of the mining project El Morro.

El derecho al olvido en internet: antecedentes y bases para su configuración jurídica

In recent times it has been gaining ground the so-called (or the right be forgotten) by which a person requires remove from Internet some news, data or image which, over time, has lost topicality without but which continues being easily accessible anyone who asks for the name of the person referred to. With a growing acceptance at the European Community level, such right provokes resistance in the Anglo-Saxon media by the greater weight the latter often grants freedom of expression. This paper describes what appears be an evolution of this figure in three stages up the current right oblivion on the Internet or digital, with comments on the first sentence of the Chilean Supreme Court affirming the existence of this right as an emanation of the right respect a person's private life and honor. It is argued that this right is being formed though it can not be absolute but must be reconciled with other rights and fundamental values of a democratic society. The proportionality principle (minimal intervention) can help determine the ways of implementing this right in order serve the interests of those who want to be forgotten without disproportionately harming freedom of expression and access information.

LA FRONTERA ENTRE CULPA EXCLUSIVA Y CONCURRENTE DE LA VÍCTIMA EN LA PRODUCCIÓN DEL DAÑO A LA LUZ DE LA JURISPRUDENCIA CHILENA

This article refers to the victim’s fault in its two aspects: exclusive fault of the victim and contributory negligence. On the basis of the Chilean Supreme Court jurisprudence, it demonstrates that they correspond to two separate institutions, which play different roles in judgment of civil liability. Exclusive fault is an argument to prove the absence of liability of the defendant, but it doesn’t entail a legal analysis of the victim’s conduct, but only a factual explanation for agent’s conduct. Contributory negligence, instead, presupposes the defendant’s liability, that’s why it requires such legal analysis. In this case, is necessary to demonstrate that with respect to the victim’s conduct concur the legal requisites to elevate it from a simple condition to a cause of the accident, according to standard causality criteria. These requisites are not addressed in this paper.

La revisión judicial de los procedimientos “notice-and-comment”: el caso de las normas ambientales

Until 2014, the judicial review of the environmental rules was highly deferential, remarking the discretionary nature of the rulemaking authority of the President. However, this deferential trend was halted by a decision delivered by the Second Environmental Court in December 2014, invalidating the new Primary Standard of Environmental Quality for Particulate Matter MP10, which later was upheld by the Chilean Supreme Court. As we will explore below, these decisions closely resemble the “hard look” review currently employed by the American courts to scrutiny notice-and-comment rulemaking in the United States.

La revisión judicial de los procedimientos “notice-and-comment”: el caso de las normas ambientales

Until 2014, the judicial review of the environmental rules was highly deferential, remarking the discretionary nature of the rulemaking authority of the President. However, this deferential trend was halted by a decision delivered by the Second Environmental Court in December 2014, invalidating the new Primary Standard of Environmental Quality for Particulate Matter MP10, which later was upheld by the Chilean Supreme Court. As we will explore below, these decisions closely resemble the “hard look” review currently employed by the American courts to scrutiny notice-and-comment rulemaking in the United States.

SEGUIMIENTO DEL PRECEDENTE POR LA CORTE SUPREMA DE CHILE EN MATERIA LABORAL: ESTUDIO EMPÍRICO DEL RECURSO DE UNIFICACIÓN DE JURISPRUDENCIA

This research analyzes how the Chilean Supreme Court follows its own precedents in labor matters. Therefore, the decisions made on the 1051 unifi cation of j...

A Human Rights Triumph? Dictatorship-era Crimes and the Chilean Supreme Court

This article assesses the dramatic shift in Chilean Supreme Court juris- prudence toward accountability for crimes committed during the dicta- torship and sets it within the context of judicial reform and political change. Chile's experience has been identified as emblematic of delayed justice, but an examination of key case law identifies the narrow scope and instability of Supreme Court decision-making. The Court has been uncharacteristically assertive in its application of human rights norms yet vulnerable to external influences. The Chilean example underscores the need for political leadership to address past violations in post-conflict societies. Political inertia impeded justice claims and, as a result, change required significant judicial innovation.

In Chile, Explaining Massive Protests Entails Remembering the Past

Let's start with the numbers. On May 28, an estimated twenty thousand people flooded into downtown Santiago and marched on the presidential palace to protest the HidroAysén project, a plan to build a series of hydroelectric dams on two of Chilean Patagonia's most iconic rivers. The peaceful protest was a welcome relief to organizers after a fortythousand- person march in Santiago a week earlier led to fifty-three arrests and outbreaks of violence. The images of demonstrators launching Molotov cocktails and destroying private property had been broadcast alongside footage of riot police confronting marchers. Since May, protesters and police have clashed in at least twenty-seven cities. At this writing in early summer, there are few signs that the nationwide movement is waning, as protests continue to attract thousands of Chileans to the streets. Meanwhile, the administration of President Sebastián Piñera has voiced support for the estimated $10 billion project, a private venture headed by two private-sector partners, a European conglomerate and a Chilean electricity giant. Though HidroAysén was temporarily stalled by a Court of Appeals ruling, the Chilean Supreme Court recently found in favor of HidroAysén, and the project continues to move forward. Perhaps the most telling and relevant statistics of all: 74 percent of Chilean citizens oppose HidroAysén, yet 72 percent believe that the project will be completed anyway, according to a May 2011 survey.

The Fujimori Judgment: A President's Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus

The Fujimori Judgment: A President's Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus

El Rol Uniformador de la Jurisprudencia de la Sala Penal de la Corte Suprema: Estudio empírico

Since 1995, the Chilean Supreme Court counts with specialized chambers for knowing determinate matters. One of the main objectives in creating these specialized chambers consisted in assuring a more certain and uniform application of the law. This article focuses on the case-law produced by the Supreme Court's criminal chamber, trying to assess the extent to which the goal of a uniform application of the law was achieved during the years 1995-2002. In order to do so, the study utilizes the conceptual framework elaborated by relevant American research on the following of precedents, assuming that a more uniform application of the law is the natural result of that kind of court behavior. According to that research, the degree to which the precedents set by a Supreme Court are actually followed can be ascertained in two levels: first, by examining the phenomena within the Supreme Court itself, where a justice's precedential attitude depends on a low level of salience of the issue addressed, which in turns depends on specific historical circumstances (Spaeth & Segal); second, by studying the issue in a 'vertical' direction, that is, through the examination of the extend to which the behavior of lower court's is congruent with the jurisprudence elaborated by the Supreme Court, which depends on certain institutional conditions studied under the principal/agent relationship model (Songer, Segal & Cameron). This study examines precisely the degree of precedent-following exhibited by the Criminal Chamber of the Chilean Supreme Court and by the country's High courts with regard to five precedent-setting cases decided by the former. After an extensive analysis of court decisions and in depth-interviews of Supreme Court's justices and High Court's judges, as well as criminal-lawyers, the study concludes that the introduction of a Supreme Courts' Criminal Chamber has produced ambivalent, if not poor, outcomes in terms of a uniformity of its jurisprudence, both within the Criminal Chamber itself and at the High courts' level.