COURTS AND LEGAL PROCEDURE
In the formation of the Republic of Chile, the system of law courts and legal procedure was patterned after that prevailing in Spain, and included all of its antique, slow and cumbersome processes. The Spanish law was modeled after the Roman code, and the custom of the race to cling tenaciously to precedent, seldom accepting innovation or change in any practice once established, even to meet the exigencies of changed conditions, manifested itself in the administration of law in Spain. So, Chile inherited and adopted the system with all its crudities, slow processes and impracticable features. The Roman law was improved and amplified to meet new conditions and requirements, and Spain made changes in her laws, but Chile continues under the old and obsolete system copied from the mother country.
The courts, with their respective jurisdiction, are as follows:
Juzgado del Distrito (District Judges). This court, first in the order, has jurisdiction in civil cases up to an amount equal to fifty pesos. The procedure is verbal, but the result, which is delivered orally must be put in writing, as a record. All judgments must be in writing. No criminal cases are tried before these courts. There is no appeal incases where the amount involved does not exceed twenty pesos. The judges receive no salary.
Jueces de Subdelegacion (Substitute Judges). The procedure in this court is practically the same as in the first mentioned, except that the amounts involved in cases tried therein, range from fifty to two hundred pesos, and all can be appealed. In rural districts, these courts have jurisdiction in petty criminal or police cases.
In certain cities, notably Valparaiso and Santiago, there are “Jueces de Apelacion” (Judges of Courts of Appeal), to whom go appeals from the first mentioned courts. They have jurisdiction in commercial cases involving an amount equal to two hundred pesos, and also in cases relating to pawn shops, governing which there is a special law, allowing only a certain per cent. to the holder, on articles pawned. If pawns are not redeemed within the time specified, they are sold at auction. With the proceeds the pawnholder is paid, and the residue, if any, is paid to the person pawning the article. If the money thus obtained is not claimed within a reasonable time it is turned into the general government fund. Where there are no Jueces de Apelacion, their functions are performed by Jueces de Letras. Jueces de Apelacion receive salary.
Jueces de Letras (Judges of Letters): These courts have jurisdiction in probate cases where there is no litigation; civil cases where the amount involved exceeds two hundred pesos, common mining and fiscal cases involving any sum, and criminal cases. In the more important cities and populousdistricts there are special Jueces de Letras for criminal cases.
The following named persons are not subject to jurisdiction in courts presided over by Jueces de Letras: Commanders of Military and Naval Forces; General Officers, whether of the Army or Navy; Inspector General of Military and Inspector General of National Guard; Members of the Supreme Court and Courts of Appeal; Public Prosecutor, Jueces de Letras, heads of church districts and their secretaries or vices; Consuls General, Consuls and Vice-Consuls; also municipal corporations and charitable institutions.
These judges also have jurisdiction in cases appealed from Jueces de Subdelegacion, and without appeal settle cases annulled in lower courts. Where there are no Jueces de Apelacion they perform these last named functions. Where there are two or more judges of the same class in one district, they hold court by weekly turns, except in Valparaiso, where the court of appeals sends each new case to a certain judge.
Courts of Appeal are located at Santiago, Valparaiso, Concepcion, La Serena and Tacna. In Santiago, the capital, these courts have twelve judges, and in Concepcion they have eight; the others five judges each. These courts have jurisdiction as follows:
In the second instance (that is to say on appeal), of the civil and criminal cases tried in the first instance by Judges of Letters within their district.
In single instance (no appeal allowed), of petitions for the nullifying of sentences rendered by Judges of Letters.
In the first instance, of the civil and criminal cases, in which may have an interest or be a direct party, the President of the Republic, the ministers of State, the governors of the provinces and governors of departments, the Chilean diplomatic agents, foreign diplomatic agents credited before the Chilean government or in transit through the territory; the archbishops, bishops, vicars general; and of accusations or civil claims against Judges of Letters to make effective the criminal and civil responsibility resulting from their official acts.
The Supreme Court, which is located in Santiago, has jurisdiction as follows:
In single instance (no appeal), of the petition for the nullification of judgments pronounced by the Courts of Appeal.
In the second instance, of the cases corresponding in the first instance to the Courts of Appeal, or to one member of the Supreme Court. One member of the court, according to the turn established by the court itself, judges in the first, including accusations and civil claims against one or more members of the Court of Appeals, to make effective their criminal orcivil responsibility, and of the capture of prizes, extradition, and other cases to be judged according to international law.
Ministers of the Supreme Court, Ministers of the Courts of Appeal and Judges of Letters are appointed for an indefinite period, subject to good behavior. Judges of Subdelegations and of Districts are named for a term of two years.
The Supreme Court is composed of ten ministers. Judges of the Supreme Court and of the Courts of Appeal are named by the President. The high court prepares a list of persons possessing the necessary qualifications, which is presented to the Consejo de Estado (Council of State). From this list the Council selects three names, which are submitted to the President, and from which he may choose whoever he pleases. In the appointment of a Judge of Letters, the Judges of the Courts of Appeal, in whose jurisdiction the vacancy exists, prepare a list of fifteen persons who have the necessary qualifications and send it to the Consejo de Estado, which prepares therefrom a list of three, from which the President names the judge.
Judges of Subdelegations and Districts are named by the governors of the respective provinces, from lists of competent persons prepared by the Judges of Letters within their jurisdiction.
Natural or acquired citizenship in the Republic; twenty-five years of age; the title of “abogado” (lawyer); judge in a department wherein is not the capital of the province; to have practiced law for two years in a department in which is located theprovincial capital; to have practiced law six years, or served for two as department judge, or judge of a department wherein is a Court of Appeal; to have practiced law nine years, or served as judge for five years in a department, or for two years in the capital of a province.
Natural or acquired citizenship; thirty-two years of age; the title of lawyer; to have practiced law for twelve years, or served for six as judge in a department, for four years in the capital of a province, or for two years in a city wherein there is a Court of Appeal.
Natural or acquired citizenship; thirty-six years of age; the title of lawyer; to have practiced for fifteen years, or served for eight years as judge in a department, for six years where there is the capital of a province, for four years where there is a Court of Appeal, or for two years as a member of one of these courts.
Twenty years of age; reside within the district, and know how to read and write. A person who has obtained a title in one of the liberal professions may be District Judge, even if conditions one and three are lacking.
Each member of the Court of Appeal and of the Supreme Court becomes president by turns for the period of one year.
Judges of the Supreme Court receive salaries of15,000 pesos annually, with an honorarium of 1,000 extra to the president of the court. The secretary gets 7,500 pesos a year. Ministers of Courts of Appeal, 9,000 pesos, with 500 gratuity to the president of same; secretary, 3,000. Judges of Letters, where there is a Court of Appeal, 7,500. Judges of Letters in the capital of a province, 6,000. Judges of other departments, 4,500.
The necessary qualifications for engaging in the practice of law are: Twenty years of age; the title of “licentiate” in the faculty of laws and political sciences in the University of Chile; to have never been condemned in the courts, nor actually to have a case pending for a crime which demands corporal punishment. A five years’ course of study in one of the Liceos (colleges) is required. After an examination in one of the subjects included in the course, according to subject drawn by lottery, the student receives the degree of Bachelor in the University. After five years’ study in a University as Bachelor of Laws and Political Science, another year’s study is required before the degree of lawyer can be obtained. Only lawyers are permitted to plead in the Supreme Court and Courts of Appeal, unless the principal himself wishes to plead his own case.
Unfortunately there is a class of individuals other than lawyers who can appear for defendants in all the courts. They are known as “tinterillos,” and are the plague of the courts and a curse to the country. As a class they are without equal or comparison in any country. They are, as a rule, ignorant of the law, unscrupulous and dishonest. Theirspecial prey is the poorer classes who have not the means to employ lawyers. Once a victim in the hands of a tinterillo, the unfortunate individual finds himself enmeshed in a maze of unscrupulous proceedings that are neither regular nor legal, and are calculated to draw him deeper into the intricacies of Chilean law. Their knowledge of practice is gained from observation, and not from the study of law or proceedings. They usually get cases mixed in an inextricable tangle, lengthen the proceedings, carrying them through wrongly, employ unlawful means in the way of false witnesses, etc. They are permitted to engage in their despicable practices in the courts under the democratic theory that in a Republic, liberty should be denied to none, though generally the evil effects of such liberty are painfully apparent. Because of this theory the evil continues, and nothing is done to eliminate the objectionable practice from the courts.
In ordinary civil actions the complaint is made in writing, with the petitions clearly specified. A demurrer to the complaint may be made by the defendant on certain legal grounds, but only once. Then comes the answer to the complaint, with possibly a counterclaim. After the answer comes the reply, with answer to counterclaim, if there be any. Then reply to the reply. Next comes the verification of pleadings. The judge decides the points to be presented. Within five days the parties to the suit present their list of witnesses, the judge orders thirty days for them to declare in, fixing within that timecertain days wherein they are to be examined and cross-examined through the judge.
When the time expires, the plaintiff is given the papers for ten days for him to sum up the case in writing, and then ten days are given to the defendant for the same purpose. The judge then makes it known to the parties that he is going to pronounce sentence, which he is supposed to do within sixty days according to law. This is not always carried out according to the intent, however.
On appeal, in the upper court, the plaintiff presents a complaint and the defendant an answer, and a day is set for the case to be heard. Then the lawyers plead, after which comes the final sentence, from which there is no appeal, although possibly a petition for nullification, to be heard before the Supreme Court, may be presented.
In criminal cases there comes first the secret proceedings, or “sumario,” of which the accused has no cognizance till the judge has exhausted his means of investigation. So the evidence does not prove the existence of a crime and does not tend to fix it upon the accused. The case is either marked “sobresimiento” or else, when there are not enough proofs against the accused, he is “absuelto de la instancia” (absolved in this instance). Should there be proofs against the accused, the public prosecutor accuses (unless it is a private case, when of course the interested party does so). The accused answers, and proofs are received for a given number of days at the judge’s discretion (not above thirty). The hearing of the procedure is secret. Witnesses declare before the judge and alone, according to questions formulated in writing by the accused (ifthey are his witnesses). Proofs are likewise received at the same time in regard to the ability of the witnesses to act as such. When sentence is pronounced, whether an appeal is made or not, the case goes to the Court of Appeals for final decision,—final unless nullification of the decision is asked for, when it goes to the Supreme Court.