On December 21, 2020, the Chilean Constitutional Court accepted, by a majority of its ministers, the requirement of inapplicability presented by the company Blue Shell S.A. with respect to articles 163, 166, 167 and 174 of the Sanitary Code in the context of a fine claim process filed by the SEREMI of Health of Los Lagos against the applicant, following an inspection carried out by that administrative authority in response to an accident that caused the death of a company worker.

The requesting company argued that the application of the articles referred to in the case at hand infringed article 19 N°3 of the Constitution, since the procedure in the sanitary summary, and the resolution issued therein, as a manifestation of the jurisdictional powers of the administration, infringed the right to due process, the principle of innocence, the principles of legality and typicality, and the principle of proportionality, all applicable to the administrative penalty law, as a manifestation of the ius puniendi of the State.

In response to Blue Shell’s allegations, the judges ruled that the legal norms challenged in the specific case generated two forms of action that the Constitution outlaws.

The first of these referred to the self-sufficiency of the inspection report drawn up in situ to establish an infraction, a value that is not in keeping with the idea of a fair and rational procedure, since it restricts the right of defense of the accused in the administrative procedure that follows, as well as in the subsequent judicial process;

Furthermore, in the opinion of the Constitutional Court, the power that these articles confer on the authority, both to establish the failure to comply with certain laws and regulations, and to set the amount of the fine within a wide range that does not contain parameters of modulation, is immoderate, and it is an infringement of the principles of typicality and proportionality.

In case you require additional information on this matter, you may contact Andrea Abascal (aabascal@jdf.cl) and/or Rocío Vergara (rvergara@jdf.cl).