CHILE Law and Practice Contributed by: José Miguel Valdivia, Juan Francisco Sánchez, José Tomás Blake and Tomás Izquierdo, Valdivia Legal
1. Jurisdiction 1.1 General Rules or Specific Regimes? Judicial review in Chile is characterised by frag - mentation and specialisation. Each public body generally operates under its own judicial review framework, with subsidiary remedies only apply - ing in the absence of specific provisions. While there is discussion about establishing an admin - istrative tribunals system it remains ongoing. 1.2 Forum for Judicial Review Judicial review of administrative decisions in Chile primarily falls under the jurisdiction of ordinary courts, which handle most challenges against government actions. Some areas, such as environmental law and public procurement, have specialised tribunals. However, in general, ordinary courts are resorted to. The Office of the Comptroller General of the Republic also func - tions as an administrative body and individuals can file complaints against government actions to it. Susceptibility to challenge is primarily deter - mined by the nature of the decision or action rather than the status of the defendant. The most common mechanism for challenging the legality of an administrative action is the claim of illegality ( reclamo de ilegalidad ), which focuses on whether an administrative decision objectively complies with the legal framework. This type of challenge evaluates the deci - sion itself rather than the characteristics of the authority issuing it. 2. Target of Challenge 2.1 Determining Susceptibility
However, there is also a constitutional remedy known as recurso de protección , which safe - guards fundamental rights. Unlike the claim of illegality, this action considers the subjective circumstances of the individual affected, as its primary aim is to provide relief in cases where constitutional rights are violated. The judicial review system is primarily structured around the nature of the decision being chal - lenged, with limited exceptions, such as recurso de protección , where the individual’s circum - stances may also be a determining factor. 3. Nature of the Decision 3.1 Challenging Primary Legislation Primary legislation can be challenged before the Constitutional Court on constitutional grounds. There are two main mechanisms for constitu - This review takes place before a law is prom - ulgated. In certain cases, such as with organic constitutional laws, the Constitutional Court conducts this review ex officio. In other cases, a group of parliamentarians may request preven - tive control for various types of legislation. This mechanism ensures that laws comply with the Constitution before they take effect, preventing potential conflicts in advance. Ex Post Control (Inapplicability Remedy) tional review of laws. Preventive Control This mechanism allows a law to be challenged after it has come into effect, but only in a specific case. If the Constitutional Court deems a provi - sion unconstitutional in a particular case, it rules that the provision cannot be enforced in that instance. However, the statutory provision itself remains valid and enforceable in other cases.
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