CHILE Law and Practice Contributed by: José Miguel Valdivia, Juan Francisco Sánchez, José Tomás Blake and Tomás Izquierdo, Valdivia Legal
10.8 Human Rights Chile is not a signatory to the European Con - vention on Human Rights and it is not possible to bring a claim on human rights grounds as a result. However, Chile is a party to the American Convention on Human Rights, also known as the Pact of San José, a regional human rights treaty specific to the Americas. The American Convention on Human Rights establishes simi - lar protections for human rights and fundamen - tal freedoms as the European Convention on Human Rights. The claim can be initiated when individuals have exhausted all domestic rem - edies, meaning they have pursued all available legal avenues within Chile’s national legal sys - tem to address the violation. This includes appealing to administrative bod - ies or courts to challenge the State’s actions. After exhausting these remedies without satis - factory resolution, individuals may seek redress at the international level, such as by submitting a petition to the Inter-American Commission on Human Rights. Claims can encompass a wide range of human rights violations, includ - ing unlawful detention, torture, discrimination and violations of freedoms such as expression, assembly and association. 10.9 Proportionality Proportionality provides solicitors with a use - ful tool for contesting administrative decisions. This argument involves comparing the actual occurrence in a specific case with another cir - cumstance, whether ideal or factual. However, the burden of proof is elevated in these cases. The claimant must empirically demonstrate that different treatment has been accorded to indi - viduals in similar circumstances, establishing a lack of proportionality in the decision-making process.
10.10Additional Grounds There are no additional grounds of challenge. 10.11Exempt Decisions Under Chilean public law, certain categories of decisions are exempt from judicial review. These generally include the following. Political Decisions Decisions that fall within the realm of political discretion, such as those made by the President of the Republic are typically not subject to judi - cial review. This includes decisions related to foreign policy, national defence and other purely political matters. Acts of Parliament Legislative acts, once passed, cannot generally be challenged in courts, although they can be reviewed for constitutionality by the Constitu - tional Council before they are enacted. Notably, a tort of legislative harms refers to the liability arising from the enactment of a law that causes injury or damage to individuals or entities, typi - cally when the law is deemed unconstitutional or is misapplied in a manner that violates protected rights. As in the French legal system, which pri - marily allows for challenges to administrative actions, individuals can seek compensation for damages caused by a legislative act through the concept of no-fault liability under the framework of state liability. 11. Defence 11.1 Timing and Grounds of Defence The defendant is typically required to explain its grounds of defence at the initial stages of the proceedings, particularly after the claimant has submitted their claim. This occurs when the court seeks to ascertain the positions of both
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