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expression “de jure”, signifies that commitment to the respective decision is not
conditioned in any way.
The Supreme Court of Chile has stated that international law has precedence over
domestic law. With regard to the ranking of international law, a significant action
occurred in 1989 with the constitutional amendment of article 5 of the Constitution;
this established that the fundamental rights are not only indicated and recognized in
the Constitution itself, but also by international human rights treaties.
No provision in domestic legislation may have pre-eminence or in any way obstruct
real and effective compliance with the decisions of the Inter-American Court.
International treaties are understood to be incorporated into the law and most
doctrine considers that they are incorporated with at least the same rank as
constitutional laws. That is, treaties may expand the sphere of constitutional law
and, furthermore, it should be understood that international laws have pre-eminence
over domestic laws.
In strictly legal matters, Chilean jurisprudence has recognized the pre-eminence of
the Convention over domestic laws. For example, regarding fraudulent emission of
cheques “it has understood that domestic laws, which conditioned release on bail to
the prior deposit of the amount of the respective document, were invalidated by the
provisions [of the Pact] San José”; moreover, it granted release on bail to persons
who wished to be extradited, invoking the Chilean constitutional law and the
Convention. This has not been the criterion with regard to prior censorship, because
the Convention was violated by applying the constitutional norm, which allowed the
exhibition of films to be censored.
Chile has said that it has complied by submitting a draft constitutional reform.
However, this is unnecessary because, since international laws are incorporated with
a constitutional rank, they produce the tacit annulment of norms such as the one
that allows prior censorship, and counterproductive because, by submitting the draft
reform, it is implicitly declaring that, in order to admit international norms, a prior
internal process is required.
The draft reform is also belated because the
international responsibility of the State originated in 1990 with the ratification of the
Convention, while the constitutional reform was introduced in 1997, and reactive
because it was sent when the judgment in first instance had been delivered by the
Court of Appeal of Santiago.
Chileans had a right to see the film from the time the Pact of San José was ratified.
If the constitutional reform is an explanatory or interpretive law, it will contribute to
legal certainty.
f.
Expert report of José Luis Cea Egaña, lawyer, expert in freedom
of expression.
He is aware of the draft constitutional reform submitted to the Chamber of Deputies
by President Eduardo Frei Ruiz-Tagle on April 16, 1997, which has already been
adopted by that Chamber. The draft reform establishes two modifications to the first
and final paragraphs of article 19 of the Constitution. In the first paragraph, the
reform establishes the freedom to emit opinions and to inform without prior
censorship, which is extended to expressions of an artistic or cultural nature. The
final paragraph of the draft replaces prior censorship by a classification system in
which the client of cinematographic exhibitions chooses whether he wishes to view