Chile 2018 Draft Constitution

Table of Contents

Chapter VII. Public Ministry

Article 84

An autonomous, hierarchical organization of the State, with the name of the Public Ministry, will direct the investigation, in an exclusive form, of the acts that constitute the crime, of those that determine the punishable participation and of those that believe in the innocence of the accused and, when necessary, it will exercise the public penal action in the form indicated by the law. In a similar fashion, the adoption of means to protect the victims and the witnesses will correspond to the Public Ministry. In some cases, it may exercise jurisdictional functions, and in its investigations it must adhere to the requirements set forth in article 19, number 6 of this Constitution. Any act that contravenes these requirements is null and will bring about the correctional and indemnificatory consequences foreseen in the law.

The victim of a crime and other persons determined by the law may equally exercise the penal action.

The Public Ministry may impart direct orders to the Forces of Order and Security during the investigation, without prejudice to its dependence as indicated in article 103 of this document, completely assuming the hierarchical responsibility for the consequences that the exercise of this prerogative may bring about. In all, the acts that deprive, restrict, or perturb the accused or third parties of their exercise of the rights guaranteed by this constitution will require prior written judicial approval from the lead investigator. The required authority must comply with said orders without further delay and may not qualify their grounds, opportunity, justice or legality, except to request the exhibition of the prior judicial authorization previously described.

The exercise of the public penal action and the direction of investigations of the deeds that constitute the crime, of those that determine the punishable participation, and of those that believe in the innocence of the accused in a case that is under consideration in a military tribunal, such as the adoption of means to protect the victims and the witnesses testifying about the corresponding deeds, according to the norms of the Code of Military Justice and to the respective laws, to the organs and to the persons that this code and these laws determine.

Article 85

An organic constitutional law will determine the organization and powers of the Public Ministry, it will indicate the qualities and requirements that prosecutors must have and meet in order to be nominated and the causes of removal of the adjunct prosecutors in cases not contemplated within the constitution. Persons designated as prosecutors may not have any impediment that would make them unable to perform the duties of a judge. Regional prosecutors and adjuncts will cease in their role upon reaching the age of 75.

The organic constitutional law will establish the level of independence and autonomy as well as the responsibility that prosecutors will have in the direction of the investigation and in the exercise of the public penal action, in the cases of which they are in charge. In all cases, the law will take into account the hierarchical structure of the Public Ministry set forth in article 92.

Article 86

The National Prosecutor shall be appointed by the President of the Republic, at the proposal of the Supreme Court and with the agreement of the Senate adopted by two-thirds of its members in office, in a session specially convened for this purpose. If the Senate does not approve the proposal of the President of the Republic, the Supreme Court must propose a new name to replace the rejected one, repeating the procedure until an appointment is approved.

The National Prosecutor must have at least ten years of experience as a lawyer, have reached forty years of age and possess the other qualities necessary for citizenship with the right to vote; the National Prosecutor will remain in office for eight years and may not be reappointed in the following period.

The maximum age indicated in the second clause of article 81 will also apply to a National Prosecutor.

Article 87

A Regional Prosecutor will exist in each of the country’s administrative regions, unless the population or the geographic area of the region make it necessary to name more than one.

The regional prosecutors will be nominated by the National Prosecutor, from a three candidate list proposed by the Court of Appeals in the respective region. In the case that there is more than one Court of Appeals within a region, the three candidate list will be formed by a plenum composed of all members, especially convened for this purpose by the President of the court that was created first.

The regional prosecutors must have at least five years of certification as a lawyer, have reached the age of 35 and possess the other qualities necessary to be a citizen with the right to vote; they will remain in office for eight years and may be appointed in the following period in another region, which will not obstruct their ability to be nominated for other roles within the Public Ministry.

Article 88

The Supreme Court and the Court of Appeals will call for a public competition in order to formulate the five person and three person lists, which will be agreed to by the absolute majority of their members in office, in a plenum especially convoked for this purpose. Pensioned or active members of the Judiciary may not form part of the five person or three person lists.

The five person and three person lists will be formed in a single election in which each member of the plenum will have the right to vote for three or two nominees, respectively. The nominees that obtain the five or the three first majorities, respectively, will be elected. If a tie results, it will be resolved through a lottery.

Article 89

There will exist adjunct prosecutors that will be designated by the National Prosecutor, selected from the three-person list proposed by the respective regional prosecutor, which must be formed through a public contest in accordance with an organic constitutional law. They must have certification as a lawyer and possess the other qualities necessary to be a citizen with the right to vote.

Article 90

The National Prosecutor and the regional prosecutors may be removed by the Supreme Court, at the request of the President of the Republic, of the Camara de Diputados, or of ten of its members, for infringing the norms governing the role, incapacity, bad behavior, or negligence in the exercise of his or her functions. The court will learn of the matter in a plenum especially convened for this purpose and, in order to agree to the removal, it must obtain a majority vote in agreement from the members in exercise.

The removal of the regional prosecutors may also be requested by the National Prosecutor.

Article 91

The provisions of article 82 will apply to the National Prosecutor, the regional prosecutors, and to the adjunct prosecutors.

Article 92

The National Prosecutor is the superior authority of the Public Ministry, on whom the regional prosecutors and the adjunct prosecutors will hierarchically and directly depend. The National Prosecutor will have the directive, correctional, and economic supremacy over the Public Ministry, according to the respective organic constitutional law.

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