https://doi.org/10.37955/cs.v7i4.332
Received April 01, 2022 / Approved June 11 2023 Pages: 165-174
eISSN: 2600-5743
Is full reparation in the
constitutional context a
fundamental right: general
analytical references?
¿La reparación integral en el contexto constitucional, es
un derecho fundamental?: referencias analìticas
generales
Marco Joselito Guerrero Machado
Docente de la Facultad de Jurisprudencia y
Ciencias Sociales y Políticas de la Universidad de Guayaquil
marco.guerreroma@ug.edu.ec
https://orcid.org/0000-0002-8311-2387
ABSTRACT
The history of law has shown us that although there are certain
institutions that have appeared throughout its development in certain
branches of law, it is no less true that in the course of its development
other areas have incorporated them to their field of action. This is what
presents the current situation of integral reparation in the
constitutional context, which has conditioned its most elementary
needs in its fulfillment of concrete designs like any other sector of the
Law. Due to the characteristics of this juridical institution that starts
in Private Law, but that nevertheless the constitutional law also takes
it and imposes its own functions on it, we do not hesitate to affirm that
reparation is a constitutional right.
Resumen
La Historia del Derecho nos ha demostrado que si bien existen ciertas
instituciones que han aparecido a lo largo de su desarrollo en
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determinadas ramas de aquel, no es menos cierto que en su transcurso
otras áreas las han incorporado a su campo de acción. Es lo que
presenta la actualidad de la reparación integral en el contexto
constitucional, que la ha acondicionado sus más elementales
necesidades en su cumplimiento de designios concretos como
cualquier otro sector del Derecho. Por las características que reúne
esta institución jurídica que parte en el Derecho Privado, pero que sin
embargo el constitucional lo toma también y le impone funciones
propias, es que no dudamos en afirmar que la reparación es un derecho
constitucional.
Keywords / Palabras clave
Constitutional Law, damages, Comprehensive Redress
Derecho Constitucional, daños, Reparación Integral
Introduction
Since the time of the Roman Empire, the State had as a fundamental
attribute the supreme power over its governed, and this theory
prevailed until the middle of the 19th century, which implied absolute
irresponsibility. This implied absolute irresponsibility (The King can
not do wrong), since it was a superior entity, because due to its
objectives based on the general interest, it justified its actions. The
eventual damages caused to individuals were legitimate risks to be
suffered by them.
However, certain exceptions stand out in French legislation, in
anticipation of auspicious changes, empowering, for example, citizens
who have suffered damages, against the public official who caused the
damage, after a pronouncement by the Council of State.
Indeed, in Napoleonic France, with a totally interventionist State, its
multiple activities were a source of constant injury to the rights of
individuals. In these circumstances, the thesis arose that the State
should be liable for the damages it caused. The Civil Code (of 1804)
was then consulted as a legal resource to serve as a basis for this
obligation (Arts. 1383 and 1384, of said code, relating to vicarious
liability).
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This situation that arises as a result of the application of the
aforementioned provisions, produced bitter controversies with those
who proclaimed the impossibility of applying such articles, based -
among others - on the fact that the drafters of the Civil Code, if they
had wanted to extend them to persons under Public Law, would have
so stated without reservation. On the other hand, the differences
arising from the relationships of individuals are based on the principle
of free will, which in itself is opposed to the relationships emanating
from the public power, which need to be governed by rules of public
law.
It will mark a great advance in the jurisprudence of that time, the
recognition, no longer as a simple right, but with regulation of explicit
rules of the public sector, as a result of the famous Arret Blanco
decision of the French Court of Conflicts of February 8, 1873, through
which it was pronounced that state liability cannot be regulated by the
rules of the Civil Code, but, subject to its activities.
In North America, a different orientation will have the institution of
reparation (always manifested through one of its forms,
compensation), already strictly regulated in the Constitution, and it
will be the United States in 1787, which will establish the right to
compensation, when an expropriation has been carried out.
In South America, although through a special law (Law 24 of 1854),
Venezuela declared the absolution of slavery upon payment of
compensation to the owners of freed slaves. Argentina, with similar
scope, will regulate later (1860), but directly through its Magna Carta.
For its part, the twentieth century from its beginnings, outlines the
concern for regulating reparation in the constitutional sphere; it does
so by covering diverse aspects that reached other horizons in the
protection of the components of the legal sphere of the human being.
Thus, the Chilean Constitution of 1925, demonstrating a great advance
for the time, would point out:
"Any individual in favor of whom a judgment of acquittal is rendered
or who is definitively acquitted shall be entitled to compensation, in
the manner determined by law, for the actual or merely moral damages
they have unjustly suffered".
It should be pointed out -with respect to the above quotation- that said
legislation referred at that time to two types of compensation: that is,
physical damages, on the one hand, and moral damages, on the other.
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From then on, other constitutions are also concerned with the subject:
Peru, in 1933, like the Chilean Constitution, will regulate
compensation for judicial error in the criminal field. Japan, in 1947,
points to the right to compensation for damages resulting from the
illegal acts of public officials, among others.
In spite of all the progress made in this area at the beginning of the
20th century, it is not too much to say that if reparation as a
constitutional institution has not reached an adequate expansion
(especially in Latin America), it has been due, among other
explanations, to the lack of concern for organizing solid models
through the legal systems. In short, they have not gone beyond mere
declarations lacking any practicality.
Over time, these constitutionalizations were extended to other fields.
Thus, the Japanese fundamental charter of 1947 itself stands out,
extending protection to other rights that go beyond miscarriage of
justice.
These new dedications to discipline in this way, indispensable
situations that concern to ensure full respect for subjective rights, will
cover issues concerning not only generic aspects, but also specific
problems; even of social conglomerates, with which International Law
takes direct participation, decisively influencing Domestic Law (in the
constitutional), with primordial guidelines.
Such inclinations refer to problems related to honor, damages caused
by the State on the occasion of the public exercise. At the collective
level, in principle, issues such as environmental matters have become
important.
Just to cite a few cases, we mention certain constitutions that have
regulated punctualities:
The Bolivian Constitution, which not only condemns abuses of power,
but also requires compensation (subject to other legal requirements)
to persons harmed by such acts (Art. 15).
On the other hand, the constitutions of El Salvador (Art. 20); Uruguay
(Art. 35), order compensations for the non-observance of the rights
related to the inviolability of property, in its different manifestations.
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Those of Colombia (Art. 80); Costa Rica (Art. 50), among others,
regulate the adoption of compensation for damages caused to the
environment.
In any case, and taking as a reference the Universal Declaration on
Human Rights of 1948; the American Declaration on Human Rights,
also of 1948 -among others-, this hierarchy of subjective rights has
become generalized and has become part of the constitutions of the
world. It will represent an evolution in the societies that have been
turning into rights, aspects such as those already denoted, which today
are a subject of deep concern, hence its problematic. Therefore, giving
sufficient grounds to be elevated to the constitutional category of its
regulations.
Materials and Methods
Some time ago, through our doctoral thesis, we set out to propose new
perspectives on integral reparation, as a fundamental right of the
individual, and all that this legally implies.
This, in view of the problem that these rights are increasingly exposed,
in the social interrelationship of individuals and the State, to be
violated. Otherwise, although there are institutionalized mechanisms
and legal figures, they lack the required sufficiency.
We propose -supported by analytical bases- that the constitutional
sector (although recent), does not escape the consequences of social
development; therefore, today it is obliged to regulate expressly and
efficiently, rights such as the right to reparation and with its own
visions.
Our objectives were to demonstrate that reparation, applied by the
constitutional sphere, has been assigned its own functions. That being
the Political Constitution, which dictates the basic outlines that
imperatively must be observed by all secondary laws; the social
phenomenon, on its part, also requires it to comply with private duties,
as any of them.
That, personally, so to speak, it must deal with the aspects proper to
its field, not only by establishing indispensable principles or criteria to
be followed by lower-ranking laws, but also by establishing concrete
solutions to the non-observance or violation of the basic rights that
protect them. To this end, it must avail itself of its own institutions,
adequate procedures and a specific jurisdictional body. Only in this
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way will it comply not with a simple expectation, but with an
unavoidable and imperative duty of these times: the respect and
guarantee of the aforementioned rights.
Results
Within these parameters, we formulate proposals that undoubtedly
have to be considered as far as the evolution of forms and modalities
is concerned; in the same way that we conclude the need for a specific
jurisdictional body, as we will now consider:
1.- Considering that reparation is a fundamental right, it is necessary
to attribute particular characteristics to it, according to the needs of
the constitutional order.
Such action is undoubtedly an obligation of the supreme Law, not only
because of an unalterable requirement, but also due to the designs of
modern legal principles, conventions and international treaties that
persuade to this strict compliance.
We established these arguments within the framework that there are
no institutions exclusive to a branch of law, since each one gives it
unmistakable nuances, and that the constitutional sector is no
exception to this maxim.
Regarding the role of the State with respect to such rights, it is evident
that it cannot limit itself to respecting them, or to (lyrically)
"guaranteeing" them; it is committed to acting pragmatically,
establishing and promoting mechanisms to protect them from
infringement, and when such infringement occurs, offering the
individual simple and rapid procedures for a full and satisfactory
reparation.
This, without considering its patrimonial responsibility in the specific
scenario of the non-observance of fundamental rights in particular, a
situation in which and for the acts of its agents and that of the
autonomous public agencies, when these have caused damage either
in the person itself or in their property to individuals due to the
exercise of administrative activity, they must respond as one more in
the context of a given legal system.
Now, although the reparation in institutionalized form has its origin in
Private Law, which has provided its characterizations and in whose
field it has developed, since the ancient Roman Law. Even in this area
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of Law its evolution has been immense; for, if before it was recognized
as a kind of sanction, therefore oriented to the person causing the
damage, today modern doctrine argues that in order to apply it
concretely, the damage must be assumed from the victim's point of
view. This implies reasoning that the damage -as some sectors point
out- is in itself an anti-juridical damage; a qualification that has no
relation whatsoever with the conduct of its author, although it may
coincide with this also being anti-juridical (based on this point of view,
it has been supported that the reparation operates only for having
caused a damage that the individual was not obliged to bear).
This is the justification for why the obligation to repair damages
includes both those arising from unlawful acts and those arising from
lawful acts.
However, in accordance with social evolution, other areas of law not
only made room for this figure, but also assigned specific roles to it,
and it has managed to differentiate itself in a remarkable way.
Regarding the constitutional level, we maintain that reparation as an
institution is destined to fulfill a precise and determined role. That is
to say, it must have its own application (in this trend, given its recent
evolution, the same doctrine has identified forms of manifestation that
are not so precise through laws, which will certainly become more
detailed with the passage of time).
As we have already said, in this environment, it acquires its own
characteristics, which in turn allows it to be dimensioned in an
unthinkable way, since it has no limits as to its forms of manifestation.
It has become an elementary right and we believe it is constantly being
explored.
Indeed, in order to achieve the aforementioned purposes, there are
forms and modalities that reparation acquires in the constitutional
sphere, having to mention as a specific characteristic, that they do not
act in an exclusive manner; that is to say, they can complement each
other. Thus, it is the Inter-American Court that has disseminated their
operability, highlighting among the aforementioned: restitution,
compensation, measures of satisfaction and guarantees of non-
repetition.
We must reiterate that the aforementioned forms and modalities are
not unique, but extend (and will continue to do so) with the
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appearance of new natural rights that are threatened or not observed,
according to the prevailing social scenarios.
Similarly, in the doctrinal field, it is the 61st Commission on Human
Rights (presented to the United Nations General Assembly, through
resolution 2005/35), which has offered the referred pattern, which,
incidentally, does nothing more than reflect the reality of social
evolution as stated in our doctoral thesis.
It is therefore positive to differentiate between considering it as a
principle or as an institutionalized right. In the latter case, within its
breadth, it takes on defined forms, which can only be enhanced in the
constitutional sphere. This is where it attains its full dimensions as a
fundamental right.
Without fear of being mistaken, we are at the beginning of the process
of making reparation in the constitutional sphere to become that
prevailing elementary right, which through its various forms of
manifestation is called to be established, and hopefully in the shortest
possible time.
In the purpose of safeguarding and guaranteeing the fundamental
rights, the specific jurisdictional body must necessarily be considered;
this, because if the constitutional sector deals directly with the
aforementioned purpose, it is understood that the need for specialized
judges dedicated exclusively to this purpose is not alien, and why not
with appropriate, fast, simple procedures, divorced from dilatory
solemnities, always bearing in mind that a systematized protection of
those rights needs a true constitutional justice.
The need for a specialized court to hear and resolve these legal
situations is justified inasmuch as - on the one hand - there is a
subjective and personal interest on the part of the victim in having his
or her violated rights redressed in an accurate and prompt manner. As
it happens in the ordinary judicial system, who else but the
constitutional justice to interpret this plethora of aspects of special
regulation.
On the other hand, it is in the State's interest to establish trust in the
public authorities by demonstrating their effectiveness through a fast
and efficient statutory system.
The claim to the states, which the American Convention on Human
Rights, for example, specifies, for quick, simple and effective remedies,
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would be in vain if the victim's desired objective is not echoed in the
organs of justice, which must comply with such fundamental
prescriptions. That is, to achieve through them, an adequate
reparation (if possible), and for this the need for a court that turns all
its efforts to these objectives.
In short -we argue- that the knowledge of these matters justifies the
existence of constitutional judges dedicated to their resolution with
appropriate powers. In this sense, in the absence of this natural
addition, the supreme protection of these rights would be an allegory.
Conclusions
From the foregoing it is possible to point out that the constitutional
field has in reparation an express and determining element in its
protectionist purposes and in ensuring the fulfillment of the
fundamental rights of individuals; not for this reason it must not be
forgotten how much is lacking in its development. However, it will be
the same pleiad of those rights that will establish its consolidation as
such.
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