Tension between international instruments on Human Rights and Chilean domestic law: The Constituent Task of Compensation for Wrongful Convictions

Abstract

This paper analyzes the challenge that the regulation of the right to compensation of innocent people wrongly convicted has represented for the Constitutional Convention. Two situations that generate tension between Chilean law and the Convención Americana de Derechos Humanos and the Pacto de Derechos Civiles y Políticos are studied: the absence of compensation for innocent people who have been convicted of a sentence that cannot be classified as unjustifiably erroneous or arbitrary, and the partiality of the institution in charge of knowing the requests for compensation of those who do have the right to request it. Attempts have been made to solve this normative tension, within the legal framework of the 1980 Constitution, without success. The creation of a new Constitution represents, therefore, an opportunity to overcome the deficits of the current regulations, although as the only Constitution of 1925 did, it is a complex task.