The Santiago Court of Appeal declared inadmissible the protective complaint against the SML for failing to provide instrumental and technical cooperation in the performance of a private autopsy authorized by the public prosecutor in charge of a body discovery case.
The complainant stated that, as plaintiff and with the permission of the Public Prosecutor’s Office, she commissioned a private forensic pathologist, a former SML official, to carry out an autopsy of the deceased in order to reliably determine the cause of death. Since there are no private autopsy rooms in Chile, the SML was informed of this. However, the service replied that in the event of the occupation of the premises, the private expert must be inspected by an expert from the SML and that he will prepare a report in parallel and that he is also obliged to bring with him all his protective equipment and his work staff such as photographer, technician and Assistant, surgical instruments and disposable devices.
He adds that the SML staff, after leaving the urn with the body in the autopsy room, decided to leave the room so that the private expert would not only be in charge of opening the urn, removing the body and putting them on the autopsy table is impossible for a single person.
Finally, he points out that the SML informed him that they were not responsible for the samples collected and that they would not provide the vials for their storage since the samples were analyzed precisely at the SML.
As a result, the examination could not be carried out, so the body is still in the SML due to lack of cooperation, without a specific date that would allow the expert to carry out the autopsy.
For this reason, she considers that due process and equality before the law have been violated since the investigation was delayed due to excessive delays on the part of the SML, which in turn resulted in secondary victimization of the daughter of the deceased person therefore requests that the SML will be given instrumental and technical cooperation in the development of specialist knowledge.
The Court of Santiago declared the application for protection inadmissible, assessing that “(…) it does not prove to be the ideal means for this purpose and the applicant must request the corresponding directly from the Public Ministry, the body that instructs the offender in question.” Investigation.”
The plaintiff filed an appeal and subsidy appeal against the judgment with the Supreme Court. She claims that at the time of examining the admissibility of a protective complaint, the appeal court only needs to examine whether the complaint contains facts that could potentially constitute a violation of fundamental rights and does not need to assess at this stage of the proceedings whether the facts alleged stand contrary to a constitutional guarantee, since it is inherent in the substantive decision of the matter, in this case the examination of whether or not it is an arbitrary and unlawful act of the SML and, if so, whether or not it violates you the complainant’s right to equality before the law and due process.
However, the General Court did not uphold the re-examination appeal, considering that the arguments put forward were not capable of changing the basis taken into account at the time of the adoption of the contested decision. However, an appeal was filed and referred to the Supreme Court.