The refusal to transfer the convicted person to the Valdivia Study and Work Center is not illegal or arbitrary, since it is based on antecedents provided for in the sector regulations duly weighted by the Gendarmerie.

The Supreme Court confirmed the judgment of the Court of Valdivia that rejected the appeal for protection filed by the lawyer of a person convicted of the crime of rape who was denied entry to the Study and Work Center of that city, which it considers violates the right to life and mental integrity and due process of his client, as this decision was based on a psychiatric report made by a person who is not a specialist in the matter.

The appellant points out that on April 25, 2022, he was notified that his application to the Valdivia CET was rejected, despite the fact that he meets the requirements for it, which has happened on two previous occasions, although now the negative psychiatric examination qualifies him. like a psychopath. He alleges that the decision of the Extraordinary Technical Council of the Rio Gendarmerie Directorate is arbitrary and illegal, since he was not evaluated by a psychiatrist, but only underwent a personal interview, and it is not possible to attest that this diagnosis is correct. accurate or true, since it was evaluated by a professional who lacks the skills for that. For this reason, he is denied the possibility of serving a sentence in the CET, which does not contribute to social reintegration.

In addition, the action of the respondent violates the right to life and mental integrity, against due process, by qualifying him with a high criminal commitment, and also as a psychopath, which in his opinion constitutes a double sanction of the facts for which He is serving a sentence, and all this without being evaluated by a psychiatrist, which also violates equality before the law.

He requests that the appeal be accepted and that a new psychiatric or psychological examination be carried out and, on his merits, his transfer to the Valdivia Study and Work Center be resolved.

Informing the Gendarmerie resource, it states that the appellant presents a low criminal commitment; a very good behavior in the last three bimonthly periods, and registers as the start date for compliance for the crime of rape June 13, 2015 and the end date June 14, 2030. However, the Extraordinary Technical Council made the March 30, 2022 whose members examined the inmate’s application to be transferred to the Valdivia CET to serve his sentence there, rejected the proposal by a majority after studying and understanding the psychosocial report generated by the Gendarmerie, which warns of the need for intervention at the criminological level in various factors of the sentenced person, lack of adherence to internal regulations, high risk of sexual violence and medium range of diagnosis of psychopathy. These data allow us to observe the inconvenience of accepting the request and discourage serving the sentence in the Study and Work Center due to the characteristics of the convicted person.

Finally, it denies the existence of an illegal and/or arbitrary act, as well as a violation of the guarantees that are said to have been violated, since it has acted within the sphere of its powers.

The Court of Valdivia, before issuing a ruling on the illegality or arbitrariness of the Gendarmerie’s decision, mentions Decree 943 that “approves the regulation that establishes a labor and training statute for prison work”, whose importance lies in the regulation contained on the selection process of workers in the Education and Work Centers.

Thus, in its article 79, it details the information that the Technical Council must have in view to accept or not the requests sent, among which are: the single record of the convicted person, social and psychological report, employment report, schooling report, conduct report, application request of the inmate to the CET. In turn, article 80 establishes that for the selection of convicts who apply to the Education and Work Centers, the willingness to work, the need for social reintegration, the motivation to change, and the psychological, social, and behavioral background are considered, issues that are measures and appreciated by the Council in its resolution.

After this systematization of the sectoral regulations applicable to the facts, the Court of Valdivia considers that “(…) there is no illegal action by the Chilean Gendarmerie, since the legislator itself foresees the requirement to consider the needs of social reintegration and motivation when internal change, which implies the need to have social and psychological reports as a background that must be evaluated by the Technical Council within the framework of the selection process for an Education and Work Center.

The ruling continues by stating that “(…) in another order of ideas, the absence of an adequate justification prevents knowing the reasons on the basis of which the decision is adopted, which is not verified in the contested decision, since it makes explicit the elements of fact and report taken into consideration to reject the appellant’s request for transfer, which allows considering the obligation of substantiation fulfilled. A different matter is that the appellant does not share the decision, but this does not constitute the alleged lack of reasonableness”. Therefore, the action of the respondent is reasonable, as it is based on sufficient motivations to establish its legitimacy, which rules out the alleged arbitrariness.

Based on such reasoning, the Court of Valdivia rejected the appeal for protection, a ruling that was confirmed by the Supreme Court on appeal.

See rulings Supreme Court Roll No. 46621-22 and Court of Valdivia Roll No. 3822-22 (Protection).

The refusal to transfer the convicted person to the Valdivia Study and Work Center is not illegal or arbitrary, since it is based on antecedents provided for in the sector regulations duly weighted by the Gendarmerie. – Constitutional Journal