In a unanimous ruling, the Third Chamber of the Appeals Court – made up of the minister Jorge Fernández Stevenson, the judicial prosecutor Joaquín Nilo Valdebenito and the lawyer (i) Mauricio Abarca Lagos – established the illegal and arbitrary action of the respondent, the National Directorate of Police personnel, by ordering the transfer of the non-commissioned officer without respecting the right to mental integrity of the appellants and their children.
The resolution establishes that: “(…) although it is indisputable that the institution under appeal has legal powers to order the transfer of its officials, the truth is that such a decision must be based on reasons that must be clearly expressed and with respect to the regulations themselves. that has been given for this purpose, which calls for considering, among other aspects, family and health reasons.”
“In effect, the Transfer Regulations, approved by General Order No. 2,707, of November 13, 2019, alludes to the weighting of the personal aspects of the transferee, that is, those that without constituting elements that directly affect their work performance , may indirectly affect their productivity and interest in fulfilling their obligations, such as: work and/or studies of the spouse or civil partner, in addition to studies of the staff or their children, and other duly qualified; health of the staff or members of their family group, mainly in the event that one of them requires specialized professional attention, or by medical indication, demands a special physical stay in a certain place, or outside of it”, he adds.
For the court of appeal: “(…) in this regard, despite the fact that the appellant argued reasons of this nature to request the reconsideration of his transfer, the institution did not rule on the matter, limiting itself to arguing in its rejection that the plaintiff has exceeded the maximum time of stay in the area, so that he did not take charge of the factual and legal issues alleged by the official, thus violating the duty to motivate administrative acts established in articles 11 paragraph 2 and 41 paragraph 4 of Law No. 19,880, and without considering or referring to the reasons stated by the appellant of a family nature that he alludes to and that will make a transfer to the designated place excessively burdensome.”
“That as a consequence and of the proposed analysis, the questioned act becomes illegal, due to breach of the legal duty of substantiation, and therefore stands as arbitrary for lacking sufficient reasonableness to justify it, thus affecting the right to mental integrity of the appellants and their children, enshrined in article 19 No. 1 of the Political Constitution of the Republic, who, due to an action lacking reasons, have seen a transfer decision adopted by the superiority of their Institution, without absolutely consider their allegations of fact and law, supported by documentary information, generating anguish and uneasiness due to the alterations that they imply in their family life”, the ruling states.
“In this sense -deepens-, the exercise of the powers under study, must take into special consideration the protection of people that the State recognizes as valuable in themselves, and who require special protection, as is the case of the best interest of the child , girl or adolescent, enshrined in different legal norms and international treaties, which reflect a systemic set of guardianship principles that inspire the matter, such as, for example, the principle of protection for the weakest, all of which leads these judges to provide the constitutional protection requested.
“Of the briefs supplementing the report dated August 2 and 18 of the current year, the respondent limited herself to pointing out that the transfer in question was due to a prior study of institutional needs considering that there was a deficit in the 43rd Police Station. of Sergeant 2 grade personnel and male personnel, accompanying official letter No. 996, dated July 12, 2023, in which it is noted that at least 8 members of the Cachapoal Prefecture No. 11 have longer stay times to what the norm allows, hence there is a violation of the principle of equality before the law, since the Directorate said nothing about justifying why the transfer in question was appropriate in the case of the appellant in question, plus not for the other officials, all reasons that will lead to accepting the appeal as will be indicated ”, he concludes.
Therefore, it is resolved that: “It is declared that, without costs, the appeal filed by (…) against the National Directorate of Carabineros Personnel, in the sense of annulling the transfer of (…) towards the 43rd Peñalolén Police Station, belonging to the Santiago Oriente Prefecture”
