Five problems with lex specialis in decision Rol 1298-2024 of the Puerto Montt Court of Appeals

Abstract

This commentary examines the judgment delivered by the Court of Appeals of Puerto Montt in case Rol 1298-2024, which rejects a recurso de protección fi led against an electric company on account of the existence, for decades, of a pole and electric distribution lines installed on a property without registration of an easement or compensation. On the basis of a systematic reconstruction of the court’s decisions, this commentary shows how the Court specifi es article 20 of the Constitution by combining, on the one hand, a strict reading of the fatal time limit of thirty days and, on the other, a strongly subsidiary conception of the remedy in relation to the sectoral procedures provided for in the General Law of Electric Services and in the Code of Civil Procedure. On that basis, fi ve theoretical problems are identifi ed in the way in which the decision employs the argument of normative speciality (lex specialis): the defi cit of justifi cation of the genus–species relation between the concepts at stake; the functional confusion between speciality, suppletoriness and subsidiarity; the conversion of speciality into a meta-rule of automatic exclusion of constitutional protection; the conclusive (non- defeasible) character that is attributed to that priority; and the insuffi cient attention to normative hierarchies when a “special” legal procedure is used to restrict access to an urgent constitutional action.