Caso del extranjero ilegal y derogación tácita de preceptos preconstitucionales (Sentencia Corte Suprema, 20 de agosto de 2016, Rol Nº 35.236-2016)

Abstract

This work analyses a sentence of the Supreme Court that tacitly abolished the art. 76 of the D.L. No 1.094, 1975, provided that, in his opinion, the content of the rule was not compatible to the posterior Constitution. According to the Court, the pre-constitutional precept lost validity and, in consequence, in use of his jurisdictional authority, estimated not to apply it in this particular case. This case re-established a relevant discussion, because about the preconstitutionals laws there is not yet an agreement with regard to the doctrine and jurisprudence of the proper court to know about this phenomenon. In fact, to the Constitutional Court, this is well known as unconstitutional supervene, being such jurisdiction the only one that can establish the inapplicability or unconstitutionality of laws pre or post constitutionals.