Chile court orders state to compensate protester injured by tear gas canister

Chile's Court of Appeals has ordered the state to pay 60 million pesos (approximately $65,000 USD) in moral damages to a protester who sustained severe neurological damage during a demonstration in Santiago's Plaza Italia in December 2019. The incident occurred amidst widespread social unrest, often referred to as the "estallido social."

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The facts evidence a lack of service attributable to state agents by action, by carrying out indiscriminate and disproportionate shots, failing to comply with the regulatory obligations that govern their actions (...) the infraction that causes damage generates the obligation to repair.

The protester was struck in the head by a tear gas canister, an impact that resulted in significant neurological injury. The court's unanimous decision overturned a lower court's ruling that had dismissed the case, finding it had prescribed. The appellate judges, however, determined that the state was responsible due to a "lack of service."

The ruling stated that state agents engaged in "indiscriminate and disproportionate" actions, violating regulatory obligations governing their conduct. The court emphasized that the use of force by police must adhere to legal standards, be proportional, and non-discriminatory, requiring a dynamic and reasonable assessment of necessity. This framework, the court found, was not respected in this instance.

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In the specific area of the use of force by the police, Circular No. 1832 of 2019 imposes a standard of action adjusted to the law, proportional and non-discriminatory, which requires a dynamic and reasonable analysis of the need to use force, also establishing a scaling in the assessment of third-party conduct and police response. Said regulatory framework obliges law enforcement and security forces to respect a defined procedure, which in this case did not occur.

"The indiscriminate and disproportionate actions of the officials, who fired a gas projectile (tear gas bomb) towards the body of the plaintiff (his head) without legal justification, caused him serious injuries," the ruling read. "Consequently, a failure of service is configured upon confirming performance outside the legal margins, that is, a defective fulfillment of public duty, generating damage that obliges the State to repair it."

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The indiscriminate and disproportionate actions of the officials, who fired a gas projectile (tear gas bomb) towards the body of the plaintiff (his head) without legal justification, caused him serious injuries. In consequence, a failure of service is configured upon confirming performance outside the legal margins, that is, a defective fulfillment of public duty, generating damage that obliges the State to repair it, without prejudice to the right of repetition that assists it.

The court also addressed the argument that the victim had "recklessly exposed himself to harm," stating that while such a notion might apply in civil law, it is not applicable in the same way when assessing the use of force by state agents. Special statutes, which uphold constitutional guarantees, take precedence in such cases.

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Regarding the idea that the victim had 'recklessly exposed himself to harm,' it should be clarified that, although that notion may be accepted in the field of civil law, it is not applicable in the same way when it comes to evaluating the use of force by state agents. In these cases, special statutes govern that oblige respect for constitutional guarantees above civil rules.