Restrictions on the Right of Defense in Special Enforcement Proceedings:

Equality before the Law, Due Process, and Constitutional Review

Abstract

This article examines the constitutionality of restrictions on the catalogue of defenses available in special enforcement proceedings under Chilean law, from the perspective of equality before the law and due process. Through a doctrinal and jurisprudential analysis of the Constitutional Court’s decisions on motions for inapplicability due to unconstitutionality, it identifies the criteria used to assess the legitimacy of such restrictions. The study argues that their constitutionality depends on the structural configuration of the proceeding. In particular, it identifies five relevant factors: the nature of the enforcement title, the existence of prior judicial cognizance, the institutional position of the creditor, the intensity of the restriction on defenses, and the availability of subsequent mechanisms of challenge. The findings suggest that the intensity of constitutional review varies according to the degree of legal legitimacy attributed to the title being enforced.