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CHILE
1. The Commission has continued to observe with great interest the evolution of human rights in Chile. Besides its special reports on that country (1974, 1976 and 1977), the IACHR also referred to Chile in its Annual Reports in the period from 1978 to 1983. In addition to presenting the legal norms that include provisions that affect human rights, those reports have contained references to recorded violations with respect to the right to life and personal integrity, the right to fair trial and to due process, and the right to freedom of thought and information, the right of assembly and association, and political rights. Those reports also included references to the various forms of restriction on the right to religious freedom and to the behavior of the government with respect to human rights organizations.
2. This section updates the information available to the IACHR on the situation of human rights in Chile. The Government of that country provided information on various recently enacted laws; this and other information available to the IACHR has been used to prepare this report. It should be noted in this regard that this situation is affected by the various aspects of the process by which important sectors are demanding greater political participation or a political transformation, and the government’s response to those demands. A brief account of the chief events in Chile from October 1983 to September 1984 will make possible a better understanding of the subsequent analysis of each particular right, which is preceded by a presentation of the recently enacted laws which may have an impact on the observance of human rights.
3. The protests begun on May 11, 1983, organized by several social and political groups and continued in the period covered by this report. In the course of this year, the eighth demonstration was held on March 27, the ninth on May 11 and the tenth demonstration was held on the 4th and 5th of last September.
The above-mentioned days of protest, according to their organizers, have been eminently peaceful in nature and have been convoked because they are the only recourse available to demonstrate discontent with the policies of the current regime, which does not take account of their demands. It should be noted that very diverse social groups have participated in the protest, from neighborhood associations to businessmen and transportation workers, and including students and union workers. This has led to a significant paralysis of national activities in the course of the most recent protests. As was stated in last year’s annual report, Chilean courts recognized the legality of these days of protest, a situation which has been changed through enactment of Law Nº 18.256 which will be discussed below.
The government views the days of protest as the result of the work of extremist groups and displaced, ambitious politicians who, manipulating many factors, seek to create chaos in Chile to recover lost positions. It also holds that the current Constitution already establishes a procedure and a timetable which will lead to the establishment of a parliamentary system in 1989. In this regard, it should be noted that this Constitution maintains the current President in office until 1989, with the possibility of his being appointed for an additional eight year term.
4. The attempts at dialogue between the Government and representatives of the political opposition which took place last year, sponsored by the Archbishop of Santiago, are considered a failure. Majority sectors of the opposition believe that peaceful methods are the only morally justifiable and political viable ones. For its part, the Government has stated its intention to enforce the procedure established by the Constitution and to preserve public order.
5. With respect to legal norms that bear on the observance of human rights, and which have been enacted in the period covered by this report, the following should be mentioned:
a. Reinstatement of the state of emergency, of the declaration of the existence of a danger of disruption of internal peace and of Decree 3259;
b. Law Nº 18.314 on terrorist behavior;
c. Law Nº 18.313 on publishing abuses; and
d. Law Nº 18.256, which amends the State security law.
6. During the period covered by this report, the state of emergency has been reinstated every ninety days, in keeping with the legal provisions in force. In addition, the declaration of the existence of a danger of disruption of internal peace has been renewed, which grants the nation’s president the powers established in transitory provision Nº 24 of the 1980 Constitution. Furthermore, Decree Nº 3259 of September 27, 1981 which deals with the establishment, publication and circulation of press organs, and which imposes a number of restrictions on free expression of thought, has been renewed every six months. The analysis of the various human rights that is set forth in this Report makes it possible to understand the adverse effects of these norms on the observance of human rights.
7. On January 7, 1984, the newspaper “La Nación” published an Anti-terrorist bill, which was commented on by various human rights groups and other interested individuals and institutions. On May 17, 1984, the Official Gazette of the Republic of Chile published Law 18.314 which “Defines terrorist behavior and establishes penalties.” That law consists of two chapters, the first referring to terrorist actions and penalties, and the second to jurisdiction and procedure.
Although a number of the provisions of the original bill which had been harshly criticized were eliminated from the law that was finally enacted, it contains omissions or norms, which in some cases give rise to serious reservations about their impact on the observance of human rights. Thus, the above-mentioned law does not define “terrorism” or “terrorists”, which makes it difficult to establish a general framework to define and give meaning to the behavior described in the law and which may not strictly constitute acts of terrorism but rather political crimes.
Human rights organizations have pointed out that, in other cases, the breadth of the law may lead to abusive application. Such would be the case of subparagraph 13 of Article 1, according to which terrorist crimes are committed “by those who defend terrorism, a terrorist act, or who appear to participate in it”, which makes possible an arbitrary and subjective application of the text.
It has also been noted that Article 9 lends itself to similar abuse. According to Article 9, the penalty of surveillance (Article 45 of the Penal Code) shall be applied to those “who are advocates of doctrines that promote violence or who are suspected of such advocacy and who conceal their true name or their identity or who falsify their domicile, through legitimate injunction by the authority or its agents.” Recent statements by the Chief of State with respect to the attorneys of the Vicariate of Solidarity and the director of that prestigious institution point out the dangerous ease with which persons may be charged with the profession of political doctrines contrary to the system established by the Constitution.
This same element of suspicion as a basis for governmental action is present also in Article 14, in which authority is given to “request interception, opening or recording of private communications and documents or the surveillance, by any means, of persons suspected of the commission or preparation of terrorist crimes.” The request must be decided by the court which takes cognizance of or may take cognizance of the act, which must issue a decision “without knowledge of the subject, which shall be warranted and shall not be susceptible of any appeal.” In emergency cases, measures may be authorized by the Minister of the Interior and communicated to the respective court within twenty-four hours.
The secrecy that Article 15 allows to the courts with respect to complaints, statements and witnesses also represents an objectionable provision, because although it is established that the person on trial shall be advised of these elements, this may only be done when he is notified of the accusation and only when those elements are used with a view to obtaining a guilty verdict. There will thus be a detention period while the formal charge is drawn up, during which the individual is not advised of the reasons for his arrest. This is all the more nefarious since Article 17 establishes that release on bail of the accused person shall not apply in this kind of case.
The Commission has repeatedly indicated its condemnation of any kind of terrorism, whether it is carried out by opposition insurgent groups, paramilitary groups, or by the state apparatus itself. It does not believe, however, that a real solution to the problem lies in the enactment of legal instruments which may also give rise to violations of basic human rights. On the contrary, experience shows that at times these norms are a further element of discord in societies that require, in order to solve their problems, a calm and in-depth debate, with the broadest participation of various social and political groups.
8. With respect to publishing abuses, on May 17, 1984, Law Nº 18.313 was issued, which broadens Law Nº 16.643 now in force. It is broadened basically to increase penalties applicable to those who abuse publicity with respect to a public official, his spouse, descendants, forebears or siblings.
The effect that this law may have on freedom of the press is a matter of concern, since its purpose is to increase the severity of penalties, and it could thus dissuade organs of the press from carrying out their role as suppliers of information when they seek to question the behavior of public officials or even their relatives. This law thus adds to the numerous limitations on freedom of speech which may be applied under the current state of emergency and by renewal of the above-mentioned Decree 3259.
9. On October 27, 1983, Law Nº 18.256 was issued, which broadens the provisions of Law Nº 12.927 on State Security. It has been extended to include a new crime in order to punish those who foment or convoke public acts without authorization, and those who promote or incite demonstrations of any other kind that lead to or facilitate disruptions of public order.
This new law is part of the effort made to control the recent days of protest, and it directly affects the observance of the right of assembly and indirectly, the right to freedom of speech.
10. The Commission will consider observance in Chile in the period covered by this report of the principal rights upheld in the American Declaration of the Rights and Duties of Man.
11. With respect to the right to life, mention should be made first of the forced disappearances of persons that took place between 1973 and 1978. In this regard, the Commission adopted Resolution 11/83 which is included in its 1983 Annual Report, in which, among other things, the Government of Chile is again told of the need to clarify the situation of disappeared persons. In the period covered by this Report, the Commission has received no information that the Government has progressed in complying with the recommendation.
12. During the period under consideration, deaths attributable to government agencies reported by human rights organizations have been numerous. Such violations take various forms:
a. Those carried out to repress the days of protest and other mass demonstrations are the most frequent. They have been the result of the disproportionate means employed by the agencies entrusted with maintaining order, which have at times affected passers-by or mere spectators, as well as those who were in their homes at the time.
The most recent case was that of French priest Andre Jarlan, hit by bullets while in his home in a working class neighborhood; circumstances of his death are currently being investigated by the government, which has denied that government agents were involved. Another priest who was in the company of Father Jarlan has stated that the shots came from groups entrusted with repression of the September 4 and 5 days of protest.
On other occasions, deaths have occurred as a result of throwing teargas at groups of demonstrators, as well as from defective buckshot used to disperse them.
Information available to the IACHR reveals that 37 deaths took place in the course of the repression of demonstrations.
b. Deaths have also occurred as a result of the abuse of power by members of the security forces, who have acted without any political motivation whatsoever. These are isolated cases but they reveal a dangerous lack of control of some members of these agencies, who act in the shadow of the impunity which they appear to enjoy. Fifteen deaths have been reported in this kind of situation.
c. Another situation which has affected the right to life has been deaths reported as occurring during confrontations between the security forces and armed groups. In the period under consideration, approximately 24 deaths have been reported under these circumstances. In some of these cases, it has been noted that there were no confrontations, and that the acts were rather summary executions of detainees in counterinsurgency operations.
The IACHR is deeply concerned over the fact of growing violence, which degenerates into violations of the right to life; to this is added the circumstance that, to date, there have been no convictions for violations as a result of investigations. The growing number of deaths attributed to “unidentified civilians” in the course of public demonstrations should also be mentioned.
13. With respect to the right to physical integrity and personal safety, two types of situations merit special mention. The first is directly related to repressive acts during mass demonstrations, and includes those wounded under the circumstances. The second refers to the repeated complaints of persons tortured while in detention.
Those wounded by bullets and suffering other injury in the course of mass demonstrations, between October 1983 and June 1984, included 647 persons, according to information provided to the Commission.
The persistence of denunciations of torture of some of those detained by the security forces, especially by the national Center of Information and Investigations, is a matter of concern. During the period under consideration, complaints by university students who claim to have been subjected to this treatment have risen significantly.
In general, the denunciations made to the Commission and to other human rights organizations follow a similar pattern. Detention usually takes place in the homes of those affected, although some cases have been reported when it has occurred in public, without meeting the established legal requirements. The homes of those detained are searched and in many instances weapons or explosive materials are alleged to be found, which is subsequently denied by the detainees. The detainees are then taken blindfolded to detention centers, in which they remain for various periods during which they are submitted to torture.
According to information received by the Commission, the most common methods employed are the application of electric shock to various parts of the body, immersion in tubs of water, which sometimes contain excrement, until the detainee loses his breath, and beatings. In the cases of persons who have been released, they are subjected to threats if the treatment they received is made known to the authorities or public opinion. Other detainees are subsequently placed at the disposition of the courts under the provisions of the law on control of weapons and explosive materials. In all cases, complainants indicated that they were questioned on presumed political activities in the course of interrogation.
Until June of this year, human rights organizations in Chile reported that 50 cases of alleged torture had been recorded, considering only those which have led to judicial action.
A fact which merits special attention is the denounced participation of doctors in torture sessions, apparently to indicate limits on the application of torture and avoid the death of the victim. The Commission has received declarations from Chilean medical authorities which confirm this fact. From any viewpoint, the participation in torture of those who have sworn to practice their profession in the service of health merits condemnation.
14. Connected with the right to physical integrity and personal security, we note the attack made on opposition leader Jorge Lavandero Illanes, in public, by 8 to 12 “unidentified civilians” who arrived in four automobiles. Investigations have produced no concrete results, nor have they done so in the cases linked to the assassination of union leader Tucapel Jiménez. This incident took place when Mr. Lavandero was carrying important documents linked to the alleged economic irregularities attributable to the highest government authorities, which were taken from him during the assault. Mr. Lavandero was seriously wounded, including three skull fractures, and he was interned in a clinic for a considerable period.
15. With respect to personal liberty, consideration should be given to detentions made by security forces during the period covered by this report, with a distinction between the mass detentions in connection with public demonstrations and those detentions made individually.
Mass or collective detentions have taken place in connection with various demonstrations, including of course, the days of protest. Most of these arrests were made in public. During the period under consideration, 1,816 detentions of this kind were made throughout the country.
Individual detentions have been made frequently in connection with demonstrations, in order to frighten those suspected of being connected to these events. This tends to increase the climate of anxiety that affects many people. This is particularly notable with respect to the inhabitants of the so-called “workers’ neighborhoods,” in which systematic roundups are made, which results for many detainees in the loss of their employment.
Other individual detentions have involved persons whose activities in some way are considered by the authorities to be linked to the political activity of opposition sectors. This kind of detention has also occasionally involved journalists. During the period covered by this report, and up to June of this year, 744 individual detentions have been recorded.
In general, it can be stated that arrests have been made without observance of the minimal procedural requirements. Furthermore, it may be noted that detainees have been housed at various times in secret detention centers, particularly in locations under the control of the National Information Center. It should be mentioned that the government, by Law Nº 18.315 which amends Decree Law Nº 1.878 of 1977, recently barred secret detention centers and made known the location of all of the detention centers under that agency; nevertheless, according to statements of attorneys entrusted with the defense of human rights, the authorities have refused to provide information with respect to detainees in these detention centers on various occasions.
The state of mind caused by this kind of detention was dramatically illustrated when Sebastian Acevedo Becerra, father of two detainees held by the National Center of Information, after fruitlessly searching several detention centers, proceeded to immolate himself in public as a protest. Mr. Acevedo died on November 11, 1983, of self-inflicted burns.
16. Another recourse increasingly used by government authorities to deal with the organized opposition has been to “banish” opposition leaders, who are transferred, for up to a maximum of ninety days, to remote areas of the country, often in extremely harsh conditions. This is an administrative measure, and therefore does not require bringing charges before the courts. It may be adopted under the provisions of the transitory Article 24 of the Constitution. According to information available to the Commission, 61 such internal exiles were ordered during the period under consideration.
17. As can be seen from what is set forth above, the norms governing due process have been seriously restricted in Chile during the period covered by this report. As a result of the State of emergency, renewed every ninety days, and of Transitory Article 24 of the Constitution, renewed every six months, a number of clearly judicial functions have been gradually transferred to the administrative branch. This is the case of the internal exiles and also of expulsions from the country, a subject that will be discussed below. In addition, these laws have made it possible to detain persons for prolonged periods without bringing them before a judge, to which should be added the jurisdiction granted to military courts over a large number of political crimes. The new law on terrorist behavior, already discussed, will render yet more difficult the full observance of the norms of due process in an already complicated situation.
A recent judgment of the Supreme Court with respect to a habeas corpus remedy has intensified the well-founded concern of the IACHR with the effectiveness of the norms of due process. In effect, the Supreme Court, by a majority of its members, rejected the habeas corpus appeal presented in the case of Messrs. Jaime Insunza and Leopoldo Ortega, in order to guarantee the right of the complainants to reside in Chile, upheld by a court and challenged by the Government.
The decision reaffirms the exclusive power of the nation’s President to declare the existence of a danger or disturbance of the internal peace, based on elements of judgment that are eminently relative and subjective, and therefore to adopt measures under the provisions of Transitory Article 24 of the Constitution, without any possible remedy except that of reconsideration before the authority that ordered it. According to the above-mentioned decision, the habeas corpus remedy, therefore, cannot enter into the elements of fact on which the nation’s President bases his decision, but can only verify compliance with the purely formal requirements linked to the restriction of the affected rights. The Commission considers that, given the circumstances in Chile, the renunciation by the courts of control over measures adopted by the Executive, and which are reflected in this decision, is a dangerous precedent.
18. With respect to the right to residence and movement, expulsions decreed administratively by the Executive are still applied. Regarding those persons prohibited from returning to Chile, the recent decision of the Supreme Court in the case of Messrs. Insunza and Ortega closes the possibilities that were opened in May 1982, when that same body decided that the ordinary courts were authorized to hear habeas corpus appeals, including those presented in connection with a refusal to authorize return to the country.
The Government of Chile recently published a list that includes 4,932 persons who had been prohibited from returning to the country. It can be inferred that the persons whose names do not appear on the list are authorized to return to the country, which is a positive fact. Nevertheless, it is a questionable practice to prohibit a high number of citizens from residing in their country, as this is a right recognized by all international instruments on human rights. According to information provided by the Government of Chile to the Commission, 4,496 persons are in this situation, although it notes that requests to return are still under consideration.
19. Freedom of speech has been severely restricted in Chile during the period studied in this report. Once again, the State of Emergency and the renewal every six months of Decree Nº 3259 of September 27, 1981, with respect to the establishment, publication and circulation of magazines, have been the legal basis for such restrictions. To this should be added enactment of Law Nº 18.313 on publishing abuses, which raises the penalties established in the earlier Law Nº 16.643. In addition, note should be made of the various obstacles which have impeded the operation of a publication, the Fortin Mapocho, and the difficulties encountered by many journalists in practicing their profession, including the deliberate distortion of statements of the Head of State by official information agencies.
These restrictions on freedom of speech frequently derive from the need to control public demonstrations, and occur at a time when various press agencies have published information on the alleged economic irregularities of some high government officials.
During the period under consideration, various measures have been adopted with respect to the communications media. They are as follows:
On March 26 of this year, Supreme Decree Nº 320 was issued, which establishes various restrictions on freedom of speech. On the same day, the Chief of the Santiago Emergency Zone issued Edit Nº 2 which subjects the magazines Cauce, Apsi, Hoy and Análisis to prior censorship.
On March 31, the Ministry of the Interior stated that the restrictions based on Edict Nº 2 had been repealed, while those established under Supreme Decree Nº 320 were maintained. Based on this legal provision, the Directorate of Social Communication informed Cauce magazine, on April 5, that it was subject to prior censorship. On the 11th of that month, a similar measure was applied to the magazines Hoy, Análisis and La Bicicleta. On April 19, the measure was also applied to the newspaper Fortin Mapocho.
On April 12, the magazine Apsi was prohibited from publishing national news under Decree Nº 4,559.
On Last September 4, radios Cooperativa and Chilena, in Santiago, and la Voz de la Costa, in Osorno, were prohibited from transmitting news stories and were allowed only to transmit official information. On September 6, this measure was nullified with respect to Chilena and La Voz de la Costa. On September 8, that provision was also extended to the Cooperativa radio station.
On September 8, under Edict Nº 19, the Office of the Santiago Emergency Zone declared that the magazines Análisis, Apsi and Cauce, as well as the Fortin Mapocho newspaper, would not be allowed to publish images of any kind.
Despite these limitations, it should be noted that in the period covered by this report, as a result of various circumstances, there has been a precarious but real broadening of the margins within which the right to freedom of speech may be exercised. The IACHR hopes that this situation will be consolidated and expanded to bring about effective observance of that right.
20. The right to freedom of assembly has also been seriously limited in the period covered by this report. Public demonstrations in general have not been allowed, especially the days of protest. The willingness to adopt drastic measures to impede public assemblies has been made clear with the issue of Law Nº 18,256 of October 27, 1983 by which Law Nº 12.927 on state security is broadened through the definition of a new crime. In effect, this law, as indicated, makes subject to penalties those who, without authorization, foment or convoke collective public acts and those who promote or incite demonstrations that may lead to a disruption of public order.
Under this new law, prominent political and union leaders have already been charged in connection with the recent days of protest on September 4-5. In addition, this new law has provided the basis for imposing restrictions on various press organs.
To what has been said about right of assembly, should be added the disproportionate violence employed by the security forces in repressing demonstrations, which has also served to deter participation in them. This situation has been exacerbated by recent statements by the highest government officials who have stated their willingness to act forcefully with respect to future demonstrations.
21. With respect to political rights which are still suspended, the promised law on political parties has not yet been issued, thus continuing the irregular status of political parties. Nor have any of the political laws been promulgated that would make possible progress toward a transition to democracy, rights which even partisan sectors or those close to the government have demanded.
22. A matter of serious concern to the IACHR is the range of actions and attitudes of high government officials concerning human rights organizations. The situation described throughout this report has predictably affected the work of these institutions too. It is therefore necessary, in the judgment of the Commission, that they be given greater cooperation by the governments to carry out their delicate tasks. The Commission thus requests that the Government of Chile exercise a maximum of prudence and judgment in its relations with Chilean human rights organizations and with institutions whose activities have a humanitarian purpose.
23. In sum, the background set forth here points to the conclusion that during the period covered by this report, the situation of human rights in Chile has clearly deteriorated, and it has been aggravated by the country’s growing polarization.
It is clear from this that if this situation is not soon remedied by peaceful and reasonable means, the use of violence and force could reach alarming proportions, with manifold and serious consequences for the observance of human rights.
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