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CHAPTER
IV STATUS OF HUMAN RIGHTS IN SEVERAL COUNTRIES
Under its mandate to promote the observance and defense of human
rights, the IACHR has been reviewing the status of human rights in the
countries of the hemisphere and has drawn up special reports on some of
them. These reports have been prepared on the Commission’s own
initiative, or on instructions from an organ of the Organization of
American States, and, in some cases, at the spontaneous request of the
country concerned.
The Commission feels that these reports, their later
dissemination, and discussion of them have helped to change the behavior
of particular countries as regards their observance of human rights, and
in some cases, the reports have placed on record that the behavior of a
country is in accord with international commitments it has undertaken in
the field of human rights.
In recent years, the Commission has drawn up reports on 14
countries, some of which, such as Chile, Cuba, Guatemala, and Nicaragua,
have been the subject of several reports.
Follow-ups on these reports have usually been included in the
Commission’s annual reports to the General Assembly when warranted by
the State’s behavior in the human rights area.
The Commission’s Annual Report submitted to the sixteenth
regular session of the General Assembly included a chapter with sections
on the status of human rights in Chile, Cuba, El Salvador, Guatemala,
Haiti, Nicaragua, Paraguay and Suriname from September 1985 to September
1986.
In the Commission’s view, there are reasons to warrant the
reviewing all of those member countries again in this Annual Report.
In the case of Paraguay, the Government’s persistent refusal to
allow the Commission to visit the country and the lack of significant
progress in the observance of human rights led the Commission to prepare
a second report on the status of human rights in Paraguay, which updates
the Commission’s 1978 report. For that reason, this chapter does not
include a section on Paraguay.
In order to make the information available to it as complete as
possible, the Commission, on June 30, 1987, requested the eight
countries mentioned to provide it with any information they deemed
appropriate, but particularly information on how they had complied with
the Commission’s previous recommendations; on the progress they had
made and any difficulties they had encountered in effective observance
of human rights; and on the text of any statute enacted or case law that
might have affected the observance of human rights.
Where warranted, the Governments’ responses and any other
information from various sources to which the Commission has had access
have been taken into consideration in drafting this chapter.
The following sections will cover the status of human rights in
Chile, Cuba, El Salvador, Guatemala, Haiti, Nicaragua and Suriname,
since the adoption on September 25, 1986, of the previous report up to
the approval date of this report.
The Commission reiterates that the inclusion of these sections is
not designed to give an overall and complete description of the status
of human rights in each of the seven countries mentioned. That could
only be done by drawing up general reports, such as the one on Paraguay.
The Commission’s intent here is rather to give an update covering the
period of approximately one year since the last general reports.
The presentation in this chapter leads the Commission to offer
some thoughts on the work of promoting respect for human rights in the
hemisphere, a function and duty given it by the legal instruments
governing it. The Commission believes it necessary to share these
observations with the General Assembly through this report. Human
Rights and Elections
The Commission wishes to note first the importance of the
elections that have just been held in Haiti and Suriname. It has
repeatedly referred to the great importance it assigns to the exercise
of political rights, which, in both cases, will constitute a fundamental
step toward re-establishment of representative democracy. The Commission
trusts that the governments chosen in these elections will help to
strengthen the system of representative democracy and the guarantees and
liberties inherent in it, in order to extend and consolidate the
observance of human rights.
Along the same lines, the Commission expresses the hope that the
political process now under way in Chile will lead that country to
establish a truly democratic system, as defined in the legal instruments
of the inter-American community. In that regard, the Commission trusts
that conditions propitious for broader participation of the citizens in
the scheduled election will be established, and that the exercise of
civil and political rights will be respected and promoted so the right
to vote can be exercised with the required freedom and responsibility,
and the results of the election will faithfully reflect the will of the
people. Human
Rights and Peace. The Esquipulas II Agreement
The Commission feels it is most important to describe also the
recent events in Central America, which are designed to overcome some of
the most immediate causes of the restrictions on the exercise of human
rights in the region. Since this situation involves characteristics that
are peculiar to each country—Nicaragua, El Salvador and
Guatemala—the Commission would like to comment briefly on this topic.
The simultaneous adoption of the measures called for in the
Esquipulas II Presidential Agreement within 90 days of its
signature—dialogue with the unarmed opposition, amnesty for armed
rebels, cease fire, cessation of outside assistance to armed groups,
lifting of the states of emergency and the consequent restoration of
civil and political liberties—constitutes an event to which the
Commission accords the greatest significance and importance.
In fact, the IACHR has consistently called attention to the
urgent need to eliminate violence as an instrument of political
confrontation, and to ensure unrestricted political pluralism and civil
and political rights associated with the exercise of representative
democracy. In doing so, it was the Commission’s view that observance
of human rights by the countries is essential for their internal peace
and that respect for international law—of which the American legal
system on human rights is a part—is essential for peace among those
countries. International law, human rights and peace therefore
constitute an indissoluble whole with multiple and crucial
interrelationships.
The Commission is aware of the difficulties and risks facing the
fragile and promising process begun on August 7 in Guatemala City. The
Commission is also aware that all of those involved must contribute to
the success of that process, so as to satisfy the desires of the people
of Central America. Countries and individuals, institutions and groups
must do their utmost to make this a first but decisive step on the road
to restoring and strengthening human rights.
It is in this framework that the Commission will continue, in
carrying out the duties assigned to it by the inter-American instruments
governing it, to point out those factors that it considers will lead to
the observance and promotion of human rights in the area. This work is
all the more important insofar as it tends to provide an objective and
impartial view of the status of these rights; and the seriousness of the
declarations require technical consideration without any political
intent.
The use of the human rights topic as an instrument of political
struggle, either within the countries or by some countries against
others, constitutes a serious perversion of the international legal
system on human rights. As the Commission has had occasion to state,
this constitutes more of a hindrance than a help in the effective
observance and promotion of human rights. Accordingly, the Commission
will, as it has always done, continue to do everything in its power to
carry out properly the duties given it because it regards this as its
contribution to the process now under way in Central America.
The Commission has continued to observe with special attention
the status of human rights in Cuba during the period covered by this
report. Its findings are presented below to update the information
contained in its 1985-86 annual report, which followed the seventh
report on the status of human rights in Cuba, approved in late 1983.
In proceeding thusly, the Commission is complying with its own
Rules which give it competence to consider the human rights situation in
Cuba. As stated in its Seventh Report on the Human Rights Situation in
Cuba, that authority is “based on those elements which generally
justify its competence: the person, place, time and subject matter.”
The Commission also believes it necessary to reiterate that insofar as
it has continued to exercise its competence and has received and
processed complaints against the Government of Cuba, the latter has
continued to enjoy its right of defense before the Commission and the
same is true with regards to special reports done by the Commission on
that country.
Information received by the Commission during the period of this
report shows that few changes in human rights have occurred in Cuba, as
that situation has been described by the IACHR. Thus, in the field of
civil and political rights, there continues to be a lack of effective
resources for individuals to assert their rights vis-à-vis the State,
and the absence of political choices other than the Communist Party of
Cuba. In the field of economic, social and cultural rights, the
description given by the IACHR in its seventh report continues to obtain
in that the basic needs of the people have been substantially met.
The Commission wishes to note, however, that during the period of
this report, there have continued to be difficulties resulting from the
lack of the Cuban Government’s cooperation with it. This has hampered
the Commission’s performance of its duties, such as reporting in the
most impartial and objective way possible on the human rights situation
in that country. The same negative impact has been produced by the lack
of the Cuban Government’s cooperation with the Commission in handling
individual cases, in which the Commission has had to resort to secondary
sources to obtain the information necessary to determine the facts.
This lack of cooperation prevents the Commission from fully
performing the duties given it by the American legal instruments
governing it, and keeps it from obtaining full and direct knowledge of
the human rights situation in Cuba in order to make judgments on that
situation based on technical criteria. The Commission feels that with
such behavior the Cuban Government is helping to increase the extreme
politicization surrounding discussions on the topic of human rights in
Cuba, and preventing the calm and objective consideration that should be
given that subject. Notwithstanding the situation, the Commission will
continue to observe the status of human rights in performing its duties
to report to the other member states of the Organization.
During the period covered by this report, negotiations continued
between the United States Episcopal Conference and the Government of
Cuba to make progress in freeing political prisoners, including the
numerous “steadfast” or “resister” prisoners (los plantados).
The development of this process led to the preparation in June of this
year of a list containing the names of 347 prisoners, a substantial
proportion of whom had reportedly been included by the Cuban Government
itself. The Government had reportedly undertaken to allow the emigration
of released prisoners who wish to leave Cuba, and the United States
Immigration Service was expected to begin processing around 300
applications to determine the eligibility of the applicants under the
provisions of the refugee program. It is estimated that that is the
number of persons who might leave the island during the rest of this
year.
In this connection, the Commission notes also that the Cuban
Government has asked private agencies working in the refugee field to
submit, through the Cuban Interests Section (Sección de Intereses) in
the United States, lists of prisoners they regard as suitable to leave
Cuba under similar conditions. As a result of the initial steps taken
under this new mode of operation, a list has been drawn up containing
500 new names.
Also during the period of this report, and regarding the same
topic, the Commission was informed that important political prisoners
had been released. For example, Ramón Bernardo Conte Hernández, who
took part in the invasion of Playa Girón, was released on October 18,
1986, and Eloy Gutiérrez Menoyo was released on December 20 of that
year. Information provided to the Commission indicates that there still
remain 70 “steadfast” prisoners (plantados) in the so-called
historic political prison, and 56 political prisoners serving terms in
Cuban prisons. The lists of both categories of prisoners are in the
Commission’s possession.
Released prisoners have complained of the poor conditions under
which they served their terms and the mistreatment to which they were
subjected during their stay in Cuban jails. Information in the press on
these topics shows that Cuban authorities permitted a visit of foreign
journalists to the Combinado del Este jail and the Guanajay penitentiary
for women. The visit lasted a full day. It should however be noted that
the Government of Cuba has not permitted similar visits to human rights
organizations or the International Red Cross.
This situation has made it extremely difficult to confirm the
data that have been provided, during the period covered by this report,
on the number of political prisoners now in Cuba. Thus, the Pro-Human
Rights Committee of Cuba estimates that around 16,500 persons are
serving sentences for behavior connected with State security.
That figure includes those in prison for having tried to leave
the country illegally. In this connection, it should be noted that
during this period many attempts were made, often successfully, to leave
Cuba illegally. The Government of that country has publicly stated that
this situation could be eliminated once emigration relationships with
the United States, which were interrupted by the Cuban Government when
Radio Marti began to transmit to the island, were regularized.
Also during the period of this report, the Commission received
various reports on the status of Mr. Ricardo Bofil Pagés who, as the
Commission stated in its previous annual report, had taken refuge in the
French Embassy after the human rights organization that he directed was
raided by the police. During that operation, the following were also
arrested: Domingo Delgado Castro, José Luis Alvarado Delgado, Enrique
Hernández Méndez, Adolfo Rivero Caro and Elizardo Sánchez Santa Cruz.
The information received by the Commission indicates that the
Government allegedly gave assurances to Mr. Bofil that caused him to
leave the French Embassy. Mr. Santa Cruz declared a hunger strike
between late October and early November 1986, for which reason he was
transferred to the Military Hospital and was then returned to the State
Security Department where he was allowed only one 15-minute visit a
week. The Commission does not know the recent status of the rest of
those listed.
The uncertainty of the information surrounding this case shows
once again the need for the Cuban Government to collaborate with the
Commission by providing information to clarify the status of human
rights in that country, both with regard to the handling of individual
cases and to the overall human rights situation. The Commission
considers that this will help it to give the subject the serious and
objective treatment that is the fundamental basis for making real
progress in this field. Accordingly, the IACHR again urges the Cuban
Government to provide promptly the information the Commission needs to
carry out the duties given it by the legal instruments that govern it.
The Commission has carefully observed the human rights situation
in Chile since the start of the present military regime. In carrying out
this function, the IACHR devoted four special reports to Chile, which
were approved in 1974, 1976, 1977 and 1985. In its annual reports to the
General Assembly, the IACHR updated the information contained in those
special reports. That is the purpose of this section.
The Commission has gathered such information on the most
important events in Chile that have affected the human rights situation
in the period covered by this report. Most of this information comes
from the Chilean Government through frequent submissions of documents
having to do with the observance of human rights, that the Chilean
Mission to the OAS has provided. The Commission also wishes to place on
record that the Chilean Government has on most occasions given prompt
replies to the Commission’s requests for information.
During the period of this report, Chile remained under the
effects of the various types of states of emergency (estado de excepción).
Thus, the state of siege, imposed on September 7, 1986, after the attack
against the President and his escort, was renewed for 30 days on
December 6 of that year under Supreme Decree 1.435, in view of the
“existing situation of disturbances.” The renewal of the state of
siege partially covered the territory of the country: In Region II, it
applied only to the Province of Antofagasta, while it covered all of
Regions II, IV and V and metropolitan Santiago. Region VIII was also
covered, except for the province of Arauco.
During the state of siege, Supreme Decree Exempt from
Constitutional Review Nº 200, also of December 6, 1986, delegated to
the national defense chiefs designated for each region the authority to
restrict freedom of movement, suspend or restrict the freedom of
assembly, suspend or restrict freedom of information and of expression,
impose censorship on correspondence and communications and prohibit
specified persons from leaving the country. These powers are granted to
the president under Article 41 subparagraph 2 of the Constitution.
The state of siege remained in effect until January 5, 1987, when
it expired without being renewed and has been progressively lifted by
region. On the expiration date of the state of siege, the curfew for
metropolitan Santiago was also lifted.
During the entire period covered by this report, the state of
emergency (estado de emergencia) and the state of danger of disturbance
of internal peace were in effect. Under Article 40, subparagraph 5 of
the Constitution, two or more states of emergency (estado de excepción)
may be in effect at the same time. This and the enforcement of temporary
provision 24 means that in the period of this report President Pinochet
has been authorized to arrest persons for five to twenty days, depending
on the charges against them; to restrict freedom of association and the
right to freedom of expression with respect to founding new organs of
expression; to prohibit the entry of persons into Chile or to expel
persons from it for political reasons; and to banish such persons as may
be considered necessary to any settlement in the country for 90 days.
The only recourse against the measures taken by the President under the
above-mentioned transitory provision is a request to him for
reconsideration, and there is no recourse at all to the judiciary.
Based on the establishment of the states of emergency (estados de
excepción) mentioned, the authorities responsible for their enforcement
issued various provisions specifying the limitations on some of the
human rights affected. Thus, on December 9, 1986, the Decree Exempt from
Constitutional Review Nº 6,206 was published, which provided that the
communication media:
Must refrain from publicizing in any way, and by any media,
information or opinion relating to:
a) conduct described as
terrorist crimes by Article 1 of Law 18,324;
b) the activities of the
persons, organizations, movements or groups referred to in Article 8 of
the Political Constitution of the Republic;
c) criminal conduct
described and punished by subparagraph I) of Article 6 of Law 12,927, on
State Security.
Similar provisions are contained in the Decree Exempt from
Constitutional Review Nº 6,225 of March 9, 1987, the date on which
Decree 6,226 was also published, which keeps in effect the restrictions
on the foundation, circulation or publication of new publications
established by Decree 3,259 of 1981. According to this legal provision,
the new publications must be authorized by the Ministry of the Interior.
It is particularly important to note that the imposition of the
state of siege and the state of danger of disturbance of internal peace
have serious consequences, not only because of the suspensions and
restrictions affecting the exercise of many rights, but also because,
while they are in effect, persons cannot exercise the remedies that
provide judicial protection for the elementary rights whose exercise may
not be impaired under any circumstances.
In fact, Article 41, subparagraph 3 of the Constitution provides
that during the state of siege the remedies established by Article 21 of
the Constitution, that is, the remedies of amparo or of habeas
corpus, shall not be admissible. Article 41, subparagraph 3 also
provides that in this case, “courts of justice may not, in any case,
rule on the de facto merits of any measures that may have been taken by
the authorities in the performance of their duties.” These are
provisions that, as the Commission has pointed out, leave individuals
completely defenseless against any measures taken by the Government.
These rules also upset the balance of powers that characterize regimes
where the rule of law prevails, by removing from the jurisdiction of the
courts situations that affect the inalienable rights of persons.
Both the defenselessness of individuals against the Government
and the upsetting of the balance of powers is aggravated by the
temporary Provision 24 of the Constitution that states that “no remedy
shall be admissible to any provisions adopted under this provision,
except reconsideration by the authority that ordered them” (the
President of the Republic). Paradoxically, these are constitutional
provisions that institutionalize arbitrary political power instead of
providing remedies to correct it when it occurs.
The set of rules restricting the rights recognized in the Chilean
Constitution is completed with the provision in Article 41, Subparagraph
7, whereby: Measures
taken during the states of emergency (estados de excepción) that have
no specified length may not be extended beyond the effective period of
those states of emergency and may be enforced only when they are
genuinely necessary, without prejudice to the provisions of paragraph 3
of this article. However, measures expelling persons from and
prohibiting their entry into the country, which are authorized in the
preceding articles, shall remain in effect despite the lifting of the
state of emergency that gave rise to them so long as the authority that
decreed them does not expressly rescind them.
As the above rule shows, under the Chilean Constitution and in
matters of the right of residence and travel, the President of the
Republic may impose sine die penalties against which no judicial
remedy of any kind is admissible. The various practical effects of such
negative legal provisions will be reviewed below.
The Commission then will discuss the observance in Chile during
the period of this report of the principal rights established by the
American Declaration of the Rights and Duties of Man.
Right to Life
Regarding the right to life, the Commission must first mention
two cases that were tried by the Chilean courts.
The first involves Manuel Guerrero, José Manuel Parada and
Santiago Nattino, who were abducted on the street in Santiago, the first
two on March 28, 1985, and the last on March 29 of that year. They were
found with their throats cut on March 30. Judge José Canovas Robles was
appointed visiting magistrate to investigate the facts. In its special
report on Chile of 1985, the Commission said it hoped “that the
investigation now under way will lead to the identification and
punishment of the persons responsible for committing so reprehensible an
act.”
In the period of this report, the judicial investigation recorded
two new developments. On January 22, 1987, Judge Canovas ordered a
temporary stay of proceedings, despite the numerous facts mentioned in
his ruling, and reached the following conclusions:
1. The existence of the
crimes investigated has been fully proven, and 2. while there is
sufficient evidence to believe that involved in these events were a
uniformed group of carabineros who were part of a group known as
“DICOMCAR” and who formed an illicit de facto association outside
their institutional framework, this evidence, as evaluated by the higher
courts, is not sufficient to accuse any particular person as the
perpetrator, accomplice or accessory, and it is impossible at this point
to continue with this investigation.
The Vicariate of Solidarity (Vicaría de la Solidaridad), an
organization of which José Manuel Parada was an official, issued a
statement on the ruling, pointing out among other things that:
We regret that once again such a brutal crime remains unpunished
because of the impossibility of identifying those responsible for it. As
the ruling states, this has occurred because of the lack of cooperation
from the public organizations called upon by law to provide it. This
negative result is a further example of discrimination in the
effectiveness of criminal investigations, depending on who the victims
are and who the possible perpetrators may be.
On January 28, 1987, Carabineros of Chile issued a long statement
commenting on various aspects of the temporary stay ordered by Judge
Canovas and requesting that the investigation be reopened.
The attorneys of the victims’ families also requested that
Judge Canovas’ stay be set aside and that the investigation be
reopened. Accordingly, on June 25, 1987, the third section of the
Santiago Court of Appeals decided by a majority vote to reopen the
pretrial investigation of the facts of this case, and thereby overturned
the temporary stay ordered previously.
Two and a half years after the occurrence of such reprehensible
events, the courts continue to be unable to shed any light on the
circumstances of this case or to determine who was responsible.
Another case on which the Commission finds it necessary to point
out new developments during the period of this report is the death of
Rodrigo Rojas and the serious injuries that Carmen Gloria Quintana as
the results of burns on July 2, 1986, which, according to the complaint
lodged with the Commission, were caused by members of a military patrol.
On January 29, 1987, the Military Prosecutor changed the previous
committal decision regarding Lieutenant Pedro Fernández Dittus, and
returned to the initial indictment of committing the quasi-delict of
homicide on the person of Rodrigo Rojas and the quasi-delict of
inflicting severe injuries on Carmen Gloria Quintana. The offense of
quasi-delict covers wrongful behavior that is subject to lesser
punishment. Up to that date, Lieutenant Fernández Dittus had been tried
for the crime of unnecessary violence resulting in death and injury, a
criminal offense that implies willful misconduct. Since the indictment
was changed, the Military Prosecutor released Lieutenant Fernández
Dittus on bail equivalent to 25 dollars.
The representatives of the victims appealed the Military
Prosecutor’s decision, which was upheld by a majority of the Military
Court (Corte Marcial), on March 5, 1987.
The Commission must again express its concern at the fact that
after more than a year of intensive investigation, those responsible for
such a reprehensible act have still not been identified. Nor can the
Commission hide its consternation regarding the conditional release
granted to Lieutenant Fernández Dittus under a bond that is little more
than a token.
Also with regard to the right to life, the Commission must cite
the 12 deaths that occurred between June 15 and 16, 1987. The official
reports state that these deaths occurred in confrontations between the
National Information Center (CNI) and subversives belonging to the
Manuel Rodríguez Patriotic Front. Human rights organizations have
expressed doubts about the circumstances of these deaths, both because
of the information collected which contradicts the official version, and
because of the fact that on numerous occasions, the Government has
alleged that persons were killed in confrontations who later were found
to have been summarily executed.
The twelve persons killed are Recaredo Ignacio Valenzuela
Pohorecky, Julio Arturo Guerra Olivares, Patricio Ricardo Acosta Castro,
Juan Waldemar Henríquez Araya, José Joaquín Valenzuela Levy, Esther
Angélica Cabrera Hinojosa, Patricia Angélica Quiroz Nilo, Elisabeth
Edelmira Escobar Mondaca, Ricardo Cristian Silva Soto, Manuel Eduardo
Valencia Calderón, Ricardo Hernán Rivera Silva and Héctor Luis
Figueroa Gómez. Also, according to information provided by the CNI,
eight persons accused of subversive activities were taken into custody
during these operations, and four members of the security organization
were wounded, two of them seriously.
The preliminary comments of the Chilean Human Rights Commission
on the manner in which various government institutions have operated in
such circumstances are illustrative. It notes that:
The operation was carried out by the CNI independently of any
other agency of public security on public order.
This shows clearly for the first time a continuing characteristic
of the current constitutional system, which is the existence of a
structure of political and military power that is autonomous from the
civil power, and that with goals, decisions, and methods of its own that
are independent of any civil control, it can act repressively, producing
results such as those in this case.
In charge of this operation was Army Major Julio Corvalán, CNI
chief of operations, who was also the officer who reported what happened
to the press. According to the reports, he was accompanied by about 500
agents and a huge quantity of equipment, which enabled him to conduct
nearly 15 mass raids in 17 hours, and in one case three simultaneous
raids, with around 200 agents taking part.
The inclusion in these units of military judicial personnel shows
the degree of integration that the military courts have established with
the armed forces, at the same time that these courts are separated from
the judiciary established in the present Constitution.
This power structure, which for its own purposes reproduces in
its framework the three branches of government—it defines its own
internal rules, that is, it legislates; it possesses its own judicial
jurisdictions, and it has a political branch that acts autonomously—is
not subject to any effective control by the civil powers, and represents
the maximum synthesis of the State of National Security.
The Commission hopes that the investigation under way will
promptly answer the questions that have arisen about these serious
events.
Right to humane treatment
Regarding the right to humane treatment, the Commission has
received information about claims of torture and mistreatment during the
period of this report. Thus, the Vicariate of Solidarity says that there
were 109 complaints lodged with Chilean courts, alleging torture during
1986 and 51 during the first half of 1987. Under the heading of
unnecessary violence resulting in injury, the Vicariate of Solidarity
lists 409 cases, which have given rise to complaints lodged with the
courts or that have been reliably verified by that institution.
One fact of particular seriousness because of its impact on the
protection of the right to humane treatment has been the repeated
refusal of the National Information Center to comply with court rulings,
which in response to writs of amparo (enforcement of
constitutional rights) ordered that the prisoners be given medical
examinations. The CNI has also refused to comply with court orders to
bring the prisoner before the court in order to verify his physical
condition. The refusal of the CNI has been based on the state of siege,
and gave rise to a strong communication from the full court of appeals
of the Pedro Aguirre Cerda Department to the Supreme Court, which in
turn addressed the President to inform him of this situation.
A positive aspect concerning the right to humane treatment, which
the Commission wishes to stress, is the announcement of the signature by
the Chilean Minister of Foreign Affairs on September 24, 1987 of the
Inter-American Convention to Prevent and Punish Torture. The Commission
hopes that the international obligations that Chile has entered into
under this instrument will result in a fundamental change from its past
behavior with regard to torture which as the Commission stated in its
report on the status of human rights in Chile in 1987 “has been a
continuous, deliberate and systematic practice.”
Right to personal liberty
Information provided to the Commission by Chilean human rights
organizations indicates that in the period of this report the Chilean
Government has continued to fail to comply on many occasions with legal
formalities in arresting persons. Thus, there have been repeated reports
about the lack of arrest warrants or identification of the arresting
authorities, which places the victims’ families in the anguished
position of having to make enquiries about the whereabouts of the
persons arrested. Repeated complaints have been made that the
authorities predate arrest warrants to correct the non compliance with
the legal formality mentioned.
The Commission has also been informed that the CNI has refused to
permit prisoners in their detention centers to have visitors. That was
the status of persons for whom writ of amparo Nos. 1.413-86,
1.423-86, 1.431-86, 1.429-86 and 1.424-86 were filed. On receiving the
request for information on these cases, the CNI replied that the persons
involved “are not being held incommunicado but they cannot receive
visits.” In practice, this anomalous situation helps to prolong the
period of being held incommunicado beyond the legal time limits.
One fact that deserves special consideration in connection with
the right to personal liberty is the hunger strike that was initiated by
persons arrested in connection with the attack against the President of
the Republic, which was then continued by the persons now being tried or
serving sentences under the Weapons Control Act, the State Security Act,
and the Anti-Terrorist Act. Regarding these persons, there is a
controversy as to whether or not they are political prisoners. The
Government denies that they are political prisoners, while those
involved and human rights institutions consider that they are.
Human rights institutions have complained for some time about the
poor conditions in which these persons are being held. They have pointed
out the exceptional length of the proceedings to which they have been
subjected, the refusal or the difficulties placed in the way of granting
them some of the benefits accorded ordinary prisoners—release on
parole, Sunday leave or release pending trial—deficient medical care,
harassment of family members and visitors, and harsher punishment
imposed on these prisoners.
This situation has become worse during the period of this report
because of arrests in connection with the attack against the President
of the Republic and investigations connected with the finding of stores
of weapons. One group of prisoners arrested in connection with that
attack, started on February 26, 1987 a hunger strike which other
prisoners who were tried under the above-mentioned law progressively
joined until an estimated total of 400 were involved. The Vicariate of
Solidarity stated in this connection that:
In a public statement, the lawyers of the hunger strikers
complained that their clients are constantly being pressured in various
ways by those prosecuting their cases, including the categorical refusal
to place on record the tortures suffered by the prisoners in the first
days of their detention, when they were being held by the National
Information Center; the long continuous periods of being held
incommunicado, which in some cases was up to 45 consecutive days; being
kept in solitary confinement, and being located in cellblocks together
with common criminals, some of them highly dangerous, who could be
employed to obtain information from them or even to commit offenses
against their persons. Another measure making prisons conditions harsher
is the reduction of visiting hours from six to three hours a week, and
allowing entry into the prison of no more than five family members at a
time for each prisoner. And also these visits must take place in the
presence of a policeman stationed in the visiting area. In addition, the
visit of any attorney other than the one that appears before the
military prosecutor as the defense counsel is denied so that if any of
the suspects in this case have another trial pending, they may not see
their lawyer.
In addition to these cases there are 14 political prisoners for
whom the death penalty is asked and two sentenced to life imprisonment.
Another problem affecting all persons tried for political crimes
is the length of the investigations, which usually last for several
years, during which time the accused are held in pre-trial detention
without being eligible for release on bail.
The demands of prisoners on hunger strikes range from the release
of political prisoners and trial by impartial courts—removing the
prisoners from the jurisdiction of military courts, which are regarded
as not guaranteeing due process—up to rescission of death sentences,
dismissal of charges for illegal entry into the country, commutation of
prison sentences to exile, assembly of prisoners for political reasons,
elimination of restrictions on visits, and abiding by prison rules.
During the long period of the hunger strike, the following Vicars
of Solidarity of the Zona Sur and Pastoral Obrera interceded in
representation of the Catholic Church: Monsignor Tapia, Barriga and
Baeza, as well as the United Nations Special Rapporteur, Mr. Fernando Volio. In addition, a number of
incidents occurred, such as the family members of prisoners on hunger
strike chaining themselves to the iron grating of the National Congress.
Many prisoners developed serious health problems, and some were
transferred to medical care centers. The Archbishop of Santiago issued a
public statement asking the Government to consider the hunger
strikers’ petitions “because at least some of them appear to be
reasonable and possible.”
The strike lasted from February 26 to April 3, at which time it
was called off “because of the visit of the Pope, who is the Messenger
of Life,” as they stated. According to reports, the strike was called
off because the authorities had shown a positive attitude toward
resolving some of the problems raised.
As to the number of arrested persons, human rights organizations
report that in the year from July 1986 to June 1987, 4,558 persons were
detained.
Right to a fair trial
The Commission has repeatedly stressed the great importance of an
independent and effective judiciary for the protection of human rights.
I has also repeatedly expressed its deep concern at the serious
limitations imposed on the judiciary in Chile on the performance of its
important duties. During the period of this report, the serious events
that occurred in this field have helped to reaffirm the concerns voiced
by the Commission on previous occasions.
For example, the uninterrupted imposition of various states of
emergency (estados de excepción)—whose effects are superimposed on
each other as was stated above—continued to severely restrict the
actions of the judiciary. This has been more evident during the months
of the state of siege, especially because of the repeated refusal of the
National Information Center (CNI) to comply with court orders resulting
from the remedies of amparo or habeas corpus.
The refusal of the CNI to honor the writs of amparo or of habeas
corpus were based on the existence of the state of siege. Thus, in
response to the writ of amparo filed for Eduardo Barahona
Arriagada and others, General Humberto Gordon, Director of the CNI,
explained his noncompliance with the order by stating that “persons
detained under the authority of the State of Siege, so long as they
remain in that capacity, are at the disposal of the Ministry of
Interior. For that reason, the information requested on justification of
the detention procedures should be requested from that Ministry.”
The attitude of the CNI provoked a reaction from the Appeals
Court of the Pedro Aguirre Cerda Department, which, on receiving three
writs of amparo, on September 29, 1986, found there was no
justification for the attitude of that security agency, so the Court
decided to notify the Second Military Court (Juzgado Militar) of the
situation and remit the cases to the Supreme Court. The Supreme Court,
which subsequently received other ruling from the Appeals Court of
Concepcion and Valdivia reporting similar events, informed the President
of the Republic of these facts. While the Supreme Court communication
has not been made public, General Pinochet’s response, dated October
30, 1986, stated the following:
Having learned, through your communication, of the decision of
the full court, I wish to convey through you the deep concern the
occurrence of the events described caused me, and to inform you that I
have immediately given instructions to the Ministers of the Interior and
of National Defense to reiterate to that service, in light of your
communication and its contents, my orders to the effect that they must
proceed at all times in strict compliance with the Constitution and the
laws, and must take due cognizance of the facts in each case.
I beg the distinguished Court through you to inform me
immediately through the Minister of Justice, of any problems that may
arise in this regard, so they may be promptly and properly resolved.
It should be recalled that attitudes such as the one indicated
are not new. On the contrary they have been occurring regularly in both
the CNI and its predecessor the DINA. A detailed review of these matters
was conducted by the Commission in its report on the status of human
rights in Chile in 1985. In this connection, it is important to point
out how the persons and situations involved remain the same, because it
is the same General Gordon, the Director of the CNI, who places a number
of obstacles in the way of compliance with court orders issued under the
remedy of amparo. It is also the Supreme Court that addresses the
President of the Republic to inform him of this very irregular
situation. It is the same General Pinochet who gives assurances that the
incidents that gave rise to the problems will be resolved under the
Constitution and the laws. All of these events occurred in 1982, 1984
and now, during the period covered by this report.
Another fact of particular importance occurred in Chile during
the period of this report in the area of the right to a fair trial. The
incident arose between the Supreme Court and Judge Carlos Cerda of the
Santiago Court of Appeals, who was acting as a visiting magistrate
charged with investigating the status of ten persons arrested in 1976 by
the DINA who have been missing to date.
In 1985, Judge Cerda committed Miguel Estay Reyno for trial
because he was regarded as an accomplice in the crime of illegitimate
deprivation of liberty of two persons that had disappeared: Reinalda
Pereyra Plaza and Edras Pinto Arroyo. The defense had invoked for the
accused the 1978 amnesty law, which covered crimes committed between
September 11, 1973 and March 10, 1978. Both the Santiago Court of
Appeals and the Supreme Court had rejected this defense argument in 1985
and 1986.
After more than three years of patient investigation, Judge Cerda
committed for trial by a ruling of August 14, 1986, a total of 40
persons—38 of them members of the armed forces and of the law
enforcement agencies—for crimes of illegal association and
illegitimate deprivation of liberty of two of the alleged victims. Among
the accused are high ranking officers of the three branches of the armed
forces. The defense appealed the decision of Judge Cerda to the Santiago
Court of Appeals because it considered that the Judge had committed an
error or abuse of authority because the criminal liability of the
accused had been extinguished by Decree Law 2.191 on amnesty.
Reviewing all of the antecedents, the Eighth Section of the
Appeals Court admitted the remedy, and ruled that amnesty was
applicable. It dismissed the case not only of the four accused for whom
the remedy had been filed, but for the other 36 as well. On October 6,
1986, the Second Section of the Supreme Court upheld that ruling of the
Appeals Court.
On October 7, Judge Cerda, in response to the Supreme Court
ruling that ordered him to dismiss the charges against the accused,
issued a ruling on which, based on substantiated legal considerations
and review of the criminal law, he concluded that the order given him by
the Appeals Court, considering of a general dismissal of proceedings
against the accused
Because they are accorded amnesty for the crimes of which they
are accused, is obviously contrary to law, because it is improper, and,
consequently, compels this court to resubmit the case immediately to the
higher court, under Article 226, subparagraph 2 of the Penal Code, in
order to release the court from any responsibility for the possible
commission of any of the offenses of prevarication described in
paragraph 4 of Title V of Book II of the same statute.
For these reasons, Judge Cerda suspended compliance with what was
ordered and submitted his reasons for the suspension to the Appeals
Court, for which purpose an authorized photocopy of this ruling will be
submitted to it.
The Supreme Court, on taking cognizance of Judge Cerda’s
ruling, considered that that ruling constituted a repudiation of his
obligations and a “serious lack of judicial discipline, because no
precept authorizes him to appeal or to dispute executable judicial
judgments, much less those handed down by the Supreme Court.” In
addition, the Supreme Court added, the conduct of Judge Cerda as a judge
of first instance constitutes a “violation of the fundamental bases of
the organization and operation of the Judiciary,” an offense that the
Supreme Court “has the duty to impose severe disciplinary
punishment.”
Accordingly, the Supreme Court punished Judge Carlos Cerda Fernández
with two months of suspension of duties at half pay, “which will take
effect immediately.”
The Commission finds it necessary, in view of the above facts, to
reiterate the validity of the conclusions it set forth in its 1985
report on the status of human rights in Chile, when it pointed out that,
despite the determinant negative factors that have been brought to bear
on the judiciary in Chile, some of its members have shown a high sense
of responsibility and independence, which gives the Commission the hope
that the judiciary will resume its traditional conduct in defense of the
basic values of the person and will recover the prestige that it
deservedly enjoyed previously.
The Commission finds it necessary also to note the profound
distortions in the area of the right to a fair trial caused by the
imposition of the State of Danger of the Disturbance of Internal Peace.
In fact, as the Commission has repeatedly stated, the existence of that
state of emergency (estado de excepción), imposed under Transitory
Provision 24 of the Constitution, gives the President of the Republic
even greater power than those of the judiciary, because under that
provision the President can, among other measures, deprive persons whom
he considers objectionable of the right to live in Chile, and his
decision may not be corrected by the judiciary.
During the period of this report, several events made clear the
close relationship between the right to a fair trial and the right of
residence and movement by virtue of the existence of Temporary Provision
24 of the Constitution. The Commission will relate them below.
On March 19, 1987, Mr. Clodomiro Almeyda, former Foreign Minister
of the Salvador Allende Government and now President of the Socialist
Party of Chile, who was prevented by the Government from returning to
his country, entered the country through a mountain pass where there was
no police control. On May 24, he appeared before the Second Criminal
Court of Santiago, in which he was being tried for misappropriation of
funds, with the trial taking place in his absence because he was
prevented from entering Chile. The judge in the case acquitted Mr.
Almeyda of the charges against him, in consultation with the Court of
Appeals.
After his acquittal, Mr. Almeyda was placed under arrest for
illegal entry into the country, according to the Government’s official
report. On March 25, Mr. Almeyda was banished by the Government to Chile
Chico, a locality 1800 kms from Santiago, on order of the Ministry of
the Interior, under Transitory Provision 24 of the Constitution.
Later, Mr. Almeyda was accused of advocating violence and
terrorism, under the Antiterrorist Act, which provides that the accused
may not be released on bail until his trial has been completed.
Accordingly, Mr. Almeyda remains under arrest despite the fact that on
July 30, the Examining Magistrate dismissed the charges against him
because an appeal by the prosecuting attorney of the Republic is still
pending.
A similar situation occurred on May 12, 1987, when Mrs. Mireya
Baltra, former Deputy and former Ministry of Labor of President
Allende’s Government, and Julieta Campusano, former Senator of the
Communist Party, appeared before the Santiago Court of Appeals
requesting protection of their right to live in their country. Both were
released by the court and were banished administratively by the Ministry
of the Interior. Mrs. Campusano was banished to Punta Gorda, in the
north of Chile, and Mireya Baltra to Puerto Aisen in the south. On May
15, Mrs. Campusano was transferred to the locality of Camina, which is
in the highlands at a great altitude above sea level. On July 17, the
Ministry of the Interior finalized the banishment of these persons.
A number of judicial actions were also taken in relation to the
right of residence and movement when the Second Section of the Santiago
Court of Appeals admitted on May 26, 1987 an application for amparo
filed on behalf of 105 exiled persons, including Mrs. Hortensia Bussi de
Allende. Judges José Canovas and Carlos Cerda voted in favor of the
remedy, while Judge Alberto Novoa contended that the measure to prevent
entry into the country of the exiled persons had been taken by the
Executive Branch under Temporary Provision 24 of the Constitution,
against which there was no remedy of any kind, except reconsideration by
the authority that ordered the measure.
Judges Canovas and Cerda contended that the measure against the
petitioners had been taken by the Executive Branch because they were
considered “a danger to the domestic peace of the country,” without
any valid evidence being submitted to support that designation. In view
of the Court of Appeals ruling, the Ministry of the Interior asked the
Supreme Court for an order of noninnovation (orden de no innovar) and
appealed the ruling that protected the exiled persons. The Supreme Court
ruled in favor of the Ministry of the Interior’s appeal, thereby
setting aside the authorization for the exiled persons to return to
Chile.
During the period between the authorization of the Appeals Court
and the denial of it by the Supreme Court, the folklorist Isabel Parra
succeeded in entering Chile. On June 3, her name was stricken from the
list of persons prevented from residing in Chile. However, on May 28,
the Supreme Court rejected the writ of amparo filed on behalf of
the 105 exiled persons, because it considered that exclusion from the
country was a measure vested in the Executive Branch of the country
under temporary Provision 24 of the Constitution.
Right of residence and movement
In addition to the facts mentioned in the preceding paragraphs,
which affect the right of residence and movement of Chilean citizens,
the Commission must note that the Government of Chile has been
substantially reducing the number of persons prevented from returning to
the country. These measures have followed the announcement by the
President of the Republic in his speech at the end of 1986, in which he
offered to end the exile problem. The number of Chileans prevented from
returning to their country was 3717 persons.
The Commission must note aspects relating to the measures taken
by the Chilean Government on the right of residence and movement. First,
it must state that while it considers reducing in the number of persons
denied that right to be positive, the existence of such persons
continues to be a violation of international law in the area of human
rights, because if a government has charges to place against a person,
they should be substantiated by a competent court so that it may impose
the proper penalties for them.
Second, the Commission must note that the existence of the often
mentioned temporary Provision 24 of the Constitution means that there
hangs over all Chileans the possibility of punishment by exile, against
which there is no remedy. An illustrative case is that of the Chilean
writer Ariel Dorfman, who was residing in Chile, and when he returned to
the country on August 2, 1987 after traveling abroad, he was prevented
from entering by police who acted, they said, in compliance with orders
of the Ministry of the Interior. Mr. Dorfman was placed on an airplane
going to Buenos Aires, and while the measure was then rescinded, this
shows the precariousness surrounding the exercise of a right as
important as residence and movement.
Right to freedom of expression
Regarding the right to freedom of expression, it should be made
clear first that the exercise of this right was subject to restrictions,
which led in the last months of 1986 to the imposition of the state of
siege. Under the provisions of that state of emergency, the magazines Análisis,
Cauce, Apsi, Hoy, La Bicicleta and the newspaper Fortín Mapocho, were
prevented from circulating. The measure against the magazine Hoy was
rescinded before the state of siege was lifted. Edict 3 of the Office of
the area Chief in the state of siege banned information to the Italian
news agency Ansa.
Military Edict 2 of November 18, 1986 ordered the book “Allende
demócrata intransigente” (Allende intransigent democrat) seized,
without giving any reason for doing so. When the state of siege was
lifted, it became known that 15,000 copies of the books “La Aventura
de Miguel Littín, clandestine en Chile,” (The Adventures of Miguel
Littín, in the Chilean Underground) of Gabriel García Márquez and
“Proceso a la Izquierda” (Movement to the Left) of the Venezuelan
politician Teodoro Petkoff had been incinerated. The books had been
seized in customs by order of the “Area Chief in the State of Siege of
the Fifth Region, under the authority granted him by the political
Constitution of Chile,” according to the report of the Ministry of the
Interior to the Cámara del Libro. That institution considered the
burning of the books as “an act unworthy of a civilized country.”
In the period covered by this report, the trial against the
director of the magazine Análisis, Juan Pablo Cárdenas, who was
charged with defaming the President of the Republic, was concluded. Mr.
Cárdenas was convicted and sentenced on January 29, 1987 to three years
of night time confinement in prison, because the examining magistrate
Lionel Beraud Poblete asserted that “from a mere reading of the
editorials (of the magazine Análisis), one can conclude that the only
thing sought by them is to undermine the credit and reputation of the
present Government with the country.”
The Second Summer Section of the Appeals Court ruled in favor of
the appeal of the defense, set aside the verdict of the Court of First
Instance, and acquitted Mr. Cárdenas because the court considered that
he had not defamed General Pinochet. The Supreme Court ruled in favor of
the Government’s appeal and sentenced Mr. Cárdenas to 541 days in
prison, to be served with night-time confinement. Mr. Cárdenas was
imprisoned under this charge from July 28 to August 26, 1986.
On May 29, 1987, the First Military Prosecutor committed the
director of the newspaper Fortín Mapocho, Mr. Felipe Pozo Ruiz and a
journalist of that paper, Gilberto Palacios, for trial, charged with
offenses detrimental to the armed forces. The charge was based on an
article published in April 1986 on the conditions under which military
service is performed.
Also with regard to the exercise of the right to freedom of
expression, the publishing house Terranova was raided on December 29,
1986 by CNI agents, who seized works printed by the publisher and
machinery owned by it. In May 1987, the Fourth Section of the Appeals
Court ruled that the CNI must return the publications and machinery
within five days, which was done.
The Commission must note that in the period covered by this
report, La Época, a newspaper connected with persons of the Christian
Democrat Party, began circulation in March 1987. The Commission had
reported previously that the Government had authorized the paper to
begin publication.
Political rights
During the period of this report, the Chilean Government enacted
two laws to carrying out the political timetable called for in the 1980
Constitution. These acts are Law 18.556, known as the Constitutional
Organic Law on the Electoral Registration and Electoral Service System,
published in the Official Gazette on October 1, 1986, and Law 18.603,
the Constitutional Organic Law of Political Parties, published on March
23, 1987. Also during the period of this report, the Elections Board
(Tribunal Calificador de Elecciones) was installed on April 7, 1987,
while procedures began under the draft Constitutional Organic Law on
Voting and Elections for the President of the Republic, Members of
Parliament and Plebiscites. The Commission will comment below on these
laws and the reactions to them because they are considered to be
directly connected with the exercise of political rights. a.
Law 18.556 on the Voter Registration System
This law, better known as the Voter Registration Law, is intended
to organize the registration procedure for future elections and to set
up the electoral service. This law, which was commented on by the
Constitutional Court, has 102 permanent and nine transitory articles.
Based on its provisions, the voter rolls, which had been destroyed at
the beginning of the military government, began to be reconstituted.
The publication of this law and its implementation produced
various reactions, both with regard to the contents of some of its
provisions and to its significance and impact on the development of the
Chilean political system. Regarding the contents of some of its
provisions, many observers pointed out the discriminatory nature of
Article 39, under which, among other reasons, registration to the vote
is prohibited to those who have been punished by the Constitutional
Court, under Article 8 of the Constitution. As is well known, this
provision bans political parties and movements that spread “doctrines
that are harmful to the family, advocate violence or a conception of
society or the State or of the legal system that is totalitarian in
nature or based on the class struggle.”
The Commission has already had occasion to address Article 8
extensively in its 1985 report on the status of human rights in Chile.
At this time, it is enough to point out that the provisions of Article
39 of the Voter Registration Law put into practice in one particular
aspect the discrimination contained in Article 8 of the Constitution.
That discriminatory aspect is in clear-cut conflict with the stand that
has been taken on human rights throughout the hemisphere, one of whose
most important contributions is the 1959 Declaration of Santiago, Chile,
which states that “the systematic use of political proscription is
contrary to the American democratic system.”
Aspects of the practical application of the Voter Registration
Law have also been cited to criticize its provisions severely. Thus, it
has been pointed out that various factors might create conditions to
thwart the popular will expressed in an election, such as over-long
registration procedures, the cost of these procedures, the requirement
of a new identification card, manual processing in the first phase of
the registration, and the designation of election officials lacking the
impartiality they should have for such an important mechanism.
The most important discussion, however, has occurred regarding
whether or not to register on the voter rolls. This is an issue of clear
implications regarding the exercise of political rights, so the
Commission feels the matter should be carefully considered. Actually,
substantial sectors of Chilean political life, especially those
connected with the Popular Democratic Movement (MDP), whose main member
is the Communist Party of Chile, have rejected voter registration
because they regard this as a recourse instituted by the Government,
which involves to some extent recognition of that Government. They also
feel that it is virtually impossible for the Government to lose an
election organized entirely by it.
Other sectors, including a broad spectrum of political and social
organizations, and personalities of various ideological persuasions have
felt, however, that it is essential to speed up voter registration. Some
maintain this position for practical reasons and some for reasons of
principle. The latter mention the fact that regardless of the nature of
the election held—whether a plebiscite or regular elections—it is
essential to register to vote, because the Government is encouraging
registration of its supporters. In light of that fact, opponents who
support registration maintain that it is preferable to have the largest
number of voters registered, because they feel that the majority would
oppose the government candidates. Regarding the reasons of principle in
favor of voter registration is the fact that the exercise of the right
to vote is an inalienable right of the person and is also a civic duty.
The Permanent Committee of the Episcopate, published on June 10,
1987 an appeal to register to vote because it is “a right and a duty
of all citizens,” and asked those having responsibility over other
persons to provide them with conditions enabling them to register.
This appeal was reiterated by the Episcopal Conference of Chile
on August 13, 1987.
The potential number of voters, taking into consideration that in
Chile the voting age is 18, ranges from 7,500,000 to 8,000,000.
According to data provided to the Commission by the Permanent Mission of
Chile to the OAS, 1,212,205 citizens had already registered by June 30,
1987. b.
Law 18.603 on Political Parties
On March 23, 1987, the Constitutional Organic Law of Political
Parties was published in the Official Gazette, and a draft of it had
been submitted by the Government Junta to the Constitutional Court. This
court issued a ruling on this subject, which affected the fifteen
articles of the draft, after which the Government Junta eliminated the
provisions considered unconstitutional and remitted the text to the
Executive Branch for promulgation.
The text of this law, like the Voter Registration, implements the
constitutional provisions on political parties, so that it retains the
serious limitations contained in Article 8 of the Constitution. Article
42, subparagraph 7 of the Law of Political Parties provides as aground
for dissolution of a political party the declaration of its
unconstitutionality, applying to it the provisions of Article 8. In this
case, under Article 45 of this law, the party’s property would be
confiscated.
The Law of Political Parties also gives a compartmentalized view
of society, in which “intermediary groups” must be functionally
separate from the political parties. This provision, contained in
Article 23 of the Constitution, is implemented by Article 18 of the Law
of Political Parties, which states:
... no member of the armed forces, or of the public security or
law enforcement agencies, officials and employees of the various levels
of the judiciary, the Elections Board (Tribunal Calificador de
Elecciones), the Electoral Service, or labor or guild leaders may be
members of any political party.
This same article provides that any members of a political party
who become labor or trade union leaders automatically cease to be
members of that party, and must swear an oath “on whether or not they
were affiliated with a political party” when that happened. This sworn
declaration opens the possibility to criminal charges for perjury as
defined in Article 210 of the Criminal Code. The Law of Political
Parties in Article 49 stipulates the penalties for those who violate
Article 23 of the Constitution, that is, when political leaders take
part in labor or trade union activities or when leaders of those
“intermediary groups” engage in political activities.
Regarding this point, the Episcopal Conference of Chile, in a
declaration entitled “In the Service of Peace,” of August 13, 1987,
states:
The Episcopal Conference repeats what it has always requested of
government authorities: that, for the good of peace and of
reconciliation in the country, they study with representatives of the
various political groups of the government and the opposition, the
desirability of amending some articles of the 1980 Constitution that
appear to impede such peace and reconciliation, such as the mechanism
for the succession to the Presidency; the method of later reform of the
Constitution; or certain articles especially discussed, such as Article
8 and Transitory Article 24.
c. The special period in the
1980 Constitution, time frame and procedures.
The 13th temporary Provision of the Constitution
provides that the presidential term now under way will last the eight
years stipulated in Article 25 of the permanent provisions. In light of
the fact that the Constitution entered into force on March 11, 1981, the
current presidential term extends to March 11, 1989, and President
Pinochet is eligible for re-election.
The system for succession is established by temporary Provisions
27, 28 and 29. According to Provision 27, the commanders in chief of the
armed forces and the Director General of the Carabineros must
unanimously nominate the person who will serve as president. This
temporary Provision stipulates that, to make that nomination, the
commanders and the Director General must meet “at least 90 days before
the date on which the term of the current president ends,” that is, at
least 90 days before March 11, 1989. If they cannot reach a unanimous
decision, the National Security Council shall decide, this time by an
absolute majority.
Temporary Provision 27 also provides that the proposal of the
Government Junta or the Security Council shall be submitted to a
plebiscite. Under temporary Provision 28, if the citizens approve the
nomination, the president shall take office on March 11, 1989 for the
eight-year term provided for by the Constitution. In this case, the
president-designate shall call for general elections of deputies and
senators nine months after taking office.
If the citizens reject the person nominated for president in the
plebiscite, the 29th temporary Provision provides that the
current presidential term will be extended automatically for one year.
Ninety days before the expiration of that period, the president must
call an election by direct vote of the president and of the parliament.
As can be seen, the year in question is of fundamental importance
for Chile’s political future as far as the exercise of political
rights and the observance of human rights in general are concerned. In
its 1|985 report on the status of human rights in Chile, the Commission
set forth its serious reservations both on the national election of
January 1978 and the plebiscite of 1980. That is why the Commission
regards as positive the fact that voter registration has begun and large
numbers of citizens are registering. The Commission hopes that this
registration process will take place normally and that there will be no
suspicions about its correctness.
Also in light of previous experience and in accordance with human
rights norms, the Commission must point out that the exercise of the
right to vote must be included in a context favoring the authenticity of
elections in which the free expression of the will of the voters is
ensured, as Article 23 of the American Convention on Human Rights
states.
The Commission therefore hopes that this important period that is
beginning will help to establish an atmosphere that will encourage
citizens to make these important decisions. In this regard, it would be
very useful for those taking part in the political process to avoid at
all costs the use of violence and proscription, such as has been
repeatedly requested by important sectors of Chilean society. In the
Commission’s view, it is essential to break the vicious circle
generated by the proscription and violence that threatens to distort the
Chilean political scene.
In the Commission’s view also, it is of basic importance that
in the period before the scheduled election, the various political
groups be given every guarantee and means to have their views expressed
and accurately transmitted to the voters. Accordingly, the Commission
regards as positive the steps taken by the Government to allow important
opposition leaders to take part again in the country’s political life
after their long exile.
Based on these considerations, the Commission finds it important
to reproduce the appropriate parts of the Declaration of the Episcopal
Conference of Chile, entitled “In the Service of Peace.” This
declaration, of August 13, 1987, refers to the basic conditions that, in
its opinion, should prevail in the election to decide who will succeed
the current president. In this connection, the declaration states:
We believe the following statement is useful for the country:
a)
We endorse and reiterate the call of our standing committee, at
its meeting of June 10 of this year, to register to vote as soon as
possible, in order to be able to participate in the decisions affecting
the country’s future.
b)
In order for the results of a plebiscite or election to have any
moral authority, they must meet certain basic conditions:
1.
The number of those who are able to vote must be sufficient for
the election to be considered as a true expression of the national will;
2.
All sectors of public opinion must have an equitable access to
television and other mass media and to the various forms of political
publicity, so voters will be able to cast their ballots on the basis of
proper information;
3.
The conditions under which votes are cast must exclude any
possibility of pressure;
4.
Votes must be cast and counted in such a way that the absolute
correctness of the election returns can be checked by all.
The Commission hopes that this appeal of the Chilean Episcopal
Conference will be widely endorsed and that the difficult circumstances
prevailing today in Chile will be overcome in order to achieve
unrestricted observance of human rights under the representative
democratic system, which, as has been repeatedly pointed out by the
Commission and the General Assembly, constitutes the best guarantee for
the observance of those rights. [ Table of Contents | Previous | Next ] |
