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CHAPTER
I PRINCIPAL
MODIFICATIONS IN THE SYSTEM OF GOVERNMENTAL
STANDARDS RELATED TO HUMAN
RIGHTS
Among the principal general standards related to human rights
adopted by the Government of Chile after the conclusion of our
investigation in loco, are the following: 1.
Decree-Law Nº 604, of August 9, 1974 (Diario Oficial Nº
28.925 of August 10, 1974) This decree-law prohibits the entry into Chilean territory “of persons, nationals or foreigners, who propagate or foment, orally or in writing or by any other means, doctrines that tend to the destruction or alteration by violence of the social order of the country or its system of government; those who are organized or who have the reputation of being agitators or activists of such doctrines, and, in general, those who commit acts which the laws of Chile classify as common crimes against external security, against national sovereignty, against internal security or the public order of the country, and those who carry out acts contrary to the interests of Chile, or who, in the judgment of the Government, constitute a danger for the State. In the case of Chileans, the Ministry of the Interior shall issue a supreme decree prohibiting their entry into the country and the appropriate administrative authority shall order the cancellation of their passport if they have one.” (Art. 1)
The Chileans to whom entry into the country has been prohibited
by this decree-law “may request, through a Chilean Consulate, that the
Minister of the Interior authorize them to enter the national territory.
If the Minister considers the petition to be in order, he shall issue a
supreme decree approving it, giving the justification.” (Art. 2)
Article 3 provides that “persons affected by the indicated
prohibition who enter the country clandestinely, evading the control of
such entry, shall be punished by imprisonment of the maximum degree.
Accomplices and those who house them, conceal them, or aid in the escape
of a person guilty of the mentioned crime, shall be punished with the
appropriate penalty, increased in one degree.
“These offenses shall be heard before Military Tribunals and
the sentences shall conform with the standards of the Code of Military
Justice.” 2.
Decree-Law Nº 640, of September 2, 1974, published in Diario
Oficial Nº 28.950 of September 10, 1974 This decree-law systematized the provisions related to various emergency regimens, with a view to “establishing an adequate harmony of the said provisions with those of constitutional rank that regulate the subject, and with the other legal precepts that the Junta of Government has approved.”
Article 1 provides that the emergency regimens are the following: I. State of External or Internal War As concerns the State of Siege, it is specified that “its declaration shall take place in the following cases:
a)
In case of danger from external attack or invasion, whether the
threat comes from foreigners or is the work of Chileans; and
b)
In case of interior disturbance, whatever its nature may be.”
(Art. 5)
Under Article 6, “the declaration of a State of Siege may be
decreed in any of the following degrees:
“a)
State of Siege because of Internal or External War;
“b)
State of Siege in the degree of Internal Defense, which shall
occur in case of interior disturbance provoked by rebel or seditious
forces that are found to be organized or about to be organized, whether
in open form or clandestinely;
“c)
State of Siege in the degree of Internal Security, which shall
occur when the disturbance is provoked by rebel or seditious forces that
are found not be organized, and
“d)
State of Siege in the degree of Simple Internal disturbance which
shall occur in the other cases provided for in existing legislation.”
Article 7 provides that “in cases in which a State of Siege is
declared because of danger of external attack, invasion or internal
disturbance in the degree of Internal Defense, effect shall be given to
the legal provisions contained in Title III of Book I, and Title IV of
Book II of the Code of Military Justice, and application shall be given,
when appropriate, to penalties of time of war.”
Book I, Title III, of the Code of Military Justice is devoted to
“Military Tribunals in time of War (Arts. 71 to 91). Title IV of Book
II, likewise, in Articles 180 to 1974, treats the subject of “Legal
procedure in time of war.”
When a State of Siege is declared in the degree of Internal
Security, Article 8 states “the same standards of the Code of Military
Justice shall govern, but the penalties applicable in time of war shall
be applied lowered by one degree.”
“In the cases of declaration of a State of Siege in the degree
of Simple Interior Disturbance, there shall come into effect the
provisions of Section 14 of Article 10 of Decree-Law Nº 527 of 1974,
and of the Code of Military Justice. The said provisions shall likewise
govern in the other degrees of the state of siege.” This is prescribed
in Article 9. Decree-Law
527 of June 17, 1974 (published in the Diario Oficial Nº 28.886 of June
26, 1974) approved the Statute of the Junta of Government. Article 10 of
that Statute enumerates the special powers of the President of the
Junta, among which is the power of declaring one or more points in the
Republic to be in a State of Siege in case of danger from a foreign
attack or invasion (Nº 14). In the case of an interior disturbance, the
declaration of a state of siege requires a decree-law (idem). Under the
same number 14 of Article 10, it is stated that “upon the declaration
of a state of siege, only the President of the Junta of Government shall
have the power to move persons from one part of the country to another
and to arrest them in their own houses and detain them in places that
are not jails or other places that are for the stated purpose of
detaining or imprisoning common criminals.” 3.
Decree-Law Nº 641 of September 2, 1974 (Diario Oficial Nº
28.957) and Decree-Law Nº 922 of March 11, 1975 (Diario Oficial Nº
29.100 of the same date)
a)
Decree-Law Nº 641 declared the entire territory of Chile to be
“in a State of Siege, in the degree of Internal Defense, for a period
of six months” (counting from the date of publication of the decree in
the Diario Oficial (September 11, 1974).
In the considerations set forth in the preamble of the decree, it
is stated that the grave circumstances of the country which were the
reason for the declaration of the “State or time of War,” according
to the provisions of decree-laws Nos. 3 and 5 of 1973, were now found to
be in large part superseded, and that since the subversive action of
organized groups that had been attempting to take political control of
the country with the acceptance of the former Government had been put
under control, it was now appropriate to adjust the regimen of the State
of Siege to the true condition of the country. b) Decree-Law 922 of March 11, 1975, extended the state of siege in the degree of internal defense for a period of six months counting from that date.
In the considerations set forth in the preamble, it is stated
that there still existed the conditions that gave cause for the
declaration of the state of siege created by Decree-Law 641. 4.
Decree-Law Nº 951 of March 31, 1975 (Diario Oficial Nº
29.119 of April 4, 1975)
a)
This decree-law specified, in substitution for Article 1 of
Decree-Law 228 of 1973, that the powers to transfer and arrest persons
which were conferred on the President of the Junta, during the state of
siege, by Article 10, Nº 14, of the Statute (Decree-Law 527 of 1974,
see above, point 2) would be exercised “by means of supreme decrees
that would be signed by the Minister of the Interior with the words
‘By order of the President of the Republic’ or by means of
resolutions that, as natural or immediate agents of the Chief of State,
would be issued by the Regional or Provincial Intendents
(Military Governors).” In the latter case, however, the intendents
“must transcribe al of the deliberations, with the background
information that justifies the measure, and send them within ten days to
the Minister of the Interior, who shall proceed to confirm or revoke the
respective resolution by means of a supreme decree that he will issue in
the form provided in the preceding section of the decree.”
b)
By the addition of a new article to the same decree 228 of 1973,
it is provided that “in the recursos de amparo [¨formal
requests for writs of protection that are the approximate equivalent of
writs of habeas corpus] that are entered in favor of persons
allegedly affected by some of the measures provided for in Article 10, Nº
14, of Decree-Law Nº 527 of 1974, there may figure as a party to the
case, assuming the defense of the Government, the lawyers who may be
designated by the Minister of the Interior or the respective
Intendent.”
“The decisions that are made in these recursos de amparo,
when they order the release of the person for whom protection is
requested, or when they pass the background information in the case to
the Public Ministry for the purpose provided for in Article 311 of the
Code of Penal Procedure, shall be delivered to the lawyer to whom
reference is made in the preceding clause … I the Government has not
designated a lawyer, the said notification shall be sent to the Minister
of the Interior or the Intendent who has jurisdiction in the city which
is the seat of the pertinent Court of Appeals. In the latter case, the
Government may make itself a party to the case within 24 hours, in the
form indicated in the preceding clause, deciding simultaneously on the
recourse which it considers appropriate to propose before the Superior
Court that has jurisdiction in the case.” 5.
Decree Law 1008 of May 5, 1975 (Diario Oficial Nº 29.147 of
May 8, 1975)
In exercise of its Constituent Power, the Junta of Government
modified Article 15 of the Political Constitution of the State, adding
the following clause: Nevertheless, when crimes against the security of the State are
concerned, during periods in which a state of emergency is in effect,
the period referred to in the preceding clause shall be up to five days. Before this amendment, the Political Constitution of Chile permitted the authorities to detain a person for only forty-eight hours, within which period the authorities must place the person at the disposition of the competent judge. Decree-Law 1008 extended this period up to five days, in the cases of persons suspected of crimes against the security of the State, during the period of a state of siege.
In the preamble of this measure, the following was stated:
1.
that crimes against the Security of the State are extremely
serious, since they are against the stability of the State and its
institutions, place the national well-being in danger and obstruct the
free exercise of the fundamental rights of the inhabitants, and
2.
that, for the purposes of the necessary investigation that the
competent judge must carry out, it is necessary to provide him with the
maximum of background information, especially with respect to the
identity of the individual who has been detained, which makes the period
contemplated by Article 15 of the Political Constitution of the State
insufficient in permitting the authorities to detain a person for only
forty-eight hours, which makes it advisable, when it is a matter of
crimes of this matter and during the period of a state of siege, to
extend that period to up to five days. 6.
Decree-Law Nº 1009 of May 5, 1975 (Diario Oficial of May 8,
1975)
This decree carries the following official title: “Systematizes
standards for legal protection of the procedural rights of persons
detained for crimes against the national security for the agencies that
indicate and modify these legal provisions.”
This Decree-Law contains two perfectly distinguishable parts: a)
Article 1; and b) the remaining provisions.
a)
Article 1 provides that “during the period of the state of
siege, the agencies with special responsibility for watching over the
normal functioning of national activities and for the maintenance of the
constituted institutions, when they proceed—in the exercise of their
own powers—to place in preventive arrest persons who there is good
reason to presume are guilty of placing the security of the State in
danger, they shall be required to give notice of the respective
detention, within a period of 48 hours, to the most immediate members of
the family of the detained person.”
“The detention carried out by the agencies to which reference
is made in the preceding clause may not continue more than five days,
and within that period the detained person shall be placed at liberty or
placed at the disposition of the pertinent Court or of the Ministry of
the Interior when it is a case for the application of extraordinary
powers or of the state of siege, with a written report of the background
information that has been gathered.”
“The application if illegitimate pressures on detained persons
shall be punished in accordance with Article 150 of the Penal Code or
330 of the Code of Military Justice, whichever is appropriate.”
b)
The most outstanding aspects of the remaining articles of
Decree-Law 1009 are these:
1)
Articles 7, 8 and 9 of Decree 640 of 1973 (see above, point 2)
are replaced, so that: - In cases of a state of siege because of a situation of internal
war or external war, or because of internal disturbance in the degree of
internal defense, the wartime military courts shall enter into operation
with the military jurisdiction of wartime, and the procedures and
penalties provided for wartime shall be applied; - In case of a state of siege in the degree of internal security,
the provisions of Title II of Book I of the Code of Military Justice
shall govern with respect to peace-time Military Courts with their own
jurisdiction, and application should be given to the standards of Title
II of Book II of the mentioned Code concerning penal procedure in
peace-time and the penalty established for peace-time augmented by one
or two degrees. - Throughout, in the cases of state of siege in the degree of
internal security or in the degree of simple disturbance, the war-time
military courts shall hear cases of crimes to which reference is made in
articles 4 and 5(a), 5(b) and letters c), d) and e) of the law
concerning the Security of the State.
Article 4 of the law concerning the Security of the State (law
12927, text brought up to date by decree Nº 890 of July 9, 1975, Diario
Oficial Nº 29239 of August 26, 1975) suppresses persons who “in any
form or by any means, rise up against the constituted Government or
provoke civil war, and especially:
“a)
Those who incite or induce to subversion of the public order or
revolt, resistance or overthrow of the constituted Government, and those
who, for the same purposes, incite, induce or provoke to the execution
of crimes foreseen in Titles I and II of Book II of the Penal Code, or
the crimes of homicide, robbery or arson among those contemplated in
Article 430 of the Penal Code;
“b)
Those who incite or induce, orally or in writing or by any other
medium, the Armed Forces, the Carabineros [National Police], the
Gendarmerie or the Police, or individuals belonging to them, to lack of
discipline or disobedience to the orders of the constituted Government
or of their hierarchical superiors;
“c)
Those who meet together, concert or facilitate meetings for the
purpose of proposing the overthrow of the constituted Government or
conspiring against its stability;
“d)
Those who incite, induce, finance or assist in the organization
of private military groups, combat groups or other similar
organizations, and those who form part of them, for the purpose of
replacing the public forces, of attacking them or interfering with the
carrying out of their duties, or for the purpose of rising up against
the authority of the State or of making any attack against the
authorities to whom reference is made in letter b) of Article 6;
“e)
Those public employees of the military or of the Carabineros, the
police or the gendarmerie, who do not comply with the orders which, in
the legitimate exercise of authority, are given them by the constituted
Government, or who delay in complying or proceed with culpable
negligence;
“f)
Those who propagate or foment, orally or in writing or by any
other medium, doctrines that tend to the destruction or alteration by
violence, of the social order or the republican and democratic form of
Government;
“g)
Those that propagate, orally or in writing or by any other
medium, within the country, or who send abroad, tendentious or false
news or information for the purpose of destroying the republican and
democratic system of Government, or to perturb the constitutional order,
the security of the country, the economic or monetary system, the
normality of prices, the stability of values and the public assets and
means of supplying the populated centers, and those Chileans who, being
outside of the country, disseminate such news abroad.”
Article 5 b) of the same law suppresses those who “for the
purpose of altering the institutional order or public security or of
intimidating the people or of imposing requirements and uprooting
decisions of the authorities, deprive a person of liberty,”
Article 6 c) of the law of the Security of the State suppresses
those who “incite, promote or foment, or by action or any method
destroy, make useless, paralyze, interrupt or damage the installations,
instruments or elements employed for the operation of public services or
public utilities or of industry, mining, agriculture, commerce,
communication, transport or distribution, or those who in the same ways
obstruct or make difficult free access to such installations,
instruments or elements.”
Article 6 d) of the law of the Security of the State suppresses
“those who incite, promote or foment, or by action or any other means,
destroy, makes useless or obstruct free access to bridges, streets,
roads or other similar property for public use.”
Article 6 e) of the law of the Security of the State suppresses
those who “incite, promote or foment, or by action, poison foods,
water or other fluids intended for public use or consumption.”
2)
Various modifications have been made in the law of the Security
of the State to which reference has been made, and its articles 5 b),
12, 16, 18, 19 and 20 have been replaced or amended.
3)
Penalties are established for those who “carry or transmit
orders, instructions, information or communications that are
preparations for the perpetration of a crime against the security of the
State”; “a person shall be considered guilty of this crime if he
carries documents that are enciphered or in code and does not give
satisfactory explanation of their contents or origin” (Article 2) and
those who “shelter, hide of facilitate the escape of a person, knowing
that they are eluding the action of justice or of the authorities, when
this pertains to a matter related to the security of the State.”
(Article 3) The hearing of cases concerning these crimes “shall
pertain to the Military Courts, and in all other respects the procedural
provisions contained in the articles of the law of the Security of the
State shall be applicable.” These provisions are made by Title II of
Book II of the Code of Military Justice concerning peacetime penal
procedure, a system into which certain modifications have been
introduced.
4)
Persons are presumed to be the authors of the crimes of
incitation contemplated in articles 4 to 6 of the Law of Security of the
State if they have been “found to be carrying circulars, pamphlets or
booklets that incite to their perpetration, provided that the
circumstances of the action or the personal background information
concerning the person permit them to be suspected.” In addition,
“when these circumstances combine, a person who is found to be
carrying circular, pamphlets or booklets that serve for the
dissemination of news and information that the laws define as criminal,
shall be presumed to be guilty of propagating and supporting and
disseminating that propaganda or doctrine.” (Article 5)
5)
This decree declares that the crimes contemplated in Decree-Law
1009, in Decree-Law 77, which declared Marxist political parties and
movements to be illegal, and in Decree-Laws Nos. 81 and 604, which
establishes sanctions against those who enter the country clandestinely,
and in Article 58 of D.F.L.N. Nº 221 of 1931, concerning aerial
navigation, which establishes punishment for the illegal seizure of
aircraft, shall be considered, for all legal effects, as crimes against
the security of the State. 7.
Decree-Law 1.181 of September 10, 1975 (Diario Oficial Nº
29.253 of September 11, 1975)
This decree declares that the entire territory of Chile “is in
a State of Siege, in the degree of internal Security, for a period of
six months, counting from the date of publication” of the said
decree-law in the Diario Oficial, and it cancels Decree-Law Nº 922 of
March 11, 1975, which had declared the entire territory of the country
in a state of siege in the degree of internal defense.
In the preamble, it is stated that “the serious circumstances
which the country has experienced and which motivated the declaration of
the ‘State or time of War’… are at present found to be to a large
extent overcome,” that “the patriotic action of the Armed Forces and
the citizenry has enabled the control of subversive action by organized
groups that were seeking to take over the political control of the
country with the approval of the preceding Government”; that now that
these organized groups had been put under control, “the regimen of the
State of Siege should be adjusted to the real conditions of the
country”; that “consequently, it is considered unnecessary to
maintain the State of Siege in the Degree of Internal Defense… without
prejudice to recognizing, at the same time, that it is an unavoidable
duty of the authorities of Government to preserve the institutional and
public order of the Nation, which constitutes a legitimate internal
defense of the essential activities.”
The text of this Decree-Law 1181 was sent by the Government to
the Inter-American Commission on Human Rights on September 16, 1975,
with a note signed by the Minister of Foreign Relations. In this note,
he stated that the modification in the degree of State of Siege
introduced by this measure, beginning with September 11, 1975, “means
that, except for certain especially serious crimes against the Security
of the State to which express reference is made in Decree 1009 of 1975,
the jurisdiction of the Military Courts shall be exercised in conformity
with peace-time procedures and not those of War”.
The Minister added that “consequently and except for certain
exceptions, the Councils of War cease functioning, and there is
re-established the procedure stipulated in Title II, Book I of the Code
of Military Justice in effect since 1926, under authority of which the
military jurisdiction is carried out, in the first instance by the
Military Juzgados [Courts of First Instance] and, secondly, by
the Court Martial. This Court is made up of two Ministers of the Court
of Appeals of Santiago, presided over by the senior one, by a retired
Auditor General [Judge Advocate] of the Army, a Judge Advocate of
Aviation, either on active duty or retired, and by a Judge Advocate of
the Carabineros [National Police], either on active duty or retired. The
Judge Advocates are law graduates with great experience in Military
Jurisprudence. The Court Martial of the Navy, which sits in Valparaiso,
is the court of appeals for the sentences or decisions that emanate from
the Naval Juzgados. That Court is likewise made up of two Ministers of
the Court of Appeals, by an Officer of the Navy with high academic
preparation and by the Judge Advocate of the Navy.”
“From the decisions handed down by the Court Martial—the
Minister goes on to state—recourse may be obtained by appeal to the
Supreme Court of Justice. The Ordinary Courts (the Supreme Court)
recover in this way their competence over Military Justice.”
8.
Supreme Decree Nº 187 of January 28, 1976
This measure is intended “to regulate adequately the standards
for guaranteeing the rights of detained persons under the state of
siege, established in Article 1 of Decree-Law 1009.”
The decree specifies:
a)
that “every person detained by the Agencies and in the
situations to which reference is made in Article 1 of Decree 1009 of
1975” (see above, point 6) “before entering the plants,
establishments or places of detention pertaining to those agencies,
shall be examined by a physician-surgeon. A similar examination shall be
made of the detained person at the moment of his departure from the said
plants, establishments or places. The Medical Legal Service and the
National Health Service, in coordination, shall assign to the plants,
establishments and places already mentioned a physician in charge of
carrying out the examinations specified in this article. Such physicians
shall issue, in each case, a written report in which they attest to the
condition of the person examined, sending the report immediately to the
Ministry of Justice.” (Article 1)
“If, from the statements on these certified reports, it should
appear that the detained person has been the object of bad treatment or
undue pressures, the Ministry of Justice shall proceed to denounce such
acts to the administrative, institutional or judicial authority which,
according to the case, is the pertinent one.” (Article 2)
b)
That “the detentions which are related to the application of
the state of siege, to which reference is made in Article 1 of
Decree-Law 1009 of 1975, may be carried out only with a prior written
order issued by the chief of the respective specialized security agency
which must contain the following data: A) Name of the detained person;
B) Name of the person carrying out the detention; C) Place to which the
detained person is to be taken; D) Date, hour and place in which the
detention is carried out; E) Name, position and signature of the person
who ordered the carrying out of the measure; and F) Stamp or seal that
authenticates the order. A copy of the order of detention must be
delivered to the most immediate member of the family of the detained
person, as indicated by the detained person, and who resides in the
place where the detention is carried out, within the 48 hours provided
for in Article 1 of Decree-law 1009 of 1975.” (Article 3)
c)
That “if, for compliance with the orders of detention or as a
consequence derived from such orders, it becomes necessary to carry out
a search of dwelling places or of any closed building or place—whether
it is public or private—there must be issued, by the chief of the
respective specialized security agency, a written order that authorizes
this action by the functionary charged with carrying it out. The said
order must be exhibited in advance to the owner or resident of the
dwelling place, or to the person in charge of the closed building or
place, as the case may be, and a copy of the order must be given to such
person when the search has been carried out.” (Article 4)
d)
That “if, on the occasion of detentions or searches to which
reference is made in this Supreme Decree, a foreigner should be deprived
of his liberty, the Ministry of the Interior shall proceed, within its
legal authority, to expel such person from the country.” (Article 5)
e)
That “the President of the Republic, by Supreme Decree that
shall bear the signatures of the Ministers of the Interior and National
Defense, shall specify the places and establishments of detention to
which reference is made in Articles 1 and 3, letter c), of this Decree
in which there must be maintained a duly registered book in which the
entry and departure of detained persons shall be attested to, with an
indication of the day and hour when this took place, as well as an
indication of the order which originated the action.” (Article 6)
With reference to this standard, it should be mentioned that, by
Supreme Decree Nº 146 of February 10, 1976, it was provided that only
three places shall be used for the detention of persons who are in the
situation specified in Article 1 of Decree-Law 1009, Puchuncaví, Tres
Alamos and Cuatro Alamos, except for provisional detentions in comisarías
[police stations] and cuarteles de servicio [military stations or
barracks.]
f)
That “either the President of the Supreme Court or the Minister
of Justice, without distinction between them, shall have the authority
at any time, without prior notice, of inspecting or verifying the strict
compliance with the legal and regulatory standards in effect with
respect to the rights of detained persons and the report on anomalies,
which they may point out to the pertinent authorities, by means of a
confidential memorandum, without prejudice to their authority to order
the immediate medical examination of the detained person who, in the
course of their visit of inspection, asserted that he had been the
object of bad treatment or undue pressures during his stay in the place
inspected.” (Article 7) “In the geographical places that are not
parts of the metropolitan area, the Minister of Justice, in agreement
with the President of the Supreme Court, shall proceed to designate the
functionary who must carry out all or part of the actions of
examinations” indicated in the proceeding. (Article 8)
“The Ministry of the Interior or of National Defense in the
Metropolitan region, and the Intendents and Governors, wither
Provincials or Commandants of jurisdictional areas, in the respective
regions, shall decide upon the measures necessary to give the President
of the Supreme Court, the Minister of Justice or the functionary
designated by the Minister, as the case may be, all the support which
will be conducive to adequate compliance with his responsibility. The
functionaries who fail to provide such support or who obstruct the
carrying out of the measures just indicated shall be responsible for
serious failure in compliance with their obligations.” (Article 10);
and
g)
The authority who is responsible in the cases contemplated in
articles 2, 7 and 8 of the decree under discussion (see above, points a
and f) “shall order, within 48 hours, the preparation of the
pertinent charge, the principal element of which shall be the
denunciation of the President of the Supreme Court, of the Minister of
Justice, or of the functionary designated by the Minister, with the
object of determining who are the responsible parties and applying the
pertinent penalties. In the charge [sumario], special consideration
shall be given to the investigation and establishment of acts that may
prove eventually to be infractions of articles 150, 253 and 255 of the
Penal Code and 328 and 338 of the Code of Military Justice.” (Article
9)
The standards in Supreme Decree 187, transcribed, must be
appraised in relation to:
1)
Article 1 of Decree 1009, already summarized (see above, point
6), which refers to the actions of the “agencies with specialized
responsibilities for safeguarding the normal carrying out of national
activities and for the maintenance of the constituted institutions, when
they proceed—in the exercise of their own authority—to detain
preventively persons whom they have basis for presuming to be guilty of
placing in danger the security of the State.” In the fifth
“consideration” mentioned in the preamble of Decree-Law 1009, it is
stared that those “specialized agencies” are those “of
technical-professional character which the President of the Republic
makes use of to carry out the powers given to him by Article 72 of the
Political Constitution”; and
2)
The contents of Decree-Law 521 of June 14, 1974 (Diario Oficial Nº
28879 of June 18, 1974), Article 1 of which created “the Dirección
de Inteligencia Nacional (DINA) [National Intelligence Office] as a
military agency of technical-professional character, under the authority
of the Junta of Government.” Even though the published provisions of
the said decree-law 521 do not give the DINA powers for preventive
detention of persons suspected of placing in danger the security of the
State, it should be pointed out that: a) Decree-Law 521 contains a
“sole transitory article” which provides that articles 9, 10 and 11
of the decree “shall be published in an annex of the Diario Oficial
which has restricted circulation” and b) that it is public knowledge
and notorious that the great majority of the detentions carried out in
Chile, after the creation of the DINA, have been carried out by
personnel of that agency. 9.
Decree-Law 1281 of December 10, 1975 (Diario Oficial of
December 12, 1975)
In the “considerations” in the preamble of this decree-law,
it is stated that “it is appropriate, for reasons of legal security,
to give expressly to the Military Chief of a Zone in a State of
Emergency the power to prevent the publication or dissemination of news
intended to diminish the spirit of sacrifice of the people in benefit of
the future of the Motherland, as well as news that deforms the true
shape of events or simply falsifies those events,” and that “along
with this authority, the Military Chiefs should have the power to apply,
by administrative means, the sanctions which fit these offenses, without
prejudice to the penal actions that apply.”
Supported by these considerations, Decree-Law 1281 added a new
clause (the “n”) to Article 34 of the Law of Security of the State.
According to the new provisions, when a state of emergency is declared,
the Military Chief of the zone where this occurs may “suspend the
printing, distribution and sale of up to six editions of newspapers,
magazines, pamphlets or printed matter in general, and the
transmissions, for up to six days, of radio broadcasting stations,
television channels or any other analogous medium of information that
issues opinions, news or communications tending to create alarm or bad
reactions among the people, distort the true shape of events, whether
they are plainly false or countervene the instructions that have been
imparted for preservation of public order in conformity with the
preceding clause.” (The preceding clause establishes that it is the
responsibility of the Military Chief “to impart all the orders and
instructions that are considered necessary to maintain internal order
within the zone.”)
Under authority of the new clause established by Decree-Law 1281,
the Military Chief, in cases of repetition of offenses, may “order the
intervention and censure of the respective media of communications, and
of their plants and installations.”
The new standard goes on to state that, against any of the
measures that are provided for in the measure, “appeal may be made by
the affected person, within 48 hours after he is notified of an action,
before the Court Martial of the Army or Navy, respectively, which will
consider the appeal conscientiously and announce its decision.”
But “the entering of an appeal shall not suspend compliance
with the measure that has been taken, except for a definitive
resolution.” 10.
Decree-Law Nº 679 of October 10, 1974 (Diario Oficial Nº
28.974 of October 10, 1974)
This decree law, which preceded by more than a year the one just
summarized, likewise relates to freedom of expression (lato-sensu),
and it regulates cinematographic exhibitions for which purpose it
creates the Council of Cinematographic Grading “which shall be
directly under the supervision of the Ministry of Public Education
through its Subsecretariat and the mission of which shall be to
orientate the cinematographic exhibition of the country and to grade
films in accordance with the standards established in this decree.”
(Article 1)
Article 9 provides that “the Council shall reject films that
foment or propagate doctrines or ideas contrary to the fundamental bases
of the Motherland or the nationality, such as Marxism or others, those
that offend States with which Chile maintains international relations,
those which are contrary to public order, morality or good customs, and
those which induce to the committing of anti-social or harmful acts.”
The Council must grade cinematographic films in one of five
categories (approved for all viewers, only for persons over 18 years of
age, only for persons over 21 years of age, approved as educational in
character, rejected).
The scope of application of Decree-Law 679 is large: “All halls
or places of any capacity for spectators, even though they operate under
the patronage of embassies or state universities or private persons, in
which there are projected regularly or occasionally cinematographic
films, shall be subject to the provisions of this decree-law.”
(Article 14)
The penalties are serious: “A person who exhibits a film not
graded by the Council or rejected by the Council, shall incur the
penalty of confinement in the minimum degree, without prejudice to the
seizure of the film and the temporary closing of the hall in which the
exhibition takes place. This closing shall be permanent in case of
repetition of the offense.” (Article 15)
The exhibition of a film graded by the Council may be suspended
temporarily or permanently when circumstances require it. The suspension
shall be ordered by a supreme decree that must state the reasons and
bear the signatures of the Ministers of the Interior, of National
Defense and of Public Education.” (Article 18) 11.
Decree-Law 930 of March 17, 1975 (Diario Oficial Nº 29.107 of
March 19, 1975)
Among other things, this final decree-law specifies that, because
they are considered activities that are prejudicial to the security of
the State, the following are, inter alia, considered to be
justified reasons for the termination of labor contracts:
a)
The committing of illicit acts that prevent a worker from going
to work or from complying with his working obligations;
b)
The direction of, or active participation in the illegal
interruption or stoppage of activities, totally or partially, in
business firms of places of work, or the undue retention of persons or
property;
c)
The committing of a crime specified in Law Nº 12997 concerning
the Security of the State, and its amendments, or in Law 17.798
concerning Control of Arms, and its amendments.
This decree-law, on the other hand, cancelled Article 4 of
Decree-Law Nº 32 of 1973, which had created bases for discharging
persons and which had been operating retroactively.1
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1
See the First “Report concerning the situation of Human
Rights in Chile,” Chapter IV, D.C.
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