OEA/Ser.L/V/II.40
THIRD
REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE CHAPTER
V RIGHT
TO JUSTICE AND DUE PROCESS
American Declaration: Article
XVIII. Every person may resort to the courts to ensure respect for his legal
rights. There should likewise be available to him a simple, brief procedure
whereby the courts will protect him from acts of authority that, to his
prejudice, violate any fundamental constitutional rights. Article
XXVI. Every accused person is presumed to be innocent until proved guilty. Every
person accused of an offense has the right to be given an impartial and public
hearing, and to be tried by courts previously established in accordance with
pre-existing laws, and not to receive cruel, infamous or unusual punishment.
1.
Habeas corpus and amparo are simple and short procedures
provided by Chilean law so that individuals may be protected against acts of
authority that violate their basic rights. The limits that continue to impinge
upon the exercise of such remedies in Chile have been examined in Chapter I
(Modifications in the System of Juridical Standards) and in Chapter III
(Physical Liberty of the Person, Habeas Corpus and Recurso de Amparo)
of this report.
2.
The implications of the fact that the State of Siege continues in force
in Chile should now be examined in the light of Articles XVIII and XXVI of the
American Declaration of the Rights and Duties of Man presented above, which
guarantee the right to due process, defined as the guarantee given every
individual accused of a crime to an impartial and public hearing and to be tried
by courts previously established, with a presumption of innocence until guilt is
proven and wherein cruel, infamous and unusual punishments cannot be imposed.
3.
Article 9 of Decree-Law 940, of September 2, 1974, provides that in cases
of declaration of a state of siege in the degree of simple internal disturbance,
there shall come into effect the provisions of Section 14 of Article 10 of
Decree-Law Nº 527 of 1974 and of the Military Code of Justice. Thus the
Military Courts would be responsible for considering cases involving those
crimes referred to in articles 4, 5.a, 5.b, and 6, paragraphs c), d) and e) of
the Law on Security of the State.
4.
In note Nº 17562, dated September 16, 1975, the Government of Chile
informed this Commission that by Decree-Law 1181, published in the Diario
Oficial of September 11, 1975, the degree of the State of Siege in force had
been reduced to that of “internal security,” for a period of six months.
That change, as stated in the note, means that, except in the case of certain
especially serious crimes against the security of the state, expressly referred
to in Decree-Law 1009 of 1975, the jurisdiction of the Military Courts will be
exercised in accordance with procedures applicable in peacetime and not wartime.
By Decree-Law 1550, published in the Diario Oficial of September 11,
1976, the Junta de Gobierno continued the State of Siege in the degree of
“internal security,” for another period of six months, as of the date of its
publication.
5.
However, it should be pointed out that according to Decree-Law 1009,
“In cases of State of Siege in the degree of internal security, the provisions
of Title II of Book I of the Military Code Justice shall govern with respect to
peacetime Military Courts with their own jurisdiction, and application shall be
given to the standards of Title II of Book II of the mentioned Code concerning
penal procedure in peacetime and the punishment established for peacetime
augmented by one or two degrees.”1
These legal provisions state the following:
Article 4 of the law concerning the Security of the State (Law 12.927,
text brought up-to-date by Decree Nº 890 of July 9, 1975, Diario Oficial
Nº 29239 of August 26, 1975) provides for the punishment of 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 our induce to
the 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 the commission of crimes found in Title 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 indiscipline or disobedience to the orders of the constituted
Government or of their superiors;
c) Those who meet together, concert
or arrange 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, or 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 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 disseminate 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 disseminate, 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 securities and bills of exchange and means
of supplying population centers, and those Chileans who, being outside of the
country, disseminate such news abroad.
Article 5 a) of Law 12.927 of the Security of the State provides for the
punishment of “those who, for the purpose of altering the institutional order
or public security or of intimidating the people, make attacks against the life
or physical integrity of persons.”
Article 5 b) of the same law provides for the punishment of 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 his liberty.”
Article 6 c) of the law of the Security of the State provides for the
punishment of those who “incite, promote or foment, or by action or any other
means 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,
transportation 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 provides for the
punishment of “those who incite, promote or foment, or by action or any other
means, destroy, make 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 provides for the
punishment of those who “incite, promote or foment, or by action, poison
foods, water or other fluids intended for public use or consumption.”
6.
According to the statements made by the Government of Chile in its
Comments on the Second Report of the Commission,1
these are the violations to be accorded special treatment in that they are to
continue to be submitted to the penal process applicable in Wartime, as these
crimes are generally regarded as acts of subversion, sabotage, kidnapping and
terrorism.
7.
In order to have evidence upon which to make a judgment and to be in a
position to provide to the General Assembly a conclusion based on the most
objective and impartial study possible of the situation, and in view of the
denunciations received by the Commission, the latter requested of the Government
of Chile, through a number of notes dated November 30, 1976, information with
regard to the observance of human rights in that country. But the reply of the
Government of Chile dated January 27, 1977 does not include sufficient
information on the rights referred to in this chapter. This also occurred in the
case of the Chilean Bar Association, whose Chairman was asked to provide
information on the matter in a note dated November 30, 1976. It is important to
recall that in December 1975, the officers of the Bar Association provided
information, parts of which appeared in the Second Report on the Situation of
Human Rights in Chile, and which the General Assembly considered at its sixth
regular session. However, as stated earlier, as of the date of preparation of
this Report, the information requested of the Bar Association has not been
received.
8.
In a note dated November 30, 1976, the Chairman of the Commission
requested the Vicaría de la Solidaridad to provide information with regard to
the enforcement of certain human rights, among them the so-called “Right to
Justice.” The note in question requested information and documentation on:
a)
Cases of lawyers jailed for defending political prisoners, and
b)
Cases of other forms of pressure brought to bear to see to it that
defense lawyers abandon cases of political prisoners.
As yet, the Commission has not received a response to its request.
9.
As to the rights referred to in this chapter, the Constitutional Act Nº
3, published in the Diario Oficial of the Republic of Chile on September
13, 1976, contains certain provisions that refer to the right to justice and due
process, such as the principle of equal protection under the law in the exercise
of rights, the right of an individual to legal defense, the right to be judged
by the court that the law stipulates and established previously by law, the
right whereby no crime is to be punished with penalties established prior to
perpetration of the act, unless a new law favors the accused; if the authorities
make an arrest or detain an individual, they are to advise the competent judge
within forty-eight hours, placing the individual concerned at his disposition.
The judge may, upon a finding of good cause, extend this period to five days.
Chapter II also contains the following provisions with regard to procedural
remedies:
Article 2. Anyone who, on account of
arbitrary or illegal acts or omissions, is deprived of, or disturbed or
threatened in the legitimate exercise of his guarantees, as provided in Article
1, numbers 1 and 3, paragraph four, numbers 7, 9, 10, 11, 12, 14, 15, paragraph
one, numbers 16, 17, 19, final paragraph, number 20, paragraph eight, number 22,
paragraph one, or in his right to select work freely, may personally or through
a representative appeal before the respective Court of Appeals, which is
required to adopt the necessary measures to reestablish enjoyment of the right
and guarantee the affected party due protection, notwithstanding other rights he
may assert before the corresponding authorities or court.
The Supreme Court will issue a writ to regulate the formalities to be
observed in connection with these remedies.
Article 3. Any individual who is
placed under arrest, custody or imprisonment, in violation of the provisions of
this Constitutional Act, may personally or through a representative appeal to
the pertinent Court of Appeals, to the effect that such court may require
observance of the due legal formalities and adopt such measures as it may
consider necessary to reestablish enjoyment of his rights and guarantee him due
protection. This court may require that the individual concerned be brought
before it, and this requirement will be strictly observed by all officials in
charge of prisons or other places of detention. Once it is duly informed of
events, the court will decree his immediate release, ensure that the legal
defects are corrected, or will present the individual before the competent
magistrate. The court will proceed with all due haste, correcting such defects
or reporting them to the corresponding authorities for correction.
The same remedy may be taken, moreover, in favor of anyone who is
deprived of his personal freedom or sees his individual security disturbed
or threatened. The respective Court of Appeals shall in such cases determine the
measures indicated in the foregoing paragraph as it may deem necessary to
reestablish enjoyment of his rights and guarantee him due protection. 10. This new law is obviously a step forward with regard to the observance of the rights to which this chapter refers; but as of preparation of this report, the Commission still does not have enough information to enable it properly to determine how far the beneficial results of these juridical standards extend in practice. |