OEA/Ser.L/V/II.66
Doc.17
9 September 1985
Original:  Spanish

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

 CHAPTER III

THE RIGHT TO LIFE

A.          GENERAL ASPECTS

          1.          All the international instruments on human rights guarantee the right to life.  This the American Declaration on the Rights and Duties of man recognizes this fundamental right in Article 1, which provides that “Every human being has the right to life, liberty and the security of his person”. [1]

          2.          For its part, the Inter-American Commission on Human rights has repeatedly affirmed that the right to life constitutes the basis and pillar of all the other rights.  It has therefore emphasized the importance of creating conditions that conduce to respect for this fundamental right and its recovery where it has been disregarded. [2]

          3.          The Commission has also pointed out that the right to life can never be suspended and that governments are not entitled under any circumstances, to use illegal or summary execution for the purpose of restoring public order. [3]

          4.          The Commission concerned about the conduct of some governments in extending the application of the death penalty.  Called upon all the American Governments that had not yet done so to abolish the penalty in accordance with the spirit of Article 4 of the American Convention on Human Rights and the universal trend favorable to the abolition of the death penalty. [4]

          5.          The legal provisions relating to the right to life that are in force in Chile will be examined in this chapter.  Subsequently, an analysis will be made of the practice of the Chilean government in this regard.

          6.          On this occasion the Commission will not examine the death penalty for common crimes imposed by decision of the courts.  In the past 12 years, that penalty has been imposed only on two occasions and has affected two agents of the national Intelligence Agency (CNI) and two Carabineros.  [5]

B.       THE LEGAL SYSTEM

          7.          Up to September 11, 1973, the application of the death penalty in Chile was restricted to extremely serious crimes.

          8.          Up to January 1970, the Penal Code imposed death as the sole penalty in only four cases:  on the person who commits a crime while serving a sentence of after having violated it, if the penalty was one of imprisonment or of life imprisonment and the new crime should be punished b one of those penalties /Article 91, paragraph 2); on the perpetrator of the crime of treason when hostilities were going on A (Article 109); in rendering aid to enemies of Chile, when the crime as committed by a public official, agent or commissioner of the government of the Republic in the misuse of authority, documents or information he had by reason of his office (Article 109, final paragraph); and the perpetrator of the crime of homicide if the victim was the mother, father, child or spouse of the author of the crime (Article 390). [6]  In some other crimes the Penal Code established it as a higher degree of a composite penalty.  [7]

          9.          The predominant trend in Chile, before the inauguration of the present government, was that of reserving capital punishment to well-defined situations so as to gradually move towards its abolition.  Those criteria were reflected in the promulgation of Law No. 17,266, published in the official Gazette of January 6, 1970.  At that time the legislator recognized that “changes in customs and moral feelings have resulted in capital punishment gradually being isolated as a survival from times in which extreme severity, and even cruelty, characterized the original system”.  Consistent with this recognition, it proceeded to amend the laws in order to restrict the application of capital punishment in the country.  This was done by limiting its application in cases the seriousness of which demanded less rigorous treatment, expanding the penal scale in cases in which death was the only penalty, and ordering that in no case were courts obliged to impose that penalty because of aggravating facts that might concur.  The government at that time thus expected that “these modifications will bring a greater restriction on the imposition of capital punishment, and that its disuse, in practice, will gradually incorporate into the consciousness of the nation the rejection of capital punishment that will one day permit its complete legal abolition.”  [8]

          10.          The Code of Military Justice, in turn, imposed capital punishment either as the sole penalty or as the maximum option for certain serious military crimes most of which had to be committed during an international war if they were to be punished with capital punishment. [9]

          11.          The situation described changed markedly when the Armed Forces took command of the nation.  Proclamation No. 24 of September 12, 1973, issued by the Government Junta, states that those who did not cease their belligerent attitude to the new government and hand over their weapons “will be shot forthwith”.

          12.          On September 12, 1973, the Government Junta adopted Decree Law No. 5, published on September 22.  It amended Article 281 of the Code of Military Justice and stipulated that “when a sentry is attacked and his safety requires it, the perpetrator or perpetrators may be killed forthwith”. [10]

          13.          In addition, Decree Law No. 5 increased the penalties contained in the laws on the internal security of the State and on control of weapons by introducing the death penalty for punishing specified acts when they were performed during time of war.  In this regard it should be recalled that this same Decree Law No. 5, interpreting Article 418 of the Code of Military Justice, had ordered that the state of siege “should be understood to mean state or time of war for the purposes of the application of penalties”.

          14.          In this way, Law No. 12.927 on the Internal security of the State came to embody capital punishment for the crimes envisaged in its Articles 5 and 6 c), which basically punish persons who make an attempt on the life and security of individuals.  For the purpose of disturbing internal security or threatening the population and those who incite or de facto destroy or bring to a standstill facilities or elements used for the operation of public services or of various economic activities.

          15.          Likewise, Law No. 17,798 on control of weapons came to authorize the imposition of capital punishment for the commission of the crimes envisages in Article 8, 10, 11, 13 and 15.  They include such acts as the organization of private militias;  the unauthorized manufacture and sale of firearms, ammunition and explosives; the unauthorized bearing of firearms provided it may be presumed from the records of the proceedings that the weapon being carried was intended to disturb the public order or to attack the armed or security forces.

          16.          Other juridical rules were gradually applying the death penalty to a number of acts, some of which even came to constitute new criminal offences.  Thus, Article 4 of Decree Law No. 81, published in the Official Gazette of November 6, 1973, envisaged the penal of long-term imprisonment in its maximum degree up to the death penalty for “anyone who clandestinely enters the country by evading control of that entry in any way provided the circumstances or background information allow the court to presume that he does so in order to attack the security of the State”.

          17.          Law No. 18,822. Published in the Official Gazette of May 23, 1983, introduced various changes in the Penal code and into Law No. 12,927 in order to increase the penalty for the crime of kidnapping and authorize the imposition of the death penalty when, on the occasion of that crime, homicide, rape or certain types of injuries were also committed.

          18.          Law No. 18,314, published in the Official Gazette of May 17, 1984, on terrorist acts, punishes with the death penalty attempts on the life and physical integrity of the head of state, his spouse, ascendants or descendants and of other dignitaries.  Paragraphs 2 and 3 of article 2 of that law provide that “if as a result of the crime or misdemeanor penalized in this law injuries like those referred to in item 1 of Article 397 of the Penal Code are caused.  The penalty shall be long term imprisonment in its maximum degree to death …   If in the event or on the occasion of the kidnapping any of the injuries covered by Articles 395, 396 and 397, paragraph 1 of the Penal Code or the death of the victim occurs, the penalty shall be life imprisonment to death”.

          19.          For its part the 1980 Constitution, in Article 19, paragraph 1, recognizes:

The right to life, and to the physical and psychic integrity of the individual.

The Law protects the life of those about to be born.

The death penalty may only be instituted for a crime dealt with by a law approved by a qualified quorum.

          20.          The foregoing provision will enter into force only when Parliament is constituted in 1990.  Meanwhile, the Government Junta, in the exercise of its legislative power, may, as it has been doing, impose the death penalty for acts it considers necessary to punish with that penalty.

          21.          Furthermore, the Supreme Court has confirmed that capital punishment is in force in Chile.  [11]

          22.          In addition, the Constitution, in Article 9, has stipulated that with respect to the crimes the law defines as terrorist--which, as has been seen, may be punished by death--neither amnesty or pardon… “shall be warranted”, which implies disregard of Article 6, paragraph 4, of the International Covenant on Civil and Political rights –-to which Chile is a party--and Article 4, paragraph 6, of the American Convention on Human Rights, which instruments grant any person condemned to death the right to seek amnesty, pardon or commutation of sentence.

          23.          Accordingly, Article 9 of the Chilean Constitution, by adopting so rigid a position, is not only in conflict with the current international instruments in force on human rights but its application can also prevent an error or a miscarriage of justice, which is always possible, from being corrected.

C.          EXECUTIONS ORDERED BY WAR-TIME MILITARY COURTS

          24.          In the chapter on the right to a fair trial and due process, an extensive analysis will be made of how the war-time procedure followed by military courts did not offer the most elementary guarantees of due process.

          25.          That procedure, envisaged for extremely serious crimes committed during an external war, was applied during the first two years of the military government in open violation of two fundamental legal principles;  (a) the extension of the concept of war to an internal situation that did not have the character of an armed conflict;  (b) the retroactive application of the provisions invoked.

          26.          In the months immediately subsequent to the military coup, a large number of persons were condemned to death by those war-time military courts and their sentences were immediately carried out. [12]

          27.          It should be pointed out that in virtually all the cases mentioned the death sentences were against leader of specified political bodies --especially members of the Communist Party and of the Socialist Party--who had occupied important positions during the government of President Salvador Allende.

          28.          After the early months of the Government had elapsed, the Courts-Martial ceased to hand down death-sentences but continued to apply the increased war-time penalties.  In this regard it should be noted that penalties of life imprisonment abound in the sentences of those Courts martial.  It should also be pointed out that subsequently the penalties applied by the military courts were commuted for that of exile.

D.          ILLEGAL EXECUTIONS

          29.          During the period to which this report applies, the Commission has been able to ascertain a large number of violations of the right to life attributable to the Government of Chile because of acts committed by its agents or officials through illegal or extra judicial executions.

          30.          These violations have taken different forms, of which the principal ones will be set forth below.

a.       Summary executions without trial during the months following the military coup

31.          As the Commission stated in its first Report on the situation of Human Rights in Chile, the armed clashes on September 11, 1973 and the days immediately following caused a large number of victims, both Chileans and foreigners.  The number of casualties recorded in those armed confrontations is a subject that has given rise to he most varied estimates.  In 1974 the Commission stated that “the most moderate estimates total some 1,500 dead 80 of them members of the Armed Forces”. [13]  On that occasion the IACHR added that “according to many statements gathered by the Commission in Santiago and outside Santiago, when open confrontations in the first days and organized resistance against the government had ceased, some punitive actions occurred against the opposition, which ended in some cases with executions by firing squad without the benefit of trial. “  [14]  Reliable sources that investigated those cases reported to the Commission at the time that the number of person’s shot without being previously tried was approximately 220.  [15]  Subsequent information received by the Commission would indicate that the number of those illegal executions was even larger.

          32.          The Government, initially convinced that it faced a state of war and in its desire to do away with all traces of the situation prior to September 11, 1973, used for that purpose all the resources at its disposal, including the most extreme methods of violence.  Thus and as already pointed out, it gave legal support to those actions to the Armed Forces in certain circumstances to execute without the need for a trial.  [16]

          33.          In addition to the armed clashes and the executions ordered by military courts applying the war-time procedure, which have already been studied, three forms of execution were initially used. Shootings of political dissidents ordered without trial by military authorities; executions in application of the “law of flight”; and collective executions of groups of persons

                    i.          Shooting of dissidents

          34.          During the final months of 1973 senior military officers ordered the shooting of political dissidents without any form of trial.  In these cases the same military men ordered those executions to be carried out and delivered to the victims’ relatives a death certificate of the deceased in which the part concerning the cause of death read: “destruction of the thorax and cardiac region; shooting”.  In some of these situations the body of the victim was delivered to his relatives in a closed coffin.

          35.          In October 1973, Carlos Berger, a lawyer, journalist, and head of Comunicaciones de Cobre Chuqui;  David Miranda, Secretary General of the Confederación Minera, and 24 other persons, all important officials of the former government were shot; they had been arrested, some of them tried and sentenced to minor penalties that deprived them of liberty by the Court Martial held in Calama.  The execution of those persons coincided with the presence in Calama of a high level military commission, which during the month of October 1973 inspected the northern area of Chile.

          36.          While that same military commission was in other cities in the north of Chile, the death by summary execution of 60 persons was also reported.  Several of those deaths are recorded in the reports of the IACHR.  Thus, in the Second Report on the Situation of Human Rights in Chile, the Commission referred to the case of Eugenio Ruiz Tagle Orrego, aged 26, who when summoned, voluntarily appeared in the city of Antofogasta on September 13, 1973 and, after being tortured, was executed on October 19, 1973 in that city.  [17]

          37.          Likewise, Mario Silva Iriarte, a lawyer, General Manager of the firm “Corfo Norte”, who was in Santiago on September 11, 1973, traveled to Antofogasta where his family was, he was arrested in that city and also shot on October 19, 1973, as recorded in the death certificate.  [18]

                    ii.          Executions in application of the “Law of Flight”

          38.          Another method used during the early months of the military government was the application of the “law of flight”, the source of which, as stated, was Article 2 of Decree Law No. 5, which stipulated that “when the safety of the persons attacked requires it, the perpetrator may be killed forthwith”.

          39.          The Commission has received reports and testimony that a large number of persons were killed for alleged attempts to flee.  [19]

Case of Christian Montecino, Julio Saa, Victor Garreton,

Jorge Salas, Carlos Adler and Beatriz Diaz

          40.          A case in point that was considered by the Commission is that relating to the deaths of Christian Montecino Slaughter, Julio Saa, Victor Garreton, Jorge Salas, Carlos Adler Zulueta and his wife Beatriz Diaz, which occurred on October 16, 1973.  [20]

          41.          After various fruitless attempts by the Commission to obtain information that would enable it to ascertain the circumstances surrounding the deaths of these persons.  The Commission received a communication from the Ministry of Foreign Relations of Chile dated 15 February 1077--almost three and a half years after the event--which, states the following:

The above-mentioned citizens were arrested on October 16, 1973 in Tower No. 12 of the Remodelación San Borja, by members of the Noncommissioned Officers School, for the purposes of corroborating certain reports that accused them of being active extremists.  As soon as they were arrested, they were taken to the Cultural Center of the Municipality of Barrancas, which at that time was being used as barracks for a unit of the Noncommissioned officers Schools, for the sole purpose of interrogation was suspended at about 18Ñ00 hour because of the advance hour.

The six persons arrested were kept in a building where they were provided with food and shelter.

In the early hours of the following day, October 17, 1973, about 05:00 hours, the arrested persons Christian Montecino Slaughter, Julio Saa Pizarro, Beatriz Elena Dias Aguero, Victor Garreton Romero and Carlos Adler Zulueta.  Taking advantage of the precarious physical conditions of the building fled through a window that lacked any protection and ran towards a wall that enclosed the premises and gave on to some peripheral communities.  While they were fleeing they were surprised by the sentries of the barracks, who called on them to stop, giving the customary hours of halt and firing warning shots in the air.  Nevertheless, the detainees continued to flee, in view of which the sentries on guard fired at their bodies and caused their death.

The sentries used their firearms when they found that three was no other rational means to hand of preventing the flight of the detainees and therefore their action was not characterized y criminal intent or culpable.

Subsequently, the bodies of the five detainees were taken in a van to the neighborhood of the Tunel Lo Prado, where there was a field hospital of the Army and there they were handed over, and taken in an ambulance of that hospital to the Medical-Legal Institute, where the required autopsies were then performed.

In view of the facts reported, the attorney in charge of the case requested a temporary stay of proceedings until new and better evidence was available, which was approved by the military judge, the Commander in Chief of the Second Division of the Army, on August 18, 1975, who at the same time ordered the records of the case to be filed.

          42.          In the view of the Commission, the explanation OF THE Government of Chile is totally unacceptable.  The Commission has received reliable information that all the bodies of the six persons mentioned showed wounds caused by heavy caliber bullets in their heads, which coincidence makes the version provided by the Government of Chile that the detainees were fleeing improbable.  Furthermore, it should be pointed out that the Government of Chile, which had repeatedly offered to investigate how the events occurred has delayed almost three and a half years only to find that they occurred as a result of the flight of the victims.  So lengthy an interval is improbable in an event which, because of the military control that existed at the time in Chile, would have been reported to the corresponding and immediately cleared up if it had occurred as the government claimed.

                    iii.          Collective executions

          43.          In this same period a number of collective executions with not only political but also social connotations, since they fundamentally affected campesinos and workers, were carried out.  These executions are characterized by the active collaboration provided by some farmers and businessmen who accompanied military personnel and policemen in the roundup of opponents and provided them with logistic elements such as trucks, automobiles, farm houses, to which the campesinos and workers were taken to be interrogated.  Many of these campesinos and workers were tortured and some executed.  In all these situations the arrests were always denied by the authorities, for which reason the victims had the status of “missing” for many years.  The executions and burials were carried out absolutely clandestinely and, if such executions are now known, it has been because of the finding of bodies and the judicial verifications that were initiated in proceedings arising from reports on the alleged accidents.

Case of the finding of bodies of campesinos in Lonquen

          44.          One of those cases--on which the IACHR has received information subsequent to the preparation of its earlier reports--is that of the bodies of campesinos found in a mine in Lonquen, following a report made by an individual to a priest.  Prior to the pertinent verification made by a Commission appointed by the Archdiocese of Santiago, the facts were brought to the knowledge of the President of the Supreme Court.

          45.          On December 6, 1978, the Supreme Court appointed an investigating judge; the investigation was the responsibility of Mr. Adolfo Bañados, a member of the Santiago Court of Appeals.

          46.          In the limestone mine of Lonquen there were two kilns, approximately 9 meters high, hollow inside, with a diameter of approximately 2.5 meters.  There 15 bodies, according to the number of skulls removed during the excavations, were found.  The remains were unrecognizable, which meant that many steps had to be taken and, on the basis of the information provided by the relatives of the missing detainees, it was possible to determine that the persons buried there were those who had been arrested by Carabineros from the locality of Isla de Maipo:  Sergio Maureira Lillo, his sons Jose Manuel, Segundo Armando, Sergio and Rodolfo Antonio Maureira Muñoz, Manuel Jesus Navarro Martínez, Enrique Astudillo Alvarez and his sons Omar and Ramon Astudillo Rojas, Miguel Brandt Bustamante, the brothers Carlos Segundo, Nelson and Oscar Hernández Flores, Ivan Ordoñez Lama and José Herrera Billegas.  The steps taken by the investigating judge made it possible to assign the perpetration of the arrests and homicides of these persons to members of the corps of Carabineros, all of whom belonged to the Isla de Maipo station.

          47.          When Judge Bañados ascertained that the perpetrators of the homicides were police officials, he declared himself incompetent and the records were handed over to military courts.  The military courts laid charges for the crime of “unnecessary violence” against a number of police officers that were covered by the investigation of Judge Bañados.  [21] Subsequently, and as will be seen in the chapter on the right to a fair trial, the accused benefited from the application of the law of amnesty and the charges were dismissed.