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

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

CHAPTER VI

THE RIGHT TO RESIDENCE AND MOVEMENT

A.          GENERAL ASPECTS

1.          The right to residence and movement is closely linked to the right to personal liberty, of which it may even be considered a manifestation.  As recognized by Article VIII of the American Declaration of the Rights and Duties of Men [1] and the most important international instruments on the subject, [2] the right to residence and movement entails the exercise of the following faculties: (a) to freely leave any country, including one’s own country; (b) not to be expelled from the territory of the state of which one is a national or deprived of the right to enter it; (c) to choose residence in the country of which one is a national; and (d) to move freely within it.

2.          In Chile the three last-mentioned manifestations of this right have been affected in the past twelve years.  The possibility of freely leaving the country has been respected by the Government, which has even adopted administrative measures aimed at facilitating the exit from the country of those who voluntarily wish to do so.

3.          On the other hand, the right to move freely throughout the territory of Chile has been limited by forced relocations, which, since they are also a restriction of personal liberty, were the subject of special consideration in the pertinent chapter.

4.          In Chile the greatest limitation on the right to residence and movement is connected with what it has been agreed to call “the right to live in the homeland” which has been massively disregarded through administrative expulsions and prohibitions of entry into the country of thousands of Chileans.

5.          In the view of the Commission, the right to live in one’s homeland derives from the social character of the individual, which can be developed only in society and from the finding that this character has been historically expressed in the development of nations as natural communities and in their juridical constitution as States.  It therefore follows that the possibility of entry and residence can only be restricted in respect of a person who is not juridically linked to the State through the bond of nationality.  The State is not obliged to accept the entry of any alien but it cannot deny it to its nationals. If there is a right that, in principle, is absolute, it is the right to live in one’s homeland, so embodied in the human psyche that legal writers call it an “attribute of personality”.

6.          From older civilizations to the most modern European and Latin American constitutions, exile has been considered an extremely severe penalty, and that is natural if it is recalled that the right to live in one’s homeland is not an abstract right, derived from cold logical deduction, but rather emerges from a profound need of peoples.

7.          Since the American Declaration of the Rights and Duties of Man and the Universal Declaration of the Human Rights were approved in 1948 and implemented through the Pact of San Jos6 de Costa Rica, and through the International Covenant on Civil and Political Rights, respectively, the nation-states as a whole have proclaimed this right of residence which they have undertaken to respect.

8.          It may be affirmed that the right to live in the homeland has been definitively incorporated into the philosophical, juridical and moral heritage of humanity and may therefore be considered one of the “natural rights prior to the State”; consequently “the State must recognize and regulate its exercise but since it is not the State that confers it, it can never deny it”. [3]

9.          Furthermore, there is a clear trend towards eliminating from penal laws the penalties of exile and banning that a judge may impose because they are considered to be vestiges of antiquated legal systems.

10.          On the basis of the considerations set forth, this chapter will be limited to an analysis of the validity in Chile of the right to live in the homeland and for that purpose an examination will be made of the legal framework, the procedures that characterize the practice of the Government in this matter, the effects of exile, and the present situation in that regard.

B.          THE LEGAL FRAMEWORK

11.          Article 10 (15) of the 1925 Constitution stipulated among the individual guarantees of Chileans the unrestricted right to leave and enter the national territory freely. Up to September 1973 the President had never been empowered to expel a Chilean or to prohibit his entry into the country either during a state of siege or a state of war, emergency or alert.

12.          In the past 12 years, however, decree laws that have involved a serious disregard of this right have been enacted.

13.          Less than two months after the Government Junta took office, on November 6, 1973, Decree Law 81 was published in the Official Gazette.  It made the right to live in Chile subject to the discretion of the administrative authority. Article 2 of this Decree Law empowers the President to order the expulsion from, or abandonment of, the country, of persons, whether aliens or nationals, and Article 3 adds that persons expelled, those who are under a sentence of forced relocation and those that abandon the territory without complying with the established rules, and exiles may not reenter it without the authorization of the Ministry of the Interior.  Therefore, a decree prohibiting entry is unnecessary: the objective fact of having left the country in one of those circumstances is sufficient to transform  a person into an exile who does not know when he may return to his country.

14.          On August 10, 1974, Decree Law No. 604 was published in the Official Gazette.  It empowers the Government to prohibit the entry into the country of Chileans or aliens who are in one of the situations described-carrying out acts contrary to the interests of Chile, disseminating specified doctrines or constituting, in the opinion of the government, a danger to the State.  It must be emphasized that subsequently only this last mentioned ground was invoked.

15.          Decree-Laws Nos. 81 and 604 were enacted while the 1925 Constitution was still in force, so they were clearly in violation of that Constitution.  Hence, when those decree laws were applied to expel Renan Fuentealba, a former Senator, and he lodged a writ of amparo on the ground of the unconstitutionality of those decree laws, the Government enacted Decree Law No. 788, published in the Official Gazette on December 4, 1974, which provided that all the decree laws issued to date “insofar as they are contrary to or in conflict with or different from any provision of the Constitution” were to be understood to “have had and have the status of amendatory rules, either expressed or tacit, partial or complete, of the corresponding provision of that Constitution”.

16.          On March 11, 1981 the new Constitution entered into force. it maintained the constitutional guarantee that stipulates that “every person has the right to reside and remain in any place in the Republic, to move from one place to another, and to enter and leave its territory ...[4] However, that guarantee is cancelled by the Constitution itself since, as mentioned in Chapter II of this Report, it provided that, in emergency situations the constitutional guarantees may be affected and, specifically, in Article 41 (2) authorized the President to expel Chileans from the national territory by declaration of a state of siege.

17.          In addition, transitory provision 24 of the Constitution authorizes the President of the Republic to declare a new state of emergency when “facts of violence designed to alter public order occur or should there be danger to the internal peace”. By this mere declaration the President is empowered, among other special attributions, to “prohibit the entry into the national territory or to expel there from those who propagate doctrines referred to in Article 8 of the Constitution, those accused of being or have reputed to be activists of such doctrines, as well as those that act contrary to the interests of Chile or constitute a danger to the internal peace”. To boot, the same article adds in its final paragraph that these measures are not subject to any appeal, except that for reconsideration thereof by the authority who ordered them.

18.          The grounds that justify the declaration of this special state of emergency are so broad and subjective that in practice it is in the discretion of the President to determine who may and who may not reside in Chile. In addition, the vague nature of this penalty is established by Article 41 (7) of the Constitution, which provides that:

7.          The measures adopted during states of emergency the duration of which has not been established, cannot be extended beyond the period of said states of emergency ... However, the measures providing for the expulsion from the territory of the Republic and the prohibition against entry into the country, authorized in accordance with the preceding provisions, shall remain in force despite the termination of the state of emergency which caused such measures unless the authorities expressly consider them to be without effect.

C.          PROCEDURES FOR EXPULSION AND PROHIBITION OF ENTRY

19.          During the period covered by this report, the Government, in application of the legislation it has been enacting, has established various procedures and arrangements both for compulsory exit from the country and for preventing specified Chileans from entering it.

20.          In the years immediately after the military coup, the attitude assumed by the Government was simply to prohibit the entry of those Chileans who had left the country.

21.          Later, the Government began to expel from the country certain persons it considered a danger to the security of the State; that category included persons actively connected with human rights organizations and political and trade union leaders.  In addition, with respect to some of those leaders the Government adopted the procedure of not permitting them to return to the country when they had temporarily left it.  Each one of these procedures is analyzed below.

a.      Prohibition of the entry of Chileans that left for political reasons during the early years of the Military Government

22.          As a result of the military coup of 1973, many Chileans were forced to leave the country because they believed that they live or liberty was in danger.

23.          In accordance with an aide memoire dated August 9, 1979 submitted to the Commission by the Delegation of Chile to the Organization of American States, Chileans who have a temporary or limited restriction on the right to return are those who fall into any of the following categories:

1.          “Those who took refuge in accredited Embassies in Chile in 1973, 1974 and 1975.” 2. “Persons who abandoned the national territory because they were in situations similar to those described but did not seek refuge in Embassies but rather resorted to the protection of international agencies such as the Red Cross, the Inter-governmental Committee for European Migrations (CIME), the United Nations High Commissioner for Refugees, etc.” 3. “Persons who, having been sentenced by military courts for the commission of terrorist acts or for violation of the law on the control of weapons and explosive materials, sought the benefit of the commutation of the penalties deprivative of liberty for those of exile.” 4.  “Those who in one way or another voluntarily left the country, alleging political persecution or other grounds or who did so surreptitiously and illegally.” 5.  “Persons who, having legally abandoned the country, carry out acts abroad contrary to the interests of Chile, who dishonor, defame or harm the reputation of the country or are known to be activists or propagandists of doctrines whose purpose is the violent overthrow of the Government or who have solicited funds for that purpose.”

24.          It should be noted, however, that most of the situations described by the aide memoire of the Delegation of Chile to the Organization of American States did not involve a “temporary restriction”; on the contrary, the prohibition of entering Chile has generally been indefinite, even in the case of those sentenced by military courts whose penalties deprivative of liberty were commuted for those of exile, many of whom have not been able to return to Chile after the period of their sentence expired.

25.          According to information in the possession of the Commission, [5] it is estimated that in the first two years of the military government alone about 20,000 Chileans left their country because they feared political persecution.  Most of those persons were granted a passport containing an entry to the effect that it was only valid for leaving the country; others, when going to a Chilean consulate abroad to renew their passport, found that that renewal was granted them with the limitation that the passport was not valid for travel to Chile, which entry was subsequently replaced by a simple letter “L”, a symbol that meant that the holder of the passport was not authorized to return to Chile.

b.          Expulsions

26.          Expulsion from the national territory has been applied pursuant to the legal mechanisms established for that purpose, that is to say, Decree Law No. 604 of 1974 and, subsequently, transitory provision 24 of the Constitution.

27.          In many cases, the person affected normally did not know that this sentence had been imposed on him since there had been no previous proceedings against him in which specified charges had been made and in which the person affected could have exercised his right of defense.

28.          In general, the person concerned learns of the expulsion only after he has been taken to the airport or by land to the border.  For its part his family has made every effort to obtain information about his fate and to send him money, documents or personal articles he needs before the expulsion takes place, but normally it does not succeed.

29.          In the main, the persons affected have been connected with organizations for the defense and promotion of human rights or have been important political or trade union leaders that have been accused of endangering the security of the State.  Some cases of Chileans [6] that have been expelled are mentioned below as examples.

30.          on April 12, 1976, the lawyer, José Zalaquet, were expelled from Chile. He had been the Head of the Legal Department of the Pro Peace Committee. On August 6, 1976, Messrs Jaime Castillo Velasco and Eugenio Velasco Letelier, lawyers who were defenders of human rights, were the subject of such a measure after being arrested by DINA personnel, who did not show an arrest warrant or identify themselves and used violence.  During the journey to the airport they were informed of the expulsion order.[7] On April 14, 1979, Mrs. Nimia Jaque de Benavente was expelled from the country after being arrested at the Pudahuel airport.  She was accused of carrying with her small handmade rugs bearing anti-Chilean slogans and propaganda, letters from persons resident in Chile for Chilean exiles in Venezuela, communist reading materials, and a plan of high technology machinery belonging to the Compañía de Acero del Pacífico.  [8]

31.          On March 24, 1981, the Government expelled Gerardo Espinoza Carrillo, the former Minister of the Interior of President Allende.  He had participated in a ceremony in memory of José Tohá, also a former Minister of the Interior of the same government  [9] On August 4, 1981, Jaime Castillo Velasco (who had returned to Chile on April 5, 1978), Carlos Briones, Alberto Jerez and Orlando Cantuarias were also expelled.  They were all-important public figures who had issued a declaration in support of the leaders of the Coordinadora Nacional Sindical, who were being tried by the Government.  [10]

32.          In December 1982, Manuel Bustos Huerta and Héctor Cuevas Salvador, the leaders of the Coordinadora Nacional Sindical (CNS) were expelled. According to the declarations of the Government, these leaders:

had maintained an obstinate and persistent attitude of ignoring the authorities, to the point of openly challenging powers and openly violating the legal system... [11]

33.          Carlos Podlech, the Chairman of the National Association of Wheat Producers, was also affected by the same measure on December 5, 1982.  In that regard the Ministry of the Interior stated that “the attitude of openly challenging the authorities” was the principal reason for the expulsion of this leader.  The arrest took place on December 3, 1982 and on Sunday December 5 he left the country for Rio de Janeiro.  According to his declarations, he was given a passport, which read “valid for the entire world”; he had no money, and no personal effects.  [12]

34.          The case of Messrs Jaime Insunza and Leopoldo Ortega, expelled from Chile on April 7, 1984, was processed by the Commission.  The persons named were expelled in virtue of the powers granted the President by transitory provision 24 of the Constitution.  The Santiago Appeal Court initially accepted the appeal presented on behalf of the persons affected, which was subsequently revoked by the Supreme Court because it was of the opinion that the remedy of amparo did not lie against the measures of the President except as it referred to the formalities required by the Constitution--validity of its powers provided for by transitory provision 24 and existence of expulsion orders. In view of this fact, the Commission, after an exhaustive analysis, adopted the following resolution:

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