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

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

RESOLUTION 11/85

Case 9269

5 March 1985

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

RESOLVES:

1.          To declare that the Government of Chile has violated the right to residence and movement embodied in Article VIII of the American Declaration of the Rights and Duties of Man by expelling Messrs Jaime Insunza Becker and Leopoldo Ortega Rodriguez from the national territory.

2.          To declare that the Government of Chile has violated the right to due process and the right to a fair trial of Messrs Jaime Insunza Becker and Leopoldo Ortega Rodriguez, embodied in Article XXVI and XVIII of the American Declaration of the Rights and Duties of Man.

3.          To recommend to the Government of Chile that in a period of 60 days it rescind the measure of expulsion affecting Messrs Jaime Insunza Becker and Leopoldo Ortega Rodriguez and that, if it believes that sufficient grounds exist, it submit them to a judicial proceeding in which the rules of due process are observed, such as those stipulated by the international instruments to which Chile is a party.

4.          To communicate this resolution to the Government of Chile.

5.          If after the period of 60 days has elapsed, the Government of Chile has not fulfilled the recommendation made in paragraph 4 above, the Commission will include this resolution in the report it is to submit to the General Assembly, in accordance with the provisions of Article 59 (g) of the Regulations of the Commission.

35.          On July 24, 1984, Juan Parra, Osiel Núñez, René Largo Farías and Luis Godoy Gómez, leaders of the Movimiento Democrático Popular (MDP), were expelled in application of transitory provision 24 of the Constitution.  Declarations issued by the Government stated that Parra “is a leader and spokesman of the MIR” and added that “the terrorist activities of the MIR are sufficiently well known by all Chileans”.  Another declaration described the other three persons affected as 11agents of Soviet communism”. [13]

c           Prohibitions of Entry

36.          Another procedure that has characterized the practice of the Government in the matter of the right of residence and movement has consisted in prohibiting the entry into Chile of residents temporarily abroad and against whom no charges or accusations of any kind have been made.

37.          Such was the case lodged on behalf of Mireya Baltra Moreno a former member of Parliament, and her husband, Reinaldo Morales, both of whom were prevented from entering Chile by order of the administrative authority, the Supreme Court rejected the application for the writ in application of Article 9 of Decree Law No. 1,009 of 1975, which stipulates that “the offenses provided for in Decree Law No. 77 of 1973, which declared Marxist political parties and movements illegal. [14]

38.          On November 23, 1977 three relatives of missing detainees, Ms. Ulda Ortiz, wife of José Baeza Cruces; Ms Gabriela Bravo, wife of Carlos Lorca Tobar; and Ms Ana González, wife of Manuel Recabarren Rojas were also prevented from entering the country.  They had made a trip during which they had made contact with various human rights organizations including the United Nations Commission and the Inter-American Commission on Human Rights and had made known the problem of disappeared detainees and the indifference of the authorities to this situation. Under Decree Law  No. 1,173, issued on November 23, 1977, the very day of their arrival in Santiago, Chile, the prohibition of their entry was ordered and it was stated that the measure was adopted, “because while abroad they had engaged in activities contrary to the interests of Chile”.  After various negotiations, both national and international, the prohibition was lifted after they had signed a statement in which they “undertook to respect the political recess, to obey the existing laws and to work for the aggrandizement of the country”. [15]

39.          In October 1980 the Government prohibited the return to Chile of Mr. Andrés Zaldivar, at that time the Chairman of the Christian Democratic Party. Mr. Zaldivar was traveling in various European countries in the company of his wife. Mr. Sergio Fernández, the Minister of the Interior, issued a statement in which he gave as grounds for the measure the fact that Mr. Zaldivar had made declarations, published in a Mexican newspaper in which he endeavored to support “his thesis that in Chile a government with military participation different from the present could be established in Chile” which “implies affirming the eventuality of a division of our Armed and Police Forces”.  The Mexican newspaper denied that Mr. Zaldivar had made those statements.  A further declaration of the Minister of the Interior stated that the measure was preventive in nature and not a punishment and that it was based on the prior conduct of the political leader, since his statements to the Mexican newspaper were “only the culmination of a systematic course of behavior maintained within and outside the country...”  He added that, for the measure to be revised, it was necessary for Mr. Zaldivar to “undertake officially and publicly to respect the framework of our juridical system, in the precise terms” that were indicated in the declaration of the Government.  These terms were those set forth in an earlier paragraph of the declaration which says that the Government, “will on no grounds accept that anybody may try to deny respect for the constituted authority, the current order, and a new constitutional regime the people of Chile, in its sovereignty freely approved”. [16]

40.          The Appeal Court rejected the application for amparo lodged by the person affected on the grounds that the decree of the Minister of the Interior prohibiting the entry of that person complied with the corresponding formalities, that the legal objections to Decree Law 604 of August 9, 1974 that applied in this case were without merit, and that Mr. Andrés Zaldívar had not respected the political recess and had referred in disrespectful terms to the plebiscite of September 11, 1980 that approved the text of the new Constitution, that is to say “he has not shown the respect or obedience any legislative system or authority may claim and that goes far beyond a mere criticism or legitimate right of dissent.”  [17]

41.          On October 17, 1981 the return to the country of the Illapu folklore group, which was completing an artistic tour abroad, was prohibited.  The determination was made on the grounds that the members of this group, as well as the themes they interpreted, “are clearly Marxist in orientation”.  This was stated by the Minister Secretary General of Government who alleged “that the Government has detected that an effort is being made to infiltrate Chilean youth through musical expression”.  The performers arrived at Pudahuel airport from which they continued on to another country. [18]

42.          The Inter-American Commission on Human Rights has had an opportunity to comment itself, through the adoption of individual resolutions, on many of the cases described, with respect to both expulsions and prohibitions of entry into Chile.  In those resolutions, the Commission has invariably pointed out that such measures entail a clear violation of Article VIII of the American Declaration of the Rights and Duties of Man. [19]

43.          On March 8, 1982, the Commission adopted a more general resolution in which it referred to 50 cases that had been presented to it for consideration.  The text of that resolution is reproduced below;

RESOLUTION N° 24/82

EXILES (CHILE)

March 8, 1982

BACKGROUND:

1.          The Inter-American Commission on Human Rights has received a considerable number of denunciations, confirming the expulsion of many Chilean citizens from the national territory, and the Government’s refusal to allow them to re-enter the country, under the terms of the special provisions ordered under the state of emergency, which the Constitution confers on the President of the Republic of Chile.

2.          The Commission has begun to process the individual cases corresponding to denunciations presented, transmitting the pertinent parts to the Government of Chile and requesting it to supply the appropriate information.

3.          Each of the cases mentioned in the Appendix, which forms an integral part of this resolution, has the characteristics indicated in the foregoing paragraphs, and all processing required under the Regulations has been completed.

4.          In some of its replies to the requests for information by the Inter-American Commission on Human Rights, the Government of Chile has acknowledged the expulsion and prohibition of entry into the national territory of exiles, on the grounds both of special laws enacted during the state of emergency and of the country’s new constitution.  The Government has provided no information with respect to other requests.

5.          The IACHR has reiterated its principles on this topic and indicated that the expulsion of nationals, not as matter of choice, as provided for in some legislations, but imposed on the subject by force, as an act against which there is no recourse whatever, is a violation of the right to residence and movement established in Article VIII of the American Declaration,

6.          These expulsions, which have been decreed administratively, with no type of trial, have generally been for an indefinite period of time.  That means that this is a harsher penalty than what is usual for the commission of a crime, in which the sentence is always set for a definite time period.

7.          The expulsion of a citizen by his government and the prohibition on re-entry into his homeland violates the right of residence and movement.

8.          Moreover, the Commission has enough evidence to conclude that the citizens mentioned in the individual cases presented here are now in exile and are unable to re-enter their country.

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

RESOLVES:

1.          To declare that the Government of Chile has violated Article VIII (right to residence and movement) of the American Declaration of the Rights and Duties of Man by preventing the exiles from returning to their homeland.

2.          To recommend to the Government of Chile: a) that the persons included in this resolution be given the necessary authorization to return to their country, and b) that the Commission be informed within 90 days of the measures taken to implement this recommendation.

3.          To transmit this resolution to the Government of Chile and to the petitioners in the light of Article 50.2 of the Commission’s Regulations, for the appropriate purposes.

4.          To include this resolution in the Annual Report to the General Assembly of the Organization of American States in accordance with Article 50.4 of the Commission’s Regulations, if the Chilean Government does not implement the recommendations made within the aforementioned period.  [20]

d.          Effects of Exile

44.          As a result of the procedures and arrangements described above, thousands of Chileans have become exiles.

45.          Some of them were subsequently authorized to return and have thus been able to go back to their homeland. others, on whom the prohibition has been lifted, are no longer able to return, after having lived 12 years in another country; nevertheless, there are still many Chileans who are denied the option of living in their country.

46.          The Commission has had an opportunity, through many sources, which include letters from exiles that have described their situation, to inform itself of the pernicious effects of exile.  In the opinion of the Commission, exile forces the victim to become part of a world imposed on him, in which he does not care to be and from which he can only feel free as a result of his return to his country.  This permanent compulsion produces a mental block and a psychological resistance that makes adaptation impossible and, instead, increases the yearning for that which is unjustly denied.

D.          ATTITUDE OF THE JUDICIARY

47.          Some of the cases described in the foregoing sections show the way in which the Judiciary in Chile has decided cases of violations of the right to residence and movement submitted to it.  Although in some situations the courts of justice have considered that the applications for amparo lodged in favor of the persons affected could be accepted and have recognized the right of the persons affected to reside in their country, the Supreme Court put an end to resolutions of that type as a result of the judgment it handed down in the case of Messrs Insunza and Rodriguez.

48.          The above‑mentioned judgment confirms, at the highest jurisdictional level, the discretionary and arbitrary nature of the measures that may be adopted by the President in the matter of the right of residence and movement, under transitory provision 24 of the Constitution. it also recognizes the lack of jurisdiction of the courts to examine the factual bases of those measures in accordance with the provisions of that Constitution. As a result, by acts originating in the political sphere the right to residence and movement is suspended indefinitely without the persons affected having any effective recourse for safeguarding their right.

E.          PRESENT SITUATION

49.          On October 25, 1982, General Augusto Pinochet announced the decision of his government to review the status of the exiles. Among other ideas the Head of the Chilean State stated:

... However, the Government is not unaware of the fact that the greatness of the homeland requires all its children who, agreeing sincerely and in good faith with the high values that should inspire civic duty, wish to work for it.  Higher reasons of common good led to the adoption of the measures to which I have referred, but the Government, in its constant concern to guide society to that higher goal and in view of the present circumstances and in an endeavor justly to identify at all times the elements that best favor its pursuit, has deemed it advisable to review this matter...

50.          Next he referred to the mechanism for solving the problem of exile and said:

... Because of those considerations, and seeking a prudent balance between the guarantee owed to society of keeping it free of corroding, subversive, or terrorist elements that threaten public order and tranquility and those of families and of national activities, and the desire of the Supreme Government to strengthen national unity, and recover for the homeland those who do not share those characteristics, I have decided as follows: a high level committee will review the status of all those who, recognizing the legitimacy of the Supreme Government and of the 1980 Political Constitution and having renounced persistence in the activities that gave rise to the impediment of returning to the country, accept the commitment to collaborate in the construction of the free and unified society that the new institutional system is shaping.  The report of this Committee, with its concrete proposals, must be completed within this year so a report and resolutions may be adopted in accordance with the information set forth...

51.          As indicated by the Head of State, a Committee was established to study the problems of exile, and prepared a document containing the rules and procedures that should be followed in that regard.  This document was delivered to General Pinochet, who subsequently declared this Commission dissolved because it had completed the assignment entrusted to it

52.          In 1983 the Government began to publish successive lists of persons it authorized to return. Up to August 1983 monthly lists covering between 48 and 128 names were published.

53.          On August 10, 1983, when a new cabinet took office, a quantitative change occurred in the system of lists.  In the following 15 days the Government published two lists covering more than 1,000 persons, each of whom was authorized to return home.  Later two other lists containing 10 and 594 names were, respectively, published.

54.          In those lists the names of many exiles actually appeared; but their number is exaggerated, since those lists included minors--who according to current legislation do not have any legal impediment to their return--detained persons who had disappeared, persons who had died, names that were repeated, persons that had never left the country or those who had returned without any problem.

55.          On September 11, 1984, a list of 4,982 persons was published in the Santiago press.  The Government delivered it to airlines flying to Chile, which must consult the International Police of Santiago before selling a ticket to that country.

56.          The document bore the signature of the Prefect, National Head of the Aliens Department of the International Police, and states that, should any airline transport persons on this list to Chile, those persons may not disembark and must continue their journey in the same aircraft.

57.          The above-mentioned list has subsequently been subject to various changes.  The most recent list known to the Commission and dated September 1985 includes 3,878 persons who are prevented from returning to Chile. [21]

58.          The question for the exiles whose names appear on that list persists, since they do not know with certainty what has been the action, the event, the situation or even which hidden enemy is the one who has motivated their inclusion on it.

F.          CONCLUSIONS

59.          To sum up, although relative progress has been made in the situation that prevailed up to 1982, the constitutional and legal rules that authorize the expulsion of Chileans from the national territory and prohibition of reentry in the case of those that are abroad continues to be in full force.  When a measure is adopted in the exercise of the powers granted by transitory provision 24 of the Constitution of 1980, no appeal lies against it, and the Judiciary has repeatedly so stated. In the other cases, case law has established that those powers are discretionary and exclusive to the Executive so that the Judiciary has not deemed itself competent to take a decision.

60.          With respect to re-entry, the system of lists of names of persons whose entry into the national territory is prohibited continues to be applied. The last list includes 3,878 names.  It should therefore be inferred that all Chileans not included in that list might return freely to their homeland. However, in practice, this is not so, and the Chilean authorities themselves recommend that before traveling to Chile exiles ascertain whether or not there will be impediments to their return to the country.