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

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

45.          In the presence of this judge, the accused denied that they had committed the offenses with which they were charged and stated that they had been tortured during their detention by CNI Officials, who forced them to sign declarations that the officials themselves had drafted without giving them an opportunity of reading those declarations which they signed blindfolded.  Of the various aspects involved in this case, it is appropriate to refer to the consideration given by the investigating judge to the evidentiary value of the declarations of the accused provided by the CNI. In the judgment, that judicial official states that the CNI is a public agency and therefore:

the acts performed by its Director or members are such that the documents that arise from them and that correspond to tasks characteristic of their functions are consequently public documents for penal purposes (whereas clause 3) ... in addition, the prisoners signed and left on record their fingerprints to give more authenticity to their declarations (whereas clause 6).

46.          The declarations made before him by the accused lacked validity for the investigating judge who, on the basis of the documents provided by the CNI, considered the charges proven and sentenced the defendants to 541 days of forced relocation for the crime of unlawful association.  On September 30, 1982, the Seventh Division of the Appeals Court confirmed that judgment.

47.          With respect to the tortures complained of, no judicial action was taken since the investigating judge stated “the defendants have not provided any evidence on the matter, which obviously is difficult since the barracks of the CNI are secret for security reasons.”  The judgment on appeal is limited to pointing out that the existen1ce of torture has not been proven by the accused.

48.          The discovery of 19 bodies buried clandestinely in the Yumbel cemetery resulted in the appointment on August 22, 1979 of an investigating judge whose investigation resulted in the identification of the victims and of the Carabineros involved in the events.  Having declared himself incompetent because of the incrimination of members of the security forces in the case, the judge passed the records to the military courts on March 18, 1980.  The military court responsible proceeded to amnesty the accused on June 8 of the same year. During the proceedings, however, it was possible to establish that Judge Corina Meza was aware of the deaths and had authorized the transfer of the bodies to the Yumbel cemetery. The Concepción Appeals Court suspended him for three months for not having investigated the situation.  The Supreme Court reduced the penalty to a written admonition.

49.          A petition to the Santiago Appeals Court by the relatives of 62 disappeared persons requested the appointment of an investigating judge to investigate the disappearances reported as a whole, for reasons of time-saving and procedural efficiency.  The applicants pointed out:

The absence of ex officio investigations, emanating from the activity proper of the court, is well known. Almost all the information contained in the proceedings has been the product of the greater or lesser interest the relative of the person concerned has given to the investigation. A phenomenon that reveals the limited activity our courts display on matters in which fundamental values of the person are involved. It is unpleasant to say so... but the basis of this assertion emerges from the proceedings themselves.

The individual treatment of each case has been a factor limiting the progress of the investigations and, in that way; the possibilities of greater success have been reduced.  The judicial experience accumulated shows us that the instant case is not capable of measuring the real characteristics of the phenomenon to which it corresponds and does not go beyond the spheres of the isolated situation, which occurred in its own circumstances of time, place, and environment.

In this area the judicial practice applied and the problem submitted to its cognizance have been distorted.

Correcting this state of affairs entails recognizing that the problem of disappeared persons is of outstanding importance because of its specific nature as a mass violation of human rights; recognizing that the facts that correspond to this matter have a geographical location and a well delimited location in space and time; recognizing that there is a deep interrelationship between one and the other cases; recognizing that the predominant responsibility of the DINA organization and other security services in the kidnapping and subsequent disappearance of citizens is an aspect that is more than proven.

50.          On March 23, 1981, the Santiago Appeals Court handed down a judgment denying the petition presented on the grounds that the investigations required could be carried out individually by the judges of the pertinent cases.  The presentation made in Chapter III of this report has made it possible to show that none of those investigations has been able to establish the status of the prisoners who disappeared or the persons responsible for those events.

51.          Another case that must be mentioned is that which culminated in the death of Pedro Andurandegui Sáez, aged 19, who was arrested on February 17, 1980 and taken to the barracks of the Plain Clothes Police in the community of José María Caro together with a young girl aged 15 and a friend aged 17. The two last-mentioned persons have stated that they heard the screams of young Andurandegui, which abruptly ceased.  The relatives went to the barracks to make the necessary inquiries and were informed that the victim had died of an “excess of marihuana.”  The relatives have stated that the body that was delivered to them showed signs of having been tortured.  The report on the autopsy made by the Medical Legal Institute states that: “the cause of death was aspiration of phlegm regurgitated from the stomach.  The vomits of the dead person was caused by convulsions originating after the body had received maltreatment that complicated the internal organs.”  [5] When the corresponding complaint was lodged by the relatives of the victim, the judge denied the request that the persons responsible--who were clearly identified--be tried. [6]

52.          The foregoing summary presentation covers a wide range of activities of the Judiciary of Chile that reveals the limited willingness of many of its members to fulfill their duty of exhausting all resources at their disposal to clarify violations of human rights and to punish the persons responsible.  It should be pointed out that, although this is the clearly predominant attitude, there are noteworthy exceptions.

e.          Some Positive Acts of the Judiciary

53.          Some of the cases which have been mentioned or which are presented further on in this Report, permit the Commission to make certain positive evaluations of members of the Chilean Judiciary.  [7]

54.          Other positive acts of the Chilean Judiciary are resolutions of the Supreme Court concerning specific situations.  Thus, in spite of persistent refusals on the part of the Ministry of the Interior to provide information requested by the Court of Appeals concerning writs of amparo, due to the fact that the Ministry considered that the “writ is inappropriate”, the Court of Appeals of Concepcion transmitted to the Supreme Court the respective cases, affirming that:

These cases are appropriately before the court because, pursuant to our legal order, the tribunals are the appropriate forum to declare whether or not a writ is appropriate or not...

55.          In plenary, the Supreme Court decided to instruct the Ministry of Interior as follows:

That the Courts, pursuant to a constitutional and legal mandate, and not pursuant to any administrative authority, regardless of the importance of that authority, are to adopt the decision as to whether a judicial remedy, such as the writ of amparo is appropriate or not.

In consideration of the above, this Government hopes that you will present opportunely the reports, which the courts of this country are requesting.

56.          The Supreme Court's commitment of November 12, 1984 to “protect the constitutional rights or persons arrested or detained by the authorities in charge of such matters” also merits notice.  The High Court, by majority decision stated the following:

1.          To communicate to all the Courts of Appeals that they instruct they instruct judges who exercise jurisdiction over criminal matters, that in those cases in which offenses against the liberty and security of the person have been alleged, and in particular, those in which civil servants are implicated, to proceed immediately to the non-military areas cited by the petitioners in order to investigate the allegations presented, which, in cases where the allegations are verified, to adopt such measures as to order that the persons affected by immediately brought before a judge for interrogation to decree a medical-legal examination to determine whether the persons arrested have been victims of torture or other impermissible use of force as has been alleged, about which they must be interrogated expressly, taking note of any wounds or other signs of violence which they may exhibit.

2.          To communicate to all the Courts of Appeals before which writs of  amparo have been filed in favor of persons who have been deprived of their liberty in detention centers of the Central Nacional de Informaciones (CNI) or in any other place, that they use the powers of Articles 309 and 310 of the Code of Criminal Procedure.  To this effect, the Minister who is mandated to go to the place of detention do so immediately, assisted by the Secretary or by the Minister of Faith, which he designates. He shall proceed to hear the detainee, without prejudice to his being brought before the respective Court, should he consider it appropriate, and to require the presentation of documents, which justify the detention.

It is also recommended that when the powers pursuant to Article 310 are not invoked, that it be decreed that the detainee be immediately brought before a Court, employing even the telephone to communicate with all deliberate speed.  He will be interrogated in this Court or in the place in which the Minister in charge deems appropriate.

In both cases, if the detainee or the person arrested testifies that he has suffered illegal force the Minister will note the wounds and other signs of violence, which are evident, and will order an examination by the Medical-Legal Service, presenting the relevant information to the corresponding Court.

3.          The Ministers and Judges who deal with criminal matters must bring to the attention of the persons in charge of the centers of detention or arrest, that the Criminal Code imposes upon them the obligation of immediately presenting the persons arrested and detained, under threat of sanctions, set forth in Articles 148, 149 and 150 of the Penal Code and, in particular, paragraph I of the article 150 which states: “Prison sanctions of differing degrees of severity and length are applicable to persons found guilty of: 1.  Unduly decreeing or prolonging the incommunicado detention of a prisoner, or who used violence or employed unusually harsh treatment against him.

4.          To communicate to the Director of the Central Nacional de Information’s (CNI), that Articles 148, 149 and 150 of the Criminal Code provide that a responsible official must always be present in centers of detention in order to act immediately on requests from the Courts, even in those cases which are dealt with by telephone, because the constitutional and legal provisions which regulate the writ of amparo are not subject to any limitation as regards investigations by the Ministers of the Courts of Appeals in the detention centers regardless of the nature of the detention order.

5.          To communicate of the Director General of the Investigative Police to instruct its officers that persons detained or arrested by the Investigative Police on charges of having committed a criminal act be placed at the disposition of the respective Court pursuant to the strict provisions set forth in Articles 264, 265, 267 and 269 of the Code of Criminal

C.          THE REMEDY OF AMPARO

(Habeas Corpus)

a.          Juridical Aspects

57.          Article 16 of the 1925 Constitution provided that every individual who may be arrested, charged, or imprisoned contrary to the provisions of the Constitution governing these matters:

may apply, for himself, or by anyone in his name, to the judicial authority designated by law, petitioning that the legal requirements be observed.  This judicial authority shall order the individual to be brought before him and his order shall be obeyed exactly by all those having charge of prisons or places of detention.  Informed of the facts he shall declare his immediate release, or cause the legal defects to be corrected, or put the individual at the disposition of the proper judge, proceeding throughout in a brief and summary manner, correcting the defects personally or referring them for correction to whomever it may concern.

58.          Constitutional Act No. 3 of 1976 repeats almost textually Article 16 of the 1925 Constitution, but changes the expression “to the judicial authority designated by law” to “to the respective Appeals Court” (Article 3).  Paragraph 2 of this article introduces an important innovation: the preventive writ of amparo, which:

may be filed on behalf of any person who may unlawfully suffer any other deprivation, disturbance or threat to his right to personal freedom and individual security.  The respective Court of Appeal shall in such case order the measures indicated in the foregoing paragraph that it deems conducive to the establishment of the rule of law and to guaranteeing due protection of the person affected.

59.          Article 21 of the 1980 Constitution contains provisions that are very similar to those of the other two texts.  They are reproduced textually below, since it is the constitutional provision at present, in force, in this regard:

Every individual who is arrested, detained or imprisoned in violation of the Constitution or the law, may appeal on his own or through a third party to the magistracy indicated by law, so that the latter may order that the legal formalities are complied with and may immediately adopt the measures deemed necessary to reinstate the rule of law and ensure proper protection of the affected individual.

Said magistrates authority may order that the individual be brought before it and its order will be obeyed precisely by everyone in charge of jails or places of detention.  Following cognizance of the facts, the court will decree the immediate release of the individual or will instruct that the legal defects be corrected or will place the individual at the disposition of the competent judge, in a brief and summary manner and thereby correct such flaws or refer them to whomever shall have to correct them.

The same recourse may be lodged in the same manner on behalf of all persons who illegally suffer any other privation, disturbance, or threat to his right to personal freedom and individual security.  In such case, the respective magistrate shall order the measures indicated by the aforementioned paragraphs deemed conducive to the reinstatement of the rule of law and to due protection of the affected individual.

60.          Book II, Title V, of the Code of Criminal Procedure, regulates the remedy of amparo.  Because of their importance, the following provisions of this Code should be emphasized: (a) the court must make a finding on the remedy within a period of 24 hours; (b) it may instruct one of its judges to go to the place in which the person arrested or prisoner is located; (c) it may order the person arrested or the prisoner to be brought before it (habeas corpus); (d) if it revokes the order for detention or imprisonment or orders its defects to be corrected, it must pass the records to the Public Prosecutor, who is obliged to file a complaint against the perpetrator of the abuse.

61.          The decision of the Supreme Court of December 19, 1932 provides that an application for the remedy of amparo must be resolved as quickly as possible and “not when the wrong caused by an unjust imprisonment has taken on large proportions or has been endured in its totality”.  If the reports the Court requests exceed a reasonable period, the decision goes on to say, the Court may dispense with them since “it would not be possible to leave the liberty of an individual to the discretion of an official who is maliciously or remissively culpable in the fulfillment of an obligation”.  Taking charge of complaints filed by persons affected by unjustified arrests, the Supreme Court recommended 'on that occasion that “once an appeal has been accepted and the liberty of the person arrested or imprisoned ordered, the Court shall ensure that its decision is duly carried out, for which purpose it shall require in all the cases it deems necessary an immediate report from the official responsible for executing it or from the head of the establishment in which the person covered by the remedy is located”.

b.          The Practice of the Remedy of Amparo

62.          According to information furnished to the IACHR, between September 1973 and December 1983, the Committee for Cooperation for Peace in Chile and then the Vicaría de la Solidaridad gave advice on the lodging of 5,400 petitions of amparo with the Santiago and Presidente Aguirre Appeals Courts on behalf of persons who had been arrested by order of the Executive authority or whose right to personal liberty had been violated.  Of this total number of petitions the courts accepted only 10, in very few of which the liberty of the person affected was obtained.

63.          Notwithstanding the subsequent analysis of some especially significant cases and of the various irregularities noted in the processing and decisions of the appeals, the fundamental logic adopted by the courts, which has resulted in such a high number of applications for amparo being rejected, should be mentioned.  The reasoning has been as follows: once the corresponding petition has been filed with the Office of the Clerk of the Court, the Court requests reports from the Ministry of the Interior. If the Ministry of the Interior replies that the petitioner (el amparado --the person who has applied or whose behalf an application has been made-- for amparo) has not been arrested by its order --although evidence of the arrest has accompanied the appeal-- the court relies fully on the statement of the Executive and rejects the appeal, since the person covered by the remedy has not been arrested.  If, on the contrary, the Ministry of the Interior replies that the person covered by the remedy has been arrested pursuant to an exempt decree, the court also rejects the appeal since the person affected has been arrested by the order of an official legally empowered to do so.

64.          An especially enlightening case in this regard is the decision handed down on the amparo case No. 1.458-74 of the Santiago Appeals Court, lodged on behalf of Juan Carlos Menanteaux Aceituno, arrested by DINA agents in November 1974.  On December 4, the Air Force Combat Commander informed the Court that it had not arrested the person in question and that he was not being tried by the courts of the Air Force. On December 5, the Minister of the Interior reported that the person in question had not been arrested by order of the Government.  On February 5, 1975, the Chief of the Area under State of Siege of the Province of Santiago stated that the person in question was not detained within his jurisdiction. On March 4, the Director of DINA informed the Court that the information sought should be requested from the Ministry of the Interior or from the National Secretariat of Detained Persons (SENDET).  On March 21, the Court rejected the petition and ordered the records to be transferred to the Court of the crime so it could investigate the disappearance.  When the judgment was appealed, the Ministry of the Interior, on May 12, informed the Supreme Court that the person in question was detained in the Cuatro Alamos Camp in accordance with the provisions of Exempt Decree No. 752.  On the basis of that information, the Supreme Court confirmed the judgment of first instance since the person covered by the remedy was detained and rescinded the order to send the records to the military courts.

65.          Another similar case occurred in 1976, in which a writ of amparo was filed on behalf of Manuel Guerrero Ceballos.  The Court of first instance dismissed the petition because the person covered by the remedy had not been arrested.  The decision on appeal affirmed that of the lower court because the person covered by the remedy had been detained.  [8]

66.          The period within which the writ of amparo must be decided, as pointed out above, is within a period of 24 hours or at least before the wrong caused by an unjust imprisonment has been endured in its totality.  Information supplied to the Commission indicates that in not one of the thousands of writs filed on behalf of persons detained or arrested for political reasons has the period established in the law been respected or has the wrong caused been promptly terminated.

67.          Delay in deciding on the remedy has been one of the conditions that have permitted the disappearance of persons after their arrest.  On July 29, 1974, a remedy of amparo was lodged on behalf of José Manuel Ramirez Rosales (case 812-74 of the Santiago Court of Appeal); the judgment was issued on March 13, 1975.  On November 28, 1974, a remedy of amparo was lodged on behalf of Claudio Guillermo Silva Peralta (case 1,484-74 of the Santiago Court of Appeal); the judgment was issued on May 24, 1975. On December 20, 1974 a remedy of amparo was lodged on behalf of Jorge Antonio Herrera Cofré (case 1,626-74 of the Santiago Court of Appeal); the judgment was issued on May 28, 1975. On February 7, 1975, a remedy of amparo was lodged on behalf on Elias Ricardo Villar Quijón (case 38-75 of the Valparaiso Court of Appeal); the judgment was issued on December 12, 1975. All these persons are “disappeared”.

68.          A study of 54 writs of amparo filed during the first half of 1977 showed that none of them had been decided within 24 hours; four were decided after two months; and one after three months.  [9]

69.          This lengthy processing, which impairs the essence and purpose of the remedy, is due to two fundamental causes: the delay of the authorities in issuing the reports requested by the court, on the one hand, and the negligence of the courts themselves, on the other.

70.          Thus, since 1974, the petitioners have invariably begun to ask that reports be requested from DINA, but the Director of that agency replied, also invariably, that, in accordance with higher instructions, all the information relating to arrests was to be requested from the Ministry of the Interior or the National Detainees Service.  Thus, for example, on March 12, 1975, by official letter No. X3550/547, the Director of DINA communicated the following to the President of the Santiago Appeals Court:

I have received your letter dated March 12, 1975, a photocopy of which is attached, and, as I told you personally at the meeting we had with the Minister of the Interior, I must again reiterate my position that I must strictly comply with the orders of the President to inform you that any information about persons arrested must be provided to the courts, whichever they may be, by the Minister of the Interior or by the National Detainees Service (SENDET).  If the competent authorities have informed you that they have not arrested the person sought, that is the official report.  Yours sincerely, Manuel Contreras Sepúlveda, Colonel, Director of National Intelligence.

71.          In a system of laws, that reply would have constituted clear and punishable contempt; however, the Supreme Court accepted the proposal of the Government, as follows from Resolution No. 818 adopted in plenum by the court on March 27, 1975:

Let official notice be given to the Santiago Appeals Court, informing it that this Supreme Court reaffirms the powers Article 307 of the Code of Criminal Procedure confers on the courts to request the information and reports it considers necessary in processing writs of amparo, but in view of the situation of the country it is advisable to use the administrative channel proposed by the Supreme Government for obtaining those reports.

72.          Subsequently, on June 22, 1976, the plenum of the Supreme Court sent the following official letter to the Appeals Courts:

This Court has received Official Letter No. 57 dated June 14 from the Minister of Justice by which he communicates the request of the Minister of the Interior to the effect that henceforward official letters not be sent to the National Intelligence Directorate requesting information concerning writs of amparo or other remedies that affect cases relating to these matters.

73.          The agreement between the Executive and the Supreme Court established a de facto privilege in favor of an agency that has been repeatedly mentioned as responsible for extremely serious violations of human rights.

74.          General Humberto Gordon Rubio, the successor of General Mena and until today the Director of the CNI, continued the same practices, as is shown --among many others-- by the official letter sent to the President of the Appeals Court of the Presidente Aguirre Cerda Department on August 1, 1980.

1.          By the official letter mentioned in the reference, you have consulted this National Intelligence Agency whether BERNARDO ANTONIO REYNALDOS QUINTEROS, on behalf of whom a remedy of amparo, Case No. 143-80 has been filed, is detained.

2.          In this regard it is necessary to inform you that in accordance with precise instructions from the Ministry of the Interior to this agency it is not incumbent upon it to give a reply on such matters.

Consequently, this consultation, like those that may be made in the future, must be made directly to the Minister of the Interior, who has all the information for an appropriate reply.  General Humberto Gordon Rubio, Director of the CNI.

75.          In the writ of amparo, Case No. 132, lodged in 1981 on behalf of the lawyer, Raimundo Valenzuela de la Fuente, with the Santiago Appeals Court, the Office of the Clerk of the Court made the following entry in the file:  “ I CERTIFY: that with respect to the report requested by telephone, this was not possible because on earlier occasions the Legal Advisor of the CNI has stated that it is only done by official letter and through the Ministry of the Interior”.

76.          This practice of not informing the courts was continued by the CNI, the legal successor of the DINA.  One example of this, among many, is Official Letter B-7 20550, of June 14, 1979, sent by the Director of the CNI to the President of the Santiago Appeals Court, which is reproduced below.

1.          By the Official Letter mentioned in the reference, you have asked this National Intelligence Agency to issue a statement concerning the writ of amparo, Case 441-79 filed on behalf of José Nazario Valderrama, who was allegedly arrested on Monday, May 28 by civilian personnel.

2.          In the circular of May 25, 1978, the Minister of the Interior reiterated the instructions relating to the provision of information by the CNI to the Courts.

3.          Any information requested of the CNI must be requested through the Ministry of the Interior and this agency is expressly prohibited from directly supplying the Courts with any information unless the request has been channeled through this Department of State.

4.          For the foregoing reason, this National Intelligence Agency will not be able to reply to the above-mentioned official letter, which situation I inform you of so that you can request the information through the Ministry of the Interior.

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