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

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

77.          Thus, to the period of delay of the official letter of the CNI denying the information, must be added the period taken by the Minister of the Interior to issue the report requested by the Court.

78.          In 1979 the following cases may be mentioned as examples:

79.          As may be seen, the delay of this Department of State is absolutely incompatible with the nature of the writ.

80.          In addition, it should be pointed out that the information supplied by the Ministry of the Interior is usually incomplete or contradictory, which makes it necessary to request additional reports. With all these delays, what normally happens is that the person covered by the writ has already been set free or the irregularities of the arrest have been corrected.  In both cases the result is the same; the courts reject the application for amparo.

81.          With respect to fulfillment of the period of 24 hours by the Appeals Courts, it should be pointed out that as far back as August 1974 the Committee for Cooperation for Peace in Chile submitted a petition to the Supreme Court requesting the prompt processing and decision of a series of applications for amparo.  The Highest Court requested a report from the Santiago Appeals Court, which on August 20 replied that the greater or lesser speed of the judgment depended on the speed of the authorities in issuing the reports requested and that the delay of the reports was consequently not attributable to the Court.  On August 23, and on the basis of that report, the Supreme Court ordered the records to be filed.

82.          Although it is true, as was seen, that the administrative authority delays the issuance of the reports, it is no less true that the courts are empowered to do without those reports. A dramatic case of the negligence of the courts is that of Federico Renato Alvarez Santibañez who, as mentioned in the preceding section of this chapter, was arrested by Carabineros in the early hours of August 15, 1979 and handed over to the CNI on the same day.  On August 16 his relatives filed as application for amparo with the Santiago Appeals Court (case 695-79) and requested the sitting Military Prosecutor to go to the premises of the CNI, in accordance with the provisions of Article 317 of the Code of Penal. Procedure.  On the same day, in accordance with the habitual practice, the Prosecutor got in touch with the Office of the Legal Advisor of the CNI, which reported that Alvarez Santibañez was detained by order of the Director of that agency in a place that could not be identified for reasons of security.  On August 17, in the amparo file, a request was made to the Court that it get in touch, by telephone, immediately with the Military Prosecutor so that he could transmit what had been communicated by the CNI, which showed at least two major illegalities; the person covered by the remedy had been arrested pursuant to an order of an incompetent authority and was deprived of liberty in an improper place.  Instead of accepting the petition, the Court limited itself to requesting a report from the Ministry of the Interior.  It is clear that the Court should have acceded to the request and accepted the application in view of the irregularities of the arrest.

83.          On August 20, while the report of the Ministry was pending, the person covered by the remedy was handed over to the military court.  In the establishment in which the court sits, he was seen by his wife and by two lawyers, who verified the pitiable physical condition of Alvarez Santibañez; he could not stand, had a head wound, marks of blows on the face, and a vacant stare.  The prosecutor sent him incommunicado to the Penitentiary. At 11:55 p.m. on that day the petitioner was admitted to the Posta Central (Emergency Hospital), where he was taken by prison guards. On August 21, at 6:40 a.m. the teacher Alvarez Santibañez died as a result of the tortures to which he was subjected in the barracks of the CNI.  If the Prosecutor had gone to that place, as was his obligation, and if the court had taken a decision on the remedy when it should have done, this death would perhaps have been prevented.

84.          A random sample of some of the applications for amparo filed in 1981 shows the extent and the systematic nature of the delay of the Santiago Court of Appeal --which in this matter is not different from others-- in taking decisions:

85.          Another aspect that should be mentioned because of its importance is that the courts do not have any limitations as regards the means and the steps they can order to protect the petitioner and to terminate the state of illegality.  Among the steps expressly mentioned by the law, two are of major importance: to order that the detainee be brought before the Court and to order that one of its members go to the place in which the person affected is located.  In accordance with the spirit of the law and the nature of the remedy these steps must be adopted automatically.  However, this not only has not been done, but rather the Courts have systematically rejected those steps which have been insistently requested by the petitioners, save some exceptions that will be seen later and which do not alter the habitual behavior of the courts.

86.          As has been seen, the courts may do without the reports requested if they are not issued on time or when the circumstances of the case so require.  Far from adopting this measure, the courts have even extended the time limit for the reports.  Thus, for example, in the application for amparo filed on behalf of Hugo Eduardo Riveros, ten days had elapsed without the Minister of the Interior or the Director of the CNI having replied to the official letters of the Santiago Appeals Court.  In these circumstances, the court automatically granted the Minister of the Interior an additional period of 5 days for reporting.  A complaint appeal against that decision having been lodged, the Supreme Court deemed the additional period granted to be in accordance with law and stated that the judges that ordered it had not committed any fault or abuse (Supreme Court, Case 5037-80).

87.          Another case that shows the negligence of the courts in this matter is illustrated by the application for amparo Case 448-79 of the Santiago Appeals Court filed on behalf of five adults and one minor.  The Court agreed to request information by telephone from the CNI and this step was entrusted to the Clerk of the Court, who made an entry in the file to the effect that it had been impossible to communicate with the CNI because the number of this agency did not appear in the telephone directory.

88.          Some exceptional cases in which the courts have ordered steps for the protection of the petitioner will now be examined and the effect that had will be shown.

89.          On March 17, 1982 the Santiago Appeals Court ordered the appearance of the petitioner Enzo Iván Riffo Navarrete.  On the following day the CNI Director sent an official letter to the President of Court, informing him that it was not possible to comply with the order because the petitioner had been arrested by order of the Minister of the Interior.  On the basis of this official letter, on March 18, the Court rejected the application for amparo, which decision was subsequently confirmed by the Supreme Court.  This contempt at least led the plenum of the Supreme Court on April 28, 1982 to send an official letter to the President requesting him to instruct the CNI Director to respect the jurisdiction of the courts.  On April 30, General Pinochet replied giving assurances that henceforward “steps will be taken in strict compliance with the legal and constitutional provisions governing this matter.”

90.          On March 28, 1982 the Valparaiso Appeals Court had ordered the CNI to bring the petitioner Juan Carlos Silva Martinez before it.  The CNI did not obey the order and on April 3 the Court accepted the application for amparo and ordered the Ministry of the Interior to set Silva Martinez free.  On April 5, instead of obeying the order of the Court, the Ministry of the Interior appealed the judgment and the Supreme Court upheld the appeal.

91.          Despite the assurances given by the Read of State, the CNI continues to disregard the orders of the courts. On March 7, 1984, 24 persons were arrested in the Colegio Montessori in Santiago.  When hearing the corresponding application for amparo the Court instructed a judge to go to the premises of the CNI, where the arrested petitioners were located.  The Judge went to the place accompanied by a Notary (Ministro de Fé) but was refused entry.

92.          In March 1984 an application for amparo was filed with the Santiago Supreme Court on behalf of Mónica Rios Reveco and another 22 persons.  The CNI delayed replying in writing and gave evasive replies by telephone.  In view of this situation, the Court ordered one of its judges, Mr. González, to go to the premises of the CNI located in Borgoño 1470.  On March 9 the commissioner went to the CNI premises, where he was refused entry.  Taking cognizance of this contempt, the full Court of Appeal agreed to bring the records to the knowledge of the Supreme Court. On April 5, the full Court of Appeals sent an official letter to General Pinochet, requesting him “to please take such measures as he deems appropriate to terminate the resistance which in cases like the instant case the National Intelligence Agency may continue to impede the performance of the Judiciary”.

93.          On September 3, 1984 the Santiago Appeals Court ordered the CNI to permit the petitioner Enrique Vidaurrazaga Manríquez to receive a visit from his mother.  On the following day his mother went to the CNI but was refused entry to the premises in Borgoño Street and informed that only the Director of the CNI could authorize visits.  On September 10 the Court rejected the application for amparo and ordered the records to be passed to the full court (amparo case 1,367-84).

94.          In October 1984, in the application for amparo case 513‑84 of the Presidente Aguirre Cerda Appeals Court, the Court commissioned one of its members to go to a private household where the petitioners were deprived of their liberty.  The judge went to the place accompanied by the Clerk and the Reporting Judge of the Court.  For a lengthy period the armed personnel that were guarding the house--and who refused to identify themselves--prevented the judge from entering the house, exhibiting an arrogant attitude and unnecessarily brandishing their weapons before the judge.  On October 24, 1984 the full Appeal Court decided to send the records of the case to the Supreme Court.  On November 2, the full Supreme Court ordered an official letter to be sent to the President informing him of the facts.

95.          Mention may also be made of three cases in which the steps ordered by the courts could be completely fulfilled.  The first involves a visit on June 25, 1984 by the judge of the Santiago Appeals Court, Mr. Ricardo Gálvez, to the headquarters of the Plain Clothes Police (Investigaciones) to ascertain the condition of the petitioner Leopoldo Ortega Ramírez.  The second is the visit of a judge of the Concepción Appeals Court to an establishment of the CNI, where he verified that the petitioners were not there (appeal Case 5655 filed on behalf of Enrique Vidaurrazaga Martínez and María Soledad Aranguiz Ruz).  The third case also related to Enrique Vidaurrazaga. Arrested in Concepción he was then transferred to Santiago and confined in CNI premises.  His mother filed an application for amparo with the Santiago Appeals Court (case 1,367-84) and requested that a judge visit the place of detention.  The Court acceded and commissioned Judge Luis Correa, who went to the premises of the CNI on September 1, and interviewed the petitioner and verified his pitiable physical condition.

96.          Another aspect that must be mentioned is that in virtually all the applications for amparo on behalf of persons arrested by order of the authorities, the commission of a series of offenses before, during or after the arrest has been reported; illegal search, detention in secret places, incommunicado detention, torture, kidnapping, etc.  However, in the main, the courts have been reluctant to investigate such serious irregularities and have not taken decisions on them. Sometimes, on the contrary, they have justified them, as in the case of a decision of December 3, 1981 of the Supreme Court, which confirmed the judgment of the Court of Appeals arguing that, when the existence of a terrorist act was invoked, the guarantee of publicity of the place of arrest could not be demanded.

97.          An important innovation introduced during the process that began on September 11, 1973 was the application for preventive amparo, which was established to terminate any privation, alteration, or threat to individual liberty and security (excluding illegal arrest, the subject matter of the remedy of amparo proper).  This remedy was initially rather ineffective, as some cases show.

98.          On November 7, 1980 Felipe Arellano and Marcela Espinoza filed applications for preventive amparo on their own behalf with the Santiago Appeals Court (case 914‑80), complaining that they were pursued by security agents who were going to arrest them.  The Court requested reports from the Minister of the Interior who denied the allegations.  On the basis of this report the application was rejected.  A few days later the security forces informed the press that Felipe Arellano and Marcela Espinoza were members of the MIR and that extensive operations had been carried out to arrest them.  In the light of this situation there are only two options:  either the Minister of the Interior hid the truth from the courts or was unaware of the activities of the security services under his authority.  When a second application for preventive amparo was filed, the Minister finally acknowledged the existence of an arrest order, which was to be executed in the “premises of the CNI”, that is to say, in a secret prison.  In view of the lack of amparo the petitioners sought asylum in an embassy.

99.          On March 14, 1980 the teacher Oscar Salazar Jahnsen appeared before the Santiago Appeals Court, and complained of the conspicious tailing to which he had been subject and expressed his fear of been illegally arrested and requested that he be granted adequate protection.  When the respective report was requested from the Minister of the Interior, the Minister replied, “in this Department of State there is no information about this person” (confidential official letter 873 of March 18).  On April 3 the Minister gave further information, adding that the Carabineros head-office of the Metropolitan Area and its Intelligence Service had reported, “it has been possible to conclude that the above-mentioned Salazar Jahnsen does not have any background to affect him”.  Six days later the court rejected the application and on April 28 the teacher Salazar was killed in a “security operation”.  Concerning this event the media reported:

according to the versions supplied to the press, the event was the consequence of the tailing of Oscar Salazar for several days. Security officials followed him yesterday from the downtown area and in Lo Cañas Street ordered him to surrender.  It was not stated why the arrest had not taken place earlier.  [10]

100.          The newspaper El Cronista, which belongs to the Government, also reported that Salazar had been followed by security officials and described the victim as an “extremist”, a “member of the MIR” and a “terrorist” and said that he had taken part in the killing of a Carabinero (April 30, 1980).  Finally, the official CNI communiqué describes Salazar as “a suspicious individual who was being tailed” and added a series of data concerning him: personal particulars, political name, etc.  The Minister of the Interior was, therefore, unaware of what even the press knew.

101.          Between 1980 and 1981 Lizandro Sandoval Torres filed applications for preventive amparo on four occasions with the Concepción Appeals Court; on each occasion the application was rejected because the facts reported were denied by the authorities.  On August 17, 1981 Sandoval was killed by a CNI commando in an alleged clash.

102.          The account given indicates that the Judiciary has shown serious negligence in processing the applications submitted to it for safeguarding the personal liberty, the physical integrity, and even the life of many persons opposed to the Government.  This attitude has favored, by omission, the condemnable practices of the Government, which have not been investigated with the decisiveness demanded by the serious complaints that follow from the applications processed.  The Commission must, however, point out that there have been isolated cases in which the resolute action of judicial officials has made it possible to qualify the harsh judgment that would otherwise cover the entire Judiciary of Chile in the period covered by this report.

103.          It is now appropriate to analyze other aspects connected with the right to a fair trial and to due process that have had a particular impact on the exercise of this right during the period beginning on September 11, 1973.  A central element of that process has been the gradual expansion of military jurisdiction to cover many acts formerly submitted to the ordinary courts; the other element is the characteristics of trials before military courts and the way in which these courts have taken decisions in some pertinent cases.  This constitutes the subject matter of the following section, which begins with the presentation of the legal rules in force in the matter of the right to due process.

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