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REPORT ON THE RIGHTS OF WOMEN IN CHILE: EQUALITY IN THE FAMILY, LABOR AND POLITICAL SPHERES
IV. FORMS OF DISCRIMINATION AGAINST WOMEN IN CHILE IN THE FAMILY, POLITICAL AND LABOR CONTEXT
54. The Commission recognizes the efforts that the administration presided by Michelle Bachelet is making to introduce initiatives designed to advance women’s equality in the exercise of their family, political and employment rights. During the visit, a variety of sources confirmed that the administration presided by Michelle Bachelet has made women’s specific needs a top priority on the country’s public agenda.
55. During the working visit, representatives from SERNAM told the delegation that Chile’s situation is something of a paradox. It has a woman in the Office of the President, committed to women’s rights, who has made it her mission to advance a political discourse that is much more favorable to women. And yet problems persist: passage of state measures is a slow process, especially in the case of legislative bills designed to promote women’s equality on multiple fronts. Governments that preceded the administration of current President Michelle Bachelet have acknowledged the situation, and observed the following: “Yet discrimination persists in some areas, both in terms of legislation and its application, and in practices that still reflect stereotyped and discriminatory concepts.”[47]
56. The Commission also notes the link between Chilean women’s unequal status within the family and their limited participation in Chile’s public life and job market, due to stereotyped notions of their role in society as women and mothers. Despite the increasing –although still low, relatively speaking- number of Chilean women joining the workforce, the division of family responsibilities between the two partners is still uneven, with the result that women have fewer options when it comes to entering and moving up in the workforce and politics. A number of civil society organizations described the problem in the following terms:
While changes in the last ten years have raised women’s profile in public life, they have not necessarily been matched by changes in the area of social and biological reproduction. This has taken a toll on women’s ability to exercise and enjoy their rights as men’s equals, especially women of lesser means (…) According to this model, the family is an institution unto itself that does not and should not conform to democratization processes. Instead, this model casts women in traditional roles. Thus, if women do enter the workforce, it is viewed as a consequence of circumstance, and in no way a negation of the ideology that assigns them the role of raising and caring for the family.[48]
57. The Commission is particularly troubled by the fact that discrimination against women is still accepted in the social scheme and manifests itself in structural inequalities within the family, political life and on the labor and employment front. That kind of discrimination feeds upon itself, and thus keeps recurring. International human rights organizations have confirmed this. Amnesty International, for example, has pointed out that in Chile, attitudes and perceptions persist about the roles that both men and women should have in the home, in the family, at the workplace, and in society as a whole.[49]
58. On the question of the State’s response to these challenges, Amnesty International observed that the incorporation of gender equity concerns in state institutions is still very tenuous; the main achievements are in the legislative realm and the approval of certain programs. However, Amnesty International maintains that “it is still enormously difficult to get legislation on certain subjects passed, to put legal provisions into practice, to expand or build up social programs and to mainstream the gender dimension in sectoral policies and in the running of the various state agencies.” [50]
59. The great challenge that the Chilean government has before it is to narrow the gap between the commitments the State has undertaken and the discrimination that women continue to experience in their day-to-day lives, specifically in the family, in participation in political life and in the employment and work realms. For the Commission, it is imperative that the efforts undertaken by the present government materialize into laws, public policies and effective implementation mechanisms that have a positive effect on the daily lives of all women in Chile, putting them on the road to substantive and effective equality.
A. Women’s equality in family life
Context
60. During the visit, the Commission received information about the legislation in the family sphere in Chile and how in its text and practice perpetuates various forms of discrimination against women, a problem that will be discussed in this section. Within this framework, the Commission was also informed about serious challenges that women still face to obtain a judicial recourse for the violations suffered. The Chilean State acknowledged that although a significant number of legislative bills had been developed to remedy the existing discrimination in the law:
[t]here remain situations where women are in a position of inferiority with respect to men, because of the persistence of discriminatory rules in the legal system, and the fact that certain legal initiatives for overcoming them are still making their way through the legislative process. As well, and despite the legislative progress that has been made, there are still some cases where the courts have handed down interpretations that have prevented this principle from being applied in practice in ways that would fully achieve its objectives.[51]
61. The Committee on the Elimination of Discrimination against Women recently expressed concern about the slow progress in further legislative reforms to ensure women’s equality in the family and their right to participate in national public life.[52] Chile is one of the few countries in the Americas that have not yet ratified the Optional Protocol to the CEDAW. The Minister Secretary General of the Office of the President, José Antonio Viera-Gallo, told the delegation that this bill has little chance of passing at this time.[53]
Framework of laws governing domestic relations
62. Although Chilean law recognizes, as a general principle, that women and men have the same rights and obligations in marriage,[54] there are still laws on the books that discriminate against women both in the letter of the law and its application.
63. The Commission is particularly disturbed by the fact that the current system for administering property during marriage and following its dissolution (the conjugal partnership system) is still discriminatory with respect to women, with rights unevenly distributed between the partners.[55] The current Civil Code provides that unless the parties contracting marriage expressly state otherwise, the husband shall be the head of the conjugal partnership and administer his and his wife’s property.[56] Furthermore, while a woman married in a conjugal partnership has the right to administer the property that she brings to the marriage and that she acquires, in order to retain these assets in the event of the dissolution of the conjugal partnership she must waive her right to the community of property.[57] During the visit, the Commission received information that confirms that most Chilean couples opt for the current conjugal partnership system, either because they are uninformed and/or because of the cost that opting for other marital arrangements involves.[58]
64. As for the institution of marriage, the Commission recognizes the enactment of the Civil Marriage Act,[59] which sets forth the requirements for the celebration of a marriage and the manners of dissolution, including absolute divorce. The Committee on the Elimination of Discrimination against Women also observed that the Civil Marriage Act lowered the minimum age for marriage to 16, which it deems contrary to the international standards for the protection of the rights of the child.[60] The State highlights as an advance that the law protects during divorce the right to economic compensation of the partner that dedicated to the care of the children and to household duties, as opposed to remunerated activities.[61]
65. As for de facto unions, the Commission notes that there is still no law recognizing and guaranteeing the rights of the parties to such unions. Nevertheless, a bill is currently under discussion that would establish regulations to govern the existence, celebration, validity and effects of de facto unions. That bill is now before the House of Deputies of the National Congress, which is the first step in the constitutional process.[62] The Committee on the Elimination of Discrimination against Women in its Recommendation 21 provides that States should protect the equality of women in de facto unions in their family life, the distribution of resources and assets, and in the care of the children. More specifically, the Committee has manifested its concern over the fact that the assets accumulated during de facto unions do not receive the same legal protection as the assets acquired during a marriage. Therefore, when the relationship ends, the woman tends to receive a part considerably lower than that of the man. The Committee considers that the laws and customs related to property that discriminate in this form against single women, with or without children, should be revoked.
66. As for child support, SERNAM has publicly expressed concern over the high incidence of nonpayment of child support, which is detrimental to women. According to SERNAM’s statistics, 25,000 fathers are sued every year for failure to pay child support; in Chile, 98% of separated mothers have to resort to the courts to get their former husbands to pay child support. Current Minister Laura Albornoz has said the following in this regard:
Time and time again we have said that for every two births in Chile, there is a woman turning to family courts to order payment of child support. This situation is causing significant social inequalities for children and for the women who have to feed and clothe their children alone ….[63]
67. The Commission applauds the adoption of Law No. 20,152 in 2007, which introduces a number of amendments to Law No. 14,908 on abandonment of family and payment of child support.[64] This law includes measures to enforce payment of child support: for example, the respondent is required to produce background information as to his earning power and assets; police are authorized to enter the respondent’s home and arrest him; and submission of false documents or concealment of sources of income are punishable offenses. The law also provides that the respondent’s annual income tax reimbursement can be withheld, which the plaintiff can go to family court to request.[65]
Domestic violence in Chile and its effect on women
68. The Commission is deeply disturbed by the high incidence of domestic violence, which it views as an extreme manifestation of the discrimination that women suffer. The State acknowledges that abuse by partners and former partners has reached alarming levels, and includes various forms of sexual, psychological and physical violence.[66] Various state sources, such as SERNAM[67] and non-state sources, such as civil society organizations,[68] confirmed that a woman dies every week at the hands of her partner.
69. According to information supplied by the State and corroborated by a SERNAM study done in 2001, 50.3% of the women interviewed for the study, all between the ages of 15 and 49, said they are or have been the victims of violence from their partners.[69] That study found that while violence is more prevalent among the more disadvantaged sectors of society and those with fewer educational opportunities, this is a phenomenon that affects all women. 15.9% of the women interviewed claimed they had been the victim of some form of sexual violence: of these, 82.4% said they were physically forced, 69.9% gave in out of fear, and 48.9% said they had been forced to perform degrading sexual acts.[70] For the year 2007, SERNAM registered that 62 women died at the hands of their partners and ex-partners.[71]
70. The Commission is also concerned about the correlation between the high incidence of domestic violence and women’s low participation in the labor market. One study commissioned by SERNAM and done by the Corporación DOMOS found that “domestic violence is an even greater deterrent to women joining the workforce: women who have experienced physical and/or sexual violence –more so than women living in households where violence is not present- claimed (…) to have turned down or quit a job because of their husband or partner (…)”[72] Amnesty International pointed out that in Chile:
In general, advertising in Chile is perceived as “objectifying” women. For those who embrace the traditional model of women’s role in society, women can join the workforce so long as their domestic role is not affected. For them, power is not shared equally between the sexes; women are a sex symbol, a “lure” for the male consumer.[73]
71. The IACHR Rapporteurship received various reports singling out the problem that the international community labels "femicide" or "feminicide" [74] in the family and the ever increasing number of women killed in domestic violence. Civil society sources have figures indicating that 58 women were murdered by a partner or former partner in 2007 (as of November), 51 in 2006, 49 in 2002, and 35 in 2001.[75] As these figures show, the number of women killed as a result of domestic violence in Chile has been on the rise in recent years.
72. The severity and magnitude of the domestic violence problem among women is revealed by the number of complaints filed with the Chilean justice system and by the fact that most of the complaints are brought by women. Specialists from the Ministry of Justice told the delegation that between May and August 2007, the Legal Aid Society[76] handled 3,553 requests related to domestic violence and that 75% of the complainants were women.[77] According to figures from the Public Safety Division of the Public Prosecutor’s Office,[78] the number of complaints of domestic violence has climbed since 2001, as shown below:
2001 60,798 2002 68,031 2003 78,948 2004 87,697 2005 93,404 2006 95,829
73. For all the year 2007, the Public Prosecutor’s Office indicates that more than 56,000 complaints related to domestic violence entered the system, related mostly to injuries and in second place to threats.[79] These figures are especially troubling when one considers that some women who have been physically, psychologically or sexually abused by their partner wait from five to seven years to report their assailant; many of the victims never report the violence.[80] Even though Chile has a legal system for addressing domestic violence, that system does not function as it should because of implementation problems in the judicial system,[81] which slows down the processing of many of the complaints filed.
74. The State considers in its observations to this report that the relationship between the increase of complaints and of violence against women is not automatic.[82] The State observes that the increase in complaints can be the result of many reasons such as “the denaturalization of the violence, the existence of new mechanisms to report the violence and more awareness of the issue, resulting from communications campaigns launched by the Government of Chile, and the discourse of the political authority in charge of the issue.”[83]
Legal Framework and Policies Related to Domestic Violence
75. The current law on domestic violence, Law 20,066 of October 5, 2005,[84] struck down Law 19,325 of 1994 and introduced major changes over the earlier law. More persons are protected by the law,[85] which adds new behaviors that it classifies as violence. It also includes more types of family structure. The new law criminalizes the behavior called “habitual abuse,” defined as the “habitual practice of physical or psychological violence”. Under the new law, judges are not permitted to qualify bodily injuries inflicted in the domestic milieu as “misdemeanor battery.” In other words, the judge cannot classify corporal injuries inflicted in the context of domestic violence as mere misdemeanor battery and criminal misdemeanor offenses. At the very least, such behavior must be classified as simple battery, thereby constituting a crime.[86]
76. However, the Commission manifests its concern over procedural and jurisdictional problems between the Public Prosecutor’s Office and the Family Courts having to do with the definition of “habitual abuse.” Domestic violence cases currently enter the judicial system through the family courts[87] which analyze the “habitualness” of the abuse. If that requirement is met, the family court finds that it does not have jurisdiction and refers the cases to the criminal courts. This slows the processing of cases. The Commission observes that until this conflict of competence is settled and so long as case files continue to be juggled between prosecutors and judges, the victims are left defenseless and their right to an effective judicial recourse is impaired.[88]
77. The Chilean State has developed various initiatives in the form of policies, programs and plans aimed at solving some of the problems in the area of domestic violence. Salient among these are the following: the National Domestic Violence Prevention Program,[89] the National Plan for the Prevention of Domestic Violence,[90] the Safe Community Program, the Citizen Safety Division[91], Public Policy to Prevent, Respond to, and Punish Domestic Violence against Women (or Violence in a Couple Relationship),[92] creation of 28 centers to respond to violence against women in 13 regions of the country (SERNAM),[93] creation of the Inter-ministerial Commission to Prevent Domestic Violence and other inter-sector cooperative initiatives such as the agreements that the Ministry of Education, the Ministry of Justice, and the Chilean Police Force have concluded with SERNAM,[94] and a number of training programs and plans for institutional personnel, including but not limited to the police force and members of the educational sector.[95] Since 2006, the Chilean Police Force, through its Family Protection Office, worked to modify the “Domestic Violence Reporting Form” to include indicators that enable police to gauge how serious is the threat to the lives of the women filing the complaint. [96] The State informs as well that since 1996, the Chilean Police Force has designed an emergency line to offer orientation to domestic violence victims and that in the year 2006, with the collaboration of SERNAM and of various telephone companies, this service was expanded to all the regions in the country.[97]
78. In 2005, the issues of domestic violence and violence against women were added to the “Municipal Management Support Fund” and the “”National Community Initiatives Competitive Fund”, which is part of the “Safe Community” Program. The purpose of the Municipal Management Support Fund is to finance high-impact local citizen safety projects on preventing and responding to domestic violence and violence against women, alternative conflict resolution in schools and neighborhoods, and care for children and teens at risk of falling into crime. The purpose of the National Community Initiatives Competitive Fund is to encourage community involvement in improving safety within the area by funding community projects in citizen safety.
79. Moreover, the State has also taken a series of measures to enable the justice system to better handle domestic violence cases, including training of staff of the legal aid societies and the conclusion of a cooperation agreement among SERNAM, the Ministry of Justice and the Legal Aid Societies to provide services to women victims who take up residence in the SERNAM shelters and in the Service Centers for Women Victims of Violent Crimes.[98] However, various civil society organizations criticized the initiatives taken by the State pointing to the lack of an inter-sectoral approach to the problem.
80. The State informs as well that since January of 2008 the National Division for the Attention of Victims and Witnesses from the Prosecutor’s Office is implementing a pilot project for the “Protection of Victims of Domestic Violence Crimes”, which includes the preparation of specialized models of regional intervention. The purpose of the model is to duly and effectively protect domestic violence victims during their participation in the criminal process.[99] The Chilean Police Force has also begun to create specialized units for the attention of domestic violence in all its policy units and has developed a form to register complaints of domestic violence.
81. Among other advances, the State highlights that the SERNAM has entered into several agreements with other ministries and political entities with the objective of granting several social benefits to women victims of violence and coordinate their attention.[100] The State has presented specific information about agreements reached with the Ministry of Health, the Training and Labor Service, the Ministry of Justice, the Ministry of Housing, and the Ministry of Social Assets that establish key benefits for the users of the shelters.[101]
82. In the same vein, the State equally highlights that one of the key goals of the policy of SERNAM related to domestic violence has been to provide support services to violence victims.[102] The State informs about the actions of the National Program to Prevent Domestic Violence, which have been implemented since 2001 in 15 regions of the country, including the components of prevention, attention and protection, developed through the Centers for Women and the Shelters. About the Centers for Women, the State indicates that its number practically doubled in 2008, going from 31 to 58, covering all provinces in the country and that it is expected that the number of centers increases to 90 for the year 2009. Each center executes a “strategy of preventive intervention through awareness-raising activities, communications actions, socio-education training, training of relevant actors, strengthening of community and social networks in the issue.[103] The Centers offer legal, social and psychological attention to victims of domestic violence, having attended on 2008 a number of 13.063 women. Also 16.032 public employees and social actors were trained on the prevention of domestic violence, and awareness-raising workshops were organized with the participation of 42.000 people.
83. In regards to shelters, the State informs that since 2007 these were incorporated as a component of the Program to Prevent Domestic Violence from SERNAM, whose main objective is the offer protection with the Prosecutor’s Office, to women older than 18 years old that are at risk of domestic violence. Its objective is to offer victims of domestic violence a “safe place of residence, legal and psychosocial attention that favors the redesign of their life project.”[104] At this moment, there are 25 shelters throughout the country, offering protection in the year 2007 to 410 women and to 600 sons and daughters and in 2008 to 702 women and 973 sons and daughters.
84. SERNAM representatives also told the delegation that a single register needs to be created devoted exclusively to cases of violence against women. At the present time, a number of state agencies –primarily the Chilean Police Force and the Public Prosecutor’s Office- have figures; however, they all use different methods to compile them. The Commission has highlighted in the past that violence against women in all of its forms and contexts, is more prevalent than what is believed, what the press publicizes and what the official statistics reflect and that as long as “such problems exist, public policy in the area of justice will never accurately mirror the severity and prevalence of violence against women.” [105] The Commission highlights the need to improve the systems to register statistical and substantive information about incidents of violence against women to guarantee their uniformity, certainty and transparency.
The Courts (Family Courts and Criminal Courts)
85. During its visit, the IACHR Rapporteurship was told of general problems with the way in which family courts in Chile operate.[106] These courts were created by law on August 30, 2004,[107] as part of a set of reforms made to the justice system to expedite the processing of cases related to family matters. The reform created 60 courts specializing in family law, 258 judgeships and a range of administrative posts. The law took effect on October 1, 2005.[108] The cases that come under the jurisdiction of the family courts involve issues such as domestic violence, division of property, custody, child support, precautionary measures, and the like.
86. A number of sources said that certain problems in the bill’s design and implementation had resulted in overloaded family court dockets, to the point that the courts are unable to handle the cases efficiently. A group of experts and professors – Lidia Casas, Mauricio Duce, Felipe Marin, Cristian Riesgo and Macarena Vargas - stated that “once the new family court system had been instituted, it was not long before users of those courts, those inside the system and the general public began to sense that the system was overwhelmed, i.e. that it was laboring under a workload it could not handle.”[109] The bill had underestimated the number of complaints, with the result that the resources assigned -financial, professional and administrative- were insufficient. The University of Diego Portales described the problems as follows:
The original estimate was that in the first year 185,000 complaints would be received nationwide. As of December 24, 2005, less than three months after the courts began hearing cases, they had already received 82,000 cases; in other words, in less than a quarter of the year, some 45% of the projected total for the entire year had been received. In the case of the Santiago family courts, in the first month alone it became obvious that the estimated caseload was far less than the number received. During that first month, the system had nearly 6,000 complaints filed. This was 100% more than the projected number.[110]
87. Various sources said that the fact that plaintiffs can themselves appear in court and litigate without legal representation or attorney assistance is one of the most serious problems for the family courts. This is because users of the system do not have guidance and information and family court judges are not properly trained to handle this problem.
88. The Commission is particularly concerned by the fact that the courts are slow to act on cases where the threat of domestic violence against women is imminent. The Commission verified that Article 96 of Law 19,968 provides that once a domestic violence complaint is received, the judge has 10 days in which to hold a preliminary hearing. Because the family court dockets are so full, this does not happen in practice; in some cases the hearing –a crucial opportunity for the court to order protective measures- does not happen until six to eight months after the complaint is filed.[111]
89. The overcrowded family court dockets and the slow pace of the proceedings in family courts have especially serious consequences for women, who represent the majority of the plaintiffs.[112] Specialists from the Ministry of Justice confirmed that women are the most frequent users of the family court system, and account for 69% of the plaintiffs. The majority of those who turn to the legal aid societies for assistance (63%) are also women.[113] The situation leaves women with no means of protection and creates a lack of confidence in the system.
90. In the area of criminal law, only a small percentage of cases involving violence committed against women in Chile actually go to trial, and fewer still end in a conviction. The State indicated that in 2004, only 5.9% of the domestic violence cases received in the criminal justice system actually went to trial[114] and that 92% of the cases litigated in the civil courts were closed after the first hearing[115] (only 0.7% of the cases ended in conviction).[116] These are alarming figures, especially when one considers that complaints of domestic violence have increased between 8% and 10% each year since the law on domestic violence entered into force in 1994.[117] Recently the State informed that he figures of the Prosecutor’s Office reveal that between the year 2006 and 2008 the condemnatory sentences have ranged between 6 and 9%.[118]
91. The Chief Justice of Chile’s Supreme Court, Enrique Tapia, explained a number of the problems to the IACHR delegation: the officers of the court are unfamiliar with the subject and training programs are needed. The civil society organizations pointed to the lack of prosecutors specializing in family law and how this is an impediment to proper, timely treatment of crimes committed in the context of domestic violence, especially battering, death threats, attempted murders, sexual abuse and rape, among others.[119]
92. Regarding training measures, the State has informed the Commission about an agreement celebrated on November 26 of 2008 between the Supreme Court of Justice and SERNAM, in which they collaborate to develop joint activities of “information, training, and improvement”.[120] At the end of 2008, SERNAM implemented a series of trainings to 102 judges and technical advisors that will continue during the year 2009.[121] In the last two years, the SERNAM has also trained 129 prosecutors and lawyers of the Prosecutor’s Office in five regions.[122] Finally, the State informs that public officials from the justice and health sectors and from the Chilean Police Force have also been trained in operations aspects related to domestic violence.[123] In the years 2007 and 2008 5.390 public officials were trained.[124]
93. Therefore, the Commission is troubled by the gap between the severity and scale of the acts of violence targeted at Chilean women in the home, and the quality of the judicial response. During its visit, the IACHR Rapporteurship received information confirming the fact that the family courts in Chile are overburdened with cases. It was also told of general problems associated with the way in which the justice system functions, which cause delays in processing cases and petitions seeking precautionary protection against threats of imminent acts of violence. In the criminal court system, only a small percentage of cases involving violence against women actually go to trial in Chile; smaller still is the percentage of cases that end in a conviction. These problems leave the victims –generally women- defenseless in the face of the abuse they suffer and engender a lack of confidence in the judicial system’s ability to remedy the facts reported.
Legal initiatives to guarantee women’s equality in family life
94. The Commission recognizes as a notable advance the design of a number of bills in the area of family law oriented towards improving the state’s response to cases of discrimination and violence against women. The bills also aim at improving the response of the administration of justice system to these cases. Among the most prominent bills is one to reform the existing conjugal partnership regime, bills to improve the law on domestic violence, and a bill to ease the current overload in the family courts.
95. The Commission, however, is concerned by the slow pace at which these bills are being approved. The executive and legislative branches need to collaborate to win passage of these bills and get them implemented. Further, the State must couple passage of these bills with effective implementation measures. This includes crafting multi-sector, prevention-oriented public policies, the pertinent implementing legislation, allocating sufficient resources for the laws to be implemented properly, and providing instruction and sensitivity training for public officials.
96. A bill is currently pending to amend the Civil Code and laws on the subject of conjugal partnership or community property, in order to grant the husband and wife equal rights and obligations.[125] This bill establishes a new property ownership regime that will replace the conjugal property regime with one that makes husband and wife equals in the administration of property (called “deferred community of property”).[126] The State has asserted that “the new regime of ‘deferred community of property’ is intended to eliminate the notion that the husband is the ‘head of the conjugal partnership’ and, accordingly, entitled to administer the property of the wife.”[127]
97. The State has acknowledged that the passage of this bill, introduced in 1995, has been a slow process.[128] This bill languished for 10 years (1995 to 2005) before being passed by the House of Deputies, which is just the first stage of the constitutional process. More than a year would pass before Senate debate of the bill got underway in the Senate Commission on Constitution, Legislation and Justice (from October 2005 to January 2007).
98. The IACHR recognizes that in April 2007, the executive branch of the Chilean government made this bill an urgent priority, in compliance with the friendly settlement reached in the case of Sonia Arce Esparza, a complaint currently before the IACHR.[129] The Commission is pleased that the government is conscious of the discriminatory impact that the current regime has on women and is gratified by its decision to make the legislative bill to reform the regime a matter of urgency. The Commission is therefore again underscoring the need to adopt the measures necessary to expedite the approval process.
99. The Commission also learned of a bill to improve the functioning of the family courts.[130] This bill’s objective is to increase the number of judges and administrative personnel serving these courts, to create a compliance unit within each court, and other measures.[131] Although the purpose of this bill is to ease the congestion and work overload, a number of experts contend that the measures are not sufficient to deal with the main problems in the configuration of the courts.[132] The State informed the Commission recently of the approval of Law 20.286 on 2008, which modifies Law 19.968 creating the Family Tribunals, which grants the family tribunals a larger number of judges, reinforces the functions of the Technical Council, and establishes the expectation of legal representation as a general rule in causes processed in family tribunals.[133]
100. Other bills are intended to improve state institutions’ approach to the problem of domestic violence.[134] One bill[135] involves various amendments to Law 20,066, among them protective measures for victims who are not living with their partners and the inclusion of the concept of “habitualness”, which exists when more than one act of domestic violence is present. The bill also provides that the Public Prosecutor Office may launch an investigation into the criminalized offense even though said Office may declare that it does not have jurisdiction and refer the case files to the respective family court.
101. Another bill[136] on what is defined as “habitual abuse”[137] authorizes the Public Prosecutor’s Office to begin an investigation into the crime of habitual abuse, regardless of how it learned of the alleged event. A third bill[138] amends the Penal Code to make “femicide” a criminal offense. This bill defines femicide as any murder in which the victim is the wife, domestic partner or any woman with whom the assailant has or has had an amorous relationship. This bill also proposes that the penalties for these crimes be increased and that any possibility of invoking extenuating circumstances or of getting parole be reduced. The State informed the Commission of a recent bill to prohibit the mistreatment of an older adult in the national legislation about domestic violence.[139]
102. The State equally presented information about a bill[140] that seeks to guarantee the consent of the mother in the recognition of the paternity of children born out of wedlock. The State informs that the current regulation in Chile related to this issue – Articles 187 and the following in the Civil Code – has resulted in recognitions of children born out of wedlock that do not respond to the existing biological reality. The State informs of cases where there have been recognitions on behalf of parents that do not maintain “love relationships with the mother of the children, therefore, violating the rights of the mother and the superior interest of the child.”[141] The State equally mentions a bill related to the change of last names to promote the autonomy of the parents to determine at the moment of their children’s birth the order that their last names will have and the possibility of requesting administratively the inversion of the order of the last names.[142]
B. Women’s equality in the political realm
Context
103. The Commission applauds the efforts of the Administration presided by Michelle Bachelet to promote parity as State policy and back initiatives to expand women’s participation in the country’s political life. For the first time in Chile’s history, a woman was elected to the office of President and approximately forty percent of the members of the Chilean cabinet have been women.[143]
104. However, despite the efforts of the current government to raise the profile of women in positions within the executive branch of government, the Commission received information indicating that their profile in the other branches of government is not what it should be and that little is being done to adopt the kinds of medium- and long-term measures that will ensure women’s effective and sustainable participation in all areas of public administration. Women’s under-representation is out of step with the high levels of socioeconomic and human development that the country has achieved in recent decades.
Parity as State policy
105. President Michelle Bachelet began her term in office with a “political parity” proposal to tackle women’s under-representation in the political sphere. To signal the priority she attached to this policy, President Bachelet implemented a parity policy when appointing her new cabinet, in which approximately half the ministers were women. The parity policy was also applied in appointments to the offices of the under secretaries and the provincial governor’s offices.
106. ECLAC described parity and its application as Chilean State policy as follows:
Parity is a recent thing and it has developed according to the political traditions of individual countries, including the influence wielded by the women’s movement. In Latin America, Chile is the only country to have assumed parity as a programmatic commitment under the government of President Bachelet. This has led to the appointment of a parity cabinet and has extended to the make-up of undersecretary’s departments, provincial governor’s offices and other public services. The effort to establish a gender balance in decision-making has been accompanied by policies with a gender perspective in such areas of social security, labour practice, reproductive health and management.[144]
107. From the outset, the current government’s parity proposal was viewed with skepticism in some circles. One of the main criticisms of parity was that the authorities were not required to apply the same policy when naming people to the remaining public appointments. A number of political representatives believed that attaching so much importance to gender inequalities was an exaggeration.[145] At the end of her first year in office, a looming political crisis caused the President to reshuffle her cabinet; two women holding politically important cabinet positions were replaced. Currently the cabinet is approximately composed by 40% of women.
108. Despite the Administration’s efforts to guarantee that women are equally represented in the executive branch, during its visit the Commission found that women are still very discriminated against in Chilean political life. Most of those interviewed –men and women alike- viewed the election of a woman president as merely a first step down the road to equality of the sexes in political life.
109. President Bachelet described her personal experience as chief executive in Chile and the challenges she has encountered by reason of her sex, which she views as a reflection of her country’s culture and a gauge of the changes it must undergo:
Day after day, I notice how this (...) has been a new and different experience for the country, even challenging etiquette and protocol: some don’t know whether to call me Mr. President or Madame President; others are uncertain whether to greet me with a handshake or a kiss on the cheek. Some of my critics resort to sexist barbs. Then, too, the press coverage of me is different, focusing on the color of my outfit, my shoes or handbag. Never once did my predecessors receive this kind of attention (…) But it goes much deeper than that. There is an underlying symbolic content and semiotics. I believe that the image of a woman with the reins of government in hand, with a style and manner of her own, serves as a catalyst for cultural change in favor of greater equality and the horizontalization that our societies are already undergoing.[146]
Discrimination against women in political life, and in general, in any type of leadership position, is real and profound. It is perhaps the extreme of the discrimination that women suffer in the area of labor and employment, where we know discrimination is rampant.[147]
110. The discrimination described by the President notwithstanding, some civil society organizations maintain that the present Chilean government has not decreed any administrative rule or enacted any law to ensure that the parity in the executive branch will continue beyond President Bachelet’s term of office.[148] The initiatives and commitment of the current President in this area must be institutionalized throughout government at all levels so that parity becomes permanent.
The level of Chilean women’s political participation in popularly-elected positions
111. In stark contrast to the parity in the executive branch and the election of a woman president, women continue to be particularly under-represented in popularly elected office.[149] That under-representation is especially in evidence in the legislative branch, where the percentage of women holding seats is well below the world average and the average for the Americas.[150]
112. A variety of sources agreed that the phenomenon of women’s under-representation is attributable to three factors: the negative effect that the binomial electoral system has on women’s participation in politics; the closed, tradition-bound way in which the political parties operate; and the absence of affirmative action measures to improve women’s access to seats in political power, particularly in Congress.[151] According to the State, while the number of women in decision-making posts has increased considerably since 1991, women are still being shut out of traditional organizations. Their role is, for the most part, in the domestic sphere.[152] The Committee on the Elimination of Discrimination against Women noted with concern that although recent progress has been made in women’s participation in public life, women’s participation in Congress and in municipal government remains slight.[153]
113. ECLAC has identified a series of challenges that contribute to women’s low participation in popularly-elected positions, including the ambivalent relationship they have with power; the lack of backing from the citizenry for women candidates; the persistence of the sexual division of work; the lack of the knowledge necessary to act in the political realm; and the unreasonable expectations over the candidates. [154] They also mention the resistance of the politicians to recognize women as equals and their lack of access to financial resources for their campaigns.
114. Women hold very few leadership positions (president, secretary general and treasurer) in the political parties and the number of women who figure on the lists of candidates that the parties present to the Chilean electorate is still very small. In five congressional elections held during the period from 1989 to 2005, men accounted for 90.3% of the candidates run by the six parties that form Chile’s two main political coalitions, even though three of these parties have introduced voluntary quota measures.[155]
115. As for the legislative branch, efforts to get more women elected to Congress have been slow and inadequate. Out of 38 senators, only two women were elected in the period from 1990 to 2007. In the House of Deputies, 18 women were elected for the 2006-2010 term. The Commission also received information to the effect that at the present time, 12.7% of the members of Congress are women: 5% in the Senate and 15% in the House.[156] These figures are well below the average for women in congress around the world, which is 18.6%, and the average in the Americas, which is 21.6%.[157]
116. Having said this, women’s participation in local or municipal government, either as candidates for office or as members of municipal or town councils, is greater than in other realms of public power. Women’s heightened profile in municipal or local government is due to the fact that the male leadership of political parties is less concerned with winning positions at these levels of government, and because local government is viewed as being more immediately relevant to household and family issues.
117. As for the justice system, women are a significant presence on the benches of the lower courts. However, that presence diminishes on the more prestigious benches higher up in the justice system. The Commission observes, for example, that women are a significant presence on the benches of the juvenile courts, but less so in the courts of appeal; and very few women have ever had a seat on the bench of the Supreme Court. Dr. Lidia Casas, a professor at the Universidad Diego Portales, calls this phenomenon the “pyramid effect of women’s participation in the judicial branch.”[158] Dr. Casas describes the pyramid effect as the “strong female presence in first instance tribunals; the lesser presence in Appeals Courts and; the low presence in the Supreme Court or the Constitutional Tribunal.” [159]
118. The justice system does not necessarily recognize this pyramid effect and its link to discrimination against women. The delegation had a meeting with the Chief Justice of the Supreme Court, Enrique Tapia, who described the addition of three women to the bench of the Supreme Court as significant progress, when the Court has 21 members. He also noted that women figure more prominently in the lower courts, the family courts and in administrative posts. The Commission notes that the steps taken are still not sufficient to rectify the pyramid effect and its link to discrimination against women.
119. Furthermore, the Latin American Faculty of Social Sciences in Latin America and the Caribbean (hereinafter “FLACSO” or “FLACSO-Chile”) argues that social constructions of gender roles in Chile adversely affect and limit women’s participation in the political parties. Women suffer most from the uneven distribution of family responsibilities. The latter limit the time that women can devote to running a campaign. FLACSO-Chile and IDEA describe the situation as follows:
In effect, women who want to run for Congress often have to serve a lengthy apprenticeship or do political volunteer work before they have any chance of being selected. This can be problematic for many women, whose family obligations leave them with less time to do this type of party work.[160]
The impact of the binomial electoral system on women’s entry into political life
120. During the Commission’s visit, a number of sources pointed to the negative effect that the binomial electoral system has on women’s entry into Chilean political life, especially in the legislative branch. They made the point that proportional representation systems tend to be much more enabling of women’s participation.
121. The objective of the binomial system, used for the first time in Chile in 1989, is to reduce the number of political parties. This system features a representation system in which all districts choose the same number of lawmakers, two per district.[161]
122. According to FLACSO, one reason why women are so severely under-represented in the Chilean Congress[162] is that the binomial electoral system disadvantages women[163] because it prevents more candidates –male or female- from being nominated.[164] Women candidates have proportionally fewer opportunities to be nominated and, therefore, elected. Then, too, the political parties favor male candidates over female candidates.[165] María de los Angeles Fernández Ramil and Marcela Ríos Tobar, recognized experts on the subject in Chile, described how the current system adversely affects women’s participation in political life, as opposed to other systems like proportional representation:
The chronic under-representation of women in Congress is in large part the result of the opportunities that the current system offers and the obstacles it poses. The strong correlation between the type of electoral system and the degree of women’s participation has been established. Proportional representation systems, with multiple districts and closed slates, tend on average to have a much higher percentage of women elected to office than do the absolute majority systems. Furthermore, according to data compiled by the Inter-Parliamentary Union, all countries in which women hold more than 30% of the seats in the legislature have some variation of the proportional or mixed systems. One of the strongest reasons why this degree of representation has been achieved for women is that systems of this type are more conducive to implementation of affirmative action measures like quotas. Chile has a long way to go in this regard. With women accounting for only 12.6% of congressional seats, we are well below the average worldwide and in the region.[166]
123. The United Nations Committee on the Elimination of Discrimination against Women expressed its concern over the negative impact that the binomial electoral system has on women’s participation, stating that:
The Committee urges the State party to intensify its efforts to reform the binominal electoral system, which is unfavorable for women’s political representation, and take measures, in particular temporary special measures, aimed at accelerating de facto equality between women and men in order to increase the participation of women in political life, particularly in parliament and municipalities, in line with Article 4, paragraph 1, of the Convention and the Committee’s general recommendation 25, on temporary special measures, and general recommendation 23, on women in public life.[167]
124. To look into this system and its impact on the election of women to public office, the present Administration set up the Boeninger Commission, whose mandate was to analyze and submit proposals for reform of the “binominal” electoral system, with a view to identifying the essential and desirable criteria of a new electoral system based on proportional representation.[168] This Commission was one of the 36 measures taken in the first 100 days of the Administration of President Michelle Bachelet. On the question of women specifically, the Boeninger Commission’s final proposal recommended that a legal provision be introduced to establish equal representation of men and women in the membership of the Congress and achieve the levels of representation observed in other countries.[169] The proposal for that legal provision was that:
It shall be mandatory; in other words, lists of candidates that do not meet the legal minimum may not be registered with the electoral service. The Commission also decided to recommend an amendment to the electoral financing law to the effect that a woman elected to Congress or her respective party shall receive a “special subsidy”, in other words a larger amount per vote won, as a means of encouraging the inclusion of truly qualified women candidates.[170]
125. One of the questions raised about the Commission’s membership was that initially it did not include women who were experts on the subject. Nor did it include members of Congress, who have the power to pass or defeat any piece of legislation that would change the system.[171] Various civil society organizations criticized the Boeninger Commission’s Final Report for failing to consider affirmative action measures, such as a quota system or the like.[172] They were also critical of the Boeninger Commission’s proposals for not giving the political parties any real incentive to include women as candidates, with a real chance of being elected. The women experts who did serve on the Commission did propose measures to promote women’s participation in politics, such as subsidies to cover child care expenses during political campaigns. However, these were not among the proposals the Commission ultimately adopted.[173]
Legal initiatives to promote women’s equality in political participation
126. The Commission is troubled by the fact that Chile, a country in which women are severely under-represented in political life, still has not taken special affirmative action measures to ensure women’s access to and participation in positions of political power. The Commission received information from a variety of sources, all pointing to the fact that special measures like “quotas” are not viewed in a favorable light and that there is both cultural and political resistance to this type of initiative.
127. Political scientist María de los Ángeles Fernández Ramil, one of the women who served on the Boeninger Commission, described how quota laws are viewed in society:
Some of the objections raised are based on principle; others are more practical in nature. The objections based on principle argue that such laws violate the principle of equality and upset free competition. The argument goes that the distribution of resources within the beneficiary group is a mirror of social inequity; or that the adoption of a quota law would bring about a kind of revolution in expectations among other disadvantaged groups, who would then demand similar solutions. One of the criticisms mentioned most frequently is that political office should be won on the basis of merit and that quotas produce an unfair advantage (…) Another comment often heard is that quotas would put a “ceiling” on women’s political aspirations.[174]
128. Marcela Tobar Ríos, Director of FLACSO-Chile’s Governance Program and a member of the Boeninger Commission, identified a number of the arguments publicly vented against special measures, namely: that “quotas,” for example, have no place in a meritocracy and encourage unqualified persons to enter the political arena; that women should win elective office on their own merit; that women are not interested in politics; and that the State ought not to interfere in competitive elections.[175]
129. President Bachelet has emphasized the need for “support measures” to bring more women into national politics.[176] One of the initiatives she has introduced is a bill to amend the current law on Popular Elections and Ballot Tabulation, and the Law on Political Problems. The objective is to establish a minimum that each coalition must meet in terms of the percentage that women represent on the lists of candidates they present for congressional and municipal elections.[177] The President has said that she will also propose that the State provide greater financial support to women candidates. That financial support will be reduced when the coalitions nominate fewer women for elective office. [178]
130. As for other initiatives intended to improve women’s access to political office, previous administrations introduced two bills. The first, introduced in 1997,[179] proposed a system of minimum quotas to guarantee that women would represent at least 30% on the candidate lists of the parties or party coalitions running candidates in the elections. That bill was shelved in 2005. The second was introduced in 2003[180] and proposed that neither of the two sexes should represent for more than 60% of the candidates nominated by the parties or coalitions. This bill has seen little activity on the legislative agenda.[181] The State informed the IACHR recently about a bill to promote the equal participation of men and women in candidacies, to achieve a larger number of women candidacies.[182] The bill has the following objectives: “a) To determine a minimum of candidacies of men and women for municipal and parliamentary elections in the political collectivities; b) To establish more distribution of fiscal resources to the campaigns of female candidates that result elected, which will be reduced when the political parties decrease such candidacies in relation to the past election; and c) To promote equality in the access and exercise of positions in political parties.” [183]
131. The Commission recognizes the still preliminary initiatives of the current Administration to establish minimums and financial incentives with a view to increasing women’s participation in the political life of the country. These initiatives need to materialize in laws and measures, coupled with the mechanisms necessary for effective implementation to advance women’s involvement in Chile’s political life so that they account for a larger share of those in elected office.
C. Women’s equality in the labor sphere
Context
132. The Commission received information indicating that the Chilean legislation prohibits any discrimination, including discrimination in employment and occupation,[184] but several forms of discrimination still persist that limit women’s options to enter and remain in the labor market. The Commission is concerned by the fact that the percentage of Chilean women who enter and remain in the labor market in Chile is well below the average for Latin America, despite the country’s level of economic development and the modernization it has experienced in recent years.
133. The Commission notes that women in Chile are highly educated, even more educated than men. Even so, that education does not translate into jobs that carry greater responsibility or better pay. The salary gap between men and women performing the same job is alarming, and becomes even more pronounced the higher one goes up the ladder of responsibility. [185]
134. The Commission applauds the State’s efforts to propel women into the labor market by creating nurseries and encouraging their use. The creation of these nurseries is an initial but important step in enabling women to take a job. However, the Commission notes that a combination of factors conspire to make it difficult for women to enter the job market, not all of which have to do with protecting motherhood.
135. Society’s notion of family relations is informed by a discriminatory model that lays the bulk of the responsibility for care of the family on women’s shoulders. This limits their opportunities to enter the labor market. It also results in an unbalanced distribution of paid and unpaid work between women and men.[186]
136. ECLAC has stated that:
the sexual division of labour is at the heart of gender inequality, which is underpinned by a patriarchal family structure where the man is the highest authority and sole provider and there is a rigid division of tasks and responsibilities, regulated by social norms that have become ingrained over time.[187]
137. ECLAC also explains that the traditional sexual division of labor did not pose dichotomies between the reproductive and employment lives of women, since it assigned to two individual subjects – men and women – different spaces, action spheres and roles.[188] Women have historically been entrusted with household duties and the care of children, older people, those ill, and other members of the home, while men have historically been entrusted with productive and remunerated work. [189] The current problem is that women are increasingly been inserted in the labor market, while socially they are expected to undertake most household and care duties. [190] ECLAC describes that in its studies it has observed that more than half of the cases in which women between 20 and 24 do not find employment is due to the domestic work that they have to pursue in their homes, while in the case of men it is due to their studies and other reasons.[191] Public policies in Latin America have been inefficient in launching more equality in the family sphere. [192] In the case at hand, Chile has not been the exception to this situation.
138. During the visit, a number of civil society organizations underscored this discriminatory family model, where the sexual division of labor lays a disproportionate share of the burden for caring for family and household squarely on women’s shoulders, thereby limiting their options for entering the job market.[193] Their contention was that there were no alternatives to this model, which takes its toll mainly on women of childbearing age.[194] This means that public policy must push to have men and women share responsibilities, in both the public realm and the private realm. The idea is to improve women’s introduction in the labor market and encourage men to play a more active role in unpaid household activities.[195]
139. Under this discriminatory model of family, most Chilean women work in an unpaid sector. The economic value of their work is not counted.[196] This economic discrimination is compounded by the fact that married women do not have independent access to their property since, under the Civil Code, married women must have their spouses’ authorization to administer their property, unless the parties expressly agree otherwise. The division of family responsibilities between the two partners is such that the bulk of the work is left to women, the immediate consequences of which are reflected in the low percentage of women playing an active role in politics and in the scant recognition that they receive for their talents for wielding political power. All this combines to perpetuate gender-based discrimination.
140. The Commission also notes that gender discrimination is present in the job market, and manifests itself in the form of employers’ preference for hiring men, especially for executive positions.
141. The United Nations Human Rights Committee recently observed that:
The State party should redouble its efforts to combat discrimination against women in employment, through such measures as reversing the burden of proof in discrimination cases to favour women employees, so that employers must explain why women hold positions of lower rank, have lesser responsibilities and earn lower wages.[197]
142. Women’s participation in the workforce has increased considerably in the last 10 years.[198] From 34.6% in 1997, the figure rose to 38.5% in 2006.[199] Yet despite these advances, the State’s own figures indicate that the rate of women’s participation in the labor market is only 40.7%, by comparison to 72.3% for men.[200] That figure is below the average for Latin America as a whole, which is 45%.[201] Furthermore, according to the State’s figures, the rate of unemployment among women for the January-March 2008 quarter was 9.6%, whereas it was 6.4% for men.[202] The female work force was almost identical to what it was in the December 2007-February 2008 quarter, as only 9,000 women were added to the work force, while unemployment among women rose. According to the State, these results would appear to indicate that the strong growth in the women’s workforce could begin to slow down.[203]
143. According to the data from ECLAC, in 2006 women’s rate of participation in economic activity in urban areas was 45%, whereas it was 73% for men; the rate of open unemployment in urban areas was 9.5% for women and 6.3% for men. The incidence of poverty among female heads of household was 16.3%, whereas it was 14.7% among male heads of household.[204]
144. Young women, too, suffer the effects of gender inequality and encounter greater obstacles than their male counterparts when attempting to enter the labor market. According to figures supplied by the State, unemployment in the 15-19 year age group is 24.2% (31.9% for women and 20.6% for men).[205] In the age group of 20-24 years, unemployment among young women (18.9%) is higher than it is among young men (15.9%).[206]
145. The Commission was told that most women in the labor market are working in jobs that society has traditionally regarded as “women’s work”, such as domestic service.[207] Over 80% of the female work force is concentrated in the tertiary sector, particularly in community and personal services (43.7%) and in commerce (25.9%).[208] The Commission is also struck by the fact that only 2% of all employed women are in executive or management positions.[209]
146. As a result, women are over-represented in the lowest-paying and least prestigious jobs and under-represented in employer and executive positions,[210] thereby exposing gender-based discrimination. A number of civil society organizations described this situation to the IACHR Rapporteurship and underscored the fact that occupational segregation persists in Chile.
147. As for the terms and conditions of employment, the Commission observes a discrepancy between salaried men and women with respect to employment contracts, especially in the case of the women at the bottom of the pay scale.[211] According to figures supplied to the IACHR, 25% of women wage earners are working without an employment contract, as opposed to 20% of men.[212] The situation is even worse in the case of women wage earners in the lowest-income quintiles, half of whom do not have formal employment contracts.[213] The United Nations’ Committee on the Elimination of Discrimination against Women expressed concern over the fact that only 39.7% of low-income working women have a formal employment contract, which is a considerable disadvantage vis-à-vis the social security system.[214]
148. As a global phenomenon, the relaxation of laws relating to terms of employment has taken a toll on job stability in Chile and has, as a result, affected employment rates among women. The statistics show that 22.8% of working women are self-employed, and thus have no contract of employment.[215] This means that these women have no form of protection at all, because legally speaking they are self-employed workers and would therefore not be protected under the Labor Code. This affects their social security, the right to maternity leave, and other rights.
The discriminatory wage gap
149. The Commission notes with concern that despite the fact that women are more educated than men, a significant wage gap separates men and women.[216] This would suggest that the additional years of education have not translated into more and better job opportunities for women.[217] The studies conducted by ECLAC at the regional level have shown time and time again that the discrimination against women in the area of occupation and employment is obvious in their wages and salaries, irrespective of level of education.[218]
150. The Commission notes that the monthly income that women receive from their main job is 67.4% of the income that men receive.[219] The greater the educational level and the more responsibilities the post carries, the greater the income disparity.[220]
151. The significant wage and salary difference between men and women, which increases with women’s age, level of education and job responsibilities, was also troubling to the Committee on the Elimination of Discrimination against Women, which underscored the fact that women in management positions are paid on average 50% less than men.[221]
152. The State presented information before the IACHR about a bill to promote equality in the salaries between men and women, which declares discriminatory unjustified differences and establishes measures to eradicate them.[222]
Rights enjoyed by pregnant working women
153. Book II of the Chilean Labor Code[223] contains a series of provisions setting out a number of rights that pregnant working women have.[224] One provision makes it unlawful to demand a “pregnancy test,” while another makes it illegal to dismiss a woman from her job for the duration of her pregnancy and for one year after completion of the postpartum rest period (which is 12 weeks after delivery), unless the dismissal is for serious cause.[225] Under the law, a pregnant woman cannot be required to perform work that would be harmful to her pregnancy; the law provides that she shall be transferred to another job that is not harmful to her condition, at no loss of pay.
Nurseries
154. The Commission applauds the current administration for enabling women’s entry into the job market by creating nurseries. According to the government, in just two years, the number of nurseries has tripled. These nurseries are now serving 40% of the children from Chile’s low-income families. The current administration has said that between 2006 and 2007, more nurseries were built than had been built in the last 37 years.[226] President Michelle Bachelet has said that 900 nurseries will be built each year until the year 2010.[227] These are for children under age 2, whose mother or responsible adult works, is looking for work, studies or is in a special risk situation.[228] The Commission encourages this initiative and hopes that it continues apace.
155. In connection with the labor laws, the Commission takes a positive view of the provisions of Chile’s Labor Code that make it mandatory for businesses to create nurseries to protect working mothers. However, the Commission believes that the provisions of the Code need to be reviewed to correct any discriminatory effect that those provisions could, in practice, have on women.
156. Under the Chilean Labor Code, businesses that employ 20 or more women, regardless of age or marital status, are required to have nursery annexes separate from the workplace, where women can nurse or feed their children under the age of 2 and leave them while they are at work.[229] The employer must have a competent person to care for the children, who shall preferably be a nurse’s aide.[230] The State, by way of the technical commission of the national school construction plan of the Ministry of Public Education, will approve the modification or construction of those nurseries.
157. The Commission was told that in practice, the effect of this provision is discrimination against women. Because the law stipulates that the provision applies to businesses that employ 20 or more women, rather than –for example- “x” number of employees, regardless of gender, businesses are careful to hire no more than 19 women workers and thus circumvent the nursery requirement.[231] This is because the Code stipulates that the existence and upkeep of the nurseries shall be one of the employer’s responsibilities.[232]
158. The Commission observes that 63.2% of working women are employed in small- or medium-sized businesses, which would mean that the vast majority of women are working in businesses that employ fewer than 20 women workers and thus do not enjoy the childcare benefit required under the Labor Code.
159. The Commission was told that two bills are currently before the House of Deputies to make nursery services more accessible to working mothers.[233] Under one bill, other professionally qualified persons would be able to provide child care service.[234] The purpose of the second bill is to amend Article 203 of the Labor Code so that women can leave their children in child care while at work or when on medical or administrative leave.
160. Passage of these bills has to be matched by effective implementation measures, which would include crafting multi-sector, prevention-oriented public policies; the necessary regulations; earmarking of sufficient funds to implement the new laws properly; and instruction and sensitivity training for public officials.
Maternity or paternity leave
161. Under the Labor Code, women are entitled to eighteen weeks’ maternity leave (six weeks prenatal and twelve weeks postpartum). Leave cannot be waived. In the case of fathers, in 2005 Law 20,047 was passed, amending the Labor Code to introduce 4 days’ leave for fathers upon the birth of a child. This leave is also granted to a father who is adopting a child, and begins as of the date the decision becomes final.
162. In the case of illness, the law grants supplemental leave for rest during pregnancy, birth and as a consequence of delivery, all upon presentation of a medical certificate.
163. The law provides that if the mother dies in birth or during the postpartum leave period, the leave or rest period for the person who cares for the child shall go to the father. The premise of this provision is that so long as the mother is alive, the responsibility for raising an infant during its first months of life is hers; however, should the mother die, the rights associated with the care of her children will go to the father.[235] Under Law No. 19,670, the father was guaranteed postnatal leave in the event of the mother’s death, and protection against dismissal for the duration of the postpartum period.
164. The legislation also entitles the woman who is on maternity rest or supplementary rest to receive a subsidy. So, too, the father in the event the mother dies in delivery or during the postpartum leave period. That subsidy will be equivalent to full pay and benefits. All the proper social security taxes and legal deductions will be deducted.[236]
165. In 2007, an infant nursing law (Law No. 20,166) was enacted which gives women the right to leave their place of work for one hour to nurse their children under the age of 2, irrespective of whether rooms for nursing are available at their place of work.[237]
Social security and its impact on women
166. The social security system in Chile is based on individual capitalization. The pension that the retiree receives is directly proportional to the amount that he or she has amassed over the years that he or she paid into the system.[238] The Commission was told that the system discriminates against women, because their participation in the workforce is, relatively speaking, much smaller than men’s. They are also less likely to have an employment contract, receive less in terms of wages and salaries, and participate in the job market intermittently. Their longer life expectancy and earlier retirement age also affect their access to the system and to their pensions.[239]
167. One of the requirements to qualify for the State-guaranteed minimum pension is a minimum of 240 months of work. This directly impacts women, because frequently they interrupt their careers to have babies and care for children, the ill, and the elderly, which is, as a rule, unremunerated work.[240]
168. According to statistics supplied to the IACHR, of all the working men and women interviewed in Greater Santiago, 50.8% of women described their careers as sporadic or interrupted over the 10-year period studied, while the figure dropped to 33% for men.[241] Furthermore, 9% of the men and 20% of the women had never paid into the pension system. In the case of women, the Commission finds that nonparticipation in the system is most common among women workers in the low socio-occupational group, composed of self-employed women, women who are low wage earners and women who are in domestic service. The 2004 Social Protection Survey found that over 70% of workers who never joined the pension system are women.[242]
169. In this regard, the Committee on the Elimination of Discrimination against Women recommended to the State that it develop a comprehensive system to monitor the contracts of temporary and seasonal workers and take measures to eliminate practices that disadvantage women in the social security system.
Basic and professional training
170. The Labor Code provides that the business or firm is responsible for activities associated with its employees’ occupational training, defined as the process to promote, enable, cultivate and develop its employees’ aptitudes, skills or knowledge to afford them better opportunities and better working and living conditions.[243] The employees who receive the occupational training shall remain at full pay, regardless of any change made to their hours of work. Nevertheless, overtime incurred for training shall not entitle the employee to overtime pay.
171. The Code also provides that in those cases in which the employer provides training to an employee under age 24, he may, with the employee’s consent, deduct the cost of that training from any benefits he may be entitled to receive for termination of contract, limited at 30 days’ compensation. It also states that the hours that the worker devotes to these training activities shall be regarded as part of the work day and will be factored as pay.
172. In this regard, the Commission expects that these training activities will be divided equally between men and women, without discrimination of any kind.
Legal initiatives to promote women’s equality in the workplace
173. The women’s rights bills currently under discussion in the National Congress include one that amends the Labor Code, protecting the right to equal pay for men and women for work of equal merit.[244] A bill intended to achieve that kind of equality is of the utmost importance, as it is an effort to reinforce, in law, the general principle of basic human rights and labor rights, which is equal pay for work of equal value. The IACHR is hopeful that this bill will be passed swiftly.
174. Law 20,005, enacted in 2005, introduces the offense of sexual harassment in the workplace. That law covers harassment by a superior and harassment by co-workers.
175. The Commission was also told about a bill that provides for more flexible use of maternity leave. The purpose of this bill is to allow a pregnant employee to move the first three weeks of prenatal rest and add it to the postpartum leave period, provided she has written authorization from a physician and so advises her employer and the Office of the Labor Inspector two months prior to the likely delivery date.[245] The Commission encourages this initiative and hopes that it will win quick approval.
Legal initiatives intended to promote women’s equality in social security matters
176. The Commission appreciates the efforts to reform the social security system in view of the impact that those reforms could have on women’s economic and social rights. It therefore applauds the creation of the basic solidarity pension [Pensión Básica Solidaria], which entered into force on July 1, 2008.
177. The basic solidarity pension expands upon the current individual capitalization system and introduces a system of guaranteed pensions for men and women over age 65, who have not managed to put together a pension by the time of their retirement. That guaranteed pension will be 60 thousand pesos, which will increase to 75 thousand in July 2009. Also, those persons who have contributed to their retirement but have not amassed sufficient funds to receive an adequate retirement pension, will receive a solidarity-based pension contribution, which will be a top up of up to 60,000 pesos. However, in their case, the amount will gradually increase until the total pension is 200 thousand pesos by 2012.[246] The Commission is pleased with the direct benefit that this system will bring, mainly to women, since estimates are that more 60% of the basic pensions will go to women.[247]
[ table of contents | previous | next ] [47] United Nations, Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/CHI/4, May 17, 2004; during its visit, the IACHR Rapporteurship also learned that a bill, introduced by a Presidential Message and currently under discussion, would safeguard the principle of nondiscrimination within the legal system and reaffirm the State’s duty to craft policies and adopt measures to ensure protection against “arbitrary discrimination” based on a variety of factors, gender among them. The bill defines “arbitrary discrimination” as any arbitrary distinction, exclusion or restriction based on such criteria as the victim’s ideology, religion, or beliefs, ethnicity, race, sex, gender and sexual orientation, among others, and that has the effect of depriving, disturbing or threatening the lawful exercise of legally protected rights, including those protected by international treaties ratified by Chile and currently in force. Information supplied by the Legal-Legislative Division, Office of the Minister Secretary General of the Office of the President, Government of Chile, September 13, 2007. [48] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 95. [49] Amnesty International, On Chile’s Compliance with the CEDAW, p. 4. Delivered to the delegation during its working visit to Chile. [50] Amnesty International, On Chile’s Compliance with the CEDAW, p. 4. Delivered to the delegation during its working visit to Chile. [51] Fourth Periodic Report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, p. 12 (which the Chilean State sent to the IACHR by note No. 111, May 7, 2007). [52] United Nations, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/CO/4, 36th Session, August 25, 2006, paragraph 9. [53] The Rapporteurship Delegation’s interview with the Minister Secretary General of the Office of the President, Mr. José Antonio Viera-Gallo, Working Visit to Chile, September 13, 2007. [54] Law 18.802 of June 9, 1989. [55] A bill has been introduced to amend the Civil Code and related laws on the subject of conjugal partnership or community property, to give both spouses equal rights and obligations. This bill will be discussed in the section on legal initiatives. See the Senate of Chile, Processing of Bills, Bill amending the Civil Code and related laws on the subject of conjugal partnership or community property, to give the husband and wife equal rights and obligations (Bulletin No. 1,707-18), available online at: http://sil.senado.cl/cgi-bin/index_eleg.pl?1707-18. [56] Civil Code of the Republic of Chile, Articles 1715 and seq. Under Chile’s matrimonial property regime, which dates back to 1857, the husband has the authority to administer the property of the family and of his wife, unless it is expressly agreed in advance that each spouse’s property shall be completely separate or that the assets acquired while the marriage lasts will be divided in half in the event of a divorce or the death of a spouse. It is important to note that most married Chilean women (64.8%) were married under the matrimonial property or community property regime, although the separate property system is gaining popularity. By 1995, some 22.9% of marriages were contracted under the separate property system; ten years later, in 2005, that figure had climbed to 34.7%. See Inter Press Service News Agency, Daniela Estrada, “Mujeres-Chile: Estado mantiene discriminación en el matrimonio”, 2007, Available online at: http://ipsnoticias.net/nota.asp?idnews=41571. [57] See Corporación Humanas, Loreto Bravo, “Algunas tendencias sobre autonomía personal y familia en Argentina, Bolivia, Colombia, Chile, Ecuador y Perú,” Working Paper, p. 7, available online at: http://www.humanas.cl/documentos/autonomiapersona.pdf. [58] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 97. [59] The Civil Marriage Act was enacted on May 7, 2004. [60] United Nations, Convention on the Rights of the Child, Article 1; United Nations, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/CO/4, 36th Session, August 25, 2006, paras. 21-22; United Nations, Committee on the Rights of the Child, General Comment 4, Adolescent health and development in the context of the Convention on the Rights of the Child, CRC/GC/2003/4, 21 July 2003, para. 9. However, civil society organizations have criticized the new Civil Marriage Act because it provides that marriage can be celebrated before a minister of the church, who within a period of 8 days, has to register the act performed with the civil jurisdiction. They claim that this change vests upon church ministers the same competencies as those of the civil ministers. Therefore, they argue, it is a major step backward, because it blurs the line between church and state. Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 97.[61] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 7. The State equally informs about the adoption of Law 20.239, published in the Daily Journal of February 8, 2008, which exempts from the rent tax the economic compensations stemming from the ending of a marriage. The State alleges that this provision reflects different positions contained in the “parliamentary motions that sought to correct the situation of the divorced partner who had to pay the rent tax for the compensation received, contrary to what occurred when the sum was determined by a judicial sentence.” Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 7. [62] Bill establishing regulation for de facto unions (Bulletin No. 4153-18). [63] Efectiva Retención de Devolución de Impuestos a Deudores de Pensiones Alimenticias, May 7, 2008, Communications Department, National Women’s Service, http://www.sernam.cl/ opencms/ sernam/modules/noticias/news_0138.html. [64] See Law No. 20,152 enacted on December 22, 2006, and published on January 9, 2007, http://www.bcn.cl/leyes/pdf/actualizado/257179.pdf. [65] See Efectiva Retención de Devolución de Impuestos a Deudores de Pensiones Alimenticias, May 7, 2008, Communications Department, National Women’s Service, http://www.sernam.cl/opencms/sernam/modules/noticias/news_0138.html; Directora del SERNAM llama a solicitar retención de devolución de impuestos a los deudores de pensiones alimenticias, February 14, 2008, http://www.sernam.cl/opencms/opencms/sernam/regiones/4/noticias/ news_0014.html. [66] Fourth Periodic Report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, pp. 119-126 (sent by the Chilean State to the IACHR by note No. 111, May 7, 2007); according to information supplied by the State, in 2001 50.3% of women interviewed for a study, all between the ages of 15 and 49 and living at that time or previously in a marriage or partnership in the metropolitan region, said they had suffered some form of violence from their partner. See Second Study on the "Detection and Analysis of the Prevalence of Family Violence", Metropolitan Region and the IX Region of Araucania,” which followed the basic protocol of the World Health Organization, SERNAM, 2001, cited in Chile’s Response to the Questionnaire of the IACHR Rapporteurship, 2005, p. 29, footnote 15. The same study found that while violence is more prevalent among the poorer sectors of society and among those who have less access to education, it is in practice a phenomenon that affects all women. 14.9% of the women interviewed said they had been victims of sexual violence; 82.4% of these said they had been physically forced to have sex; 69.9% gave in out of fear, and 48.9% said they had been forced to perform degrading sexual acts. See Chile’s Response to the Questionnaire of the IACHR Rapporteurship on Access to Justice for Women Victims of Violence in the Americas, 2005, p. 29. [67] The SERNAM characterizes as a “national shame” the statistics related to femicide, in La Nación, March 25, 2007. [68] Results of the meeting with the Rapporteurship’s delegation with civil society organizations that work for the protection of women’s rights, 11 September 2007 (Centro Regional de Derechos Humanos y Justicia de Género (Humanas) [Regional Center for Human Rights and Gender Justice], Amnesty International, the Agrupación Nacional de Empleados Fiscales de Chile / Central Unitaria de Trabajadores [National Coalition of Chilean Civil Servants/Confederation of Labor] (ANEF/CUT), Asociación Nacional de Mujeres Rurales e Indígenas [ National Association of Rural and Indigenous Women] (ANAMURI), Centro de Estudios de la Mujer [Women’s Studies Center] (CEM), Colegio de Enfermeras [Nursing School], Corporación Participa [Corporation Participa], Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], and the Latin American and Caribbean Women’s Health Network (LACWHN)). [69] See Second Study on the "Detection and Analysis of the Prevalence of Family Violence", Metropolitan Region and the IX Region of Araucania,” which followed the basic protocol of the World Health Organization, SERNAM, 2001, cited in Chile’s Response to the Questionnaire of the IACHR Rapporteurship on Access to Justice for Women Victims of Violence in the Americas , 2005, p. 29, footnote 15. [70] See Chile’s Response to the Questionnaire of the IACHR Rapporteurship on Access to Justice for Women Victims of Violence in the Americas, 2005, p. 29. [71] SERNAM, Feminicides 2007: 62 feminicides were registered, in http://www.sernam.cl/ opencms/opencms/sernam/programas/violencia/feminicidio2007.html. [72] Qualitative study done with young people of both sexes, between the ages of 15 and 25, from various socioeconomic sectors and levels of education, conducted through 16 focus groups in the Metropolitan and Bío-Bío regions. Study that SERNAM commissioned from the Corporación Domos (2002), cited in Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 77, note 198. [73] Amnesty International, On Chile’s Compliance with CEDAW, p. 5. Delivered to the IACHR Delegation during its visit to Chile. [74] “Feminicide” has been defined as “an expression of violence with a variety of manifestations, depending on the social milieu in which it occurs and the characteristics of the perpetrator, whether he be a partner or former partner in the woman’s private life, or the ultimate manifestation of sexual violence in the public realm (…) for femicide to be present, it must involve “criminal silence, omission, negligence and collusion on the part of the authorities charged with preventing and eradicating these crimes.” See ECLAC,¡Ni Una Más! El Derecho a Vivir Una Vida Libre de Violencia en América Latina y el Caribe ["Not one more! Women's right to a life free of violence in Latin America and the Caribbean"], October 2007, p. 67. [75] See, Red Chilena contra la Violencia Doméstica y Sexual, Feminicidio en Chile, Dossier Informativo, November 14, 2007, cited in ECLAC, ¡Ni Una Más! El Derecho a Vivir Una Vida Libre de Violencia en América Latina y el Caribe ["Not one more! Women's right to a life free of violence in Latin America and the Caribbean"], October 2007, p. 68. [76] Law 17,995 from 1981, and Law 18,632 dating from 1987, created the system governing pro bono legal assistance by creating four non-profit legal aid societies under public law, whose basic mission is to provide pro bono legal aid to persons of limited means. This information was supplied by specialists from the Ministry of Justice during the working visit. [77] Information supplied by specialists from the Ministry of Justice during the working visit. [78]Red Chilena contra la Violencia Doméstica y Sexual, Dossier Informativo 2007, http://www.normasviolenciacontramujeres.cl. [79] Annual Statistics Newsletter 2007, Public Prosecutor’s Office, p. 295. [80] Red Chilena contra la Violencia Doméstica y Sexual, Dossier Informativo 2007, http://www.normasviolenciacontramujeres.cl . [81] At the present time, the legal framework is applied by the Family Courts, the Public Prosecutor’s Office, the courts of due process and constitutional rights, and the courts for oral argument. [82] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 7. [83] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 2. [84] This law is coupled with Law 19,968 on Family Courts, the Criminal Code and the Code of Criminal Procedure as they pertain to violence in the criminal law system. Information supplied by specialists from the Ministry of Justice during the working visit. [85] The persons protected under this new law are: fathers, children, grandchildren, grandparents, brothers and sisters, aunts and uncles, nieces and nephews, spouses, partners and former partners and their adoptive or adopted next of kin. [86] Law 20,066 on Domestic Violence. See Chile’s response to the questionnaire from the IACHR Rapporteurship on Access to Justice for Women Victims of Violence in the Americas, 2005, pp. 7 and 19, concerning the amendments made to Article 400 of the Penal Code. [87] Article 14 of Law No. 19, 968 provides that the family court judge shall decide whether the conduct reported constitutes a repeated behavior, and if so, refer the case files to the Public Prosecutor’s Office. [88] Lidia Casas, Maria Jose Armasen, Nataly Ponce, Claudia Dides, Camila de la Maza and Ximena Báez, La Defensa de Casos de Violencia Intrafamiliar bajo la Ley 20.066, Report for the Office of the Public Criminal Defender, March 2007. [89] This program, underway since 1991, has a prevention-and-response model for intervention that makes provision for creating permanent structures in the municipalities such as networks, and the formation of self-help groups. All State services have to be coordinated, instructors have to be trained and a set of communication- and prevention-related activities conducted. IACHR, Hearing Summary, Hearing No. 43: Domestic Violence in Chile, 127th regular session, March 7, 2006; see, also, IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007, para. 276. [90] IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007, para. 276. This plan, crafted by the Inter-ministerial Commission for the Prevention of Domestic Violence, has been in operation since 2000, and is for the 2001-2006 period. The Plan proposes measures in the following areas: legislation, communications, promotion and prevention, training, response or public supply of services, knowledge creation. IACHR, Hearing Summary, Hearing No. 43: Domestic Violence in Chile, 127th regular session, March 7, 2006. [91] IACHR, Hearing Summary, Hearing # 43: Domestic Violence in Chile 127th regular session, March 7, 2006. [92] In March 2005, SERNAM began to craft a Public Policy to Prevent, Respond to and Punish Domestic Violence against Women. The State indicated that it expected to have a public policy proposal ready for delivery to the authorities in the three branches of government. IACHR, Hearing Summary, Hearing No. 43: Domestic Violence in Chile, 127th regular session, March 7, 2006. [93] Information updated to July 25, 2007, SERNAM Web page: http://www.sernam.cl/publico/seccion.php?sec=29 [94] IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007, para. 289. [95] IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007, para. 253. [96] Chilean Police Force, Office of the National Director for Public Safety and Order, the Police Force’s Family Protection Office. Report on Femicide in Chile, 2006 (which the Chilean State sent to the IACHR by note No. 111, dated May 7, 2007). [97] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 6. [98] Information supplied by specialists from the Ministry of Justice during the Rapporteurship’s working visit, September 12, 2007. [99] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 6. [100] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 2. [101] The State informs that the agreement with the Ministry of Health seeks to provide attention in “mental health, traumatology, gynecology, dental and/or ophthalmology” to 100% of the users of the shelters that require it and to provide health services to 100% of the sons and daughters of the users of the shelters that require them. The agreement with the National Service of Training and Labor is geared towards guaranteeing the access to scholarships in all labor training programs for 320 users of the shelters and to favor the insertion of 100% of the users of the shelters to the subsidy related to the contracting of the businesses. The agreement with the Ministry of Justice provides that the lawyers of the Legal Assistance Corporation will offer legal assistance to 100% of the users of the shelters that require it, in themes related to family matters, food pensions and the regulation of visits, among other benefits. The agreement with the Housing Ministry provides preferential access to the social housing programs for the users of the shelters that require it, and offers access to the users of the shelters to subsidy programs for used houses. Finally the agreement with the Ministry of Social Assets offers to the SERNAM national assets from the fiscal patrimony, for the shelters of the domestic violence program, which can be utilized in all regions of the country, including the Metropolitan Region. Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 3. [102] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 4. [103] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [104] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 5. [105] IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc. 68, January 20, 2007, para. 188. [106] Demanda colapsa a tribunales de familia [Demand overwhelms the family courts], El Mercurio, Santiago, November 28, 2005, Santiago, December 30, 2006. [107] Law 19,968. [108] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 102. [109] Lidia Casas, Mauricio Duce, Felipe Marín, Cristian Riego, Macarena Vargas, El Funcionamiento de los Nuevos Tribunales de Familia: Resultados de una Investigación Exploratoria, available online at www.cejamericas.org. [110] Duce, Casas, Riego, Marín et al., “El Funcionamiento de los nuevos Tribunales de Familia; Resultados de una Investigación Exploratoria”, Universidad Diego Portales, 2005, p. 5, www.udp.cl. [111] Meeting that the Rapporteurship delegation had with civil society organizations dedicated to the protection of women’s rights, September 11, 2007 (Centro Regional de Derechos Humanos y Justicia de Género (Humanas) [Regional Center for Human Rights and Gender Justice], Amnesty International, the Agrupación Nacional de Empleados Fiscales de Chile / Central Unitaria de Trabajadores [National Coalition of Chilean Civil Servants/Confederation of Labor] (ANEF/CUT), Asociación Nacional de Mujeres Rurales e Indígenas [ National Association of Rural and Indigenous Women] (ANAMURI), Centro de Estudios de la Mujer [Women’s Studies Center] (CEM), Colegio de Enfermeras [Nursing School], Corporación Participa [Corporation Participa], Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], and the Latin American and Caribbean Women’s Health Network (LACWHN)), [112] Universidad Diego Portales, School of Law, 2007 Annual Report on Human Rights in Chile, 2006 Facts, Access to Justice and Family Courts, p. 157. [113] Law 17,995 from 1981, and Law 18,632 from 1987, established the system of pro bono legal aid by creating four nonprofit legal aid societies under public law, whose basic mission is to provide pro bono legal assistance to persons of limited means. Information supplied by specialists from the Ministry of Justice during the working visit. Women account for 60% of those who use the systems for mediation, conciliation, negotiation and legal representation, services that the legal aid society provides. According to the Legal Aid Society, the principal issues in the cases brought to family courts between January and March 2007 broke down as follows: 64.47% concerned the custody and care of children; 24.27% concerned protective measures for children and adolescents; and 20.67% were domestic violence cases. Corporación de Asistencia Judicial, Family Justice Report, Santiago, Chile, March 2007, p. 108. [114] IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007, para. 15, footnote 16. [115] IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007, para. 15, footnote 16. [116] See Chile’s reply to the questionnaire from the IACHR Rapporteurship 2005 on Access to Justice for Women Victims of Violence in the Americas, paragraph 15. (The State reported that in 2004, “106,000 complaints of domestic violence were brought in civil courts. There were only 780 convictions that year.”). [117] IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007, paragraph 15, footnote 17. [118] Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 2. [119] Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], Dossier Informativo 2007, http://www.normasviolenciacontramujeres.cl [120] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [121] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [122] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [123] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [124] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [125] Chilean Senate, Processing of Bills, Bill amending the Civil Code and laws on the subject of conjugal partnership or community property in order to grant husband and wife the same rights and obligations (Bulletin No. 1,707-18), available online at: http://sil.senado.cl/cgi-bin/index_eleg.pl?1707-18. [126] Under the new regime, when the parties marry, they are under a deferred community of property regime, unless they agree otherwise. See Committee on the Elimination of Discrimination against Women. Concluding Comments, Chile, CEDAW/C/CHI/CO/4, August 25, 2006, paragraph 9; see also Committee on the Elimination of Discrimination against Women: Responses, Chile, CEDAW/C/CHI/Q/4/Add.1, June 8, 2006, p. 3; Committee on the Elimination of All Forms of Discrimination against Women: Fourth periodic report of the Government of Chile, CEDAW/C/CHI/4, May 17, 2004, paragraph 88. Under the new regime, during the life of the marriage each spouse independently administers the property, his or her own property and any community property built up during the marriage. Under this regime, each spouse must give his or her consent to transfer, assess or promise to convey or assess real estate. When the marriage is dissolved, a judge divides the community property in half, which protects the more economically disadvantaged of the two spouses. [127] Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004 (which the Chilean State sent to the Commission by note No. 111, dated May 7, 2007), para. 87. [128] Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, paragraph 88 (which the Chilean State sent to the Commission by note No. 111, dated May 7, 2007), para. 87. [129] Under Chilean law, while a bill is being processed, the President of the Republic can underscore its urgency, irrespective of which chamber has it under discussion or how far along the bill is in the process. The message from the executive branch concerning the urgency of the bill can fall into one of three categories: “simple,” “extreme,” and “for immediate consideration.” The classification system means that the bills are to be dispatched within 30 days, 10 days or 3 days, respectively. See web page of the Ministry of the General Secretariat of the Office of the President at www.minsegpres.gob.cl [130] Bill on Family Courts (Bulletin No. 4438-07). [131] During the visit, the Commission learned that this bill was before the Senate, in the second stage of the process as laid out in the Constitution. It is ranked as a bill of simple urgency. [132] Universidad Diego Portales, School of Law, 2007 Annual Report on Human Rights in Chile, 2006 Facts, Access to Justice and Family Courts, p. 145. A number of sources highlighted significant shortcomings in the content of the bill, including its exclusive focus on increasing the number of judges and personnel, while ignoring the problems with management of existing resources; representation of parties by pro bono attorneys which is not a guarantee of a quality defense; and mediation established as a required preliminary in some cases considered to be problematic because one party is more powerful than the other. [133] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 7. [134] Information supplied by the Legal-Legislative Division of the Ministry General Secretariat of the Office of the President. [135] Bulletin No. 4886-07. [136] Bulletin No. 5200-07. [137] This bill is currently in the first stage of the constitutional process, i.e., it is before the House of Deputies (Constitution Commission). It is classified as simple urgency (information updated as of August 24, 2007, web page of the Ministry of the General Secretariat of the Office of the President). [138] Bulletin No. 4937-18. This bill is currently in the first stage of the constitutional process, i.e., it is before the House of Deputies (Family Commission). It is classified as simple urgency (information updated as of August 24, 2007, web page of the Ministry of the General Secretariat of the Office of the President). [139] Bill contained in Bulletin 5376-1, to modify the Law Nº 20.066 about domestic violence. Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [140] Bulletins Nº 5.706-18 and 5.812.18, Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [141] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 8. [142] Bulletins Nº 3810-18 and 4149, Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, ps. 8 and 9. [143] Inter-American Commission of Women, National Report: Chile, 2006. [144] ECLAC, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Women’s Contribution to Equality in Latin America and the Caribbean,” August 6-9, 2007, Quito, Ecuador, p. 19. [145] Universidad Diego Portales, School of Law, 2007 Annual Report on Human Rights in Chile, 2006 Facts, Women’s Human Rights, p. 251; Corporación Humanas, Corporación Humanas entrega primer balance sobre paridad de género, June 2006. [146] Address by the President of the Republic, Michelle Bachelet, to the Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, Ecuador, August 6, 2007. [147] Address delivered by the President of Chile, Michelle Bachelet, at the opening of the Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, August 6, 2007, Quito, Ecuador. [148] See IACHR, Thematic Hearing, Participation and Access of Women to Political Power in the Americas, 127th regular period of sessions, March 2007; Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 107. [149] See Marcela Tobar Ríos, Representación Política de las Mujeres Porque los Números si Importan? [Political Representation of Women: Why the Numbers Matter], FLACSO-Chile, January 2007, at http://www.flacso.cl; Universidad Diego Portales, School of Law, 2007 Annual Report on Human Rights in Chile, 2006 Facts, Women’s Human Rights, citing figures from the UNDP, the Report states that Chile ranks 72nd in the world when it comes to women’s representation in the legislative branch. [150] FLACSO-Chile and IDEA, Cuotas de Género: Democracia y Representación [Gender Quotas: Democracy and Representation] (2006). [151] See IACHR, Thematic Hearing, Participation and Access of Women to Political Power in the Americas, 127th regular period of sessions, March 2007; FLACSO-Chile and IDEA, Cuotas de Género: Democracia y Representación [Gender Quotas: Democracy and Representation] (2006), p. 46. [152] Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, pp. 32-34 (which the State sent to the Commission by Note No. 111, of May 7, 2007).
[153]
United Nations, Concluding Comments of the Committee on the
Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/CO/4,
36th Session, August 25, 2006, [154] ECLAC, Women’s and Development Unit, Line Bareiro, Oscar López, Clyde Soto and Lilian Soto, Sistemas Electorales y Representación Femenina en América Latina [Electoral Systems and Female Representation in Latin America], Santiago de Chile, May 2004, p. 7. [155] FLACSO-Chile and IDEA, Cuotas de Género: Democracia y Representación [Gender Quotas: Democracy and Representation] (2006). [156] Results of the meeting with the Rapporteurship’s delegation with civil society organizations that work for the protection of women’s rights, 11 September 2007 (Centro Regional de Derechos Humanos y Justicia de Género (Humanas) [Regional Center for Human Rights and Gender Justice], Amnesty International, the Agrupación Nacional de Empleados Fiscales de Chile / Central Unitaria de Trabajadores [National Coalition of Chilean Civil Servants/Confederation of Labor] (ANEF/CUT), Asociación Nacional de Mujeres Rurales e Indígenas [ National Association of Rural and Indigenous Women] (ANAMURI), Centro de Estudios de la Mujer [Women’s Studies Center] (CEM), Colegio de Enfermeras [Nursing School], Corporación Participa [Corporation Participa], Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], and the Latin American and Caribbean Women’s Health Network (LACWHN)); IACHR, Thematic Hearing, Women’s Participation in and Access to Political Power in the Americas, 127th regular period of sessions, March 2007; FLACSO-Chile and IDEA, Cuotas de Género: Democracia y Representación [Gender Quotas: Democracy and Representation] (2006), p. 45. [157] Marcela Ríos Tobar, Director of the Governance Program, FLACSO-CHILE, Representación Política de las Mujeres: ¿Por qué los números si importan? [Political Representation of Women: Why the Numbers Matter], January 2007, citing figures from the Inter-Parliamentary Union, http://www.ipu.org. [158] Professor Lidia Casas, Mujeres en el Sistema de Justicia [Women in the Justice System], Universidad Diego Portales, Meeting of Experts, IACHR, , Santiago, Chile, September 14, 2007. [159] Professor Lidia Casas, Mujeres en el Sistema de Justicia [Women in the Justice System], Universidad Diego Portales, Meeting of Experts, IACHR, September 14, 2007. [160] FLACSO-Chile and IDEA, Cuotas de Género: Democracia y Representación [Gender Quotas: Democracy and Representation] (2006). [161] See José Miguel Cabezas and Patricio Navia, “Efecto del Sistema Binominal en el Número de Candidatos y Partidos en Elecciones Legislativas en Chile, 1989-2001” [The Effect of the Binomial System on the Number of Candidates and Parties in Legislative Elections in Chile, 1989-2001], ICSO, Working Papers No. 3, Year 1, September 2005. [162] For the 2006-2010 congressional term, 15.8% of the members of the House of Deputies are women, while the percentage of women in the Senate is much smaller, at 5.2%. These figures are below the average for women in the legislature elsewhere in the region. For example, in Argentina, women account for an average of 30% of the Congressional membership; in Costa Rica, that figure is 35%. Both countries have “quota laws.” See FLACSO Chile, “Mujeres en el Congreso 2006-2010” [Women in Congress 1006-2010], Observatory No. 2, January 2006. [163] See FLACSO Chile, “Mujeres en el Congreso 2006-2010” [Women in Congress 1006-2010], Observatory No. 2, January 2006, para. 14. [164] See FLACSO Chile, “Mujeres en el Congreso 2006-2010” [Women in Congress 2006-2010], Observatory No. 2, January 2006, p. 2. [165] Report of the Working Group on Reform of the Electoral System (Boeninger Commission), June 8, 2006. [166] María de los Ángeles Fernández Ramil and Marcela Ríos Tobar, Los Principios de la Reforma Electoral [The Principles of the Electoral Reform], El Mercurio, Santiago, Chile, August 30, 2006.
[167]
United Nations, Concluding Comments of the Committee on the
Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/CO/4,
36th Session, August 25, 2006, [168] Informe Grupo de Trabajo sobre Reforma al Sistema Electoral, [Report of Working Group about the Reform to the Electoral System], June 8, 2006, p. 2. [169] Informe Grupo de Trabajo sobre Reforma al Sistema Electoral, [Report of Working Group about the Reform to the Electoral System], June 8, 2006, pp. 10-11. [170] Informe Grupo de Trabajo sobre Reforma al Sistema Electoral, [Report of Working Group about the Reform to the Electoral System], June 8, 2006, pp. 10-11. [171] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 108. [172] See IACHR, Thematic Hearing, Participation and Access of Women to Political Power in the Americas, 127th regular period of sessions, March 2007. [173] María de los Ángeles Fernández Ramil and Marcela Ríos Tobar, La Equidad de Género en la Reforma Electoral [Gender Equity in the Electoral Reform] (2006). [174] María de los Ángeles Fernández Ramil, Bienvenida, paridad, [Well Hello, Parity], Editorial Cuarto Propio, Chile, May 2007. [175] Marcela Ríos Tobar, Director of the Governance Program, FLACSO-CHILE, Representación Política de las Mujeres: ¿Por qué los números si importan?,[Political Representation of Women: Why the Numbers Matter], January 2007. [176] Address by the President of the Republic, Michelle Bachelet, at the Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, Ecuador, August 6, 2007. [177] Address by the President of the Republic, Michelle Bachelet, at the Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, Ecuador, August 6, 2007. [178] Address by the President of the Republic, Michelle Bachelet, at the Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, Ecuador, August 6, 2007. [179] Legislative Bulletin No. 3020-06 [180] Legislative Bulletin No. 3206-18. [181] Universidad Diego Portales, School of Law, 2007 Annual Report on Human Rights in Chile, 2006 Facts, Women’s Human Rights, p. 250. [182] Bill contained in Bulletin Nº 5553-06 mentioned in Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 6. [183] Observations of the State to the Draft of the Report about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [184] Chile has ratified Convention No. 111 on employment and discrimination. Article 2 of Chile’s Labor Code provides that acts of discrimination are contrary to the principles of labor laws. That article provides that acts of discrimination are any distinctions, exclusions or preferences based on race, color, sex, political opinion, nationality, religion and social origin whose purpose is to nullify the equality of opportunity or treatment in employment and occupation. [185] Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, para. 206; United Nations, International Labour Organisation, Desafíos para la igualdad en el trabajo: Chile [Equality at Work: Tackling the Challenges, Chile], May 2007. Available online at: http://www.oitchile.cl/genero/Chile.pdf; United Nations, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/4, 36th Session, August 25, 2006, para. 11. [186] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 55. [187] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 55. [188] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 55. [189] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 55. [190] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 55. [191] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 74. [192] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 61. [193] Results of the meeting with the Rapporteurship’s delegation with civil society organizations that work for the protection of women’s rights, 11 September 2007 (Centro Regional de Derechos Humanos y Justicia de Género (Humanas) [Regional Center for Human Rights and Gender Justice], Amnesty International, the Agrupación Nacional de Empleados Fiscales de Chile / Central Unitaria de Trabajadores [National Coalition of Chilean Civil Servants/Confederation of Labor] (ANEF/CUT), Asociación Nacional de Mujeres Rurales e Indígenas [ National Association of Rural and Indigenous Women] (ANAMURI), Centro de Estudios de la Mujer [Women’s Studies Center] (CEM), Colegio de Enfermeras [Nursing School], Corporación Participa [Corporation Participa], Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], and the Latin American and Caribbean Women’s Health Network (LACWHN)); Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 62. [194] Results of the meeting with the Rapporteurship’s delegation with civil society organizations that work for the protection of women’s rights, 11 September 2007 (Centro Regional de Derechos Humanos y Justicia de Género (Humanas) [Regional Center for Human Rights and Gender Justice], Amnesty International, the Agrupación Nacional de Empleados Fiscales de Chile / Central Unitaria de Trabajadores [National Coalition of Chilean Civil Servants/Confederation of Labor] (ANEF/CUT), Asociación Nacional de Mujeres Rurales e Indígenas [ National Association of Rural and Indigenous Women] (ANAMURI), Centro de Estudios de la Mujer [Women’s Studies Center] (CEM), Colegio de Enfermeras [Nursing School], Corporación Participa [Corporation Participa], Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], and the Latin American and Caribbean Women’s Health Network (LACWHN)); Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 62. This discrimination is reflected in statistics showing that slightly over one third of unemployed women blame household work (29.5%) and having no one with whom to leave their children (3.8%). Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 62. [195] See ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007, p. 58. [196] At the Fourth World Conference on Women, the governments recognized that women were key contributors to the economy and to anti-poverty efforts “through both remunerated and unremunerated work at home, in the community and in the workplace.” ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Quito, August 6-9, 2007. [197] United Nations, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, CCPR/C/CHL/CO/5, April 17, 2007, para. 18.[198] United Nations, International Labour Organisation, Desafíos para la igualdad en el trabajo: Chile [Equality at Work: Tackling the Challenges, Chile], May 2007. Available online at: http://www.oitchile.cl/genero/Chile.pdf. [199] Ministry of Labor and Social Security, Government of Chile, Balance de la situacion laboral de las mujeres en Chile (1997-2006) [Status of women’s labor situation in Chile (1997-2006), http://www.mintrab.gob.cl. [200] Government of Chile, Report on the Findings of the National Employment Survey (INE), January-March 2008 quarter. [201] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 61; United Nations, International Labour Organisation, Desafíos para la igualdad en el trabajo: Chile [Equality at Work: Tackling the Challenges, Chile], May 2007. Available online at: http://www.oitchile.cl/genero/Chile.pdf. [202] Government of Chile, Report on the Findings of the National Employment Survey (INE), January-March 2008 quarter. [203] Government of Chile, Report on the Findings of the National Employment Survey (INE), January-March 2008 quarter. [204] ECLAC, Women and Development Unit, available online at: http://www.eclac.org/cgi-bin/getProd.asp?xml=/mujer/noticias/paginas/8/29838/P29838.xml&xsl=/mujer/tpl/p18f-st.xsl& ba se=/mujer/tpl/top-bottom-estadistica.xsl. [205] Government of Chile, Report on the Findings of the National Employment Survey (INE), January-March 2008 quarter. [206] Government of Chile, Report on the Findings of the National Employment Survey (INE), January-March 2008 quarter. The situation was explained to the IACHR Delegation at the meeting it held with civil society organizations in Santiago, Chile, September 11, 2007. [207] Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, para. 40. [208] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 61. On this point, the Committee on the Elimination of Discrimination against Women noted with concern that women have higher unemployment rates than men in spite of the fact that the female labour force is better educated than the male. United Nations, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/4, 36th Session, August 25, 2006, para. 11. [209] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 62. [210] United Nations, International Labour Organisation, Desafíos para la igualdad en el trabajo: Chile [Equality at Work: Tackling the Challenges, Chile], May 2007. Available online at: http://www.oitchile.cl/genero/Chile.pdf.
[211]
The Chilean State described this situation in the Fourth periodic
report of the Government of Chile on the measures adopted to
implement the provisions of the Convention on the Elimination of All
Forms of Discrimination against Women, Republic of Chile, April
2004, [212] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 63. [213] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 63. [214] United Nations, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/4, 36th Session, August 25, 2006, para. 11. [215] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 63. [216] 34.3% of the male workforce has 8 years or less of education, while 65.7% have more than 8 years; in the case of women, those same figures climb to 27.7% and 74.3%, respectively. Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, paragraph 206. See also United Nations, International Labour Organisation, Desafios para la igualdad en el trabajo: Chile [Equality at Work: Tackling the Challenges, Chile], May 2007. Available online at: http://www.oitchile.cl/ genero/Chile.pdf. [217] Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, para. 40. [218] ECLAC, Women’s Contribution to Equality in Latin America and the Caribbean, Tenth Session of the Regional Conference on Women in Latin America and the Caribbean, Quito, August 6-9, 2007. [219] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 63. [220] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 64; See also United Nations, International Labour Organisation, Trabajo, Desafíos para la igualdad en el trabajo: Chile [Equality at Work: Tackling the Challenges, Chile], May 2007. Available online at: http://www.oitchile.cl/genero/Chile.pdf. [221] United Nations, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Chile, CEDAW/C/CHI/4, 36th Session, August 25, 2006, para. 11. [222] Bulletin 4356-13. Information presented in Observations of the State to the Draft of the Project about “The Rights of Women in Chile: Equality in the Family, Labor and Political Spheres”, February 20, 2009, p. 1. [223] Labor Code of Chile, D.F.L. No. 1, July 31, 2002, in force since March 1, 2008. Available online at: http://www.dt.gob.cl/legislacion/1611/article-59096.html#h2_1.
[224]
With the inclusion of the amendments contained in Law No. 19,591 and
Law [225] In these cases, the contract may be terminated for serious cause or for expiration of the life of the contract or completion of the work contracted for, upon authorization by a competent judge. [226] Government of Chile. Available online at: http://www.gobiernodechile.cl/viewEje Social.aspx?idarticulo=22953&idSeccionPadre=17. [227] Address by the President of the Republic, Michelle Bachelet, opening the plenary session of the XVII Ibero-American Summit, Santiago, Chile, November 9, 2007. [228] Government of Chile. Available online at: http://www.gobiernodechile.cl/viewEje Social.aspx?idarticulo=22953&idSeccionPadre=17. [229] Article 203 of the Labor Code provides that “Business, industrial and service centers or complexes run under the same corporate name or with the same juridical personality, whose establishments, taken together, employ twenty or more women, shall have the same obligation.” The law provides that facilities of businesses located in the same geographic area may contribute to or help maintain a combined nursery to care for the children of their female employees. The law also states that an employer shall be understood to be in compliance with that obligation if it pays the childcare expenses directly to the establishment to which its women employees take their children who are under the age of two. [230] Article 205 of Chile’s Labor Code. [231] Results of the meeting with the Rapporteurship’s delegation with civil society organizations that work for the protection of women’s rights, 11 September 2007 (Centro Regional de Derechos Humanos y Justicia de Género (Humanas) [Regional Center for Human Rights and Gender Justice], Amnesty International, the Agrupación Nacional de Empleados Fiscales de Chile / Central Unitaria de Trabajadores [National Coalition of Chilean Civil Servants/Confederation of Labor] (ANEF/CUT), Asociación Nacional de Mujeres Rurales e Indígenas [ National Association of Rural and Indigenous Women] (ANAMURI), Centro de Estudios de la Mujer [Women’s Studies Center] (CEM), Colegio de Enfermeras [Nursing School], Corporación Participa [Corporation Participa], Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], and the Latin American and Caribbean Women’s Health Network (LACWHN)). [232] Pautassi, L., Faur, E. and Gherardi, N. Legislación laboral en seis países latinoamericanos. Límites y omisiones para una mayor equidad. [Labor Laws in Six Latin American Countries. Limitations and omissions for greater equity] Women and Development Series No. 56. Santiago, Chile, ECLAC, 2004. [233] Bill to amend Article 203 of the Labor Code to enable other professionally qualified persons to provide nursery service analogous to the system authorized under the current law (Bulletin No. 4467-13); and bill to make the nursery service more accessible to children of working women (Bulletin No. 5166-13). [234] Bill (Bulletin 4467-13 of September 5, 2006). Under the bill, the employer’s obligation to provide the nursery benefit to female employees is fulfilled not just by paying the cost of the respective establishment; the employer may also fulfill that obligation by paying the professional or technician from the areas of education or health whom his/her women employees choose to provide personal childcare services to their children in the private home. [235] Pautassi, L., Faur, E. and Gherardi, N. “Legislación laboral en seis países latinoamericanos. Límites y omisiones para una mayor equidad.” [Labor Legislation in Six Latin American Countries: Limitations and Omissions for greater equity], Women and Development Series No. 56. Santiago, Chile, ECLAC, 2004. [236] Article 198 of the Labor Code. [237] IACHR, Thematic Hearing, Domestic Violence in Chile, 127th regular period of sessions, March 2007. [238] Fourth periodic report of the Government of Chile on the measures adopted to implement the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, Republic of Chile, April 2004, para. 213. [239] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 66. [240] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 67. [241] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 66. [242] Centro Regional de Derechos Humanos y Justicia de Género (Humanas), Informe Sombra CEDAW, Chile 1999-2006, p. 66. [243] Article 179 of the Labor Code. [244] Bulletin No. 4356-13, information obtained from the Senate’s web site. This bill is now in the first phase of the constitutional process, i.e., it is in the House of Deputies, with no urgency classification. Available online at: http://sil.senado.cl/pags/index.html. [245] According to the official information obtained, this bill (Bulletin No. 1309-13) is currently in the second phase of the constitutional process, and is being discussed by the Senate’s Labor and Social Security Commission. See the Senate’s web site: http://sil.senado.cl/ pags/index.html. [246] Government of Chile, Provisional Reform. Available online at: http://www.gobiernode chile.cl /reforma_previsional/sistema.html. [247] Government of Chile, Provisional Reform. Available online at: http://www.gobiernode chile.cl /reforma_previsional/sistema.html. |
