CHAPTER V

THE RIGHT TO JUSTICE AND DUE PROCESSS

American Declaration. Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

Article XXVI. Every accused person is presumed to be innocent until proved guilty.

Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

1. Habeas corpus and amparo are simple and brief procedures contemplated in the legislation of Chile for the purpose of enabling persons affected in some fundamental right to obtain protection from the courts of law against acts of authority that violate such rights. The limitations which continue to be applied to the exercise of such recourses in Chile have been extensively examined in Chapter I (Modification in the System of Standards) and in Chapter III (Physical liberty of the person, habeas corpus and recurso de amparo) of this report.

2. There thus remain to be examined the implications of the permanency of the state of siege in Chile, in its degree of application and its effect on the right to due process, which has been defined as the guaranty that any person possesses, when accused of a crime, to be heard in an impartial and public manner and to be judged by courts previously established, in addition to the presumption of innocence until guilt is proved.

3. Article 9 of Decree-Law 640 of September 2, 1974, provides that, in the cases of declaration of state of siege in the degree of simple disturbance, the provisions of item Nº 14 of Article 10 of decree-law 527 of 1974, and the provisions in the Code of Military Justice, shall come into effect. Consequently, the Military Courts hear cases of crimes referred to in Articles 4 and 5a), 5b), and 6c), 6d) and 6e) of the Law of Security of the State.

4. The Government of Chile, in its note Nº 17562 of September 16, 1975, addressed to this Commission, in referring to the importance of decree-law 1.181, states that, in reality, decree-law 640 was modified by decree-law 1009 of 1975, according to which, “except for certain especially serious crimes against the security of the state,” the jurisdiction of the Military Courts shall be exercised in conformity with the procedures of peacetime and not of wartime.

What are the exceptional crimes, so especially serious, for which the Councils of War continue to function? They are the crimes that we have indicated above, that is, the crimes to which reference is made in articles 4, 5a), 6c), 6d) and 6e) of the Law of Security of the State.

5. The conclusion at which we arrive is that, notwithstanding the time that has passed since September, 1973, notwithstanding the consolidation of the regime established on that date, and notwithstanding the statement in the note of September 16, 1975, the Councils of War and the wartime procedures continue in effect when there is no war, for a broad spectrum of situations.

6. For the purpose of obtaining additional information upon which to make an evaluation of the manner in which the right to justice and due process is being respected in Chile, as well as to evaluate the application of the laws promulgated since the Commission terminated the observation in loco carried out in Chile, this Commission decided to request from the College of Lawyers of Chile, in a note of October 23, 1975, the following information:

Mr. President:

We have the honor to address you to request from the College of Lawyers the information that may be considered pertinent on the following points:

1. In conformity with the most accepted doctrine and the traditionally accepted jurisprudence of the Chilean Courts, does the declaration of a state of siege totally exclude the possibility of resorting to, or of obtaining results from, a recurso de amparo or “habeas corpus” on behalf of a person detained by order of the President of the Republic, under authority of the power granted in item Nº 17 of the Constitution?

2. Are the organs of Judicial Power empowered, during a state of siege and upon receipt of a request for a recurso de amparo or “habeas corpus”, to declare the illegality of the detention and, consequently, to order that the detained person be placed at liberty or to make use of some other measure of tutelage over the rights of the detained person in some of the following cases:

a) when no order has been issued by the President of the Republic?

b) when the order has not been exhibited at the time the detention was carried out?

c) when the persons who carried out the arrest have not identified themselves as police or military agents?

d) when it is verified, by the presentation of the detained person before judicial authority, that the person:

1. has been subjected to torture or pressures; or

2. has been confined in an establishment for common criminals?

3. is not the person specified in the detention order?

e) when, along with the detention order, it is ordered that a national be expelled from Chilean territory?

f) when it is proved that the detained person is not in any of the establishments officially equipped to receive such detainees?

g) when the length of the detention exceeds the maximum period legally authorized?

h) when the authorities limit themselves to stating that the detained person is at the disposition of the Executive Power, under the authority granted to the Government by the state of siege, without presentation of the detained person for trial or without indicating precisely the place where the person is detained?

i) when the conditions in which the detention is being carried out are such that these constitute, in themselves, the imposition of a sentence?

The information which we request will be of much use for the preparation of the report concerning the situation of human rights in Chile that the General Assembly of the Organization of American States has requested this Commission to prepare, in resolution AG/RES. 190 (V-O/75) of May 19, 1975.

The Commission would appreciate your sending the information requested before the 31st of December of this year.

7. The Board of Directors of the College of Lawyers of Chile,1 in a note of December 31, 1975, answered the request of the Commission in the following terms:

Nº 326. By an official communication of October 23 of this year, you requested this College of Lawyers to provide information concerning various aspects of the situation of human rights in our country, for the purpose of providing a basis for the preparation of a report that will be presented to the General Assembly of the Organization of American States.

For the purpose of complying with your request, we present the following information:

1. In accordance with legislation at present in effect, our country is in a state of siege. The foundations of this exceptional regime are found in the Political Constitution which has been in effect since 1975, which, in its Article 72, item 17, specifies two reasons for which this state of siege may be declared:

a) Foreign attack and b) Interior disturbance. In the first case, the authority competent to declare the state of siege is the President of the Republic, and in the second case, it is the National Congress, and if the Congress is in recess, the President of the Republic may do this for a specified length of time. It is to be considered that a foreign attack has occurred when any point of the territory is invaded for hostile purposes by foreign forces or when there exists a threat of such an invasion. An interior disturbance shall be understood to be any political agitation, mutinies, sedition or strikes that place the institutions in danger or threaten the stability of the constituted authorities.

The Political Constitution establishes no limit to the length of time the state of siege may continue, whether it has been declared by the President of the Republic or by the Congress.

In case of interior disturbance, the declaration made by the President of the Republic is made in a Supreme Decree signed, in addition, by the Minister of the Interior, with an indication of the time it goes into effect and the rationale for the state of siege, that is, a pronouncement is made concerning its legal basis by the Comptroller General of the Republic. When the National Congress convenes, the declaration made by the President of the Republic shall be heard by the Congress as proposed legislation.

The effects of the state of siege are contemplated in the Political Constitution, and are two: a) to arrest persons during the entire period of the emergency without a court order or any proceedings before the Courts of Justice. The foundations of this measure are based on reasons of public order and are preventive in character, since by this measure, danger to the national security is avoided from persons who would otherwise be at liberty; and b) The arrest of these persons can be carried out in their own houses, by this measure, and they can be kept in places that are not jails or other places that are intended for the detention or imprisonment of common criminals; and c) Persons can be transferred from one Department to another.

Notwithstanding the preceding, it is necessary to state that the Judicial Power maintains its jurisdiction over the civilian population and does not interfere with military jurisdiction which pertains to the Military Courts for judging military crimes, whether such crimes are committed by military or civilian personnel, and for judging certain crimes that affect the Security of the State.

Now, at present, Decree-law 527 of 1974, called the Statute of the Junta of Government, has replaced the provisions of Article 72, item 17 of the Political Constitution. However, Article 10, item 11, of the said Statute is practically the same as the preceding provision which it replaced, except insofar as it provides that the declaration of a state of siege shall be made by the issuance of a Decree-law, which is explainable, since the National Congress is dissolved.

As for Decree-Law Nº 640 of 1974, it systematizes the emergency regimes and, with respect to the state of siege, indicates that this can be declared in the following degrees:

a) State of siege because of a situation of internal or foreign war;

b) State of siege in the degree of internal defense;

c) State of siege in the degree of internal security;

d) State of siege in the degree of simple internal disturbance.

In the cases indicated in numbers 1 and 2, the Military Courts of Wartime enter into action and apply the procedures and the penalties for wartime. In cases numbered 3 and 4, the peacetime Military Courts act, except that in the case of number 3, the punishments are increased by one or two degrees.

It is necessary to indicate that Decree-law 640, in its Article 5 relating to presidential powers in case of foreign attack, adds a new circumstance, which is that a state of siege may be declared: a) in case of danger of an attack or invasion from outside the country, whether this threat comes from foreigners or is the work of Chileans.

Decree-law 1.181 of September 11, 1975, establishes the fact that the country is at present in a state of siege in the degree of internal security. This Decree-law replaces Decree-law 641 that established the fact that the country was in a state of siege in the degree of internal defense.

We believe that, in order to understand the situation better, it is necessary to examine the differences between one degree and the other:

1. State of Siege in the degree of Internal Defense. In this degree, there enter into action the wartime Military Courts and application is given to wartime proceedings and to the sentences indicated for wartime. Under this degree, the Military Courts have full competence to hear, in closed sessions, the cases of military crimes and common crimes committed by military personnel, crimes against the internal security of the State specified in the final clause of Law 12.927, as modified by Decree-laws 5 and 559, the crimes specified in articles 1 and 3 of Decree-law 1009 which penalize those who conduct or transmit orders or instructions, information or communications, in preparation for the perpetration of a crime against the security of the state, and those who shelter or conceal, or facilitate the escape of a person, knowing that the person is eluding the authorities.

These cases are heard before the wartime Military Courts, that is, the Councils of War, made up of six officers and an Auditor (Lawyer). The sentences of these Courts are without appeal, and when the sentence is issued, the General or Commander-in-Chief in the jurisdiction must approve the sentence or modify it. When this procedure has been carried out, the sentences are unchangeable, subject only to pardon by the President of the Republic, a power contemplated in the Political Constitution. In this respect, their Excellencies the Supreme Court of Justice of the Republic of Chile, on August 21, 1974, declared that the Supreme Court does not have jurisdiction to make pronouncements on complaints against the Councils of War.

2. State of Siege in the degree of Internal Security. This was established in Decree-law 1,181 of September 11, 1975. In the case of this degree, the competence of the wartime Military Courts (Councils of War) ceases, and the peacetime Military Courts begin to act, and these are, in the first instance, the Military Juzgados [Criminal courts of first instance], Courts Martial in the second instance, with the Supreme Court hearing the recourses of cassation, review and complaint. As was stated in the preceding, only the sentences are increased by one or two degrees.

Notwithstanding the preceding, there is one exception that should be pointed out, which is established in Decree-law 1.009, which, in its Article 8, replaces Article 9 of Decree-law 640. This article specifies that, despite other provisions, in the cases of state of siege in the degree of internal security or in cases of simple internal disturbance, the wartime military courts shall hear cases of crimes referred to in articles 4 and 5a), 5b) and 7c), 7d) and 7e) of the Law of Security of the State. All of these articles refer to crimes against the security of the State, whether in the form of attempts against persons or those pertaining to destruction or paralization of elements or installations or services of public utilities.

Consequently, during this degree of state of siege, all crimes with the exception of those just indicated, can be heard by the ordinary courts of justice and all of the jurisdictional recourses contemplated by the law are applicable to them.

With respect to the recurso de amparo or “habeas corpus,” this recourse is for protection against arbitrary arrest or imprisonment. We find its foundations in the constitutional provisions concerning personal liberty.

In the case of a state of siege, the recurso de amparo is inoperative against detentions ordered by the administrative authority in accordance with the powers that have been conferred on that authority. In effect, Article 306 of the Code of Penal Procedure provides that the recurso de amparo is available when the order of arrest is issued by an authority who does not have the power to arrest, or when the order has been issued on some basis other than those specified by the law, or when there has been a violation of the appropriate procedures.

After a stage of siege has been declared, in accordance with Decree-law 527, the President of the Republic has the power to transfer or arrest in the circumstances indicated in the preceding. These powers must be exercised in conformity with the law. Consequently, in accordance with the legislation at present in effect, since before September 11, 1973, the recurso de amparo or habeas corpus [has been inoperative] with respect to persons who have been detained under the authority of the powers conferred by the law on the President of the Republic. As a consequence of this, the Courts of Justice cannot respond to the request for a recurso when the order for arrest is issued by the President of the Republic, since the President is complying with a power that has been expressly conferred upon him.

Decree-law Nº 1.009 of May 8, 1975, established a series of standards for the protection of the procedural rights of persons detained for crimes against the national security. In fact, to make certain that the restrictions on personal liberty that are imposed by the state of siege are carried out within a framework of respect for the fundamental rights of persons, Decree-law Nº 1.009 was issued to consecrate two fundamental guaranties for persons who may be detained by the specialized agencies of a professional character that the Executive uses to carry out the authority granted by the Political Constitution. These are:

1. When any person has been detained, information of this must be given to members of his family within a period of 48 hours, and

2. The detention cannot continue for more than five days, and within that period, the detained person must be placed at liberty or placed at the disposition of the pertinent Court.

Finally, everything set forth in the preceding permits us to assert that, between the state of siege authorized by the Constitution of the year 1925 and the present regime contained in Decree-laws 527, 640 and 1.181, there are no substantial differences. The declaration of a state of siege, the reasons on which it is based, and the effects which it produces, are the same under all Government since 1925. The difference resides in the degrees of this emergency regime, which permits the application at present of a more benign regime than was contemplated in the Political Constitution. The preceding signifies that the Honorable Junta of Government of the Republic of Chile has not enjoyed legal powers greater than any government, and that, on the contrary, the Junta themselves have imposed a standard that implies an attenuation of the rigorous effects of the state of siege for the purpose of restoring the Nation slowly to normality.

With what we have set forth in the preceding, we hope that we have given all the information possible to inform the General Assembly of the Organization of American States, concerning the respect that exists in our country for human rights and the maintenance of the principle of due process in Chile, expressed principally by the total independence of the Judicial Power, which has been reaffirmed and even increased by the Supreme Government.

This is all we have to report to you.

With cordial greetings to you.

(signed) Julio Salas Romo,

President

(signed) Hernán Chavez Sotomayor

8. The Commission indicates that the text of the reply from the College of Lawyers of Chile coincides, practically textually, with various paragraphs of the memorandum published on October, 1975, by the Government of Chile, entitled “The present situation of human rights in Chile” (Volume Nº 1, Second Part, Chapter Two, pages 33-37).

Notes_______________

1 See point 4 of Chapter VII of this report.