CHAPTER I
PRINCIPAL MODIFICATIONS IN THE SYSTEM OF JURIDICAL STANDARDS RELATED TO HUMAN RIGHTS
1. In its Second Report on the situation of human rights in Chile1 the Commission presented under this heading an analytical review of the legal provisions which the Government of Chile enacted during the period between August 2, 1974, the date on which the on-site investigation concluded, and March 12, 1976, the date on which the Second Report was adopted.
2. A synopsis of those legal measures is repeated here in order to facilitate comparison and references:
1) Decree-Law Nº 604, of August 9, 1974 (Diario Oficial Nº 28.925 of August 10, 1974)
Under penalty of the maximum imprisonment set forth in the law, this decree-law prohibits the entry into Chilean territory of persons, nationals or foreigners, who propagate doctrines opposing the social order of the country or its system of Government, or who commit acts against external or internal security, against the public order or the interest of the country.
2) Decree-Law Nº 640, of September 2, 1974 (D.O. Nº 28.950 of September 10, 1974)
This decree-law systematizes the provisions related to various emergency regimes, including the State of Siege, and stipulates those cases in which it is to be applied and the degree to which it may be decreed, according to the various situations.
3) Decree-Law Nº 641, of September 2, 1974 (D.O. Nº 28.957) and Decree-Law Nº 922, of March 11, 1975 (D.O. Nº 29.100 of that same date)
Decree-Law 641 declared the entire territory of Chile to be “in a State of Siege in the degree of Internal Defense,” for a period of six months beginning September 11, 1974. At the end of the six-month period, Decree-Law 922, of March 11, 1975, extended the State of Siege for another six months.
4) Decree-Law Nº 951, of March 31, 1975 (D.O. Nº 29,119 of April 4, 1975)
This decree-law provides that the powers to transfer and arrest individuals, conferred upon the president of the Junta during the State of Siege, can be exercised in his name by the Minister of Interior or by the Regional or Provincial Intendentes (Military Governors).
5) Decree-Law Nº 1.008, of May 5, 1975 (D.O. Nº 20.147 of May 8, 1975)
This decree-law increases to five days the period during which an individual may be detained before placing him at the disposition of the competent judge, in cases of individuals suspected of crimes against the security of the State during an emergency.
6) Decree-Law Nº 1.009 of May 5, 1975 (D.O. Nº 20.147 of May 8, 1975)
This decree-law provides that when an individual is detained during the State of Siege, his most immediate relatives must be informed within 48 hours. The detention may not continue beyond five days.
The decree-law also contains a considerable variety of provisions on the competence and jurisdiction of the “Military Courts in time of war and in time of peace” and on other related matters.
7) Decree-Law Nº 1.181, of September 10, 1975 (D.O. Nº 29.253 of September 11, 1975)
This decree-law declares the entire territory of Chile in a State of Siege in the degree of internal security, for a period of six months counting from the date of publication of said decree-law in the Diario Oficial; it also annuls Decree-Law Nº 922, of March 11, 1975, which declared the entire territory of the country in a State of Siege in the degree of internal defense. The foregoing means that except for certain especially serious crimes, the jurisdiction of the Military Courts shall be exercised in accordance with peacetime, and not wartime, procedures.
8) Supreme Decree Nº 187, of January 26, 1976 (D.O. of January 30, 1976)
This decree enacts standards to guarantee the rights of individuals detained under the State of Siege. The standards include: a medical examination of the individual detained upon entry into and departure from detention centers; a requirement to report all acts of mistreatment to the competent authorities; requirements on orders of arrest; requirements on search and seizure orders; a requirement to maintain a record of the arrest, and so on.
9) Decree-Law Nº 1.281 of December 10, 1975 (D.O. of December 12, 1975)
This decree-law contains provisions on control of newspapers, magazines, pamphlets and printed matter, radio and television stations, and, generally speaking, of all forms of mass communication media.
10) Decree-Law Nº 679, of October 10, 1974 (D.O. Nº 28.974 of October 10, 1974)
This decree-law regulates the showing of motion pictures, creates the Council of Film Classification and establishes penalties for violators.
11) Decree-Law Nº 930 of March 17, 1975, (D.O. Nº 29.107 of March 19, 1975)
This decree-law provides a number of new justifications for termination of labor contracts.
3. Presented below are the various types of emergency situations in effect as of publication of our Second Report and the changes introduced through Constitutional Act Nº 4.
Decree-Law Nº 640, of September 2, 1974 (D.O. Nº 28.950 of September 10, 1974)
Article 1 provided that the states of emergency were the following:
1. State of External or Internal War
2. State of Assembly
3. State of Siege (and its degrees)
a) A situation of internal or external war;
b) Internal Defense, which shall occur in cases of internal disturbance provoked by rebel or seditious forces that are found to be organized or about to be organized, whether openly or clandestinely;
c) Internal Security, which shall occur when the disturbance is provoked by rebel or seditious forces found to be organized; and
d) Simple internal disturbance, which shall occur in the other cases provided for in existing legislation.
4. Extraordinary Powers
5. State of Emergency Zones, and
6. Military Commands.
Decree-Law Nº 1.553, of September 11, 1976 (D.O. Nº 29.558 of September 13, 1976)
Article 2 of Constitutional Act Nº 4 provides for the following states of emergency with their respective degrees:
1) a) Situation of External War:
State of Assembly
b) Situation of Internal War:
State of Siege
2) Internal Commotion:
State of Siege
3) Latent Subversion:
State of Defense Against Subversion
4) Public Disaster:
State of Catastrophe.
4. We feel it advisable to give a brief account of the juridical situation hat has been in effect in Chile with regard to the State of Siege and its current status.
1) Decree-Laws Nos. 3 and 360 of September 11, 1973 and March 13, 1974, respectively, declared a State of Siege in the degree of “internal or external war” from September 11, 1973 to September 11, 1974.
2) Decree-Law Nº 640, of September 2, 1974, declared a State of Siege in the degree of “internal defense” throughout the territory of Chile for a period of six months, beginning on September 11 of that year.
3) Decree-Law Nº 922, of March 11, 1975, extended for another six months, as of that date, the State of Siege in the degree of “internal defense” throughout the territory of Chile.
4) Decree-Law Nº 1.1.181, of September 10, 1975, changed the degree of the State of Siege from that of “internal defense” to one of “internal security”, and imposed it for a period of six months throughout the country.
5) Decree-Law Nº 1.369, of March 11, 1976, extended this State of Siege in the degree of “internal security” for another six months, in other words, up to September 11, 1976, the date on which the last three constitutional Acts went into effect.
6) Decree-Law Nº 1.550, of September 6, 1976 (D.O. Nº 29.557, of September 11, 1976). This Decree-Law extended the State of Siege in the degree of “internal security” for a period of six months throughout the country.
5. It is worthwhile pointing out that this last decree-law was published in the issue of the Diario Oficial immediately preceding that issue in which Decree-Law Nº 1.553 change the states of emergency in effect since September 2, 1974.
6. An entire network of jurisdictional, procedural and administrative subtleties and differences separates each one of these systems from the other, leaving a common element which is the predominance of special legislation over permanent and regular institutions, or the primacy of the power of the head of state over written law.
7. Of the most recent legislative changes, not included in the Second Report, the following merit special attention:
1) Decree-Law Nº 1.319, of December 31, 1975
This decree-law, enacted as Constitutional Act Nº 1, establishes the Council of State, as the Supreme Consultative Body of the President of the Republic in matters of government and civil administration.
2) Decree-Law Nº 1.458, of May 31, 1976 (D.O. Nº 29.469 of June 1, 1976)
This decree-law sets forth the basic standards for operation of this Council. A third decree, dated June 3 of that year, establishes the membership of that consultative body, composed of a total of sixteen members, including three former presidents of Chile, one former president of the Supreme Court, a former Comptroller General of Chile, a former Commander from each one of the Armed Forces, a former cabinet ministers, a former rector of any one of the state universities, a former diplomat with the rank of Ambassador, a representative from a women's organization, a representative on behalf of youth and a worker, employee or laborer representing labor activities.
The role of the Council is limited to that of providing the information requested by the President of the Republic on specific matters, including the following: a) proposed amendments to the constitution; b) proposed decree-laws or specific aspects thereof pertaining to important matters in the areas of economics, finance, taxation, administration or social affairs; c) international treaties or agreements of singular significance to the country; d) agreements, contracts and negotiations which by their nature might compromise the standing and interests of the State; and e) any other matter of singular importance to the nation.
As stated in paragraph 5 of the Preamble to the Act, “The indicated objectives must be attained without impairing the prerogatives and decision-making authority of the President of the Republic.”
Therefore the Council of State of Chile has neither power nor administrative functions. It simply issues opinions or ideas that are in no way binding upon nor commit the Government. Nor does it, as in other countries, serve as an administrative tribunal.
Although it does not bear any immediate relation to the question of human rights, establishment of this Council is mentioned here because, according to the preamble, establishment of the Council serves the objectives of the present government, that is, to put into effect gradually those organic precepts that respond to development of the national situation and serve as basis for the fundamental and definitive institutional framework of the republic.
The definitive institutional framework of the country will undoubtedly represent a return to full and effective recognition of the essential rights and basic guarantees of citizens.
3) Decree-Law Nº 1.551, of September 11, 1976 (D.O. Nº 29.558 of September 13, 1976)
This decree, issued as Constitutional Act Nº 2, proposes to provide Chile a new institutional framework, and lays the basis for the new constitutional order of the State.
The decree begins by recalling that the objectives proposed by the Armed Forces and the Carabineros, on assuming leadership of the Republic, were to “preserve its cultural and historical identity and to rebuild its spiritual and material greatness”; among the essential values upon which the bases for the new institutional system are to rest, the following sound be emphasized:
a) The Christian humanistic concept of the individual and society, which considers the former as being endowed with spiritual dignity and a high calling wherefrom the individual derives natural rights which precede and outrank the State, and which require the latter to serve and promote the common welfare.
c) The concept of a State of Law, which assumes an objective and impersonal juridical order, the provisions of which are inspired in a high sense of justice equally binding upon the Government and the people.
d) The concept of a new and solid democracy which enables the members of the community to participate in the review and solution of great national problems and, moreover, is provided with tools to protect itself from the enemies of freedom who, supported by a misinterpreted pluralism, seek only to destroy it.
Among the essential bases of the institutional framework specified in the decree, the following merit special mention:
Article 5 – Chile is a republic that is being structured as a new democracy with community participation and provided with the tools required to guarantee its protection, strength and authority.
Article 6 – Not even by claiming extraordinary circumstances2 may any magistrate, individual or group assume other authority or rights than expressly conferred to them by law.
Any act in violation of this article shall be null and void, and shall create liabilities and penalties under the law.
This Constitutional Act entered into force on September 18, 1976, and nullifies Chapter I and a number of other articles of the 1925 Constitution.
4) Decree-Law Nº 1.552, of September 11, 1976, (D.O. Nº 29.558 of September 13, 1976)
One of the most important legislative measures enacted by the Government of Chile is Constitutional Act Nº 3, which deals with “constitutional rights and guarantees.” The Act carefully enumerates each of the various rights and guarantees. Because of the importance of the matter, the Commission considers it both useful and appropriate to present here a substantial part of that Act, knowing that in Chile certain sectors on some labor organizations have already shown their lack of agreement with its approach to the exercise of certain freedoms.3
The Act is introduced by a preamble which contains the following paragraphs that merit attention:
1. The rights of the individual take preference over the State, and his life in society represents the justification for any juridical system; the protection and guarantees of the basic rights of the individual must necessarily become the essential basis for the organization of the State;4
2. Chilean juridical and historical tradition has been in accord with such principles and has reflected a permanent purpose of strengthening the rights of the individual and the procedures that guarantee the effective protection thereof;
3. The bitter experience endured by Chile in the years prior to September 11, 1973 has shown, however, the need to strengthen and improve those rights established in the Constitution of 1925, by incorporating new guarantees in harmony with the contemporary constitutional doctrine and as set forth in international documents;
4. Among such guarantees, it is necessary to point out the right to individual life and integrity, legal protection of unborn life, equality of rights for men and women, due process, right to counsel and other rights that require a constitutional rank, inasmuch as they reaffirm the value of the individual as the basic cell of our society;
6. Inasmuch as freedom of opinion and information is one of the most significant freedoms in the world today, it becomes necessary not only to consecrate it but, likewise, to enact essential provisions so that abusive use thereof cannot violate the rights of the individual or those superior values which regulate community life;
7. Regardless of how efficient the protection of the individual may be, the people are not convinced that such protection is satisfactory unless its full development is sought and promoted in the various stages of life, thereby making it necessary to contemplate, in addition to freedom of education, the right to receive education and the correlative duty of imparting it which is the concern of the national community as a whole, but which begins with the parents themselves who, not only enjoy the preferential right to educate their children, but have the duty to do so;
10. However perfect a declaration of rights may be, such rights become mere illusions unless the necessary resources are devoted to their protection. One of the most significant resources is the establishment of a new tool to protect human rights in general, whereby juridical protection is not limited to personal freedom and habeas corpus, but is actually extended to cover as many rights as the nature thereof will allow;
11. To better safeguard the contemplated juridical system, it is provided that one may invoke any constitutional or legal precept whatsoever, in violating the rights under this Act, or in attempting to subvert the integrity or the operation of the State or the established regime.
The Commission considers it both necessary and advisable to present only some of the provisions contained in the operative part of the Act, which because of its importance would otherwise merit presentation in its entirety. Those provisions are as follows:
Chapter I
Constitutional rights and guarantees
Article 1. Men are born free and equal in dignity. This Constitutional Act guarantees all individuals:
1. The right to life and the integrity of the individual, subject to the penalties established by law.
The law protects the life of the unborn child.
The application of any illegal force is prohibited.
2. Equality before the law. There are no privileged individuals or groups in Chile.
Men and women shall enjoy equal rights.
Neither the law nor any authority may establish arbitrary discriminations.
3. Equal protection under the law in the exercise of individual rights.
All individuals have a right to counsel and no authority or individual may prevent, restrict or disturb due participation of counsel when required. In connection with members of the Armed and Public Security Forces, and insofar as administrative and disciplinary matters are concerned, this right shall be governed by the pertinent provisions of the respective laws of such forces.
The law shall administer all means to furnish legal assistance and defense to those unable to provide it for themselves.
No one may be tried by special commissions, but only by the courts determined under the law and as previously established thereby.
Verdicts of jurisdictional organs must necessarily be based on prior, legally completed proceedings. The legislator shall be responsible for establishing guarantees for rational and fair proceedings.
There shall not be a presumption of guilt.
In criminal prosecutions, no punishment shall be levied other than that provided in a law enacted prior to the commission thereof, unless a subsequent law should prove of benefit to the affected party.
4. Admission to all public employment and functions, without other requirements than those established by the Constitutional Acts, the Constitution and the law.
5. Equal distribution of taxes and assessments, in proportion to individual assets or in the progression or manner established in the law, and equal distribution of other public levies.
6. The right to personal freedom and individual security and, consequently, the right to reside and remain anywhere within the Republic, to travel from any place to another therein, and to enter and leave its territory, as long as the provisions of the law are observed and no damage is caused to third parties.
a) No one may be deprived of his personal freedom or be confined, except in those cases and in the manner established by the Constitutional Acts, the Constitution and the law;
b) No one may be arrested or detained, except by order of public officials expressly authorized under the law, and then only after such person has been legally notified. However, anyone found in the very act of committing a crime may be arrested, but only to be taken before the competent judge within the ensuing twenty-four hours.
If the authorities should arrest or detain an individual, such authorities shall so inform the competent judge within forty-eight hours and deliver the individual to him. Upon a finding of good cause the judge may extend this period up to five days;
c) No one may be arrested or detained, placed under preventive custody or imprisoned, except in his own home or in public establishments intended for this purpose.
Officials in charge of prisons shall not allow anyone to remain arrested or detained, under indictment or imprisoned therein, without recording the corresponding order of a legally empowered authority in the registry which shall remain available to the public.
The fact that individuals are being held incommunicado may not prevent the official in charge of a place of detention from visiting those individuals under arrest or detention, indictment or imprisonment. In the event that the person under arrest or detention should so require it, such official shall be under the obligation to provide the competent judge with a copy of the order of detention to require that such order be provided, or to issue himself a document certifying the detention, if at the time of such request this requisite should have been omitted;
d) Individuals under detention or preventive custody shall enjoy the right of parole. Parole shall be available at all times, unless the judge should consider detention or preventive custody to be strictly necessary for the purpose of investigation under the summary proceedings, or for the safety of the offender or society. The law shall establish the formalities and requirements needed to obtain such parole;
e) In criminal cases, the defendant may not be compelled to testify against himself, nor his ancestors, descendants, spouse or other persons as may be established under the law, according to the particular case and circumstances involved.
Notwithstanding seizure in cases provided by law, loss of social security rights or expropriation of assets may not be imposed as penalty.
However, assets may be legally confiscated as a penalty in cases of illicit associations;
f) In the event of dismissal or acquittal, individuals indicted or convicted as a result of a decision the Supreme Court should declare to be unjustifiably erroneous or arbitrary, shall enjoy the right to be compensated by the State for the economic or moral harm sustained. This compensation shall be determined judicially, by brief and summary proceedings, wherein evidence shall be considered in equity.
7. The right to meet peacefully, without prior authorization and unarmed. In town squares, streets and other places open to public use, meetings shall be governed by the general provisions of the law.
8. The right to submit petitions to the authorities, on any matter or public or private interest, without other limitation than to proceed in respectful and appropriate terms.
The authorities shall reply to such petitions as may be submitted to them under the provisions of the law.
9. The right to associate without prior authorization.
In order to enjoy legal status, associations must be established under the law.
No one may be compelled to join an association, except as provided in paragraph six of Nº 20 of this article.
Associations which are contrary to moral principles, public order and the security of the State are hereby forbidden.
10. Respect and protection of the private life of the individual and his family.
Inviolability of homes and of all kinds of private communications. Homes may be searched and private documents intercepted, opened or searched only in those cases and in the manner provided by law.
Freedom of conscience and expression of all creeds and free exercise of all religions that do not violate moral principles, good behavior or public order, therefore, enabling the respective religious creeds to erect and maintain temples and outbuildings according to safety and sanitation measures required by law.
12. Freedom of opinion and information, in all ways and by all means, without prior censorship, notwithstanding responsibility under the law for such offense or abuse as may be committed in use of these freedoms. However, the court may prohibit publication or circulation of opinions or information affecting moral principles, public order, national security or the private life of individuals.
The law shall establish a system of censorship for motion pictures and publicity thereof.
Moreover, this Constitutional Act guarantees the right to receive information truthfully, duly and objectively on national and internal events, without any limitation other than provided in the first paragraph of this number.
Any individual or institution offended or unduly alluded to by the mass communication media, shall have the right to have his or its explanation or rectification circulated freely by such mass communications media, under the conditions provided by law.
All individuals and institutions shall have the right to establish, publish and distribute newspapers, magazines and other periodical publications, under the conditions provided by law.
There shall be an autonomous National Radio and Television Council, the composition and operation of which shall be determined by law, entrusted with the authority established thereunder, with a views to ensuring that radio and television stations meet the purpose of informing and promoting the objectives of education set forth in this Constitutional Act.
The law shall provide the way in which radio broadcasting licenses shall be extended, renewed and revoked.
The State and those universities and individuals which the law shall determine, may establish, operate and maintain television stations.
Individuals who may have been at any time convicted of attempting to subvert the institutional order of the Republic, may not own, direct or manage mass communications media, nor may they in any way participate in functions connected with the publication or broadcast of opinions or information.
Only the law may modify the system of ownership and operation of mass communications media.
Expropriation of mass communications media may be carried out only under a special law which authorizes it, and then only after payment of compensation.
8. In response to the Commission's questionnaire on the right to education, the Minister of Foreign Affairs, echoing the opinion expressed by the Minister of Education in that same regard, states that such questions are answered more than adequately by Decree-Law Nº 1552, on the Constitutional Rights and Duties.
The Commission feels that text recognizes a majority of the essential rights and basic guarantees. But government sanction of that law constitutes less than full and effective implementation and the Commission, duty-bound to deal with realities, cannot limit itself to expressions of hope.
Notes_____________________
1 OEA/Ser.L/V/II.37 doc.19 corr. 1. See also the “First Report on the situation of human rights in Chile”. (OEA/Ser.L/V/II.34 doc.21).
3 See Chapter VI, Freedom of Expression of Thought and Freedom of Information, page 58.