CHAPTER XI

CONCLUSIONS

1. Constitutional Act Nº 3 on Constitutional Rights and Duties was enacted by virtue of Decree-Law Nº 1552, of September 11, 1976. The text itself is a formal recognition of the majority of the fundamental rights and guarantees of the human person. Nevertheless, the communications the Commission has received regarding alleged violations of fundamental human rights leave room for reasonable doubt as to actual observance of the standards contained in that decree; this makes it necessary to continue to monitor closely full and effective compliance with those standards.

2. Constitutional Act Nº 4, enacted by Decree-Law Nº 1553, of September 11, 1976, changes the states of emergency, with their respective degrees. Viewed in its formal aspect, this gives the impression of improvement over the previous situation. However, the modifications do not change the fact that special laws still have predominance over the permanent and regular juridical institutions.

3. Decree-Law Nº 1319 of December 31, 1976, enacted Constitutional Act Nº 1, which established the Council of State as the Highest Consulting Body to the President of the Republic on matters of government and civil administration. Decree-Law Nº 1458 of May 31, 1976, establishes the basic standards for operation of this Council. According to the preamble of the Decree establishing the Council of State, the latter serves to gradually put into effect those organic precepts that respond to developments in Chile and serve as the basis for the fundamental and ultimate institutional framework of the Republic. However, the Council of State has no administrative powers or functions whatever, as it merely issues opinions or conclusions which are not binding upon the Government; nor has it, as in other countries, the rank of an administrative tribunal. Therefore, establishment of the Council of State has no positive repercussions on the improvement of the situation of human rights in Chile, since the objectives of the Council must be attained without impairing the prerogatives and decision-making power of the President of the Republic.

4. Although the number of denunciations of homicides imputed to Chilean authorities through an abuse of power has declined, in the cases being processed in the IACHR, the Government, while not denying the events, contends that the action taken by the authorities has been justified, but does not provide the evidence needed to make a judgment on the responsibility for those deaths, which the claimants impute to the Chilean authorities.

5. The Commission continued to receive denunciations with regard to individuals detained, missing or presumed dead. The number of denunciations in this category has also declined when compared with the periods covered by the previous reports. But, as of the beginning of this year, 415 cases of disappearances had been recorded.

6. During the period covered in this report the Commission did not receive sufficient information and documentation, requested from the Government of Chile, to enable it to form a well-founded judgment on the serious denunciations regarding “summary executions.”

7. It continues to be difficult to secure adequate data on violations of the right to physical liberty in Chile. The difficulties rest with the methods used by the Chilean security forces and the inefficacy of Legal remedies and essential procedural guarantees. This problem is exacerbated by the incomplete replies the Government of Chile provides to the questionnaires the Commission has sent to it.

8. Trustworthy sources support the denunciations received by the Commission to the effect that detainees are held incommunicado for lengthy periods of time. The security services generally deny knowledge of the arrest of the individual in question. The denial is maintained even when the arrest has taken place in the presence of many witnesses.

9. The expulsion of Chilean citizens is also a cause for serious concern, inasmuch as individual liberty includes the individual's right to remain in his country. When exile is offered as an alternative to imprisonment in cases where an individual has been found guilty of a serious crime, as provided by Decree Law Nº 1504 of April 30, 1975, which empowers military courts to change an individual's punishment to exile, the hardship of exile is mitigated, although even so it is still a serious limitation on the right of citizens to physical freedom.

10. It is important to point out the fact that two of the five Chilean lawyers that provided important information on the situation of human rights in Chile were expelled under circumstances that make it reasonable to assume that the motive for the expulsion was precisely the fact that they had provided such information. This would be to disregard Resolution 243 in which the Government of Chile was asked to “provide appropriate guarantees to persons or institutions that may provide information, testimony, or other types of evidence.”

11. As already mentioned above, one of the most serious matters involving Chile is the question of individuals who “disappear” after having been detained. While it appears that since the Second Report, the number of arrests and disappearances has declined, a substantial number still occur. Furthermore, the percentage of disappearances among individuals detained has increased over the figures contained in the Second Report.

12. One event that alleviated the serious situation described in the preceding paragraphs was the Chilean government's decision to release more than 300 detainees. This gave rise to hopes that the serious situation existing with regard to the physical liberty of individuals in Chile may yet be normalized.

13. Of special concern to the Commission are the repeated denunciations of violations of the right to personal integrity. According to information provided by the Government in answering a questionnaire sent by the Commission, only two individuals have been brought to trial for these acts, and an inquiry into charges filed by one prisoner has been launched.

The Commission wishes to point out that in the last three years, the pertinent parts of very concrete denunciations of physical and psychological duress against individuals deprived of their freedom, indicating both time and place, have been transmitted to the Government of Chile; and yet, to date, the Commission has no knowledge as to whether proceedings have been opened against those allegedly responsible for these acts or as to whether any individual has been convicted for these crimes.

Despite the fact that Constitutional Act Nº 3 of September 13, 1976, upholds the right to the integrity of the individual and prohibits application of an y illegitimate force, the fact is that the Government of Chile has not implemented an effective policy against torture that requires, above all, that those responsible be brought to trial and punished.

14. Under the state of emergency still in effect, the rights to justice and due process are subject to serious limitations. This has an effect upon the efficacy of the remedies of habeas corpus and amparo, and in general the rights upheld in Articles XVIII and XXVI of the American Declaration of the Rights and Duties of Man.

Constitutional Act Nº 3 contains certain provisions that refer to these rights. Formally speaking at least, these show progress in this area. However, in view of the lack of information, the Commission is unable to determine to what extent these standards are in fact observed.

15. There are serious limitations on freedom of expression and of information. Decree}Law Nº 1281, which allows very tight control over mass communication media, continues in force. A radio station was closed and others have been pressured by the authorities.

16. The situation with regard to political rights is essentially the same as it was when the First Report was written. During the period covered in this report, no step has been taken to reestablish the rights provided for in Articles XX and XXII of the American Declaration.

17. The Commission notes with grave concern the Chilean government's decision to take away the citizenship of a number of citizens by birth, who have been accused of crimes against the interests of the State from abroad.

18. By virtue of the legal provisions in force, the Comptroller General of the Republic does not at present play an effective role as a guardian of the law and therefore the fundamental rights of the citizenry.