CHAPTER II

HUMAN RIGHTS AND THEIR PROTECTION IN THE CHILEAN NORMATIVE SYSTEM

A. GENERAL ASPECTS

1. The purpose of this chapter is to describe the Chilean normative system as regards human rights. It is a general presentation of the rights protected, the remedies instituted for guaranteeing their observance and the limits imposed on their exercise; hence this presentation is without prejudice to the specific analysis that will be made when each particular rights is examined in the pertinent chapters.

2. From the methodological standpoint, the IACHR has deemed it advisable to describe the evolution of human rights in Chile by distinguishing three different stages: that prior to the 1973 coup, when the 1925 Constitution, which will be presented primarily for comparative purposes, was fully in effect; the initial stage of the present political process, running from September 11, 1973 to 10 March, 1981, during which various provisions amending the 1925 Constitution in part were promulgated although that Constitution remained formally in effect; and the present normative system regarding human rights is given legal form in the Constitution in force since then.

3. For each on of those stages, a succinct presentation will be made of the rights recognized in the pertinent juridical instruments, the remedies instituted for guaranteeing their observance, and the limitations imposed on the exercise of those rights, especially when states of constitutional emergency are in effect. The procedural aspects of the changes introduced when some effect on the rights guaranteed and their exercise results there from will be mentioned.

4. The limitations imposed on the exercise of the rights recognized when states of emergency are in effect will require detailed consideration, since, in that context, important changes have been made throughout a various types of states of emergency that may be established. The institutional mechanism envisaged for declaring them, and the powers conferred on the various organs when those states are in force. In the opinion of the Commission, consideration of the three above-mentioned elements makes it possible to reach a full understanding of the human rights restricted under those states of emergency and the ways in which the remedies instituted for protecting them operate.

B. THE 1925 CONSTITUTION

a. The Rights Recognized

5. The 1925 Constitution which was in force when the 1973 military coup occurred, devoted Chapter III to a statement of the constitutional guarantees of personal rights, which was preceded by Article 9 that recognized political rights. In that Chapter, the Constitution recognized the right to equality before the law: Freedom of thought and of religion; freedom of expression; the right of assembly, association and petition; the right of freedom of education; the right to access to public employment and posts; equality in the allocation of tax burdens; the right to property, including intellectual property, and its limitations; the right to freedom to choose one’s employment and to associate for trade union purposes; the right to residence and movement; the right to social security; the right to personal freedom and security; and the right to a fair trial and due process.

b. Guarantees for the Exercise of these Rights

6. To guarantee the exercise of the right to personal freedom and integrity, the remedy of amparo (habeas corpus) was instituted in Article 16 of the 1925 Constitution and its exercise could not be suspended on any account. In accordance with Article 15, the maximum period of detention, without a person being brought before a competent judge was 48 hours. Which period could be extended up to 5 days in the case of offenses against the security of the State and when a state of emergency was in effect.

c. States of Emergency and Limitations of Rights

7. With respect to the states of emergency, the 1925 Constitution envisioned two types: the state of alert and the state of siege; the former was in order in the event of external war and the latter in situations of external attack or internal disturbances. The declaration f those states of emergency was governed by the provisions of Article 72, (17), which conferred on the President of power to declare a state of alert and a state of siege in the event of an external attack. That Article also provided:

In case of internal disturbance the declaration of one or more places being in a state of siege belongs to Congress, but if Congress is not in session, the President may make it for a determined period.

If on the meeting of Congress the period named has not expired, the declaration made by the President shall be understood as proposal of law.

8. The above-mentioned provision explicitly restricted the powers of the President under the state of siege to that of transferring persons from one department to another and to that of detaining them in their homes or in places that were not prisons.

9. Also, in Article 44 (12), the 1925 Constitution conferred the following powers on Congress:

To restrain personal liberty and freedom of the press, or suspend or restrict exercise of the right of assembly, when supreme need for the defense of the state, preservation of the constitutional regime, or internal peace may so demand, and only for periods not to exceed six months. If such laws prescribe penalties, the established tribunals thereof shall always make infliction. Aside from the cases prescribed in this number, no law shall be enacted to suspend or restrict the liberties or rights that the Constitution ensures…

10. It follows from what has been said that, under a declaration of the state of siege because of internal disturbances--which is the case that is of interest for the purposes of this report--the powers granted to the President were significantly reduced; only personal freedom and the right of residence would be affected. For its part, congress could only restrict the right to personal freedom and freedom of the press and suspend or restrict the right of assembly, the situations in which that was lawful being strictly qualified. The participation of courts ensured the protection by the Judiciary of the rights recognized, and the unrestricted exercise of the remedy of habeas corpus reinforced the guarantees of these rights. The above-mentioned rule explicitly prohibited the restriction or suspension of any other right. There was thus adequate normative protection of the rights recognized, which was supplemented by a careful harmonization of the powers of the individual branches of the State.

C. THE INITIAL REGULATIONS (1973-1981)

11. After the military coup of September 11, 1973, the Government Junta took upon itself the exercise of the constituent, executive, and legislative powers, as already described in Chapter I. This was the beginning of a process in which, although the 1925 Constitution remained in effect, it was being amended through legal provisions issued by the Government Junta. It is pertinent to refer to two aspects of that process: the procedural arraignments whereby the Constitution was being amended and the resultant rules for the rights recognized, their corresponding guarantees, and limits imposed on them in states of emergency.

a. The Initial Procedure

12. A large number of amendments of the Constitution-especially relating to limitations on the exercise of the rights recognized in it-were made by means of decree laws, which failed to state that they were being enacted in the exercise of the constituent power. This caused confused juridical situation, which an effort was made to end by means of Decree law No. 788, published on December 4, 1974. That decree law stipulated the following:

Article 1. It is hereby declared that the decree laws enacted so far by the Government Junta, insofar as they are contrary or opposed to or are different from any provision of the Constitution have had and have the status of amendatory rules, either expressly or tacitly. In whole or in part of the corresponding provisions of that Constitution.

Article 3. The decree laws that are issued in the future, and may be contrary or opposed to, or different, expressly or tacitly, in whole or in part, from any provision of the Constitution of the State shall have the effect of amending it. As is pertinent only if it is explicitly stated that the government Junta is enacting it in the exercise of the constituent power that is incumbent on it.

13. Two important conclusions followed from this provision: the first is that relating to the subsidiary nature of the 1925 Constitution compared with the decree laws emanating from the Government junta, with the consequent negative effect on the stability of the rights protected; the second is that, in the future, amendments to the Constitution should be made by explicitly stating in the respective instrument that their enactment was in accordance with the exercise of the constituent power. Thus the possibility of violating the Constitution was technically eliminated through the simple procedure of amending it, established by decree law.

14. Thus a situation was produced in which, from December 1974 to the enactment of Constitutional Act. No. 3 of September 13, 1976, there was no specific instrument that embodied all the rights protected, since the exercise of those rights had to be adapted to the decrees of the political power.

b. The New Formulation of Rights: Constitutional Act. No. 3

15. The situation mentioned in the foregoing paragraph was modified in part, by the enactment of Constitutional Act. No. 3. Which consolidated constitutional rights and duties in a single Act.

16. The starting point of this Constitutional Act is the fundamental conception that the rights of the human person are prior to the rights of the State and, therefore, the protection and guarantee of those rights “necessarily constitute the essential basis of all State organizations”.

17. The enumeration of individual rights is very similar to that contained in the 1925 Constitution. However, there are some differences. An innovation is the inclusion in this Act of the right to health and the right to live in a pollution-free environment.

18. Constitutional Act. No. 3 also incorporated an innovation in the form of a set of “constitutional duties”, including the duty to “help preserve national security”, and idea whose content is not spelled out; and the affirmation that the duty to “comply with the Constitutional Acts. The Constitution and the laws require every individual, institutional group Bo obey the orders that are given by the constituted authorities, in accordance with their attributions.”

19. This normative instrument also stipulates the remedies that persons may avail themselves of in order to defend their rights: the remedy of amparo (habeas corpus) for personal freedom and the remedy of protection for the other rights. The inclusion of the last-mentioned remedy is a positive advance since it was not recognized in the earlier system of protection of human rights.

c. Limitations of Rights under States of Emergency:
From Decree Law No. 5 to Constitutional Act. No. 4

20. In that first period, from 1973 to 1980, major changes were introduced into the types of states of emergency that could be declared, the forms that such a declaration took, and the powers conferred on the respective organs when those states of emergency were in force. In this stage the categories of rights whose exercise could be suspended or restricted under those states of emergency and the way in which the guarantees of those rights operated in those circumstances were also modified.

21. The first significant modification was introduced on September 12, 1973, when Decree Law No. 5 was enacted. It stipulates:

Article 1. It is hereby declared, in interpretation of Article 418 of the Code on Military Justice, that the state of siege decreed by reason if internal disturbance, in the present circumstances of the country. Is to be understood as a “state or time of war” for the purposes of the application of the penalties of that time established by the Code of Military Justice and other penal laws and in general for all the other effects of that legislation.

Article 2. The following paragraph is added to Article 281 of the Code of Military Justice: “When the security of those attacked request it, the perpetrator or perpetrators may be killed forthwith”. [1]

22. In addition, Article 3 of Decree Law No. 5 amended Law No. 11,798 on the Control of Weapons with a view to making proceedings before military courts more expeditious, expanding the offenses included in that law, and increasing the penalties provided for a tin it, including the death penalty. Article 4 of that Decree Law amended Law No. 12,927 on Internal Security of the State by adding new criminal offenses and increasing the penalties, also including the death penalty.

23. As may be seen, this instrument modified the existing classification of states of emergency. Indeed, article 418 of the Code of Military Justice as “construed” by Decree Law No. 5 strictly relates to the case of external war; this decree law, therefore, assimilates internal disturbances to it and affects the normative system regulating the rights recognized and their limitations under the states of emergency. [2]

24. Thus Decree Law No. 81 of 1973, whereby the power to expel “specified persons” from the national territory. Was conferred on the Government, affected the exercise of the rights to residence, on the basis of the interpretation of Article 418 of the Code of Military Justice contained in Decree Law No. 5 mentioned above.

25. These and other restrictions on certain rights resulting from the measures adopted during that initial state [3] -–including specific actions of the authorities responsible for applying the provisions on the state of siege--went beyond the framework of the 1925 Constitution that the Government recognized to be in effect. The result was that those provisions were objected to as unconstitutional and many specific actions were denounced as crimes. To overcome that situation, Decree Law No. 228 of 1974 was enacted. Article 2 stipulated:

Article 2. The measures adopted by the administrative authorities that are the expression of the exercise of the power of Article 72, (17) (3) of the Constitution, prior to this decree law, are declared to be in accordance with law.

26. As may be seen, the broad powers taken on by the government Junta enabled it to adjust law to the measures adopted, and thus formally to overcome the legal incongruities those measures has engendered. The negative effect of this provision on the stability and guarantee of the rights recognized is obvious.

27. A further modifications was introduced into the system of states of emergency by Decree Law No. 527 of 1974, which stipulated that the state of siege was to be declared by decree law, that is, as a power of the President, with the agreement of the government Junta. This rule conferred on the President powers that were similar to those recognized by the Constitution of 1925 and reproduced above.

28. The various norms issued pursuant to the States of emergency, which were superposed on provisions prior to September 11, 1973, led to the enactment on September 10, 1974 of Decree Law No. 640, the purpose of which was to consolidate the provisions relating to those states.

29. However, in addition to systematizing the pertinent rules, this decree law modified two important aspects of the 1925 Constitution. First, it distinguished four types of states of emergency: state of external or internal war, state of alert, state of siege, and extraordinary powers. With respect to the state of siege, it confirmed that it was to be declared by decree law and stipulated its legality in the event of danger of tan external attack or invasion and in the case of internal disturbances of any kind.

30. Article 6 of Decree Law No. 640 distinguished four degrees within the state of siege: internal or external war in the degree of internal defense when there was a situation of internal disturbances “caused by rebel or seditious forces that are organized, or to be organized, either openly or clandestinely”; in the degree of internal security “when the disturbances are caused by rebel or seditious forces that are not organized”; and in the degree of simple internal disturbances 2that will be lawful in the other cases provided for in the legislation in force”.

31. In the second place, this Decree Law No. 640 also amended an extremely important aspect of the 1925 Constitution: it gave jurisdiction to military courts in several of the situations envisaged. Thus, it will be the military courts that will have jurisdiction when the state of siege has been declared in a situation of external or internal war, or because of internal disturbances in the degree of internal defense. In this case the war-time military courts will enter into operation, with the consequent procedure and penalties provided for in the Code of Military Justice. When the state of siege is declared in the degree of internal security or simple internal disturbances, the peace-time military courts will have jurisdiction over a wide range of activities envisaged in Articles 4, 5a, 5b and 6, c, d and e of Law 12,927 on State Security. [4]

32. On September 13, 1976 a additional provision relating to the restriction of rights in states of emergency was enacted: Constitutional Act. No.4. This Act introduced some new elements. Thus, it established four classes of states of emergency: the situation of external or internal war, internal disturbances, latent subversion and public calamity.

33. This Constitutional Act provides that a state of alert may be declared in the event of external war, a state of siege in the situation of internal war or internal disturbances a state of defense against subversion in the event of latent subversion and state of disaster in the event of a public calamity. The declaration of these states of emergency must be decreed by the President, with the agreement of the Government Junta; this agreement will not be necessary in the case of states of alert or disaster. Only the state of alert may be indefinite; all the others will have a maximum duration of six months, but they may be extended.

34. Constitutional Act No. 4 conferred on the President, when the state of siege had been declared, the power to deprive Chilean nationals of their nationality when the situation envisaged by Article 6 (4) of the 1925 Constitution occurred.

35. According to this instrument, under the state of siege the President was also empowered to suspend or restrict the right to personal freedom, the right of assembly, the right of freedom of expression, information and the right of association. Under that state of siege, also, and should rebel forces exist, the President could restrict the freedom of employment, impose censorship of correspondence and communications, and order the requisition of property.

36. Latent subversion is a conception included only in this Constitutional Act since it disappears from subsequent legislation; this fact alone relievers the Commission of the need to comment on the juridical pertinence of such conception. According to Constitutional Act. No. 4, the state of defenses against subversion conferred on the President the power to restrict personal freedom, the right to impart information and the right of assembly. It also empowered him to suspend the right to personal freedom and the right of assembly and to restrict freedom of opinion and the right of association when “he deems it essential for preventing the occurrence of subversion” (Article 6). The option of leaving the country was also granted to a person affected by arrest or enforced residence for a period of more than six months; the option, however, could be denied.

37. With respect to the remedies established for protecting the exercise of the rights recognized, it should be pointed out that the period during which a person could be detained without a competent judge being informed, was extended to ten days in that Constitutional Act. (Article 13). It also stipulated that the remedies of protection and amparo (habeas corpus) “shall only be valid insofar as they are completely compatible with the legal provisions governing the above mentioned emergency situations” (Article 14).

38. In this stage, significant changes were also made in the state of emergency, the evolution of which demands detailed consideration. Indeed, that state of emergency was originally envisaged in the 1958 Law on State Security, Article 31 of which provided:

In the event of war, external attack or invasion, the President may declare all or part of the nation under a state of emergency, whether or not the attack or invasion has occurred or there are grounds for believing that it will occur.

39. Therefore, according to the original text the state of emergency was only lawful in the event of external aggression. Subsequently, a second paragraph was added to that article by Law 13,959 of July 4, 1960. According to that addition, “In the event of public calamity, the President may declare the area affected to be in a state of emergency for a period of up to six months, on one occasion only”.

40. The origin of this provision is the need, which was noted in 1960, during a devastating earthquake, to provide the President with mechanisms that would make it possible to deal promptly with situations of this type. In the course of the legislative discussion it was stated for the record that “public calamity” was to be understood to mean solely natural disasters. [5]

41. Decree Law No. 4 of September 18, 1973, considering that the country was in the situation of public calamity, provided for in the provision mentioned, declared all the provinces and departments of the country to be in a state of emergency. And appointed officers of the Armed Forces heads of those provinces and departments, with the attributions conferred on them by Article 34 of the Law on State Security.

a. To take command of the military, naval, Carabineros and other forces that are in or reach the emergency area; b. To adopt measures to maintain secrecy about the existence or construction of military works; c. To prohibit the disclosure of military news, establish such press, telegraphic and radiotelegraphic censorship as is deemed necessary; d. To suppress such antipatriotic propaganda as is made by means of the press, radios, cinemas, and theatres or by any other medium; e. To regulate the carriage, use and existence of weapons and explosives in the possession of the civil population; f. To control entry and exit from the emergency area and movement in it and to make subject to the supervision of the authority any persons who may be considered to be dangerous; g. To make use of such premises and means of transportation belonging to government, para-government and autonomous state, municipal or private institutions as is deemed necessary and for such time as is essential; h. To order the total or partial evacuation of such neighborhoods, communities or areas as is deemed necessary for the defense of the civil population and for the better success of the military operations within their jurisdiction; i. To adopt measures for the protection of structures and services for use by the public; j. To issue the necessary orders for the requisition, storage and distribution of all articles necessary for the assistance of the civil population or for military purposes; k. To control the entry or exit from the emergency area of elements of subsistence, fuel and war material; I. To order the declaration of stocks of elements of military material existing in the area; II. To publish proclamations regulating the services for which they are responsible and the rules the civil population must observe; m. To issue all orders or instructions they deem necessary for the maintenance of internal order within the area; m. To suspend the printing, distribution and sale of up to six editions of newspapers, magazines, pamphlets, and printed material in general and the broadcasts up to six days, of radio broadcasting stations, television channels and any other similar information media that issues opinions, news or communications aimed at creating alarms or discontent in the population, that exaggerate the true dimension of the events, that are either manifestly false or contrary to the instructions given them for reasons of internal order, in accordance with the foregoing item. In the event of repetition, they may order the taking over and censorship of the respective information media, of their plant and facilities. [6]

42. Subsequently, Decree Law No. 1,281, published in the Official Gazette of December 11, 1975, permitted the extension of the state of emergency when the phrase “on one occasion only” was eliminated from Article 31 (2).

43. Decree Law No. 1,877, issued in the exercise of the constituent power of the Government Junta and published on August 12, 1977. Stipulated that: “Because of the declaration of the state of emergency regulated by the Law of State Security, the President shall have the power to detain persons for a period of up to 5 days in their own homes or in places that are not prisons”. The President shall have the power to detain persons for a period of up to 5 days in their own homes or in places that are not prisons”. The President will also have the powers provided for in Decree Laws No. 81, 198, and 1.009, that is, expulsion or abandonment of the country, restriction of trade union activities, and preventive detention for up to five days by security agencies.

Notes_____________________

[1] Article 2 was repealed and has not been in effect since November 20, 1973.

[2] This Decree Law is also of particular importance since it marks the beginning of a close interconnection between the rules regulating those states of emergency and the provisions governing the military jurisdiction. In this regard, see Chapter II: Right to a Fair Trial and to Due Process.

[3] For example: Decree Law No. 77, which declares Marxist political parties illegal and Decree Law No. 78, which declares a political recess for all the other political parties.

[4] Article 4. Notwithstanding the provisions of Title II o f Book II of the Penal Code and of other laws, the following commit an offense against the internal security of the State: those who in any way or by any means rise against the constituted Government or provoke civil war, and especially:

a. Those who incite or induce to the subversion of the public order or to revolt, resistance, or overthrow of the constituted Government and those who for the same purposes incite, induce or provoke the commission of the offenses provided for in Titles I and II of Book II of the Penal Code or those of homicide, robbery or arson and those provided for in Article 480 of the Penal Code;

b. Those who incite or induce, by word of mouth or in writing or by any other means, the Armed Forces, Carabineros, Prison Guards or the police or individuals belonging to them to in-discipline or disobedience of the orders of the constituted Government or of their superior officers;

c. Those who meet together, concert, or facilitate meetings for planning the overthrow of the constituted Government or conspiring against its stability;

d. Those who incite, induce, finance or aid the organization of private militias, combat groups, or other similar organizations or those who form part of them, for the purpose of replacing the police power, attacking it or interfering in its exercise or for the purpose of rebelling against the Powers of the State or attacking the authorities referred to in Article 6 (b);

e. The public employees of the military or of the Carabineros, police forces or prison guards, who do not fulfill the orders given them by the constituted Government in the legitimate exercise of its authority or delay their fulfillment or act with culpable negligence;

f. Those who spread or foment, by word of mouth or in writing or by any other means, teachings aimed at destroying the social system or the republican and democratic form of government or disturbing it by violence;

g. Those who spread by word of mouth or in writing or by any other means inside the country, or send abroad tendentious or false news items or information intended to destroy the republican and democratic system of government or to disturb the constitutional system, the security of the country the economic or monetary system, the normal system of prices, the stability of government securities, and the provisioning of the population, and Chileans who, being outside the country, spread such news abroad.

Article 5

a. Those who for the purpose of disturbing the institutional system or public security or intimidating the population, make an attempt on the life or physical integrity of individuals, shall be punished with long-term imprisonment in any of its degrees. If the victim of the crime dies or suffers serious injuries, the penalty shall be applied in its maximum degree.

Whenever the attempt is made by reason of the office the person holds has held or is called upon to hold the penalty shall be long-term imprisonment in its medium degree to life imprisonment. Should the victim of the crime die or serious injuries be inflicted upon him, the penalty shall be long-term imprisonment in its maximum degree to death.

The penalties specified in the foregoing paragraph shall be applied if the victim were the spouse, ascendant, descendant, or collateral up to the second degree of blood relationship of the person indicated therein.

b. Those who for the purpose of disturbing the institutional system or public security or intimidating the population or imposing demands or obtaining decisions from the authority, deprive a person of freedom shall be punished with long-term imprisonment in its medium decree to long-term imprisonment in its maximum degree.

The penalties specified in the foregoing paragraph shall be applied if the victim were the spouse, ascendant, descendant or collateral up to the second degree of blood relationship of the person indicated therein.

Article 6. The following commit an offense against the public order:

c. Those who incite, promote or foment or de facto and by any means destroy, make unusable, bring to a standstill, interrupt or damage the facilities, means or elements used for the operation of public services or public utilities or industrial, mining, agricultural, commercial, communication, transportation or distribution activities and those who, in the same way, impede or obstruct free access to those facilities, means or elements;

d. Those who incite, promote or foment or de facto or by any other means destroy, render unusable or prevent free access to bridges, streets, roads or other similar property for public use.

e. Those who incite promote or foment or de facto poison foods, waters or fluids intended for public use or consumption.

[5] Bulnes Aldunate, Luz “Regimenes de Emergencia”, in Modificaciones Legales del Sexenio 1973-1979, Faculty of Law of the University of Chile, Editorial Juridica de Chile, Santiago, 1979, Vol. 1, p. 335.

[6] This last mentioned subparagraph was added by Decree Law No. 1,281 of December 11, 1975.