REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

CHAPTER IV

THE RIGHT TO PERSONAL INTEGRITY

A. GENERAL ASPECTS

1. The American Declaration on the Rights and Duties of Man mentions the right to personal integrity in the following terms:

Article I. Every human being has the right to life, liberty and the security of his person.

2 Article XXV, paragraph 3, for its part, stipulates;

Every individual ... also has the right to humane treatment during the time he is in custody.

3. To spell out the content that should be assigned to the right to personal integrity, it is useful to refer to the American Convention on Human Rights, Article 5, which recognizes the right of every person to have his physical, mental and moral integrity respected and prohibits any person being subjected to torture or to cruel, inhuman or degrading punishment; the American Convention also stipulates that all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

4. The above-mentioned Article 5 should be read together with Article 6 of the American Convention, in order to correctly delimit the content of the right being examined; accordingly, forced labor may also be considered injurious to personal integrity when the purpose is not to rehabilitate the convict or to make the period of deprivation of liberty more bearable but to impose an additional penalty arising from the nature of the work done or because of the personal and social characteristics of the individual of whom it is required.

5. The Universal Declaration of Human Rights also protects this very important right in Articles 3 and 5. For its part, the International Covenant on Civil and Political Rights stipulates in Article 7 that:

No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

6. It follows from these rules that the right to personal. integrity is a conception of the broadest scope whose purpose is to protect the person from any State action that can adversely affect that person. It also follows from these provisions that the right to personal integrity is in effect both during the pre-trial period of arrest and in the period during which the sentence, if any, is undergone. This right derives from the inviolability of the detained person considered as a whole. This implies that the person must be protected against the possibility that some kind of force may be used against him in order to obtain declarations or a specified activity from him. In this regard, it should be pointed out that intimidation is an element of great importance characterizing the behavior of State agents that entails the violation of the right to personal integrity.

7. Particular importance must be attributed to the atrocious practice of torture; it is without doubt one of the most inhumane activities, the eradication of which is an imperative of all civilized societies. In the framework of those efforts it should be pointed out that on December 10, 1984 the United Nations General Assembly adopted the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment. For its part, in 1978 the Inter-American Commission on Human Rights had proposed the preparation of a convention that would define torture as a crime against humanity, which was accepted by the General Assembly of the Organization. [1]

8. The 1984 United Nations Convention against Torture mentioned above define torture as:

… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

9. As follows from the terms of this definition, the situation considered is that in which torture is assumed to be a widespread practice by the security agencies of a specified State. The need to eradicate this condemnable practice has resulted in all penal codes, generally, containing provisions aimed at preventing torture. Essentially, the mechanism provided for this purpose is the strengthening both of the power and independence of the Judiciary and of the remedies instituted for protecting persons who may be subjected to torture. It is also a matter of preventing torture by strictly limiting the periods of preventive and incommunicado detention. If that happens, exemplary punishment of the perpetrators is an unequivocal sign that the authorities are not willing to tolerate it. That punishment not only serves as a punishment of the persons who have tortured but also has the effect of deterring persons who may feel tempted to do so.

10. Contrario sensu, those States that in practice weaken the independence of the Judiciary and of the remedies intended to safeguard the personal integrity of arrested persons and also excessively expand the periods of preventive detention and incommunicado lay themselves open to the accusation of creating the necessary conditions for torture to be carried out; that is, they may be accused of tolerating it. If, in addition, those States give institutional recognition to secret places of detention, provide the State agencies responsible for security with the personnel and the physical means necessary for the practice of torture and do not punish its perpetrators, it must be concluded that those States not only tolerate torture but also foster it and adopt it as a deliberate policy.

11. Therefore, any analysis whose purpose is to evaluate the activities of the State in respect of the practice of torture must be based on this set of very concrete practical indicators and not on the mere declarations of its officials or solely on the juridical provisions that exist in it.

12. It is now in order to examine how the Government of Chile has acted since September 11, 1973 in the matter of personal integrity. The following analysis will not deal with the practice of forced labor, which was initially applied to a group of political prisoners subsequent to the military coup on the above-mentioned date, since it was exhaustively dealt with in the respective report of the Commission prepared in 1974 and because there have been no indications that the Government has resumed that practice. On the other hand, extensive treatment will be given to the problem of torture and an examination will be made of the use of indiscriminate and unnecessary violence by the security agencies that have resulted in violations of the right to personal security. First of all, a succinct presentation will be made of the legal rules in force in Chile relating to the right examined.

B. LEGAL RULES IN FORCE IN CHILE RELATING

TO PERSONAL SECURITY

13. The 1980 Constitution stipulates:

Article 19. The Constitution ensures all persons:

1. The right to life and to physical and psychic integrity of the individual.

….

Use of all illegal pressure is prohibited.

14. Article 150 of the Penal Code stipulates the penalty of imprisonment for persons who commit the following acts:

1. Those that order or unduly prolong the incommunicado detention of a prisoner, subject him to torture, or use unnecessary force on him.

15. For its part, the Code of Military Justice stipulates in Article 330:

A soldier who, when executing any higher order or in the discharge of military functions, employs or causes to be employed, without a sound reason, unnecessary violence for the execution of the acts he must carry out, shall be punished:

1. With the penalty of long‑term imprisonment in its minimum to medium degrees if he causes the death of the victim of the offense.

2. With the penalty of imprisonment in its medium degree to hard labor in its maximum degree if he causes serious injuries;

3. With that of medium‑term imprisonment in its minimum to medium degrees if he causes less serious injuries, and

4. With that of imprisonment in its maximum degree to medium‑term imprisonment in its minimum degree if he does not cause him injuries or if they are slight.

If violence is used against detained persons or prisoners to obtain information, reports, documents or goods relating to the investigation of a criminal act, the penalties shall be increased by one degree.

16. Decree Law No 1,009, published on May 8, 1975, stipulated that “the use of illegitimate force on detained persons shall be punished in accordance with Article 150 of the Penal Code or Article 330 of the Code of Military Justice, whichever is applicable”. That decree was complemented by Supreme Decree N* 187 of January 30, 1976, which stipulated that;

Every person detained by the agencies and in the situations referred to in Article I of Decree Law No 1,009 ... shall, before entering the offices, establishments or places of detention under their authority, be examined by a physician. A similar examination shall be made of the person of the detainee at the time he leaves the above‑mentioned offices, establishments or places.

17. This Supreme Decree also authorizes the Minister of Justice to report irregularities committed against persons in custody that are recorded in the medical certificates issued. It also authorizes the Minister of Justice and the President of the Supreme Court to visit, without prior notice, any place of detention and to report to the competent authorities on the anomalies they may have been able to ascertain.

18. The Chilean juridical system in force for the prevention and punishment of violations of the right to personal integrity having been succinctly presented, it is now in order to analyze the practice of the Government of Chile in this regard. To begin with, aspects connected with violations of the right to personal safety resulting from the methods used in quelling public demonstrations will be described.

C. SUPPRESSION OF PUBLIC DEMONSTRATIONS

19. One aspect to which the Commission wishes to refer in the matter of personal safety and integrity is the use of indiscriminate and excessive violence by the Chilean security agencies. There are two different types of phenomena which may be distinguished in this topic: on the one hand, the violence used against identified persons or groups; on the other, the violence to which classes of persons without any connection, or with a tangential connection with specified events, have been subject.

20. It is necessary to specify that it is not a matter of the use of force for putting a stop to acts that may be committed in the course of demonstrations or other ways of collectively expressing a specified political position. On the contrary, it is the use of means disproportionate to the phenomenon that caused their use. It is in this sensing that unnecessary or excessive violence may be spoken of. This category also includes acts of indiscriminate violence, that is, acts, which by their nature affect persons that are not involved in the events that caused the intervention of the security agencies.

21. The incidence of these two types of offenses against personal integrity was marginal until the beginning of 1983. Indeed, it is only from May of that year that the organizations for the defense of human rights in Chile began to break down the information in order to give an account of this type of phenomenon. This coincides with the beginning of the peaceful protests in opposition to the Government.

22. Thus, the Chilean Human Rights Commission estimates the number of cases of persons injured and persons hurt in 1983 at 1,934 and at 1,896 in 1984. [2] For its part, the Vicaria de la Solidaridad provides the following figures: 578 injured and 24 deaths in 1983, and 891 injured and 29 deaths in 1984. [3] In this case again, the figures provided by the Vicaria de la Solidaridad are based on complaints filed by the victims with the courts, or complaints that are reliably reported to that institution. These figures do not represent the total number of cases that actually occurred.

23. Many testimonies and journalistic information describe the disproportionate violence used by the security forces, in this case the Carabineros, to disperse protest demonstrations. Some operations have included the participation of Army and Air Force personnel. This was the case of the measures adopted on the occasion of the protest demonstration of 12 July 1983, in which 18,000 soldiers patrolled the streets of Santiago. In addition, on November 15, 1984, the La Victoria neighborhood was surrounded, by police officers, and soldiers, who proceeded to search the houses and detain several thousand residents. Similar actions were carried out in several Santiago neighborhoods on November 24 and 25, 1985 while on November 27 the streets of Santiago were patrolled by Carabineros, Army, and Air Force personnel.

24. In view of the impossibility of referring to the many cases that situation has produced, the Commission will refer to the note published by 76 members of the Faculty of Basic and Pharmaceutical Sciences of the University of Chile, expressing their “horror, extreme concern, indignation and fear” at the way in which Roberto Antonio Irrazabal, a student, was wounded in the head by a bullet. According to those professors.

... the Carabineros bus license plate B-22, stopped opposite the northern door ... From the window of the bus, an officer leveled his weapon and waited until a young man who was hiding behind a porter's lodge inside the building put out his head. He then fired and wounded him seriously in the forehead.

25. A recent article published in the Jesuit magazine, Mensaje stated the following. [4]

In the downtown area, the Carabineros beat, kicked, used their truncheons or set dogs on men and women, demonstrators or reporters, with a fierceness that suggests simply the use of pharmacological stimulants or an inhumane psychological. Conditioning. In answer to a question about the possible sadism of certain Carabineros, General Carlos Donose stated: “When a Carabinero uses his truncheon, it is because he has been insulted and stoned. We have endeavored to train that man in such a way that at that time he becomes a double personality and does not react like a human being but like a robot”.

26. Abundant journalistic material and complaints lodged with the military courts that have been brought to the knowledge of the Commission lead it to believe that this form of violence against the physical and psychological integrity of the population has reached alarming proportions in Chile, especially since May 1983 when the days of protests began.

27. The Commission is aware that the violence has caused victims even among the members of the Chilean security services. The Commission regrets those victims and condemns, as it has always done, the use of violence as a method of solving social disputes. However, it cannot but point out very clearly that the fundamental responsibility is that of the Government of Chile which, with the methods used, has seriously violated the right to physical integrity and at the same time has created a climate of insecurity and fear in the population. It is now in order to refer to the topic of torture so as to specify the characteristics that have marked this phenomenon in Chile during the period covered by this report.

D. TORTURE

28. The direct experience of the Commission during its on-site observation in 1974, and the many complaints and attestations received subsequently by it, enable it to confirm the existence of torture in Chile. Several reliable sources also corroborate that fact. The organizations for the defense of human rights in Chile have provided reliable information on the use of torture by the Chilean security agencies. For their part, the Chilean courts have processed many complaints about the use of torture, which has been confirmed in some cases.

29. All this information makes it possible to affirm the existence of the phenomenon of torture. However, it is necessary to delimit the characteristics so as to specify whether it is a result of certain excesses committed by individuals, whether it is a phenomenon simply tolerated by the Chilean authorities or, finally, whether the practice of torture is a deliberate policy of the Government of Chile.

30. To identify the characteristics of torture during the period covered by this report and to draw pertinent conclusions, the Commission has relied on the direct experience it obtained on the occasion of its on-site observation in 1974 and on several cases it has processed, on which it has adopted the pertinent resolutions. It has also taken into account information provided by credible sources including organizations for the defense of human rights, both Chilean and international.

a. Quantitative Aspects

31. It is particularly difficult to accurately indicate the exact number of persons who have been subjected to torture in Chile since September 11, 1973. There are many reasons for this difficulty; the principal undoubtedly being the intimidating effect the use of torture has on the victims and the threat hanging over them of again being subjected to it.

32. The Commission has had available two types of quantitative information about cases of torture recorded in Chile. One of them is the number of complaints lodged with the courts, in which it has been incumbent upon the Vicaria de la Solidaridad of the Archdiocese of Santiago to participate; in this case the figures available date from 1979 since earlier accurate statistics were not kept. The other type of quantitative information is the estimates of the Chilean Human Rights Commission, prepared on the basis of information collected from various sources, including journalistic sources and that provided by the provincial agencies connected with that Commission; in this case, the data have been recorded since 1982. The following table embodies the information from both sources:

CASES OF TORTURE IN CHILE (1979-1984)

33.As may be seen, the figure provided for reported cases of torture is the minimum quantitative indicator that can be used, since, as already stated, not all the persons who were subjected to torture managed to report it and, furthermore, because the first five years of the period covered by this report are not included. The figure for the estimates is given as a comparative element, but in this case as well the figure is clearly reduced because it encompasses only the data recorded for three of the 12 years that have elapsed since the date of the 1973 military coup. With these qualifications, in the rest of this section the Commission will deal exclusively with the number of cases of torture reported to the courts.

b. Methods of Torture

34. A fundamental element in the practice of torture is that it seeks to alienate the will of the victim in order to force him to execute acts he would otherwise carry out. For that purpose, it endeavors to produce a state of complete lack of defense, and to intimidate the person affected; that is the objective of the physical and moral pain inflicted, as it is of the administration of non-therapeutic drugs or the practice of hypnosis. Therefore, the methods of torture are extremely varied, and in general, are administered in doses.

35. Many testimonies by persons who have complained that they had been tortured by the security agencies of Chile have been submitted to the Inter-American Commission on Human Rights as well as to various organizations, which have made it possible to describe the methods most frequently used. On other occasions, those methods have been described in complaints lodged with the Chilean courts and, in several instances, it has been possible to infer them from the post-mortem examinations of the bodies of persons who did not survive the treatment of which they were the victims.

36. It would be an extremely lengthy and painful task to reproduce the text of the statements of persons who allege that they have been victims of torture in Chile; therefore, to exemplify the methods used, the Commission has selected the method of abstracting, to the extent possible, the techniques used and has omitted the emotional consequences that are necessarily reflected in the accounts of the persons affected. This method also makes it possible to avoid generalization from specific situations in which particularly aberrant means may have been used.

37. The Inter‑American Commission on Human Rights received direct testimony on the methods used against prisoners of both sexes during the on‑site observation it made in 1974. In the report it prepared on that observation the Commission stated that during its visit it received many convincing statements from persons from the most varied social strata and different regions and cities of Chile as well. As of different political beliefs, who stated that they had been subjected to torture.

38. The methods recorded by the Commission in its report include the application of electric current to sensitive parts of the body, especially the genital organs, either successively or simultaneously; cigarette burns on various parts of the body, suspension by the wrists or ankles; mock execution, shots being fired above the head or to the sides of the prisoner; threat of harassment of their wives, daughters or sisters; forcing them to witness torture practiced on other prisoners or to listen to screams caused by torture; simultaneous blows with the open hands on both ears to injure the eardrums. In the case of women, the Commission stated at the time, that the methods included all types of sexual abuses including the commission of such aberrant acts as successive rape by several individuals; flagellation and torture in the presence of their husbands or common-law husbands; and the use of drugs like pentothal to inhibit all physical or mental resistance to sexual abuse or interrogation.

39. Other methods of torture used by the Chilean security forces that are mentioned by specialized organizations are the so-called “parrot's perch”, which consists in tying the wrists and the ankles of the victim and introducing a stick between the knees and the elbows in order to suspend him by supporting the stick on trestles or tables so that electricity can be applied while he is hanging head down; also mentioned is the “submarine”, a method that consists in submerging the person in baths full of water--sometimes mixed with excrement--until he cannot breathe.

40. Mention should also be made of various methods intended to make the victim lose all sense of time or space. Thus, a frequent procedure is keeping a person hooded for lengthy periods--which in addition serves to protect the persons inflicting the torture or participating in it and makes it impossible to identify the place of detention--, frequent interruption of sleep and change of hours of meals. Other methods used are stripping in public and withholding water and food for lengthy periods. [5]

41. The variety of methods used has made it possible to classify them into predominantly physical or predominantly psychological methods, even though in practice they are used simultaneously and in doses, depending on the objective sought to be attained with the torture. This aspect is dealt with in the following section.

Notes_____________________

[1] See Resolution AG/RES. 368 (VII-0/78) of July 1, 1978, operative paragraph 6.

[2] Comisión Chilena de Derechos Humanos, Annual Report 1983, Annex XXXVIII) y Comisión Chilena de Derechos Humanos, Monthly Report, January 1985, p. 9.

[3] Vicaria de la Solidaridad, Informe Mensual, diciembre de 1984, p. 134

[4] Renato Hevia, S.J., Carabineros de Chile, Mensaje No. 334, November 1984.

[5] The following statement of a victim of torture adequately summarizes this assertion: “If on leaving captivity I had been asked: did they torture you much? I would have replied, yes, three months without stopping. If that question were put to me today, I would say to them that I'll soon be completing seven years of torture”. Quoted in the Report of the National Commission on the Disappearance of Persons in Argentina, Nunca Mas, CONADEP, 4th Edition, Editorial EUDEBA, Buenos Aires, Argentina, 1984, p. 26.