CHAPTER V

RIGHT TO PERSONAL LIBERTY

A. GENERAL ASPECTS

1. The right to personal liberty is protected generically in Article I of the American Declaration on the Rights and Duties of Man and specifically in Article XXV, which stipulates that:

No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing laws.

No person may be deprived of his liberty for non-fulfillment of obligations of a purely civil character.

Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.

2. The Inter-American Commission on Human Rights has frequently referred to the signal importance of the guarantee and protection of a fundamental right such as that to personal liberty. Thus, the Commission has stated that “unless the exercise of this right is guaranteed to all citizens, all the other rights are precarious. As long as there is a possibility of arbitrary detention, the other barriers to government action become empty hopes...” [1]. The Commission has also stated that “arrests should be made in places established for this purpose, where the arrested persons could have all the necessary guarantees of respect for their life and physical integrity”. [2]

3. Furthermore, the Commission has stated that “these violations of human rights (detentions without due process) were possible, in large measure, due to the states of emergency which permit excessive and arbitrary powers to detain without cause or due process those whom the authorities consider a threat to national security...”, adding that “in some states arbitrary detentions were even carried out without the support of any juridical norm, by the simple decision or consent of a public authority in face of the action of the security forces or paramilitary groups linked to those forces”. [3]

4. The Commission has also pointed out as a serious anomaly the fact that “cases have occurred and are occurring of arbitrary arrest ordered by the police or by agents related or to responsible to them. In issuing reports on these acts the authorities attribute them to the police as though it were an autonomous power”. [4]

5. The purpose of this chapter is to examine the patterns characterizing the exercise of the right to personal liberty in Chile during the period covered by this report. To that end, the normative guarantees provided for in the positive law of Chile during the above-mentioned period will be described. Then an examination will be made of how this right is affected by the existence of states of emergency and the various aspects that have characterized the action of the Government of Chile in practice, will be analyzed and, finally, the practice of administratively imposed relocations will be presented.

B. THE RIGHT TO PERSONAL LIBERTY IN THE JURIDICAL SYSTEM OF CHILE

a. The 1925 Constitution

6. Article 13 of that Constitution provided that no one can be arrested except by the order of a public functionary expressly empowered by law, and after such order has been made known to him, in legal form, unless he be surprised in flagrante delicto, and in this case for the sole purpose of being brought before the proper judge. “In case an authority”, Article 15 went on to say, “orders the arrest of any person, he must, within the first 48 hours following, make report thereof to the proper judge and place at his disposal the person detained.” During states of emergency, this rule authorized a judge to extend the above-mentioned period for up to five days. Finally, Article 14 stipulated that no one could be arrested, subjected to preventive detention or imprisoned except in his home or in public places intended for that purpose. Article 16 provides for the remedy of amparo, which may be lodged against detentions that violate the above‑mentioned guarantees and was discussed in Chapter II.

b. Constitutional Act No. 3

7. This legal text contains guarantees very similar to those established in the 1925 Constitution, but, in the case of detention, authorizes a judge to extend the period of 48 hours for up to five days without it being necessary for a state of emergency to be in force. This means that, even in normal times and through this authorization, a person may be deprived of his liberty by the political authority for a considerable period.

C. The 1980 Constitution

8. In effect since March 11, 1981 this Constitution guarantees all persons the “right to personal liberty and individual security”, which includes both personal liberty proper such as permission to move from one point of the Republic to another and to enter and leave its territory. The general principle that safeguards this right is set forth in Article 19, (7) (b) of the Constitution: “No one may be deprived of his personal freedom nor may such freedom be restricted except in the cases and in the manner determined by the Constitution and the law”. With respect to the formalities that may be required, the Constitution itself stipulates certain basic guarantees.

c. No one may be arrested or detained unless on an order of a public official especially empowered by law to that effect and provided such an order has been notified in the means prescribed for by law. (Article 19 (7) (c), first paragraph.

Should the authority order the arrest or detention of an individual, the competent judge must be notified, within 48 hours, following the arrest or detention, and the individual is to be placed at his disposition. U Ibid; second paragraph).

d. No one may be arrested or detained, held in preventive arrest or prison, in places other than his home or public premises established to that effect. (Article 19 (7)(d), first paragraph):

Those in charge of prisons may not accept anyone who has been arrested or detained, or who is being tried or sentenced to prison, without recording the appropriate order issued by a legally authorized official, in a public register.

No in communication order may prevent the official in charge of the place of detention from visiting the individual under arrest or detention, subject to trial proceedings or sentenced to prison, held in such place of detention. This officer is obliged, whenever the arrested person or detainee should so request, to send a copy of the detention order to the competent judge, or demand that such copy be given to him, or he himself give an attestation that the individual is being detained, in the event this requisite should have been omitted at the time of the detention.

d. Legal Regulations

9. The Code of Criminal Procedure, in force since March 1, 1907, stipulates the formalities for deprivation of liberty, which include the following:

a. Every order of arrest or imprisonment shall be made in writing and, to carry it out, the judge or the authority that it shall sign a warrant in which that order is reproduced textually. (Article 280).

b. The warrant of arrest or imprisonment shall contain:. 1) the identification of the official that issues it; 2) the name of the person charged with executing it if execution is not assigned generically to the public power represented by the security police or by some unit of the army, or otherwise; 3) the given name and surname of the person that is to be apprehended ... ; 4) the reason for the arrest or imprisonment, unless there is a serious reason for omitting it; 5) the prison or public place of detention to which the person apprehended is to be taken ... (Article 281).

c. The individual on whom it is to be executed must be notified, at the time of its execution, of the warrant against him; it shall be shown to him at the time of his arrest and a copy of it shall be given to him. (Article 284).

d. Every individual apprehended by order of a competent authority shall be immediately taken to the prison or to the public place the pertinent warrant specifies. (Article 290).

e. The arrest, as well as the preventive detention, shall be effected in such a way as to harm the person or damage the reputation of the prisoner as little as possible. The liberty of the prisoner shall be restricted to the extent strictly necessary for maintaining order in the establishment and for safeguarding his person and preventing communications that may obstruct the investigation. (Article 293).

f. A person held incommunicado may confer with his lawyer in the presence of the judge for the purpose of obtaining measures for terminating the incommunicado state. (Article 303).

10. In short, a detention or arrest must be carried out with at least the following requirements prior order in writing of an expressly authorized official, notification of that order, reason for the arrest, public place to which the prisoner is to be taken, respect for his person and reputation, limited restriction of liberty and access to legal assistance even in cases of incommunicado detention. [5]

e. Personal liberty and states of emergency

11. In exceptional and well-defined circumstances, the legislation authorizes certain measures that affect the constitutional guarantees of personal liberty. These measures are based on the states described below.

i. Restrictions under the state of siege

12. As already pointed out in Chapter II of this report, Article 72 (17) of the 1925 Constitution stipulated that one of the special attributions of the President was to declare one or more points of the Republic under a state of siege in the event of external attack, during the existence of which the President was granted only two very special powers to transfer persons from one department to another and to detain them in their homes or in places that were not prisons or other places intended for imprisonment or detention of common criminals. The arrest or transfer orders was to be executed with all constitutional and legal formalities, including prior control of its legality by the Office of the Comptroller General of the Republic through the pertinent procedure (toma de razón). Decree Law No. 3 of 1973, invoking Article 72 (17) of the Constitution, declared the entire territory in a state of siege.

13. Although Decree Law No. 5 of 1973 stipulated that the state of siege in effect was to be understood as a state or time of war, it did not amend the powers of the Executive which, as regards personal liberty, continued to be the same as those provided for in the earlier system to order arrests and transfers. However, Decree Law No. 81 of 1973 stipulated that during the existence of the time of war the Government could order the expulsion or abandonment of the country of Chilean nationals or aliens. [6]

14. Several subsequent amendments were introduced relating to the various limitations to which the right to personal liberty could be subject and the authorities empowered to execute the corresponding measures. Thus, Decree Law No. 228 of 1974 stipulated that the powers the Constitution conferred on the President during the state of siege would be exercised by the Government Junta through decrees signed by the Minister of the Interior. It also declared the arrests and transfers executed earlier to be in accordance with law. Decree Law No. 527 of 1974 (Statute of the Government Junta) stipulates that the Executive Power is exercised by the President of the Government Junta, one of whose special attributions is to declare a state of siege, with the same powers as stipulated in the Constitution.

15. Decree Law No. 951 of 1975 introduced a significant amendment by providing that the measures authorized by the state of siege could be ordered by the Ministry of the Interior, intendants, and governors. In the case of governors, the regional authorities had to inform the Minister of the Interior within 10 days and he was to confirm or revoke the measure within a period of 48 hours. This amendment of the Constitution was serious, in that the exceptional power of restricting personal liberty under the state of siege had always been a prerogative of the President that could not be delegated and was subject to parliamentary control (impeachment). The non-existence of parliamentary control, in and of itself, left a wide margin for the Head of State to use his exceptional powers in a discretionary manner. The extension of those powers to subordinates of the President expanded even further the restrictions on the right to personal liberty by investing, in practice, his agents with the powers to arrest, relocate persons, expel them from the national territory or prevent their entry in to it, without giving any reason.

16. Decree Law No. 1,009 of 1975 imposed another serious restriction on the conditions of the observance of the right to personal freedom by authorizing the security agencies, during the existence of the state of siege and “when they act in the exercise of their own powers” to preventively detain for up to five days persons concerning whom there was a well-founded presumption that they endangered the security of the State. “Security agencies” was to be understood to mean the National Intelligence Directorate (DINA), the predecessor of the National Intelligence Agency (CNI), which agencies have been mentioned as responsible for many arbitrary arrests.

17. By constitutional and legal mandate the powers to arrest persons must be explicit and therefore this power that was granted to DINA agents contravened those express provisions and, in practice, was used to subject prisoners to an agency over which the necessary institutional controls did not exist to ensure the effective exercise of the right to personal liberty, as was deduced from the analysis contained in Chapter VIII of this report on the processing of amparo. As a result of the amendment introduced by this Decree Law, the President of the Republic, the Minister of the Interior, intendants, governors, and CNI agents were authorized to deprive persons of their liberty or to restrict it.

18. Constitutional Act No. 4 expanded the powers of the President of the Republic during the state of siege to restrict the exercise of the right to personal liberty. Thus, Article 13 stipulates that, during states of emergency and when events that affect the security of the State are involved, the authorities may detain persons for up to ten days.

19. The new Constitution came into effect on March 11, 1981. Article 19 (26) guarantees all persons “the assurance that the legal precepts which, by mandate of the Constitution, regulate or complement the guarantees established therein or which should limit them in the cases authorized by the Constitution, may not affect the rights in their essence nor impose conditions, taxes or requirements that prevent their free exercise”. But the second item of that numbered paragraph introduces a serious restriction on this principle by adding that “the norms relative to conditions of constitutional exception and others which the Constitution itself contemplates are excepted”. This rule, therefore, excludes the constitutional guarantee, inter alia, of the rights to personal liberty and security, which are precisely those that are most affected when states of emergency are in effect.

20. The powers the Constitution grants to the President during the state of siege, as already pointed out in Chapter II, are very broad. With respect to the right to personal liberty, the President may remove persons from one point of the national territory to another and arrest them in their own homes or in places that are not prisons or intended for the detention or imprisonment of common criminals.

21. Article 41 also stipulates that the writ of amparo will, when the state of siege exists, not be valid for the measures adopted pursuant to that state by the competent authority and subject to the constitutional and legal rules. In no case may the courts of justice determine the factual bases of the measures adopted by the authority in the exercise of its powers.

22. The duration of measures adopted during the states of emergency that do not have a specified duration cannot be extended beyond the life of those states (Article 41, (7)). It follows from this provision --and it has been the practice of the Government of Chile-- that the deprivation of personal liberty during the state of siege lasts for the duration of that state, which can be indefinitely renewed every ninety days.

ii. Restrictions under the state of emergency

23. The state of emergency, as regulated in the Law on State Security, did not authorize the arrest of persons or their removal from one department to another. As already pointed out, Decree Law No. 1,281 of 1975 permitted the extension of the state of emergency by eliminating the expression “on one occasion only” from Article 31 (2) of that law. Subsequently, Decree Law No. 1,877 of 1977, issued in the exercise of the constituent power, stipulated that: “Pursuant to a declaration of the state of emergency regulated by the State Security Law, the President shall be empowered to arrest persons for up to a period of five 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, No. 198 and No. 1,009, that is, with respect to the subject matter of this chapter, the provisions that authorize preventive detention by security agencies for up to five days are in force.

24. Decree Law No. 3,168 of 1980 authorized the President to order, during the state of emergency, the enforced residence of persons in any locality of the national territory for a period of not more than 90 days. The respective decree may be signed by the Minister of the Interior with the formula “by order of the President”.

25. Decree Law No. 3,451 of 1980 specified that the period of arrest provided for in Decree Law No. 1,877 could be extended for up to 20 days “when offenses against the security of the State from which death, injuries or kidnapping of persons may result are being investigated”. it should be pointed out that this rule does not require any link between the activity of the person arrested and the death, injuries or kidnapping resulting from the facts being investigated.

26. The 1980 Constitution provides for the declaration of a state of emergency in the event of serious disturbance of the public order and damage or threat to national security, whether of internal or external origin. The power to declare this state of emergency is vested in the President, in accordance with Transitory Provision 15 of the Constitution. This state may not exceed 90 days but may again be declared if the circumstances persist (Article 40 (3)).

27. As a result of the declaration of the state of emergency mentioned above, freedom of movement may be restricted and the entry or exit from the national territory of specified persons may be prohibited, among other measures. However, the state of emergency does not grant the authorities the power to arrest persons or to order their enforced residence in a specified locality.

28. However, that power is provided for in Transitory Provision 24 of the Constitution, according to which, when acts of violence intended to disturb the public order occur or there is a danger of disorder of internal peace, the President shall declare that situation to exist and for a renewable period of six months shall have the power:

a. To arrest persons for up to five days in their homes or in places other than jails. Upon occurrence of terrorist acts of grave consequence, he may extend this period for 15 additional days

b. To order the mandatory permanence of certain persons in an urban locality of the national territory for a period not exceeding three months.

29. As already mentioned, the measures adopted pursuant to this new state of emergency will not be susceptible to any remedy except that of reconsideration by the authority that ordered them.

30. The legal aspects connected with the right to personal liberty in Chile having been examined, it is now in order to deal with the practice of the Government in this regard.

C. THE PRACTICE OF THE GOVERNMENT OF CHILE IN THE MATTER OF PERSONAL LIBERTY

a. Arrests: Quantitative Aspects

31. Although the total figures of arrests are not accurately known, some information on them can be provided. Thus, in May 1975, the Minister of the Interior recognized that in Chile 41,359 persons had been detained under the state of siege. [7] According to the data provided by Colonel Jorge Espinoza Ulloa, Director of the National Executive Secretariat for Prisoners (SENDET), as of February 6, 1976, 42,486 persons had been arrested, most of whom were at that time free, expelled from the country, being tried, or serving sentences. [8]

32. The Chilean Human Rights Commission provided a figure of 15,077 persons arrested in 1983 and 39,429 in 1984, on the basis of data of the Vicaría de la Solidaridad, special groups, attestations of the persons affected, press information, other human rights institutions and the records of that Commission. [9]

33. The arrests that have entailed the intervention of the Vicaría de la Solidaridad are shown in the following table, by year:

Table No. 1

Number of Arrests by Year

1973-1975

7.230

1976

552

1977

506

1978

1.612

1979

1.331

1980

1.539

1981

904

1982

1.213

1983

4.537

1984

5.343

24.767

(Source: Vicaría de la Solidaridad, Annual and Monthly Reports).

34. The breakdown of the arrests into individual arrests and arrests made on the occasion of mass activities such as May Day demonstrations or the days of national protests, which have been processed by the Vicaría de la Solidaridad, is shown in the following table, for the past five years:

Table No. 2

Individual and Collective Arrests by Year

(Source: Vicaría de la Solidaridad, Annual and Monthly Reports)

35. As the figures presented show, with effect from 1983 the number of arrests increased significantly, whether the estimated figures or the arrests that have led to the intervention of the Vicaría de la Solidaridad are taken into account. These figures reveal a retreat in the matter of personal liberty to the early days of the present regime, which was characterized by its extreme harshness. This significant increase in arrests is complemented by forced removals to distant localities of the country, which will be dealt with in the final section of this chapter.

36. Various aspects of arrest will be dealt with in the following pages: existence of prior arrest warrant, officials responsible for executing it, methods of arrest, places in which the arrest is carried out, duration, destination of the persons arrested, and aggravation of the arrest.

b. Prior arrest warrants

37. According to the totality of Chilean legal provisions, every arrest must be previously ordered by an official empowered to do so. Many reports reveal that the existence of a prior arrest warrant is not a customary formality.

38. Thus, for example, in the Case No. 80 of 1980 against Ricardo de la Riva, heard before the Santiago Court of Appeal, it is stated that on April 8, 1980 the CNI Director informed the Minister of the Interior that 11personnel of this National Intelligence Agency have proceeded to arrest the persons identified below” in the early hours of today for which purpose “in accordance with the usual procedure it is incumbent on him to issue an exempt decree ordering the arrest of the above-mentioned members of the MIR in the premises of the National Intelligence Agency” (underlining added). In this case and in accordance with the “usual procedure”, the Minister of the Interior issued the arrest decree when the persons affected were already deprived of their liberty in some CNI barracks.

39. A similar situation occurred when Dr. Manuel Almeyda Medina was arrested on May 19, 1981. His spouse lodged a complaint for illegal arrest with the First Military Prosecutor’s Office of Santiago. The Clerk of the Court issued a certificate which stated that, according to information obtained from the Ministry of the Interior, Dr. Almeyda had been arrested under an exempt decree dated May 20, that is, issued on the day following the arrest, as recorded in the remedy of amparo 428-81 of the Santiago Appeal Court.

40. The recognition that, in practice, it is the Director of the National Intelligence Agency who orders the arrests --and even their duration--arises from various reports. For example, in the preventive writ of amparo lodged with the Santiago Court of Appeal in favor of Gladys Vollaroel Espinoza (case 438-81), the decision on appeal, dated July 6, 1981, stipulated that the arrest could not exceed five days or 20 days, as appropriate. When a complaint was lodged for the fulfillment of decision, the Minister of the Interior was asked whether the arrest would be for 5 or for 20 days. The Minister replied that: “the National Intelligence Agency --responsible for such a step (the arrest)-- has stated that the person to whom the remedy applies will have to remain in the premises of that agency for a period of five days calculated from the day on which the measure ordered against her takes effect” (Confidential letter No. 3,268 of August 17, 1981).

41 One way of legitimizing arbitrary arrest by the authorities of Chile is to backdate the arrest orders. Thus, the following is stated in the remedy of amparo case 28-81 of the Presidente Aguirre Cerda Appeal. Court; “I certify; that, the pertinent consultations having been held with the Ministry of the Interior on Saturday the 14th of the current month, Mr. Javier Villaseca, the official of that Secretariat of State, reported that in the CNI there was no record of any arrest in the past 48 hours”. Later the arrest of the persons to whom the remedy of amparo applied in the premises of the CNI would be justified by virtue of Exempt Decree No. 2,726 of February 12, 1981, that is, precisely within the 48 hours during which, according to the record reproduced, nobody had been arrested by order of the Minister of the Interior. It should be pointed out that this practice of backdating the decrees is possible because of their exemption from the toma de razón procedure of the Office of the Comptroller General of the Republic.

42. The lack of a prior arrest warrant has led to the denial by security agencies of having carried out the arrest. This practice, which permitted the phenomenon of the disappearance of persons, was widely used in 1974, 1975 and 1976, and then decreased until it ended in 1977. However, there are clear indications that it has again emerged in the course of 1984.

43. Thus, for example, on March 29, 1984, civilians who did not identify themselves or show any pertinent order arrested Enrique Abarca Castro, Isabel Martinez Sanchez, Victor Yáñez Villalobos and Marta Martinez Sanchez. The arrest was denied before the Court by Carabineros, the Police, and CNI. It was subsequently proved that some of these persons had been arrested by Carabineros and others by CNI agents. Similarly, on May 5, 1984, Carabineros and unidentified civilians arrested Sergio Inostroza Márquez and Sergio Inostroza Muñoz in their homes and then took them to an unknown place. The Minister of the Interior, Carabineros, the Police and the CNI denied these arrests. On May 16, however, the persons affected were brought before the Office of the First Military Prosecutor of Santiago.

44. The most dramatic case of denial of arrest is that of Juan Antonio Aguirre Ballesteros, who was deprived of his liberty on September 4, 1984. In the remedy of amparo lodged on the following day with the Santiago Appeal Court, Carabineros, the Police and the CNI reported that they had not arrested the person to whom the remedy applied, despite the fact that several affidavits from persons who were with Aguirre Ballesteros in the police precinct were in the case filed. On October 3, however, the Supreme Court confirmed the sentence of first instance by which a writ of amparo had been rejected on the basis of the statements of the security agencies. On October 20 the mutilated remains of an unknown person were found and sent to the Medical-Legal Institute of Santiago. On October 24, relatives recognized the remains as those of Juan Antonio Aguirre Ballesteros.

c. officials competent to execute an arrest warrant

45. In accordance with Chilean legislation, only the Corps of Carabineros and the Plain Clothes Police (Investigaciones) are empowered to make arrests and detentions, in fulfillment of a legally issued order, except in flagrante delicto. On this occasion, the Commission will not refer to the well-known public fact that, in the months immediately following the coup of September 11, 1973, a very large number of arrests were carried out by members of the Armed Forces, in open violation of the law.

46. However it is important to note that Decree Law No. 521, published on June 18, 1974, established the National Intelligence Directorate (DINA), “a technical-professional military agency”, whose purpose was:

to collect all information at the national level, coming from different fields of activity, for the purpose of producing the intelligence required for the formulation of policies, plans and the adoption of measures for safeguarding national security and the development of the country (Article 1).

47. This Decree Law did not grant DINA powers of arrest or detention except in cases in which offenses provided for in the Law on the control of weapons were being investigated following the issuance of a judicial order. Pursuant to the single transitory article, Articles 9, 10 and 11 of Decree Law No. 521 were published in an annex of the Official Gazette whose circulation was restricted.

48. This simply meant that those articles were secret and therefore lacked any legal value. Indeed, Article 6 of the Civil Code of Chile states; “the Law is not compulsory until it has been promulgated in accordance with the Constitution and published in accordance with the following rules”. And Article 7 of that same legal text specifies; “the Law shall be published by means of its insertion in the Official Gazette and, from that date onwards, shall be understood to be known by all and shall be obligatory”. The presumption that the law is assumed to be known (“No one may plead ignorance of the law after it has entered into effect”, Article 8 of the Civil Code) is based on a very precise and concrete fact: its being brought to the knowledge of all citizens through publication in the Official Gazette. An “annex whose circulation is restricted” certainly does not meet the requirement of publication of the law.

Notes_______________________

[1] IACHR, Ten Years of Activities, p. 317.

[2] Ibiden, p. 317.

[3] IACHR Annual Report 1980‑1981, p. 117.

[4] IACHR, Ten Years of Activities, p. 317.

[5] These requirements were ordered by Law 18,134, published in the Official Gazette of May 17, 1984. This matter is examined in the chapter on the right to a fair trial and to due process.

[6] This legal text creates two new offenses: disobedience of the summons of an authority and clandestine entry into the country, as will be pointed out in the chapter on the right to a fair trial.

[7] Report of the United Nations Ad Hoc Group, 1975, p. 53.

[8] Interview with Coronel Espinoza Ulloa, published in Que Pasa, Santiago, No. 252, February 19, 1976.

[9] Chilean Commission on Human Rights, Report No. 36, December 1984, p. 8.