CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second periodic report due in 1993
Addendum
CHILE*
[16 February
1994]
_________
* The initial report submitted by Chile is contained in document
CAT/C/7/Add.2; for its consideration by the Committee, see documents
CAT/C/SR.40 and 41 and Official Records of the General Assembly,
Forty-fifth session, Supplement No. 44 (A/45/44), paras. 341-375.
For the additional report of Chile, see document CAT/C/7/Add.9.
For its consideration by the Committee, see documents CAT/C/SR.77
and 78 and Official Records of the General Assembly, Forty-sixth
session, Supplement No. 46 (A/46/46), paras. 237-262.
Introduction
1. The
initial report of the Government of Chile to the Committee against
Torture was submitted by the military regime in 1989 (CAT/C/7/Add.2).
The Committee found that the report suffered from serious deficiencies,
and therefore requested the Chilean authorities to submit an additional
report the following year (Report of the Committee against Torture,
Official Records of the General Assembly, Forty-fifth session,
Supplement No. 44 (A/45/44)). It fell to the present Government
to submit the additional report (CAT/C/7/Add.9).
2. Subsequent
to that supplementary document, at the Government's prompting,
a number of enormously important laws were enacted introducing
legal reforms in respect of the detention of individuals that
are very effective in preventing and punishing the practice of
torture, which explains the submission of an addendum to the aforementioned
additional report. At the Committee's sixth session, in April
1991, the representative of the present Government made an oral
statement concerning the additional report and its addendum (CAT/C/SR.77
and 78).
3. The
general guidelines regarding the form and contents of periodic
reports to be submitted by States parties under article 19 of
the Convention (CAT/C/14) indicate that such reports should be
presented in two parts, the second containing any information
requested by the Committee during its consideration of the preceding
report by the State party. Chile complied with this obligation
through the submission of the additional report and the addendum
thereto, and the oral statement made by the representative of
the Chilean Government to the Committee, as referred to in the
previous paragraph.
4. In
view of the foregoing, the present additional report supplies
the information requested as part I under the guidelines, in other
words information on new measures and new developments relating
to the implementation of the Convention in our country from 1991
on.
I. LEGAL AND POLITICAL FRAMEWORK
5. After
being democratically elected in December 1989, the Government
of President Aylwin took office in Chile on 11 March 1990 and
the Parliament was formally installed, initiating a process of
restoration of the democratic institutional system interrupted
by the military regime. Since that date, Chile has functioned
normally under the rule of law, with State bodies, the armed forces,
the police, political parties and trade union and social organizations
performing their appointed functions under the law and the Constitution.
It should be emphasized that no "states of constitutional
exception" have been declared by the Government and that,
consequently, the rights and freedoms guaranteed to all persons
by the Constitution have not been restricted in any way.
6. Habeas
corpus is once again applicable in the normal manner. The termination
of permanent "states of constitutional exception", the
institutional framework which made torture possible under the
previous regime, has contributed to a change of attitude on the
part of the courts regarding their duty to watch over the lawfulness
of detention through the due processing of habeas corpus applications.
This is demonstrated, for instance, by decisions of the Military
Appeal Court accepting such applications, remedying arbitrary
acts committed in the course of detention / Amparo application
No. 215-92 of 1 April 1992 filed on behalf of Mirentchu Vivanco
Figueroa with the Military Appeal Court, which ordered the police
to ensure the effective enjoyment by the prisoner of her right
to confer with her lawyer, as laid down in article 293 of the
Code of Penal Procedure./ and instructing police officers and
the military tribunals to rectify procedural errors occurring
during such detention. / Amparo application No. 465-92
of 15 July 1992 filed on behalf of Alejandro Rodríguez Escobar
and Cristián González López with the Military Appeal Court, which
instructed the Military Tribunal and the Carabineros not to extend
the period of detention beyond the time stipulated in article
272 bis of the Code of Penal Procedure./
7. The
political and legal normality described above has substantially
changed the situation regarding fundamental rights and freedoms
in the country as compared with the 1973-1990 period. The democratic
Government has put an end to what the National Commission for
the Truth and Reconciliation, after carrying out an investigation,
described as a situation of systematic violation of human rights
by the military regime. / The National Commission for the Truth
and Reconciliation was set up by Supreme Decree of the Ministry
of the Interior of 25 April 1990 with the aim of establishing
the truth about the situation of missing detainees and persons
executed or tortured to death, in cases where the responsibility
of the State appeared to be involved because of acts of its agents
or persons in its service, as well as abductions and attacks on
human life committed by individuals under political pretexts during
the military regime. The National Commission published its report
in February 1991. / During that period, the report of the National
Commission expressly states, "... torture was a daily occurrence
... Ill-treatment and torture were inflicted systematically at
secret places of detention belonging to DINA and other intelligence
services ..." and there was "... an undeniable reality
of torture, as evidenced by the vast number and virtual uniformity
of such acts ...". / Report of the National Commission for
the Truth and Reconciliation, vol. I, Part Three, chap. I, A,
(d) and chap. II, A, (g)./
II. APPLICATION OF THE CONVENTION IN THE INTERNAL LEGAL ORDER
8. The
Convention was officially incorporated in Chile's internal legal
order during the previous military regime, but with reservations
running counter to its object and purpose. Accordingly, those
reservations were immediately withdrawn when the constitutional
Government took office. At the present time, the Convention is
fully in force in Chile.
9. In
the event of a conflict between internal law and the provisions
of the Convention, it is the Convention that prevails. This is
by virtue of the constitutional reform approved on 30 July 1989,
which modified the hierarchy of human rights treaty norms, elevating
them to constitutional status, by laying down in article 5 of
the Constitution that "It is the duty of the State organs
to respect and promote such rights, as guaranteed by this Constitution
and by international treaties ratified by Chile which are in force".
10. Given
the legal force possessed by the norms of the Convention since
their incorporation into the internal legal order, clauses such
as article 5 (2) are "self-executing", and persons allegedly
responsible for acts of torture committed abroad could be tried
in Chile without any need for an express provision of national
legislation on the matter.
III. DEFINITION AND PUNISHMENT OF TORTURE UNDER THE INTERNAL LEGAL
ORDER
11. As
indicated in Chile's previous reports to the Committee, the prohibition
of any ill-treatment is embodied in article 19 (1) (4) of the
Political Constitution of the State. Torture is defined in article
150 of the Penal Code, which, under the section entitled "Crimes
and ordinary offences affecting the rights guaranteed by the Constitution",
refers to public officials who "apply torture or practise
unnecessary severity" subjecting them to penalties varying
from 61 days to 5 years.
12. In
addition, article 330 of the Code of Military Justice imposes
penalties ranging from 41 days (if no injuries or only light injuries
are inflicted) to 15 years (if the injured party dies as a result)
on members of the armed forces who use or arrange for the use
of unnecessary violence.
13. Section
IV, article 19, of the Chilean Police Department Organization
Act (Decree-Law No. 2460) "prohibits officials of the Chilean
Police Department from committing any act of violence designed
to obtain statements from a prisoner". The penalties imposed
on persons breaking this rule are of the same range as those laid
down in the above-mentioned article of the Code of Military Justice.
IV. MEASURES AFFECTING THE IMPLEMENTATION OF THE CONVENTION FROM
1991 ON
A. Legal measures
14. In
the human rights field, the present Government has taken a number
of initiatives designed to solve outstanding problems inherited
from the military regime, together with measures to ensure full
applicability and observance of fundamental human rights and to
prevent their violation through the introduction of legal reforms.
1. Withdrawal
of reservations (Convention, arts. 2 (3), 3 and 20)
15. With
the unequivocal aim of putting an end to torture, the instrument
withdrawing Chile's reservations to the Convention was deposited
with the Secretary-General of the United Nations in September
1991. In August 1990, a similar instrument, withdrawing Chile's
reservations to the Inter-American Convention to Prevent and Punish
Torture, had been deposited with the Secretary-General of the
Organization of American States. The reservations had been formulated
by the military Government on ratifying the Convention, and they
perverted its application. The present Government withdrew: (a)
the reservation to article 2 (3) of the Convention, which rendered
the principle of considered obedience inapplicable by exonerating
from criminal responsibility a subordinate who queried a torture
order with a superior who confirmed it; and (b) the reservation
rendering article 3 of the Convention inapplicable.
16. At
the same time, Chile deposited with the Secretary-General the
instrument recognizing the competence of the Committee against
Torture under article 21 of the Convention.
17. The
only reservations still in force are those relating to article
30 of the Convention and the reservation whereby the application
of the Inter-American Convention prevails over that of the United
Nations Convention, in the event of incompatibility between the
two, in Chile's relations with countries of the Americas.
2. Legal
reforms of a procedural nature (Convention, art. 2 (1))
Act No. 19,047 of 14 February 1991 amending articles 272 bis,
293, 299, 303 and 323 of the Code of Penal Procedure
18. The
reforms with implications for the prevention of torture were explained
in detail to the Committee through the addendum to the additional
report and the oral statement by the representative of the Chilean
Government. Prominent among them are the procedural reforms designed
to protect the physical and mental integrity of individuals through:
a medical examination of the prisoner during exceptional periods
of detention (art. 272 bis); the impossibility of extending
incommunicado detention beyond the established time-limits (art.
299); restrictions on the severity of incommunicado detention,
permission being given for a lawyer to be present when the prisoner
is placed at the disposal of the police or the judge (arts. 293
and 303); and the requirement that the judge should take steps
to ascertain that the prisoner has not been tortured or threatened
with torture when making his confession (art. 323).
19. Transitional
provisions of Act No. 19,047 stipulated that many cases were to
be transferred from the military to the civil courts. Given the
likelihood of these proceedings against civilians being based
on extrajudicial confessions obtained under duress, the prisoner
was given the right to retract the statement he had made before
the military tribunal, with the civil judge taking this new deposition
as though it were the first confession regarding the prisoner's
participation in the acts covered by the judicial investigation
(Convention, art. 15).
3. Promulgation of the Prison Regulations (Convention, arts.
2 and 10 (2))
Ministry
of Justice Decree No. 1771 of 30 December 1992
20. This
Decree brought together in a single legal text a variety of provisions
for improving the prison system which had been enacted piecemeal.
The Decree establishes the principles and rules governing the
administration of prisons by officials of the Chilean Gendarmería,
prison operating procedures, prisoners' rights and obligations
and social rehabilitation treatment for persons serving sentences.
21. The
preamble to this text expressly provides that "it is the
policy of this Government to effectively rehabilitate convicted
persons, respecting their fundamental rights, as a means of preventing
the commission of further offences" and that "it is
the aim of the present Government to implement a policy consistent
with modern approaches to imprisonment and international treaties
to which Chile has acceded".
22. Article
5 states that: "The norms laid down in the present Regulations
must be applied impartially, and there can be no differences of
treatment based on birth, race, political opinion, religious belief,
social status or any other circumstances. The prison administration
will endeavour to ensure the effective enjoyment of the maximum
number of human rights compatible with the status of prisoner."
23. Article
6 of the Regulations provides that "no prisoner shall be
subjected to torture or cruel, inhuman or degrading treatment,
whether verbal or physical, nor to unnecessary severity in the
application of the present Regulations". Articles 69 and
70 indicate that breaches of discipline by Gendarmería officials
which might constitute offences, and the application "of
punishments other than those stipulated, or administered by officials
other than those empowered by these Regulations", shall give
rise to administrative penalties, without prejudice to any criminal
liability deriving from such acts.
24. Article
41 of these Regulations complements the recent reform of Act No.
19,047, which established the right of a prisoner subject to the
incommunicado detention regime to confer with his lawyer in the
presence of a judge. The article concerned provides: "Communication
with the defence lawyer can in no case be suspended. In the event
of judicially imposed incommunicado detention, such communication
shall take place in accordance with the provisions of article
303 of the Code of Penal Procedure."
4. The offence of torture in extradition treaties (Convention,
art. 8 (1))
25. Chile
includes a general provision in extradition treaties signed with
other States indicating that "offences included in multilateral
conventions to which both countries are party" / For example,
article 3 (1) of the Extradition Convention with Nicaragua, signed
on 28 December 1993, and the Extradition Convention with Spain,
now awaiting approval by the Chilean Parliament./ shall be extraditable.
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment is one such convention.
B. Institutional changes in the Police Department
26. The
present Government proposes to reverse the practice of tolerating
excesses committed by members of the civil police against prisoners,
as well as to promote and guarantee respect for human rights through
educational measures and effective disciplinary control over its
officials.
(a) Educational
measures (Convention, arts. 10 (1) and 11))
27. Such
measures are designed to retrain serving police officers and give
a new perspective to persons studying for a career in the police
force by reformulating the curricula in the relevant Academy.
28. At
the Police Department Academy, which gives instruction to persons
entering that Department, all subjects taught have been reordered
with a view to instilling respect for human rights and a professional,
scientific approach to conducting police investigations based
on the collection of the maximum amount of evidence before the
suspected offender is interrogated. New blood has been introduced
to the Academy's teaching staff and there has been a change in
the teaching methods, which had been militarized during the previous
regime (for example, uniforms were worn on certain occasions).
29. The
retraining of serving officials is achieved through specialized
postgraduate courses given at the Higher Police Department Institute,
which are a must for anyone who wishes to advance in a police
career. New teachers have been brought into this Institute and
its curricula have been reformulated with a view to heightening
awareness among the ranks of the need to project a good image
of the police, based on a professional attitude among its members
and the rejection of corrupt practices and practices injurious
to prisoners' integrity. The teaching of international human rights
treaties has been included, a chair of police ethics has been
established, and the police sociology course has been supplemented
by elements of human rights.
30. In
addition, a broad-ranging postgraduate programme is being conducted
abroad with government bodies of other countries, especially those
whose police force belongs to Interpol, and with international
organizations such as the United Nations and the Organization
of American States.
31. As
part of the programme of the Inter-American Institute of Human
Rights, a professional and police workshop on human rights prepared
by members of the Chilean Police Department was held at the Police
Training Academy of Panama City in August and September 1993.
32. The
Chilean delegation, composed of the Chief of the National Homicide
Service, the Chief of the Assault Squad, the Chief of Internal
Affairs and the Adviser on Psychology and Sociology to the Director-General
of the Police Department, participated in this workshop together
with police delegations from the Central American countries and
Mexico.
33. The
workshop, which discussed theoretical and practical aspects of
police work on the basis of an analysis of specific cases, was
divided into four groups, addressing issues such as: the principle
of penal proportionality and human rights; the role of the leadership
in shaping police attitudes; the right to justice, the principle
of innocence and the right to a defence in police training; the
relationship between human rights and personal and collective
security in police work; and the revaluation of police work in
the context of social development and the creation of conditions
for the exercise of human rights.
(b) Monitoring
and supervision measures (Convention, arts. 12 and 13)
34. When
the present Government took office, the Police Department Directorate
set up a Committee for Coordination and Analysis coming under
the Internal Affairs Service which plans, coordinates and oversees
information and analysis concerning human rights violations under
the military regime. This Committee also maintains smooth and
permanent relations with Chilean non-governmental organizations
(NGOs) dealing with human rights, serving as a conduit for the
receipt of complaints regarding current violations of human rights
alleged to have been committed by Police Department officials.
Such complaints are lodged by NGOs or individuals and, on various
occasions, have led to internal investigations into allegations
of ill-treatment of prisoners.
(c) Disciplinary
measures (Convention, arts. 12 and 13)
35. Since
the institution of the democratic Government, the Police Department
has undergone major restructuring. Some 500 officials - about
20 per cent of the Department's staff - have taken retirement
for various reasons, sometimes as a result of administrative investigations.
36. In
1992, for example, the Police Department took three of its officials
to court for physically ill-treating the prisoner Marcos Villanueva
Vinet. The proceedings are being conducted by the Third Criminal
Court of Santiago as case No. 16.2919-2. Three detectives who
have been released on bail are standing trial. As a result of
these proceedings, the Assault Investigation Prefecture (PRIA)
was disbanded and its Chief and Sub-Prefect left the institution.
In addition, an internal police inquiry into this maltreatment
is pending.
C. Proceedings relating to acts of torture
37. Between
March 1990 and October 1993, some 50 complaints were lodged with
the country's civil and military courts for alleged ill-treatment
of prisoners at the hands of the civil and uniformed police. These
investigations are being pursued in the normal way by the competent
Chilean courts in accordance with the rules of due process, and
most of them are pending.
38. For
its part, the Chilean Government, with a view to contributing
to the conduct of prompt and impartial investigations into alleged
acts of torture, may exercise its power to directly request judicial
intercession in such cases. This is what happened in the case
of the Brazilian citizen Tania Cordeiro Vaz, who lodged a criminal
complaint with the courts for the offences of torture and rape
allegedly committed against her by officials of the Chilean Police
Department. At the request of the Chilean Government, the Supreme
Court, on 18 August 1993, appointed an inspecting magistrate of
the Santiago Court of Appeals to handle the proceedings. / "Inspecting
magistrate" is the designation given to a special high-level
judge appointed to deal with cases which may affect the international
relations of the Republic of Chile or to investigate offences
causing public alarm./
D. Compensation for acts of torture
39. In
response to the recommendations made by the National Commission
for the Truth and Reconciliation in regard to compensation for
victims of human rights violations during the military regime,
and as a contribution of the State to this endeavour and a specific
form of reparation designed to confer legal recognition on a problem
experienced in Chile by a significant segment of the population,
the Programme of Compensation and Full Health Care for Victims
of Human Rights Violations (PRAIS) was introduced in 1991. At
present, seven PRAIS teams are functioning as part of state health
services in different areas of the country, financed by contributions
from those services and international cooperation. Apart from
torture victims, beneficiaries of PRAIS include family members
of missing detainees, persons executed for political reasons and
exiles.
40. From
the time it was launched until the first quarter of 1993, this
Programme provided coverage to 8,029 persons, corresponding to
the aforementioned cases of torture in the following percentages:
First
quarter of 1992: 7.3
Second
quarter of 1992: 6.9
Third
quarter of 1992: 14.4
Fourth
quarter of 1992: 14.6
First
quarter of 1993: 14.5
41. PRAIS
defines its central objective as being the provision of comprehensive
physical and psychological health care to persons whose fundamental
rights have been violated, which means that, in addition to the
above-mentioned situations relating to repression during the previous
period, the programme is now handling cases of victims of ill-treatment
occurring after 1990. This has happened in specific cases on which
no statistics have been compiled.