1. The Committee
considered the fourth periodic report of Chile (CCPR/C/95/Add.11) at
its 1733rd and 1734th meetings (CCPR/C/SR.1733–1734), held on
24 March 1999, and adopted the following concluding observations at
its 1740th meeting (CCPR/C/SR.1740), held on 30 March 1999.
2. The Committee
welcomes the State party's comprehensive fourth periodic report, covering
the important changes that have taken place in that country since 1990.
The Committee takes note of the useful information contained in the
report concerning draft legislative proposals. However, it regrets the
lateness in the submission of the report and of the core document.
3. It appreciates
the additional information provided by the delegation in its dialogue
with the Committee.
B. Positive aspects
4. The Committee
welcomes the progress made since considering the State party's third
periodic report in re-establishing democracy in Chile after the military
dictatorship, as well as the initiatives for reform of legislation that
is incompatible with the State party's obligations under the Covenant.
5. The establishment
of the National Women's Service (SERNAM) and of the National Commission
for Family and the adoption of the Domestic Violence Act, the National
Committee on Child Labour Eradication and the Judicial Academy are all
C. Factors and difficulties affecting implementation of the Covenant
6. The constitutional
arrangements made as part of the political agreement that facilitated
the transition from the military dictatorship to democracy hinder full
implementation of the Covenant by the State party. While appreciating
the political background and dimensions of these arrangements, the Committee
stresses that internal political constraints cannot serve as a justification
for non-compliance by the State party with its international obligations
under the Covenant.
D. Principal areas of concern and recommendations
7. The Amnesty
Decree Law, under which persons who committed offences between 11 September
1973 and 10 March 1978 are granted amnesty, prevents the State party
from complying with its obligation under article 2, paragraph 3, to
ensure an effective remedy to anyone whose rights and freedoms under
the Covenant have been violated. The Committee reiterates the view expressed
in its General Comment 20, that amnesty laws covering human rights violations
are generally incompatible with the duty of the State party to investigate
human rights violations, to guarantee freedom from such violations within
its jurisdiction and to ensure that similar violations do not occur
in the future.
8. The Committee
is deeply concerned by the enclaves of power retained by members of
the former military regime. The powers accorded to the Senate to block
initiatives adopted by the Congress and the powers exercised by the
National Security Council, which exists alongside the Government, are
incompatible with article 25 of the Covenant. The composition of the
Senate also impedes legal reforms that would enable the State party
to comply more fully with its Covenant obligations.
9. The wide
jurisdiction of the military courts to deal with all the cases involving
prosecution of military personnel and their power to conclude cases
that began in the civilian courts contribute to the impunity which such
personnel enjoy against punishment for serious human rights violations.
Furthermore, the continuing jurisdiction of Chilean military courts
to try civilians does not comply with article 14 of the Covenant. Therefore:
recommends that the law be amended so as to restrict the jurisdiction
of the military courts to trial only of military personnel charged with
offences of an exclusively military nature.
10. The Committee
is deeply concerned by persistent complaints of torture and excessive
use of force by police and other security personnel, some of which were
confirmed in the State party's report, as well as by the lack of independent
mechanisms to investigate such complaints. The sole possibility of resort
to court action cannot serve as a substitute for such mechanisms. Therefore:
recommends that the State party establish an independent body with authority
to receive and investigate all complaints of excessive use of force
and other abuses of power by the police and other security forces.
11. While the
Committee welcomes the reform of the Criminal Procedure Code, it is
deeply concerned that many of the provisions, some of which will strengthen
compliance with the fair trial guarantees provided under article 14
of the Covenant, will not come into force for a long period of time.
The State party
should consider shortening the period before the new Criminal Procedure
Code comes into force in all parts of the country.
12. The law
and practice of pre-trial detention, under which large numbers of persons
accused of offences are held in preventive detention pending completion
of the criminal process, raises issues of compliance with articles 9,
paragraph 3, and 14, paragraph 2, of the Covenant. In this regard:
recommends that the law be amended immediately so as to ensure that
pre-trial detention will be the exception and not the rule, and will
be used only when necessary to protect compelling interests, such as
public safety and ensuring the appearance of the accused at their trials.
13. The power
to hold detainees incommunicado, while limited by recent legislative
reforms, remains a matter of serious concern. Therefore:
The State party
should reconsider its law on this issue with a view to eliminating incommunicado
14. The Committee
is concerned by the conditions in Chilean prisons and places of detention
and by reports of discrimination amongst inmates. Therefore:
recommends the establishment of institutionalized mechanisms for monitoring
conditions in prisons, so as to ensure compliance with article 10 of
the Covenant, and for investigating complaints by inmates.
15. The criminalization
of all abortions, without exception, raises serious issues, especially
in the light of unrefuted reports that many women undergo illegal abortions
that pose a threat to their lives. The legal duty imposed upon health
personnel to report on cases of women who have undergone abortions may
inhibit women from seeking medical treatment, thereby endangering their
lives. The State party is under a duty to take measures to ensure the
right to life of all persons, including pregnant women whose pregnancies
are terminated. In this regard:
recommends that the law be amended so as to introduce exceptions to
the general prohibition of all abortions and to protect the confidentiality
of medical information.
16. The Committee
is seriously concerned by the existing legal provisions that discriminate
against women in marriage. Legal reforms under which married couples
may opt out of discriminatory provisions, such as the provisions regarding
control over property and authority over children, do not abolish the
discrimination in the primary legal arrangements, which may only be
changed with the consent of the husband. Therefore:
All such legal
provisions that discriminate between men and women must be abolished.
17. Lack of
divorce under Chilean law may amount to a violation of article 23, paragraph
2, of the Covenant, according to which men and women of marriageable
age have the right to marry and found a family. It leaves married women
permanently subject to discriminatory property laws mentioned in paragraph
16 above, even when a marriage has broken down irretrievably.
18. The Committee
is concerned that there are a large number of instances of sexual harassment
in the workplace. Therefore:
recommends that a law be enacted making sexual harassment in the workplace
an offence punishable by law.
19. The Committee
is concerned that the participation of women in political life, public
service and the judiciary is quite inadequate. Therefore:
recommends that steps be taken by the State party to improve the participation
of women, if necessary, by adopting affirmative action programmes.
20. The continuation
in force of legislation that criminalizes homosexual relations between
consenting adults involves violation of the right to privacy protected
under article 17 of the Covenant and may reinforce attitudes of discrimination
between persons on the basis of sexual orientation. Therefore:
The law should
be amended so as to abolish the crime of sodomy as between adults.
21. The minimum
age for marriage, 12 years for girls and 14 years for boys, raises issues
of compliance by the State party with its duty under article 24, paragraph
1, to offer protection to minors. Furthermore, marriage at such a young
age would generally mean that the persons involved do not have the mental
maturity to ensure that the marriage is entered into with free and full
consent, as required under article 23, paragraph 3, of the Covenant.
The State party
should amend the law so as to introduce a uniform minimum age for marriage
of males and females, which will ensure the maturity required in order
for the marriage to comply with the requirements of article 23, paragraph
3, of the Covenant.
22. The Committee
takes note of the various legislative and administrative measures taken
to respect and ensure the rights of persons belonging to indigenous
communities in Chile to enjoy their own culture. Nevertheless, the Committee
is concerned by hydroelectric and other development projects that might
affect the way of life and the rights of persons belonging to the Mapuche
and other indigenous communities. Relocation and compensation may not
be appropriate in order to comply with article 27 of the Covenant. Therefore:
actions that affect members of indigenous communities, the State party
must pay primary attention to the sustainability of the indigenous culture
and way of life and to the participation of members of indigenous communities
in decisions that affect them.
23. The Committee
is concerned by the lack of comprehensive legislation that would prohibit
discrimination in the public and private spheres, such as employment
and housing. Under article 2, paragraph 3, and article 26 of the Covenant,
the State party is under a duty to protect persons against such discrimination.
should be enacted to prohibit discrimination and provide an effective
remedy to those whose right not to be discriminated against is violated.
The Committee also recommends the establishment of a national defender
of human rights or other effective agency to monitor the implementation
of anti-discrimination legislation.
24. The special
status granted in public law to the Roman Catholic and Orthodox churches
involves discrimination between persons on account of their religion
and may impede freedom of religion. Therefore:
The State party
should amend the law so as to give equal status to all religious communities
that exist in Chile.
25. The general
prohibition imposed on the right of civil servants to organize a trade
union and bargain collectively, as well as their right to strike, raises
serious concerns, under article 22 of the Covenant. Therefore:
The State party
should review the relevant provisions of laws and decrees in order to
guarantee to civil servants the rights to join trade unions and to bargain
collectively, guaranteed under article 22 of the Covenant.
26. The Committee
sets the date for the submission of Chile's fifth periodic report as
April 2002. It requests that the text of the State party's fourth periodic
report and the present concluding observations be published and widely
disseminated within Chile and that the next periodic report be disseminated
among non-governmental organizations operating in Chile.