PRELIMINARY NOTE OF THE COMMISSION TO THE
GOVERNMENT OF CHILE – AND ITS REPLY
1. The information gathered by the Commission in its first week of work shows a general situation of disregard for basic human rights. It was for that reason that on July 29, in an effort to ward off worse evils and acting in accordance with the requests of a number of Ministers who asked that we should immediately inform them of any serious irregularity that we found, we sent to the Government of Chile the preliminary note transcribed below:
July 29, 1974
Dear Mr. Minister:
The Inter-American Commission on Human Rights has worked intensively, since its arrival in Chile on July 22, to gather a wide variety of data on the observance of human rights in the country.
Some of our findings of facts have merited sending notes to your Government, and appropriate steps to that end are now under way.
It is our intent—and we must do so to comply with the norms governing our duties—to issue, in due course, after completing the substantiation of the files relating to this case, a report containing our conclusions thereon.
However, Mr. Minister, the verifications we have already made and our duty to contribute, to the extent of our capabilities, to the broadest protection for basic rights and freedoms causes us to suggest at this time that, to achieve that high purpose—which is shared in by the Government of Chile, according to the statements that it has repeatedly made—the possibility be studied of immediately taking steps to achieve the following objectives:
1. To make available the necessary means in order that the families of the persons deprived of their liberty for any reason will immediately be notified with respect to the causes and place of detention, as well as any later transfer of the prisoners.
2. To modify the conditions of detention of minors of both sexes who are now held in establishments created for adults and who are subjected to the same conditions as adults.
3. To take every possible measure to avoid the application of physical or psychological pressure to those detained and to sanction severely those persons responsible for such acts.
4. To establish, in the exercise of the constitutional powers that the Junta of Government has assumed in accordance with the Decree-Laws Nos. 1 and 128, a reasonable time limit on deprivations of liberty ordered in conformity with the provisions of Article 72, section 17 of the Constitution.
5. To take the necessary measures so that the detentions or transfers ordered in application of Article 72, section 17 of the Constitution do not result, in and of themselves, in actual punishment, such as unjustified or prolonged forced labor or solitary confinement.
6. To recognize fully the right of the normal professional activities of lawyers, permitting them free communication with those persons detained who need their assistance, regardless of the conditions of detention.
7. To authorize the exit from the country of those persons detained for reasons of security to whom no commission of crime has been imputed, in the event that they wish to leave the territory of Chile.
8. To establish, by means of constitutional interpretation or other equally effective means, that, under all circumstances, the remedy of amparo obligates the administrative authority to carry out the judicial order to present before the competent court the person in whose benefit the remedy has been presented, with a precise indication of the reasons and place of detention.
9. To exclude from the special courts (Tribunales de excepción) all causes in which there is alleged the commission of infractions of a criminal-administrative type, such as, for example, those concerning taxes.
10. To grant to the pertinent offices the necessary means so that they may give rapid information to the families of those persons whose whereabouts are unknown, whether or not it concerns persons detained by the authorities.
11. To adopt a standard, mandatory for all state officials, that would bar application of the provisions dictated under the “state of war” to any act that occurred prior to September 11, 1973.
We were encouraged to propose these suggestions by the fact that, at the meeting we had the honor to have with you, and in meetings with the Ministers of Interior, Defense, and Justice, the desire was expressed to us that, if in the course of our work we should find practices or situations that might be considered inappropriate for the full observance of human rights, we should inform the Government of them so that they might be appropriately dealt with.
Expressing our deep appreciation to you for the attention you may accord this note, and with the sole purpose of contributing to the affirmation of the rights of the person in a country with such a profound humanist tradition, we reiterate assurances of our highest consideration.
Justino Jiménez de Aréchaga
The contents of the note were reproduced in the Commission's press release of August 2, at the conclusion of its work in Santiago.
2. The Minister of Foreign Affairs, Vice Admiral Patricio Carvajal Prado, replied to the Commission's note on August 2, 1974.
The following is the text of that reply:
Santiago, August 2, 1974
Dear Mr. Chairman:
This is in reply to your note of July 29, 1974, in which the Inter-American Commission of Human Rights suggests that the Government of Chile immediately take various steps designed to contribute to the protection of basic rights and freedoms.
In this regard, I can tell you that, except for points 1, 7, 8, and 10 referring to measures that might be taken by the higher officials of the government services concerned, all of the other items are juridical or administrative matters that are being fully complied with in Chile. If any violations have occurred, they have not been brought to the attention of the Government. Should your Commission have information about such violations, I would be very grateful if you would inform me of them.
With regard to item 2, I must point out that minors are taken to the Reformatory while a decision is made as to whether they will be brought to trial, depending on whether they can be held legally responsible under existing law. If the Commission has found any case of this kind, I would appreciate it if you would inform me of it so that any such anomaly may be immediately remedied.
With regard to item 3, as the Ministers of the Interior and of National Defense have stated to you on repeated occasions, every effort has been made to avoid the occurrence of any such excesses. Moreover, as has been stated to you on previous occasions, our criminal law classifies such acts as crimes, and the persons affected or any person can activate the judicial mechanism for ensuring appropriate penalties. Again I would appreciate it if you would inform me immediately of any specific cases you might find, so that appropriate steps might be taken.
Regarding point 4, I must point out to you that the Government has made every effort to see that the state of siege does not extend beyond the reasonable, essential, and minimum time required for safeguarding the population. I is not now, nor ever has been, the desire of the Government to prolong this kind of measure, but neither can it disregard the security of the large majority of Chileans.
Regarding point 5, I refer to what has been previously stated, and I would appreciate it, in the event any cases of forced labor, or of persons being held in solitary confinement for an unjustified or prolonged period, are found, if you would immediately inform me of such a situation or situations.
With regard to item 6, free access of counsel has never been denied and even with respect to wartime proceedings, Article 184 of the Code of Military Justice states “(counsel) may also communicate with the accused, and no decree of incommunication may prevent him from so doing.” This provision is enforced, and is complied with, as are all other relevant provisions.
With regard to point 11, I feel t a policy such as that suggested is unnecessary. Non-retroactiveness of criminal law takes precedence over all penal juridical actions in Chile, and I urge you to inform me of any specific violation that you might find.
In addition to having taken due note of the items in your letter, I am sending on this date a copy of your letter to the Ministers of Interior and of Defense for whatever appropriate action might be required.
I wish to ask you again to inform me, as soon as it comes to your attention, of any measure or action impairing basic freedoms and rights of human beings, inasmuch as the civil and military officials of my country, who are faithful to their traditions, will not permit the commission of acts such as those which forced them, in order to protect the human rights of the immense majority of the citizens, to take charge of government functions.
Accept, Mr. Chairman, the assurances of my highest consideration.
Patricio Carvajal Prado
Minister of Foreign Affairs
Reference will be made further on to the significance that can be attributed to this note, as well as the events that followed it. But for now, we must say that its receipt gave the Commission reason for hopefulness regarding a positive, broad, speedy, and generous reaction of the Government of Chile.