CHAPTER XVI
CONCLUSIONS
After a careful analysis of background information, and particularly after having made on-the-spot observations during a brief but very intensive mission, the Commission has collected information, which, after rational analysis, it feels is sufficient to assert that, under the regime instituted in Chile beginning September 11, 1973, serious violations of human rights occurred.
The Commission realizes the exceptional circumstances which resulted in the advent of that regime, with the employment of force and bitter confrontation. It does not count as violations of human rights, the losses of life that occurred on both sides in the first few days of this process, so that it may entirely avoid the consideration, which otherwise would be essential, on the legality or illegality and the justice or injustice, of the actions of the previous regime, a topic which is outside its competence.
But, after having examined the events subsequent to the consolidation of the new Government, determined the content of the measures issued by the Junta, visited the jails and detention camps for political prisoners, had access to mass communication media, interrogated hundreds of persons of all social levels and political affiliation, reviewed judicial files, attended War Councils, contacted various national and international agencies aiding many people during those months, and after having traveled in the performance of its duties, to widely separate places in the territory of Chile, the Commission has arrived at the firm conviction that on some occasions by action of the Government of Chile through its official measures, and on other occasions by action of its agents (in the latter cases it is not possible to determine whether the actions of such agents are in response to orders received from their superiors) very serious violations have been committed in Chile—by acts of commission or omission of the present Government—against the following human rights, which are set forth in international documents signed by that country:
1. Right to life. While executions by shooting without prior trial in the application of the so-called “law of flight”, had ceased, the right to life could not be considered adequately protected in the proceedings of War Councils, which had handed down and repeatedly were handing down, death penalties in circumstances that do not satisfy the requirements of due process. The fact that the sentences had been commuted in most cases did not eliminate the certain risk to the right to life implied by such proceedings, nor was it enough to erase the tremendous harm caused to the accused and his family during the period of uncertainty as to what would finally occur. (See Art. I of the American Declaration of the Rights and Duties of Man).
2. Right to personal security. This right had been and was directly and seriously violated by the practice of psychological and physical abuse in the form of cruel and inhuman treatment. This is the conclusion from coinciding statements and testimony from persons of the most varied social condition, of extremely varied cultural levels and opposing political convictions, who were detained or were residing in widely separated places. The Commission has seen and heard persons affected as a result of such abuses and has collected convincing statements and testimony regarding cases of violation of the right of personal security, consisting in torture, abuse and inhuman treatment which, because of their intensity and probable consequences, also involve on occasion actual threats to the right to life. The use of electric shock, the threat of harm to close relatives, sexual attacks, covering the person with a hood, blindfolding the person for weeks, etc., are reasonable proven facts. (See Arts. I and XVIII of the above-mentioned American Declaration). The Commission does not assert that a “policy of torture” was practiced or might have been practiced, but it is in a position to assert that no effective “policy against torture” had been carried out.
It should be noted that in the Commission's interview with the Ministers of the Interior and of Defense, they stated their concern regarding this subject and indicated it was the firm intent of the Chilean Government to eliminate torture, and if any cases were found, to punish those responsible. To that end, they requested any assistance that the Commission might provide.
3. Right to personal liberty. Ten months after the events of September, around 5.500 persons remained deprived of their liberty, according to figures supplied by some of the ministers. Many of these persons had been arrested without any charges brought against them, and they continued in detention without being brought before the courts, by virtue of the authority granted by the Constitution to the President of the Republic under the supervision of the Congress. The situation was even more serious due to the fact that there were also many persons regarding whom it was not known whether they were free or imprisoned, or even whether they were living or dead. (See Arts. VIII and XV of the American Declaration).
4. Remedy of Amparo and habeas corpus. The remedy of amparo had been rendered absolutely ineffective, since the Magistrates of the Judiciary were satisfied with replies from the Ministries, that such and such a person was detained “by virtue of the powers authorized under a state of siege”, or that he was not detained, without investigating the evidence provided by the petitioner. The Magistrates did not require that the prisoner be brought before them to verify that he was alive, or to determine where he was detained, or to determine whether the constitutional provision prohibiting keeping him prisoner in jails or together with common criminals, etc., was being complied with. (See Art. XVIII of the American Declaration).
5. Guarantees of due process. These guarantees were found to be seriously affected. In many cases, the right to be tried by a court established by law prior to the alleged offense, and in general the right to a regular trial had been violated and was being violated. Retroactive application of the “state of war” has constituted a flagrant violation of basic rights. Statements made by the accused, under the pressure of psychological or physical torture, to the arresting official rather than to the trial judge, have been taken as “confessions”. The proceedings of War Councils have constituted a massive violation of the guarantees of due process. (See Art. XXVI of the American Declaration).
6. Freedom of expression and communication of thought and of information. None of the mass communications media are free to disseminate thought or inform the public. These media operate between the extremes of censorship and self-censorship. Official pressure was being exerted also on publishing houses. As a general rule, these media could only publish news and ideas approved by the authorities. (See Art. IV of the American Declaration).
7. Right of assembly. This right was virtually suspended (See Article XXI of the American Declaration).
8. Freedom of association. Political parties, agencies, organizations and movements have been dissolved or declared “in recess”, which means the prohibition of any kind of political activity in the broad sense. Other organizations, like labor unions for example, are prevented from any effective action. (See Art. XXII of the American Convention).
9. Freedom of opinion and equality before the law. The Commission found that, as a result of Decree-Law 77, Marxism is generically considered as a felony. The term “Marxism” is used as though it were a label for a crime. Consequently, any individual professing Marxist ideology is considered as a criminal, regardless of whether he can be shown to have actually committed acts defined as crimes under criminal law. He can therefore be punished for “what he is” or for “what he thinks”, regardless of “what he does”. The commission of the came act in the same circumstances can give rise to different legal consequences depending on the persons who committed the act and their political ideology, without any rule of justice or reasonableness to justify such disparity of treatment. (See Arts. IV, II and XVII of the American Declaration).
10. Political rights. Such rights have been abolished. Since the suppression of representative bodies has been accompanied by the destruction of the electoral register, which, according to the Government, it will take years to reconstruct, no possibility is seen of a fairly rapid return to normalcy in these institutions. (See Arts. XX and XVII of the American Declaration).
It can be asserted in conclusion that the Commission's on-the-spot findings show that under the regime instituted on September 11, 1973 in Chile, repeated violations have occurred of the rights set forth in Articles I, II, IV, VIII, XXVII, XXVIII, XX, XXI, XXII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man.