THE NORMATIVE SYSTEM ESTABLISHED BEGINNING
SEPTEMBER 11, 1973, AND THE “STATE OF WAR”
A. Standards Relating to the Declaration of
the State of Siege and the “State of War”
1. On September 11, 1973, the Government Junta was constituted, which assumed the “Supreme Command of the Nation” (Decree Law Nº 1, Article 1). In that same edict, the Junta declared that it would guarantee the “full effectiveness of the powers of the Judicial Branch” and would respect the “Constitution and the laws of the Republic insofar as the current situation of the country permits to best achieve the proposal set forth in it” (Art. 3).
Decree Law Nº 128, published in Official Gazette Nº 28.703 of November 16, 1973, invoking the necessity to clarify the meaning and scope of the provisions of Decree Law Nº 1, declared that the Government Junta had assumed, as of September 11, the exercise of constituent, legislative and executive powers.
2. On September 11, 1973, by Decree Law Nº 3 (Official Gazette Nº 28.653 of September 18, 1973), invoking the provisions of Art. 72, Nº 17 of the State Political Constitution and Book 1 Chapter 3 of the Code of Military Justice, the Junta declared “as of this date, a state of siege throughout the territory of the Republic, and the Junta assumes the capacity of Commander in Chief of the forces that will operate in the emergency.”
The declaration of a state of siege was extended to September 11, 1974, by Decree Law Nº 360 of March 13, 1974 (Official Gazette Nº 28.803 of March 16, 1974).
a) Under Art. 72 Nº 17 of the Political Constitution of the Republic of Chile “in case of internal disturbance the declaration of one or more places being in a state of siege belongs to Congress, but if Congress is not in session, the President may make it for a determined period.”
The same rule provides that “through the declaration of a state of siege there is conceded to the President of the Republic alone the authority to transfer persons from one department to another and to confine them in their own houses or in places other than jails, or intended for the confinement or imprisonment of ordinary criminals.”
b) Book 1, Section III, of the Code of Military Justice refers to “military courts in time of war.”
Art. 71, which heads that section, establishes that “in time of war, military jurisdiction is exercised: by Commanders in Chief or Commanding Officers of fortresses or strongholds under siege or blockaded, or of divisions or bodies of troops operating independently; by prosecutors and by councils of war and judges.”
Art. 72 provides that “military jurisdiction in time of war comprises: the national territory declared in a state of assembly or of siege, either because of attack from abroad or internal disturbance, in accordance with Nº 17 of Article 72 of the Political Constitution, and foreign territory occupied by Chilean forces.”
Art. 73 establishes that “from the time of appointment of the Commanding General of an army which is to operate against a foreign enemy or against organized rebel forces, the competence of peacetime military courts shall cease and that of wartime military courts shall begin, throughout the territory declared in a state of assembly or of siege.”
This rule was clarified by the Junta in Decree Law Nº 13 of September 17, 1973 (Official Gazette Nº 28.655 of September 20, 1973). The clarification states that “the meaning and scope of Art. 73 is to confer on various military courts jurisdiction over military legal proceedings initiated in a territory declared in a state of assembly or of siege subsequent to the appointment of the Commanding General. Cases that began in peacetime shall be subject to the cognizance and jurisdiction of peacetime military courts, pursuant to peacetime procedures, until their definitive termination.”
3. On September 12, 1973, the Junta issued Decree Law Nº 5 (published in Official Gazette Nº 38.657 of September 22, 1973). The preamble of this decree sets forth: a) “The situation of internal disturbance in which the country is embroiled”; b) “The need to curb in the most drastic manner possible actions that are being committed against the physical integrity of personnel of the armed forces, of the carabineros, and of the population in general”; c) “The desirability of giving greater discretion in the present circumstances to military courts to repress any of the crimes stipulated in Law Nº 17.798 on control of arms, because of their seriousness and the frequency of their commission”; d) “The need to prevent and severely punish, with the greatest speed, crimes committed against internal security, public order, and normalcy of national activities.”
a) Based on these considerations, the Junta declared “it is the interpretation of Art. 418 of the Code of Military Justice that the state of siege decreed because of internal disturbance, in the situation now prevailing in the country, should be understood as 'state or time of war' for the purposes of the application of the various penalties established in the Code of Military Justice and other penal laws, and in general, for all other purposes of such legislation” (Decree Law Nº 5, Art. 1).
The above-mentioned Art. 418 provides that “for the purposes of this code, it is understood that there is a state of war or time of war, not only when war or a state of siege has been officially declared in accordance with the relevant laws, but also when war in fact exists or when there has been mobilization toward this end, even if no official declaration has taken place.”
b) Decree Law Nº 5, also provides, inter alia, the following:
- Amendment of a number of articles of Law Nº 17.798 on weapons control, strengthening the penalties established, particularly with reference to acts committed “in time of war”; and
- Amendment of a number of provisions of Law Nº 12.927 on “internal security of the state.” It strengthened the penalties established in those provisions, with particular reference to acts “committed in time of war” and established that in every case, crimes provided for in Articles 4, 5 bis, 6, 11 and 12 of the law on internal security of the State shall be within the competence of wartime military courts in time of war.
B. Wartime Military Courts or Councils
4. The proceedings of wartime military courts or councils of war have the following primary characteristics, among others:
a) The accused do not have the right to be assisted by defense counsel at summary proceedings. They are interrogated, confronted by their accusers, etc., without having available any kind of legal assistance.
The accused only have the right to designate defense counsel when, after the accusation is made and the decree is issued ordering convocation of the appropriate war council for a particular day, hour and place, they are informed of that convocation.
b) The war councils are composed of the judge, who is a lawyer, and of lay officers.
c) The court thus constituted can evaluate “in good conscience” the evidence gathered, in order to establish the facts of the case.
d) Their verdict along with the record of the proceedings must be submitted to the cognizance of the appropriate General or Commander in Chief, for his approval or amendment. He has the authority to approve, revoke, or modify sentences of the war councils and to order them carried out. The General or Commanding Officer need not give reasons for his decisions.
5. The substantive penal rules applied by wartime military courts have very special characteristics. One example will be enough to show this: Art. 248, sub-paragraph 2 of the Code of Military Justice provides that:
anyone who, in the event of war or for the purpose of abetting the enemy or adversely affecting Chilean troops, performs an action of commission or omission that is not covered by the appropriate articles and that does not constitute any other crime expressly penalized by the law, shall be subject to the penalty of major imprisonment to its maximum degree or to the death penalty.
This provision has been invoked by councils of war under the present government to justify the imposition of the penalties cited.
6. Some councils of war have extended their jurisdiction, and by so doing, the applicability of the procedural and substantive rules enforced by them, to acts committed prior to the date on which the Junta declared a state of siege because of internal disorder, which situation was subsequently made equivalent, under Decree Law Nº 5, to a “state or time of war.”
7. The Chilean Supreme Court of Justice has decided that it lacks competence to review decisions of wartime military courts and has so ruled.
8. Hence, the inhabitants of Chile have been subject to the jurisdiction of military courts that constitute special penal tribunals applying procedural and substantive rules of an exceptional character.
a) Such tribunals are organized in such a way that a person can be sentenced to death by a court composed almost entirely of laymen, whose decisions are subject to the will of a Commanding General or a Commanding Officer, who must approve such decisions and can modify them, even by imposing more severe penalties, without having to give any reason whatever for his action.
b) The exceptional procedures applied by these special courts do not provide even minimum guarantees for adequate defense at trials.
c) The code of substantive rules that is invoked to justify the imposition of penalties contains rules of such latitude (for example, see transcript of Art. 248, sub-paragraph 2, Code of Military Justice) that they are clearly inconsistent with the basic principles governing the administration of justice in democratic countries. These rules are characteristic of the repressive regimes of leftist and rightist totalitarian systems.
d) Wartime military courts do not feel bound by the principle prohibiting retroactive application of penal law.
e) There is no recourse whatever against decisions of wartime military courts, since the Chilean Supreme Court of Justice has held that it does not have competence to review them.
f) Many of the provisions of the Code of Military Justice, the original text of which was approved in 1925, are substantially inconsistent with the Political Constitution of Chile.
C. The Exercise of the Power of Arrest and
Transfer During the State of Siege
9. It should be noted with respect to this point that on December 24, 1973, the Junta issued Decree Law Nº 228 (Official Gazette Nº 28.741 of January 3, 1974).
The Decree Law provides as follows:
Noting the provisions of Decree Law Nos. 1 and 3 and the provisions of Art. 72 Nº 17, sub-paragraph 3, of the State Political Constitution, the Government Junta has decided to issue the following Decree Law:
1) The authority that Art. 72, Nº 17, sub-paragraph 3, of the State Political Constitution confers upon the President of the Republic upon the declaration of a state of siege shall be exercised by the Government Junta through supreme decrees to be signed by the Minister of the Interior with the indication “by order of the Government Junta”.
2) Measures taken by the administrative authorities in the exercise of the power conferred by sub-paragraph 3, of Art. 72.17 of the State Political Constitution prior to this Decree Law are declared to be lawful.
Notwithstanding the foregoing, the Ministry of the Interior shall issue standards to which such authorities shall be subject with respect to any measures they may have adopted or may adopt in the future, pursuant to the provisions of Art. 1 of this Decree Law.
10. It follows from this normative text, that up to the date on which it was issued—almost three and a half months after the establishment of the Junta and the declaration of a state of siege—the power of arrest and transfer referred to in Art. 72.17 of the Constitution has been exercised by various and sundry administrative authorities, whose action in this area Decree Law Nº 228 sought to validate retroactively.
11. Meanwhile, the numerous amparo pleas submitted to courts competent to determine the whereabouts, and, if known, obtain the release of persons detained under pretext of the existence of a state of siege, were systematically rejected by the courts. The remedy of amparo has not served as a tool capable of determining whether the powers of arrest and transfer have been exercised fairly or whether they have been invoked to commit abuses of authority (torture, harassment, detention in secret places, etc.).
D. Special System for Discharging Workers
12. On September 21, 1973, the Junta issued Decree Law Nº 32 (Official Gazette Nº 28.667 of October 4, 1973), which established a “special court” to hear cases of discharge of workers and established procedures and special grounds for such cases.
The major characteristics of the new system are as follows:
a) Any worker who was discharged prior to the Decree Law mentioned or who may be discharged in the future, may submit a claim only to a special court composed of: 1) the departmental judge having jurisdiction over labor matters; 2) representatives of the Chilean armed forces and carabineros, designated by the appropriate intendent or governor; and 3) a labor inspector designated by the Director of Labor (Art. 1).
b) The “Special Court” shall hear and decide upon the claim without the formalities of a trial, and there is no appeal from the judgment rendered. The court evaluates the evidence and issues a verdict “in good conscience” (Art. 7, Par. 1).
c) There is no appeal whatever from the final sentence, except to complain to the Supreme Court. The remedy of complaint, by its very nature, is exceptional in character. It is in no way an appropriate means of jurisdictional control.
d) Grounds for discharge have been created that are applied retroactively: for example “having destroyed or destroying materials” (Art. 3, Sub-paragraph c); “having directed or directing illegal interruption or paralyzation of activities” (Art. 4, Sub-paragraph d); etc.
e) Decree Law Nº 32 was ordered to be put in effect beginning September 11, 1973. Complaints regarding dismissals occurring between that date and the date on which the Decree was issued, which were in process, were forwarded to the appropriate “Special Courts” once they were constituted.
13. With respect to this system replacing labor courts, the current President of the Chilean Supreme Court of Justice has said, referring to the so-called “Special Courts”: “We feel that because of their origin and nature, they will not be of long duration and the day will soon come when regular labor justices will again have jurisdiction over these cases.”1
1 “Statement of the President of the Supreme Court on opening the new judicial year,” 1974, page 15.