STATUS OF THE ADMINISTRATION OF JUSTICE
AND OF THE OFFICE OF THE GENERAL COMPTROLLER OF THE REPUBLIC
As the Commission was able to observe the operation of the Chilean Judicial system, the institution of the War Councils was not the only indication of the notorious weakening noted in the action of justice as the natural defender of human rights. This weakening was seen in other ways. The main ones are indicated here.
A. Ineffectiveness of the Remedies of Amparo
and Habeas Corpus
1. The remedies of amparo and habeas corpus have virtually lost all effectiveness.
These remedies have been pleaded for centuries, particularly in the case of persons deprived of liberty by the public forces, when their whereabouts, whether they are still alive, or whether they have been subjected to psychological or physical torture is unknown. Civil justice authorities confined themselves to requesting the Ministries to inform them whether the person to whom the remedy referred was in detention or not. If the reply was negative, or if the Ministers replied that they did not know, there was sufficient reason for the case to be filed away. Although the applicant might have offered testimony or other evidence, such evidence was not considered.
Of the more than 800 habeas corpus pleas presented to the Santiago Court of Appeals between September 1973 and early July 1974, only one had been accepted, and all of the others had been denied.
2. The Commission does not maintain that, when a person has been arrested by orders of the President of the Republic, in the exercise of his special authority to maintain order in cases of interior disturbance, the prisoner must be released when a remedy of amparo has been filed, if there is no evidence on which to submit it to regular justice. Actually, the constitutional precept that applies in such a case is intended to safeguard the person even though there may be no proof or half proof that he has committed a crime.
But this does not mean that the remedies of amparo and of habeas corpus, as the case may be, totally lose their effectiveness during a state of siege. These remedies make it possible first of all for a civil judge to require that the detained person be brought before him, which will enable him to determine whether the prisoner is still alive, and, should the occasion arise, whether he has been subjected to inhumane treatment. These remedies moreover enable the civil judge to require proof that the order of arrest was issued by the President of the Republic; that the prisoner is not detained in a secret place, or in a place of incarceration intended for common criminals, etc.
This way of interpreting the scope of the remedy in exceptional cases is consistent with previous decisions of the Supreme Court, which prohibited examination of the merits of the order of arrest, but not its formal regularity.
If these criteria has been respected, we would not have been confronted with the fact that hundreds of persons who had been seen when they were arrested by the police, did not show up anywhere thereafter, while their families went from office to office, trying to discover: their whereabouts, where the order for their arrest had originated, the grounds for their arrest, whether they were still alive, whether they had been maltreated, the state of their health, what they needed, etc. The Commission witnessed this anguish on many very occasions, and in general its own investigation produced no results.
3. Worthy of mention is the case of the amparo plea, Roster 289-74 presented by the Committee on Cooperation for Peace in Chile (composed of the Catholic Church, the Protestant Churches, the Orthodox Church, and the Jewish community) on behalf of 131 persons arrested sometime back regarding whom their families had been unable to obtain any news. Although the plea had been filed March 29, 1974, after three months and a half, that is, as of July 15, it had only been possible to obtain information on 44 of these persons, some of whom had turned up in the morgue and others (27) had been released in the same way they had been arrested, without explanation. Up to the time of the Commission's visit, the Court had not been able to obtain from the appropriate authorities the information necessary to decide the petition for the other 87 prisoners.
The remedies of amparo and habeas corpus, then, are virtually inoperative in Chile, except for an occasional exceptional case. Unfortunately, the highest judicial authorities do not show due concern for that circumstance.
B. Disregard of the Right to Counsel
4. In establishments where persons had been detained by executive order, they were informed that they “could not request assistance of counsel.” Statements obtained in various establishments from many prisoners are in agreement on this.
5. Aside from the fact that it is not juridically correct to maintain that persons in such a situation can not enjoy the right of assistance of counsel, the fact is more serious if it is considered that many of the prisoners stated that they were temporarily transferred outside those detention establishments to be subjected to psychological and physical torture in places especially intended for that purpose. The lack of contact with counsel makes it more difficult to overcome abuses of this kind.
C. Retroactive Application of the “State of War”
6. Whatever judgment may be made on the propriety or impropriety of decree-laws under which it was considered that, at the time of the Commission's visit, Chile continued in a state of war, there is no doubt that those decree-laws, whether they can be criticized or not, were at least clear. They provided that the “state of war” was in effect from September 11, 1973. Consequently, only as of that date and for acts performed since that date, should the provisions of the Military Penal Code contemplate for wartime be applicable.
7. Despite that, there have been War Councils which retroactively applied the provisions of a “state of War”. As a result, certain acts which, at the time they were committed, were only subject to the penalties provided by the regular Penal Code, and could only have been tried with all the guarantees of a regular criminal trial, came to be penalized by wartime military criminal law and tried under the rudimentary procedures of the War Councils, composed largely of laymen.
8. Prosecutors' requests for retroactive application of the state of war were noted, among others, in the judicial processes in Linares.
9. In the so-called “Bachelet trial” (or the Air Force War Council), the sentence of the War Council decided the following:
With regard to whether there was in existence before September 11 the concept of the enemy, in accordance with the legal provisions in reference, it is noted that in the previous paragraph, an analysis was made of the militarily organized armed groups that were present in the country, before the military declaration that produced the fall of the previous government. From a study of the background information, it is seen that the existence of those groups antedated the period before the 1970 election.
For these reasons, the sentencing War Council concludes that it is clearly established in this case that the “internal enemy” existed in the country from the time of the preparation of the above-mentioned plans. This internal enemy is composed of the armed groups that are organized militarily for seditious purposes under foreign orders, known as Movements of the Revolutionary Left, Organized Vanguard of the People, Ramona Parra Brigade, Elmo Catalan Brigade, and others.
10. Concluding this section, it should be pointed out that the statements made herein do not involve prejudgment on the particular cases being processed by the Commission, in which denunciation has been made of the retroactive application of rules making it possible to impose the death penalty.
D. Reform of the Labor Court
11. As was indicated, with respect to the Labor Courts a reform was introduced regarding the procedures to be followed in relation to compensation for dismissal. This consisted (See Chapter IV above) of replacing the jurisdiction of labor judges by so-called “special courts” composed of a labor judge, an official designated by the Labor Department and an official of the armed forces, to hear claims for compensation for dismissal.
Denunciations were made to the Commission that some of these officials had acted as an element of coercion, threatening reprisals against any worker who did not accept a particular sum as compensation.
12. The President of the Supreme Court of Justice, whom the Commission asked about this matter, replied that he considered it improbable that workers could be coerced, because complaints regarding the decision of those “special courts” could be brought before the Court.
When asked what percentage had filed complaints, he reported that approximately 2% of them had. When asked how many of these complaints the Court had accepted, he stated that he could not recall any case.
E. Present Status of the Office of the General
Comptroller of the Republic
13. The office of the General Comptroller of the Republic has been one of the most characteristic institutions of the Chilean constitutional regime.
Its originally established competence was that of a Court of Accounts, that is, as an agency responsible for ensuring the juridical regularity of the financial activities of the Government, and it then received the eminent legal power to object to decrees having force of law in the event that they were unconstitutional, and to deny the registration of acts of the Executive Branch for reasons of unconstitutionality or illegality.
In the event that the Office of the Comptroller determined that an executive decree was illegal and refused to register it, the Executive could only overcome its resistance by means of a decree with the same contents as the previous one, signed by all of the Ministers, which was called a “Decree of Insistence.” In that case, the decree was outside the responsibility of the Office of the Comptroller, and of course, the Parliament could decide whether the Executive Branch or any of its members, had violated the Constitution.
14. It is known that the repeated recourse to “Decrees of Insistence” by the government deposed in September 1973 was judged in Chile as a disregard of the constitutional system and a way to overcome the authority of the Office of the Comptroller (the use of “loopholes in the law”).
15. In a number of documents, the present Government has emphasized that it is preserving the institution of the Office of the General Comptroller of the Republic. It is true that, at the time of the Commission's visit, that office continued officially in existence, and the Commission members visited the Comptroller-General.
But little or nothing survives of the essential nature of the institution, which has temporarily lost the chief authority enabling it to act as a guardian agency in the field of human rights.
There is no longer any agency to determine the constitutionality of the decrees having force of law that replace legislation, since: a) the Congress has disappeared (Decree-Law Nº 27), and the Government Junta legislates by decree-laws (Decree-Laws Nos. 1 and 2); and b) the Junta has also assumed the power to make appointments (Decree-Law Nº 128). The power to ascertain the legality or constitutionality of the acts of the Executive Branch is no longer in existence either. Such ascertainment would require an extremely difficult analysis from the technical standpoint, since the Junta combines constituent, legislative, and executive powers.
16. It is therefore true that the Office of the Comptroller is still in existence. But its supreme function of safeguarding the effective observance of the rule of law has temporarily disappeared. It is now an administrative office responsible for certifying the authenticity of the texts sent to it by the Junta, just as a notary might do, and to give them a number, as well as to ensure their correct publication in the “Official Gazette”, except in those cases where such publication is dispensed with for some special reason.
The Commission felt it necessary to go into this topic, because the crisis of an institution of such high authority as that of the Office of the Comptroller serves to add to the decay of other legal institutions for protecting human rights (guarantees of due process, remedy of amparo, habeas corpus, administrative justice by independent magistrates who cannot be removed from office, etc.).