PRINCIPAL MODIFICATIONS IN THE SYSTEM OF GOVERNMENTAL STANDARDS RELATED TO HUMAN RIGHTS
Among the principal general standards related to human rights adopted by the Government of Chile after the conclusion of our investigation in loco, are the following:
1. Decree-Law Nº 604, of August 9, 1974 (Diario Oficial Nº 28.925 of August 10, 1974)
This decree-law prohibits the entry into Chilean territory “of persons, nationals or foreigners, who propagate or foment, orally or in writing or by any other means, doctrines that tend to the destruction or alteration by violence of the social order of the country or its system of government; those who are organized or who have the reputation of being agitators or activists of such doctrines, and, in general, those who commit acts which the laws of Chile classify as common crimes against external security, against national sovereignty, against internal security or the public order of the country, and those who carry out acts contrary to the interests of Chile, or who, in the judgment of the Government, constitute a danger for the State. In the case of Chileans, the Ministry of the Interior shall issue a supreme decree prohibiting their entry into the country and the appropriate administrative authority shall order the cancellation of their passport if they have one.” (Art. 1)
The Chileans to whom entry into the country has been prohibited by this decree-law “may request, through a Chilean Consulate, that the Minister of the Interior authorize them to enter the national territory. If the Minister considers the petition to be in order, he shall issue a supreme decree approving it, giving the justification.” (Art. 2)
Article 3 provides that “persons affected by the indicated prohibition who enter the country clandestinely, evading the control of such entry, shall be punished by imprisonment of the maximum degree. Accomplices and those who house them, conceal them, or aid in the escape of a person guilty of the mentioned crime, shall be punished with the appropriate penalty, increased in one degree.
“These offenses shall be heard before Military Tribunals and the sentences shall conform with the standards of the Code of Military Justice.”
2. Decree-Law Nº 640, of September 2, 1974, published in Diario Oficial Nº 28.950 of September 10, 1974
This decree-law systematized the provisions related to various emergency regimens, with a view to “establishing an adequate harmony of the said provisions with those of constitutional rank that regulate the subject, and with the other legal precepts that the Junta of Government has approved.”
Article 1 provides that the emergency regimens are the following:
I. State of External or Internal War
II. State of Assembly
III. State of Siege
IV. Extraordinary Powers
V. Zones and State of Emergency, and
VI. Military Commands
As concerns the State of Siege, it is specified that “its declaration shall take place in the following cases:
a) In case of danger from external attack or invasion, whether the threat comes from foreigners or is the work of Chileans; and
b) In case of interior disturbance, whatever its nature may be.” (Art. 5)
Under Article 6, “the declaration of a State of Siege may be decreed in any of the following degrees:
“a) State of Siege because of Internal or External War;
“b) State of Siege in the degree of Internal Defense, which shall occur in case of interior disturbance provoked by rebel or seditious forces that are found to be organized or about to be organized, whether in open form or clandestinely;
“c) State of Siege in the degree of Internal Security, which shall occur when the disturbance is provoked by rebel or seditious forces that are found not be organized, and
“d) State of Siege in the degree of Simple Internal disturbance which shall occur in the other cases provided for in existing legislation.”
Article 7 provides that “in cases in which a State of Siege is declared because of danger of external attack, invasion or internal disturbance in the degree of Internal Defense, effect shall be given to the legal provisions contained in Title III of Book I, and Title IV of Book II of the Code of Military Justice, and application shall be given, when appropriate, to penalties of time of war.”
Book I, Title III, of the Code of Military Justice is devoted to “Military Tribunals in time of War (Arts. 71 to 91). Title IV of Book II, likewise, in Articles 180 to 1974, treats the subject of “Legal procedure in time of war.”
When a State of Siege is declared in the degree of Internal Security, Article 8 states “the same standards of the Code of Military Justice shall govern, but the penalties applicable in time of war shall be applied lowered by one degree.”
“In the cases of declaration of a State of Siege in the degree of Simple Interior Disturbance, there shall come into effect the provisions of Section 14 of Article 10 of Decree-Law Nº 527 of 1974, and of the Code of Military Justice. The said provisions shall likewise govern in the other degrees of the state of siege.” This is prescribed in Article 9.
Decree-Law 527 of June 17, 1974 (published in the Diario Oficial Nº 28.886 of June 26, 1974) approved the Statute of the Junta of Government. Article 10 of that Statute enumerates the special powers of the President of the Junta, among which is the power of declaring one or more points in the Republic to be in a State of Siege in case of danger from a foreign attack or invasion (Nº 14). In the case of an interior disturbance, the declaration of a state of siege requires a decree-law (idem). Under the same number 14 of Article 10, it is stated that “upon the declaration of a state of siege, only the President of the Junta of Government shall have the power to move persons from one part of the country to another and to arrest them in their own houses and detain them in places that are not jails or other places that are for the stated purpose of detaining or imprisoning common criminals.”
3. Decree-Law Nº 641 of September 2, 1974 (Diario Oficial Nº 28.957) and Decree-Law Nº 922 of March 11, 1975 (Diario Oficial Nº 29.100 of the same date)
a) Decree-Law Nº 641 declared the entire territory of Chile to be “in a State of Siege, in the degree of Internal Defense, for a period of six months” (counting from the date of publication of the decree in the Diario Oficial (September 11, 1974).
In the considerations set forth in the preamble of the decree, it is stated that the grave circumstances of the country which were the reason for the declaration of the “State or time of War,” according to the provisions of decree-laws Nos. 3 and 5 of 1973, were now found to be in large part superseded, and that since the subversive action of organized groups that had been attempting to take political control of the country with the acceptance of the former Government had been put under control, it was now appropriate to adjust the regimen of the State of Siege to the true condition of the country.
b) Decree-Law 922 of March 11, 1975, extended the state of siege in the degree of internal defense for a period of six months counting from that date.
In the considerations set forth in the preamble, it is stated that there still existed the conditions that gave cause for the declaration of the state of siege created by Decree-Law 641.
4. Decree-Law Nº 951 of March 31, 1975 (Diario Oficial Nº 29.119 of April 4, 1975)
a) This decree-law specified, in substitution for Article 1 of Decree-Law 228 of 1973, that the powers to transfer and arrest persons which were conferred on the President of the Junta, during the state of siege, by Article 10, Nº 14, of the Statute (Decree-Law 527 of 1974, see above, point 2) would be exercised “by means of supreme decrees that would be signed by the Minister of the Interior with the words ‘By order of the President of the Republic’ or by means of resolutions that, as natural or immediate agents of the Chief of State, would be issued by the Regional or Provincial Intendents (Military Governors).” In the latter case, however, the intendents “must transcribe al of the deliberations, with the background information that justifies the measure, and send them within ten days to the Minister of the Interior, who shall proceed to confirm or revoke the respective resolution by means of a supreme decree that he will issue in the form provided in the preceding section of the decree.”
b) By the addition of a new article to the same decree 228 of 1973, it is provided that “in the recursos de amparo [¨formal requests for writs of protection that are the approximate equivalent of writs of habeas corpus] that are entered in favor of persons allegedly affected by some of the measures provided for in Article 10, Nº 14, of Decree-Law Nº 527 of 1974, there may figure as a party to the case, assuming the defense of the Government, the lawyers who may be designated by the Minister of the Interior or the respective Intendent.”
“The decisions that are made in these recursos de amparo, when they order the release of the person for whom protection is requested, or when they pass the background information in the case to the Public Ministry for the purpose provided for in Article 311 of the Code of Penal Procedure, shall be delivered to the lawyer to whom reference is made in the preceding clause … I the Government has not designated a lawyer, the said notification shall be sent to the Minister of the Interior or the Intendent who has jurisdiction in the city which is the seat of the pertinent Court of Appeals. In the latter case, the Government may make itself a party to the case within 24 hours, in the form indicated in the preceding clause, deciding simultaneously on the recourse which it considers appropriate to propose before the Superior Court that has jurisdiction in the case.”
5. Decree Law 1008 of May 5, 1975 (Diario Oficial Nº 29.147 of May 8, 1975)
In exercise of its Constituent Power, the Junta of Government modified Article 15 of the Political Constitution of the State, adding the following clause:
Nevertheless, when crimes against the security of the State are concerned, during periods in which a state of emergency is in effect, the period referred to in the preceding clause shall be up to five days.
Before this amendment, the Political Constitution of Chile permitted the authorities to detain a person for only forty-eight hours, within which period the authorities must place the person at the disposition of the competent judge. Decree-Law 1008 extended this period up to five days, in the cases of persons suspected of crimes against the security of the State, during the period of a state of siege.
In the preamble of this measure, the following was stated:
1. that crimes against the Security of the State are extremely serious, since they are against the stability of the State and its institutions, place the national well-being in danger and obstruct the free exercise of the fundamental rights of the inhabitants, and
2. that, for the purposes of the necessary investigation that the competent judge must carry out, it is necessary to provide him with the maximum of background information, especially with respect to the identity of the individual who has been detained, which makes the period contemplated by Article 15 of the Political Constitution of the State insufficient in permitting the authorities to detain a person for only forty-eight hours, which makes it advisable, when it is a matter of crimes of this matter and during the period of a state of siege, to extend that period to up to five days.
6. Decree-Law Nº 1009 of May 5, 1975 (Diario Oficial of May 8, 1975)
This decree carries the following official title: “Systematizes standards for legal protection of the procedural rights of persons detained for crimes against the national security for the agencies that indicate and modify these legal provisions.”
This Decree-Law contains two perfectly distinguishable parts: a) Article 1; and b) the remaining provisions.
a) Article 1 provides that “during the period of the state of siege, the agencies with special responsibility for watching over the normal functioning of national activities and for the maintenance of the constituted institutions, when they proceed—in the exercise of their own powers—to place in preventive arrest persons who there is good reason to presume are guilty of placing the security of the State in danger, they shall be required to give notice of the respective detention, within a period of 48 hours, to the most immediate members of the family of the detained person.”
“The detention carried out by the agencies to which reference is made in the preceding clause may not continue more than five days, and within that period the detained person shall be placed at liberty or placed at the disposition of the pertinent Court or of the Ministry of the Interior when it is a case for the application of extraordinary powers or of the state of siege, with a written report of the background information that has been gathered.”
“The application if illegitimate pressures on detained persons shall be punished in accordance with Article 150 of the Penal Code or 330 of the Code of Military Justice, whichever is appropriate.”
b) The most outstanding aspects of the remaining articles of Decree-Law 1009 are these:
1) Articles 7, 8 and 9 of Decree 640 of 1973 (see above, point 2) are replaced, so that:
- In cases of a state of siege because of a situation of internal war or external war, or because of internal disturbance in the degree of internal defense, the wartime military courts shall enter into operation with the military jurisdiction of wartime, and the procedures and penalties provided for wartime shall be applied;
- In case of a state of siege in the degree of internal security, the provisions of Title II of Book I of the Code of Military Justice shall govern with respect to peace-time Military Courts with their own jurisdiction, and application should be given to the standards of Title II of Book II of the mentioned Code concerning penal procedure in peace-time and the penalty established for peace-time augmented by one or two degrees.
- Throughout, in the cases of state of siege in the degree of internal security or in the degree of simple disturbance, the war-time military courts shall hear cases of crimes to which reference is made in articles 4 and 5(a), 5(b) and letters c), d) and e) of the law concerning the Security of the State.
Article 4 of the law concerning the Security of the State (law 12927, text brought up to date by decree Nº 890 of July 9, 1975, Diario Oficial Nº 29239 of August 26, 1975) suppresses persons who “in any form or by any means, rise up against the constituted Government or provoke civil war, and especially:
“a) Those who incite or induce to subversion of the public order or revolt, resistance or overthrow of the constituted Government, and those who, for the same purposes, incite, induce or provoke to the execution of crimes foreseen in Titles I and II of Book II of the Penal Code, or the crimes of homicide, robbery or arson among those contemplated in Article 430 of the Penal Code;
“b) Those who incite or induce, orally or in writing or by any other medium, the Armed Forces, the Carabineros [National Police], the Gendarmerie or the Police, or individuals belonging to them, to lack of discipline or disobedience to the orders of the constituted Government or of their hierarchical superiors;
“c) Those who meet together, concert or facilitate meetings for the purpose of proposing the overthrow of the constituted Government or conspiring against its stability;
“d) Those who incite, induce, finance or assist in the organization of private military groups, combat groups or other similar organizations, and those who form part of them, for the purpose of replacing the public forces, of attacking them or interfering with the carrying out of their duties, or for the purpose of rising up against the authority of the State or of making any attack against the authorities to whom reference is made in letter b) of Article 6;
“e) Those public employees of the military or of the Carabineros, the police or the gendarmerie, who do not comply with the orders which, in the legitimate exercise of authority, are given them by the constituted Government, or who delay in complying or proceed with culpable negligence;
“f) Those who propagate or foment, orally or in writing or by any other medium, doctrines that tend to the destruction or alteration by violence, of the social order or the republican and democratic form of Government;
“g) Those that propagate, orally or in writing or by any other medium, within the country, or who send abroad, tendentious or false news or information for the purpose of destroying the republican and democratic system of Government, or to perturb the constitutional order, the security of the country, the economic or monetary system, the normality of prices, the stability of values and the public assets and means of supplying the populated centers, and those Chileans who, being outside of the country, disseminate such news abroad.”
Article 5 b) of the same law suppresses those who “for the purpose of altering the institutional order or public security or of intimidating the people or of imposing requirements and uprooting decisions of the authorities, deprive a person of liberty,”
Article 6 c) of the law of the Security of the State suppresses those who “incite, promote or foment, or by action or any method destroy, make useless, paralyze, interrupt or damage the installations, instruments or elements employed for the operation of public services or public utilities or of industry, mining, agriculture, commerce, communication, transport or distribution, or those who in the same ways obstruct or make difficult free access to such installations, instruments or elements.”
Article 6 d) of the law of the Security of the State suppresses “those who incite, promote or foment, or by action or any other means, destroy, makes useless or obstruct free access to bridges, streets, roads or other similar property for public use.”
Article 6 e) of the law of the Security of the State suppresses those who “incite, promote or foment, or by action, poison foods, water or other fluids intended for public use or consumption.”
2) Various modifications have been made in the law of the Security of the State to which reference has been made, and its articles 5 b), 12, 16, 18, 19 and 20 have been replaced or amended.
3) Penalties are established for those who “carry or transmit orders, instructions, information or communications that are preparations for the perpetration of a crime against the security of the State”; “a person shall be considered guilty of this crime if he carries documents that are enciphered or in code and does not give satisfactory explanation of their contents or origin” (Article 2) and those who “shelter, hide of facilitate the escape of a person, knowing that they are eluding the action of justice or of the authorities, when this pertains to a matter related to the security of the State.” (Article 3) The hearing of cases concerning these crimes “shall pertain to the Military Courts, and in all other respects the procedural provisions contained in the articles of the law of the Security of the State shall be applicable.” These provisions are made by Title II of Book II of the Code of Military Justice concerning peacetime penal procedure, a system into which certain modifications have been introduced.
4) Persons are presumed to be the authors of the crimes of incitation contemplated in articles 4 to 6 of the Law of Security of the State if they have been “found to be carrying circulars, pamphlets or booklets that incite to their perpetration, provided that the circumstances of the action or the personal background information concerning the person permit them to be suspected.” In addition, “when these circumstances combine, a person who is found to be carrying circular, pamphlets or booklets that serve for the dissemination of news and information that the laws define as criminal, shall be presumed to be guilty of propagating and supporting and disseminating that propaganda or doctrine.” (Article 5)
5) This decree declares that the crimes contemplated in Decree-Law 1009, in Decree-Law 77, which declared Marxist political parties and movements to be illegal, and in Decree-Laws Nos. 81 and 604, which establishes sanctions against those who enter the country clandestinely, and in Article 58 of D.F.L.N. Nº 221 of 1931, concerning aerial navigation, which establishes punishment for the illegal seizure of aircraft, shall be considered, for all legal effects, as crimes against the security of the State.
7. Decree-Law 1.181 of September 10, 1975 (Diario Oficial Nº 29.253 of September 11, 1975)
This decree declares that the entire territory of Chile “is in a State of Siege, in the degree of internal Security, for a period of six months, counting from the date of publication” of the said decree-law in the Diario Oficial, and it cancels Decree-Law Nº 922 of March 11, 1975, which had declared the entire territory of the country in a state of siege in the degree of internal defense.
In the preamble, it is stated that “the serious circumstances which the country has experienced and which motivated the declaration of the ‘State or time of War’… are at present found to be to a large extent overcome,” that “the patriotic action of the Armed Forces and the citizenry has enabled the control of subversive action by organized groups that were seeking to take over the political control of the country with the approval of the preceding Government”; that now that these organized groups had been put under control, “the regimen of the State of Siege should be adjusted to the real conditions of the country”; that “consequently, it is considered unnecessary to maintain the State of Siege in the Degree of Internal Defense… without prejudice to recognizing, at the same time, that it is an unavoidable duty of the authorities of Government to preserve the institutional and public order of the Nation, which constitutes a legitimate internal defense of the essential activities.”
The text of this Decree-Law 1181 was sent by the Government to the Inter-American Commission on Human Rights on September 16, 1975, with a note signed by the Minister of Foreign Relations. In this note, he stated that the modification in the degree of State of Siege introduced by this measure, beginning with September 11, 1975, “means that, except for certain especially serious crimes against the Security of the State to which express reference is made in Decree 1009 of 1975, the jurisdiction of the Military Courts shall be exercised in conformity with peace-time procedures and not those of War”.
The Minister added that “consequently and except for certain exceptions, the Councils of War cease functioning, and there is re-established the procedure stipulated in Title II, Book I of the Code of Military Justice in effect since 1926, under authority of which the military jurisdiction is carried out, in the first instance by the Military Juzgados [Courts of First Instance] and, secondly, by the Court Martial. This Court is made up of two Ministers of the Court of Appeals of Santiago, presided over by the senior one, by a retired Auditor General [Judge Advocate] of the Army, a Judge Advocate of Aviation, either on active duty or retired, and by a Judge Advocate of the Carabineros [National Police], either on active duty or retired. The Judge Advocates are law graduates with great experience in Military Jurisprudence. The Court Martial of the Navy, which sits in Valparaiso, is the court of appeals for the sentences or decisions that emanate from the Naval Juzgados. That Court is likewise made up of two Ministers of the Court of Appeals, by an Officer of the Navy with high academic preparation and by the Judge Advocate of the Navy.”
“From the decisions handed down by the Court Martial—the Minister goes on to state—recourse may be obtained by appeal to the Supreme Court of Justice. The Ordinary Courts (the Supreme Court) recover in this way their competence over Military Justice.”
8. Supreme Decree Nº 187 of January 28, 1976
This measure is intended “to regulate adequately the standards for guaranteeing the rights of detained persons under the state of siege, established in Article 1 of Decree-Law 1009.”
The decree specifies:
a) that “every person detained by the Agencies and in the situations to which reference is made in Article 1 of Decree 1009 of 1975” (see above, point 6) “before entering the plants, establishments or places of detention pertaining to those agencies, shall be examined by a physician-surgeon. A similar examination shall be made of the detained person at the moment of his departure from the said plants, establishments or places. The Medical Legal Service and the National Health Service, in coordination, shall assign to the plants, establishments and places already mentioned a physician in charge of carrying out the examinations specified in this article. Such physicians shall issue, in each case, a written report in which they attest to the condition of the person examined, sending the report immediately to the Ministry of Justice.” (Article 1)
“If, from the statements on these certified reports, it should appear that the detained person has been the object of bad treatment or undue pressures, the Ministry of Justice shall proceed to denounce such acts to the administrative, institutional or judicial authority which, according to the case, is the pertinent one.” (Article 2)
b) That “the detentions which are related to the application of the state of siege, to which reference is made in Article 1 of Decree-Law 1009 of 1975, may be carried out only with a prior written order issued by the chief of the respective specialized security agency which must contain the following data: A) Name of the detained person; B) Name of the person carrying out the detention; C) Place to which the detained person is to be taken; D) Date, hour and place in which the detention is carried out; E) Name, position and signature of the person who ordered the carrying out of the measure; and F) Stamp or seal that authenticates the order. A copy of the order of detention must be delivered to the most immediate member of the family of the detained person, as indicated by the detained person, and who resides in the place where the detention is carried out, within the 48 hours provided for in Article 1 of Decree-law 1009 of 1975.” (Article 3)
c) That “if, for compliance with the orders of detention or as a consequence derived from such orders, it becomes necessary to carry out a search of dwelling places or of any closed building or place—whether it is public or private—there must be issued, by the chief of the respective specialized security agency, a written order that authorizes this action by the functionary charged with carrying it out. The said order must be exhibited in advance to the owner or resident of the dwelling place, or to the person in charge of the closed building or place, as the case may be, and a copy of the order must be given to such person when the search has been carried out.” (Article 4)
d) That “if, on the occasion of detentions or searches to which reference is made in this Supreme Decree, a foreigner should be deprived of his liberty, the Ministry of the Interior shall proceed, within its legal authority, to expel such person from the country.” (Article 5)
e) That “the President of the Republic, by Supreme Decree that shall bear the signatures of the Ministers of the Interior and National Defense, shall specify the places and establishments of detention to which reference is made in Articles 1 and 3, letter c), of this Decree in which there must be maintained a duly registered book in which the entry and departure of detained persons shall be attested to, with an indication of the day and hour when this took place, as well as an indication of the order which originated the action.” (Article 6)
With reference to this standard, it should be mentioned that, by Supreme Decree Nº 146 of February 10, 1976, it was provided that only three places shall be used for the detention of persons who are in the situation specified in Article 1 of Decree-Law 1009, Puchuncaví, Tres Alamos and Cuatro Alamos, except for provisional detentions in comisarías [police stations] and cuarteles de servicio [military stations or barracks.]
f) That “either the President of the Supreme Court or the Minister of Justice, without distinction between them, shall have the authority at any time, without prior notice, of inspecting or verifying the strict compliance with the legal and regulatory standards in effect with respect to the rights of detained persons and the report on anomalies, which they may point out to the pertinent authorities, by means of a confidential memorandum, without prejudice to their authority to order the immediate medical examination of the detained person who, in the course of their visit of inspection, asserted that he had been the object of bad treatment or undue pressures during his stay in the place inspected.” (Article 7) “In the geographical places that are not parts of the metropolitan area, the Minister of Justice, in agreement with the President of the Supreme Court, shall proceed to designate the functionary who must carry out all or part of the actions of examinations” indicated in the proceeding. (Article 8)
“The Ministry of the Interior or of National Defense in the Metropolitan region, and the Intendents and Governors, wither Provincials or Commandants of jurisdictional areas, in the respective regions, shall decide upon the measures necessary to give the President of the Supreme Court, the Minister of Justice or the functionary designated by the Minister, as the case may be, all the support which will be conducive to adequate compliance with his responsibility. The functionaries who fail to provide such support or who obstruct the carrying out of the measures just indicated shall be responsible for serious failure in compliance with their obligations.” (Article 10); and
g) The authority who is responsible in the cases contemplated in articles 2, 7 and 8 of the decree under discussion (see above, points a and f) “shall order, within 48 hours, the preparation of the pertinent charge, the principal element of which shall be the denunciation of the President of the Supreme Court, of the Minister of Justice, or of the functionary designated by the Minister, with the object of determining who are the responsible parties and applying the pertinent penalties. In the charge [sumario], special consideration shall be given to the investigation and establishment of acts that may prove eventually to be infractions of articles 150, 253 and 255 of the Penal Code and 328 and 338 of the Code of Military Justice.” (Article 9)
The standards in Supreme Decree 187, transcribed, must be appraised in relation to:
1) Article 1 of Decree 1009, already summarized (see above, point 6), which refers to the actions of the “agencies with specialized responsibilities for safeguarding the normal carrying out of national activities and for the maintenance of the constituted institutions, when they proceed—in the exercise of their own authority—to detain preventively persons whom they have basis for presuming to be guilty of placing in danger the security of the State.” In the fifth “consideration” mentioned in the preamble of Decree-Law 1009, it is stared that those “specialized agencies” are those “of technical-professional character which the President of the Republic makes use of to carry out the powers given to him by Article 72 of the Political Constitution”; and
2) The contents of Decree-Law 521 of June 14, 1974 (Diario Oficial Nº 28879 of June 18, 1974), Article 1 of which created “the Dirección de Inteligencia Nacional (DINA) [National Intelligence Office] as a military agency of technical-professional character, under the authority of the Junta of Government.” Even though the published provisions of the said decree-law 521 do not give the DINA powers for preventive detention of persons suspected of placing in danger the security of the State, it should be pointed out that: a) Decree-Law 521 contains a “sole transitory article” which provides that articles 9, 10 and 11 of the decree “shall be published in an annex of the Diario Oficial which has restricted circulation” and b) that it is public knowledge and notorious that the great majority of the detentions carried out in Chile, after the creation of the DINA, have been carried out by personnel of that agency.
9. Decree-Law 1281 of December 10, 1975 (Diario Oficial of December 12, 1975)
In the “considerations” in the preamble of this decree-law, it is stated that “it is appropriate, for reasons of legal security, to give expressly to the Military Chief of a Zone in a State of Emergency the power to prevent the publication or dissemination of news intended to diminish the spirit of sacrifice of the people in benefit of the future of the Motherland, as well as news that deforms the true shape of events or simply falsifies those events,” and that “along with this authority, the Military Chiefs should have the power to apply, by administrative means, the sanctions which fit these offenses, without prejudice to the penal actions that apply.”
Supported by these considerations, Decree-Law 1281 added a new clause (the “n”) to Article 34 of the Law of Security of the State. According to the new provisions, when a state of emergency is declared, the Military Chief of the zone where this occurs may “suspend the printing, distribution and sale of up to six editions of newspapers, magazines, pamphlets or printed matter in general, and the transmissions, for up to six days, of radio broadcasting stations, television channels or any other analogous medium of information that issues opinions, news or communications tending to create alarm or bad reactions among the people, distort the true shape of events, whether they are plainly false or countervene the instructions that have been imparted for preservation of public order in conformity with the preceding clause.” (The preceding clause establishes that it is the responsibility of the Military Chief “to impart all the orders and instructions that are considered necessary to maintain internal order within the zone.”)
Under authority of the new clause established by Decree-Law 1281, the Military Chief, in cases of repetition of offenses, may “order the intervention and censure of the respective media of communications, and of their plants and installations.”
The new standard goes on to state that, against any of the measures that are provided for in the measure, “appeal may be made by the affected person, within 48 hours after he is notified of an action, before the Court Martial of the Army or Navy, respectively, which will consider the appeal conscientiously and announce its decision.”
But “the entering of an appeal shall not suspend compliance with the measure that has been taken, except for a definitive resolution.”
10. Decree-Law Nº 679 of October 10, 1974 (Diario Oficial Nº 28.974 of October 10, 1974)
This decree law, which preceded by more than a year the one just summarized, likewise relates to freedom of expression (lato-sensu), and it regulates cinematographic exhibitions for which purpose it creates the Council of Cinematographic Grading “which shall be directly under the supervision of the Ministry of Public Education through its Subsecretariat and the mission of which shall be to orientate the cinematographic exhibition of the country and to grade films in accordance with the standards established in this decree.” (Article 1)
Article 9 provides that “the Council shall reject films that foment or propagate doctrines or ideas contrary to the fundamental bases of the Motherland or the nationality, such as Marxism or others, those that offend States with which Chile maintains international relations, those which are contrary to public order, morality or good customs, and those which induce to the committing of anti-social or harmful acts.”
The Council must grade cinematographic films in one of five categories (approved for all viewers, only for persons over 18 years of age, only for persons over 21 years of age, approved as educational in character, rejected).
The scope of application of Decree-Law 679 is large: “All halls or places of any capacity for spectators, even though they operate under the patronage of embassies or state universities or private persons, in which there are projected regularly or occasionally cinematographic films, shall be subject to the provisions of this decree-law.” (Article 14)
The penalties are serious: “A person who exhibits a film not graded by the Council or rejected by the Council, shall incur the penalty of confinement in the minimum degree, without prejudice to the seizure of the film and the temporary closing of the hall in which the exhibition takes place. This closing shall be permanent in case of repetition of the offense.” (Article 15)
The exhibition of a film graded by the Council may be suspended temporarily or permanently when circumstances require it. The suspension shall be ordered by a supreme decree that must state the reasons and bear the signatures of the Ministers of the Interior, of National Defense and of Public Education.” (Article 18)
11. Decree-Law 930 of March 17, 1975 (Diario Oficial Nº 29.107 of March 19, 1975)
Among other things, this final decree-law specifies that, because they are considered activities that are prejudicial to the security of the State, the following are, inter alia, considered to be justified reasons for the termination of labor contracts:
a) The committing of illicit acts that prevent a worker from going to work or from complying with his working obligations;
b) The direction of, or active participation in the illegal interruption or stoppage of activities, totally or partially, in business firms of places of work, or the undue retention of persons or property;
c) The committing of a crime specified in Law Nº 12997 concerning the Security of the State, and its amendments, or in Law 17.798 concerning Control of Arms, and its amendments.
This decree-law, on the other hand, cancelled Article 4 of Decree-Law Nº 32 of 1973, which had created bases for discharging persons and which had been operating retroactively.1
1 See the First “Report concerning the situation of Human Rights in Chile,” Chapter IV, D.C.