PHYSICAL LIBERTY OF THE PERSON, HABEAS CORPUS AND RECURSO DE AMPARO
American Declaration, Art. I – Every human being has the right to life, liberty and security of his person.
American Declaration, Art. XXV – No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.
No person may be deprived of liberty for non-fulfillment of obligations of a purely civil character.
Every individual who has been deprived of his liberty has the right to have the legality of the detention ascertained without delay by a court, and the right to be tried without undue delay, or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.
1. The Commission has already stated, in the introductory chapter of this report, that nothing stated in the report constitutes a pre-judgment concerning the “individual cases” that continue to be under consideration in conformity with our regulatory standards. The final decision considering each one of these cases will be made only when the formalities of procedure are completed.
2. As distinct from the consideration of individual cases, the Commission takes into account and attributes due significance to an increase, a diminution or the continuation at a constant level of the number and seriousness of complaints and denunciations that the Commission receives concerning supposed or eventual violations of human rights.
3. These quantitative and qualitative variations must be the object of a rational appraisal, taking into consideration, among other factors, the time and circumstances in which they occur, the fact that they may result from the action of organized groups or of isolated persons, etc.
4. Considering all these factors, the Commission must state that, after its visit to Chile and even after the time that it was publicly known that it had presented to the Permanent Council its report concerning that visit, the Commission continued to receive a large number of denunciations concerning supposed arbitrary deprivations of liberty, frequently accompanied by imputations of torture and, for members of family, anguish caused by the fact that the whereabouts of the detained person could not be ascertained.
5. Up to the time of the drafting of this report, the cases of arbitrary arrests denounced to the Commission, since its previous report, come to a very high number. But the number cannot be specified exactly because the possibility must be taken into consideration that there should be added to this number a part of the persons whose disappearance has been denounced, a subject which is analyzed in a separate chapter.
6. These detentions, according to the denunciations received, are frequently carried out after midnight, in the early hours of the morning, and the persons carrying out the arrest are often without uniforms and refuse to exhibit documents of identification. Nevertheless, in many cases it has been possible to confirm later that the arrested person was in one of the establishments that continue to operate throughout Chile for these purposes, from which it can be inferred that these acts are imputable to members of the public forces.
7. As concerns the treatment received by the arrested persons, the denunciations received by the Commission do not change in any substantial way the conclusions concerning these extremities that were contained in its first report.
8. In that report, we indicated the fact—serious, in the opinion of the Commission—that a very large number of detained persons, arrested under the authority of clause Nº 17 of Article 72 of the Constitution, granted to the President of the Republic under the control of Congress, have been kept in prison for many months without trial. We added that it was essential to correct the existing system so that lawyers and members of the families of the detained persons could know immediately the establishments and places in which the detentions were being carried out.
9. With regard to an estimate of the number of persons detained, since August, 1974, it is extremely difficult to specify.
Of course, there have been times when the numbers of detentions have increased and other times when there has been a diminution and when the Government has been disposed to reduce the number, either by placing people at liberty, ordering their compulsory expulsion from Chile, by the issuance of “exempt decrees”, or by changing detentions into sentences.
But the absence of a seriously organized central registry, which we urged after our visit of observation in 1974, and the existence of agencies that exercise full powers of arrest and have been operating with great autonomy, such as the DINA, must make it very difficult for the Government of Chile itself to keep itself informed in this matter, up to the point of requiring it to issue Supreme Decree 187.
Nevertheless, it is possible to record the following statements, the larger part of which have been attributed to high Chilean authorities, and which we do not know to have been denied by them:
a) May, 1975. General Benavides, Minister of the Interior, stated that, since September 11, 1973, there have been 41,359 arrests, and that of these detained persons, 36,605 have been liberated or expelled. This leaves a balance of 4,754 detained persons.
b) May 18, 1975. “The Washington Post” reports that, according to Minister Benavides, the numbers are the following:
Detained persons 3,811
Expelled persons 2,744
c) September 22, 1975. “The New York Times” reports that the number of detained persons is 5,000.
d) September 22, 1975. The Representative of Chile on the Permanent Council of the Organization of American States admitted that the number of prisoners on that date was 4,062. “The Washington Post” of September 22, 1975.
10. If we take as a basis for our calculations, the results obtained by our Commission from requests for information, by notes to the Government of Chile, presented after the date of our first report, in the course of discussing individual cases, and with reference only to requests for information answered by the Government, we arrived at the following results:
a) Information requested concerning 632 persons.
b) Replies received as follows:
1. That they are detained 49
2. Compelled to leave the country 122
3. Placed at liberty 273
4. At liberty conditionally 53
5. Expelled 17
6. Condemned 54
7. Disappeared from jail 1
8. Disappeared 1
9. Lost account of 3
10 Killed in fights 5
11. Killed in accidents while detained 1
12. No information of detention 53
This permits the assertion, in our judgment, that our Commission cannot be considered to be badly informed, when the totally of cases taken up with the Government of Chile during a specified period shows that, in at least 9 percent of the cases, deprivation of liberty has taken place, even accepting the statement of the Government that in 53 of the cases there is no record of detention, and assuming that no detention did take place in those cases.
11. Another useful indication that should be taken into consideration to complement the information on this subject, is the periodical information prepared by the Committee of Cooperation for Peace in Chile, the organization that carried out an extraordinary humanitarian work until it was dissolved by initiative of the Government.
Referring to the number of detained persons, estimated after the issuance of Decree Law 1009, the Committee states:
Present number of political detainees in Chile.
According to the latest statistics concerning political detainees provided by the Government, in September of this year, there are 4,009 political prisoners in the country. These figures are included, according to the evening newspaper “La Segunda,” in the report presented by the Government of Chile for consideration at the recent Assembly of the United Nations.
This number is categorized in the following manner: 1,398 detained persons who are to be tried before military courts; 2,117 detained persons who are carrying out sentences imposed by these same courts; and 494 persons detained under the state of siege (arrested).
It is not possible to obtain, unfortunately, exact official figures concerning the numbers who are being tried or who have been sentenced. Nevertheless, it is necessary to base approximate calculations on these figures.
On the other hand, the official figure for persons who are under arrest because of the state of siege is clearly less than the actual number at present under detention in this category, taking into consideration only the persons who are detained in the two principal known camps for such detainees: Tres Alamos (Province of Santiago) and Melinka (in the locality of Puchuncaví of the Province of Valparaiso), since the camps at Pirque and Ritoque are no longer used.
In these camps, there are at present approximately 750 political detainees (330 men and 130 women in Tres Alamos and 290 men in Melinka; in the figure for Tres Alamos, the persons who are incommunicado in “4 Alamos” are not counted, and these are more than 35).
In addition, the Government does not consider, in its statistics, the cases of persons whose whereabouts and situations are unknown, in which cases the Government denies that the persons have been detained.
It is difficult to be able to assert exactly the nation-wide number of disappeared detainees. The Committee of Cooperation for the Peace records more than 1,000 of these cases arising from arrests that took place in the Province of Santiago. However, this figure may vary to a certain extent because, on the one hand, some of the members of families who have denounced situations of detentions and disappearances have not provided the Committee with current information recently, and, on the other hand, the Committee has not necessarily received information concerning 100 percent of the cases of detained persons in Santiago who have disappeared.
Finally, precise information is not recorded concerning the numbers of disappeared persons who were arrested in other provinces of the country, and the total would be increased by several hundred in this category, if it is assumed that they are alive.
12. The Commission could not have received with greater satisfaction the news—offered at first in very brief form by the newspapers—that the Government of Chile had decided that detained persons, by application of the standards related to the state of siege, must, within a minimum period of five days, be either placed at liberty or submitted to trial, and that all detentions would be reported to the families of the detained persons within the shortest period.
13. However, we must state that, since May 5, 1975, the date of decree-law Nº 1009,1 the Commission has received a large number of complaints or denunciations in which it is reported that the practice continues of detentions “sine die,” without the detainees being submitted to justice and without the families being informed of the place where the detainee is held.
14. The magazine “Política y Espíritu,” of Santiago, Chile, has commented on this subject and on the decrees that preceded Nº 1009, since February, 1974, in the following terms:2
1. Decree-law Nº 228 of February 3, 1974, relates to the need to specify the legal form in which the detention of citizens must be carried out, when the Government uses the powers granted by Article 72, Nº 17, of the Constitution, that is, the powers that emanate from the declaration of a state of siege. These powers, as is known, give the Executive the right to transfer persons from one Department to another and to arrest them in their own homes and to keep them under arrest in places that are not jails or places that are ordinary and for the detention of common criminals.
2. During the period between September 11, 1973, and February 3, 1974, there occurred numerous cases in which the detention of persons related to the preceding regime, or searches of places in which arms were presumed to be stored, which did not conform to the established standards. It is, in fact, an essential point of doctrine and jurisprudence that, in such an event, the detention be carried out under a supreme decree signed by the Minister of the Interior.
A decision of the Illustrious Court of Appeals, on August 2, 1973, is cited as a precise example of a good solution of the problem. In this decision, it is emphasized that the order for the arrest must emanate officially and publicly from the Minister of the Interior.
The cited decree-law Nº 228 reestablishes, therefore, the appropriate doctrine in indicating:
Article 1. The powers which Article 72, clause 17, third item, of the Political Constitution of the State, confer on the President of the Republic after the declaration of a state of siege, shall be exercised by the Junta of Government by supreme decrees that shall be signed by the Minister of the Interior, with the formal statement. By order of the Junta of Government.
We also note that, to confirm the many irregular acts carried out before the date of this decree, its Article 2 stated expressly:
There are hereby declared to be consistent with the law the measures adopted by the administrative authorities that constitute the exercise of the power of clause three of Nº 17 of Article 72 of the Political Constitution of the State, prior to this decree-law.
This means that our previous report was not mistaken in asserting that the authority granted exclusively to the President of the Republic by Article 72, Nº 17, of the Constitution, had been exercised by other authorities, with infraction of the constitutional text.
Then, in describing decree-law Nº 1009 of March 5, 1975, the magazine that we are quoting explains:
Its Article 1 indicates that the specialized agencies, when they proceed, in the exercise of their “own powers,” to arrest persons presumed to be guilty of placing in danger the internal security, shall be subject to two conditions: first, that information concerning the respective detention shall be given to members of the immediate family within a period of 48 hours; second, that the detainee will be placed at liberty, or at the disposition of the pertinent Court, or of the Ministry of the Interior, within five days.
8. This standard is very pertinent to the situation, and will be approved in its fundamental intention by all who know the subject. In fact, the lack of information to the respective families, as well as the prolonged detentions, for indefinite periods, without conformity with standards concerning a maximum period in which a detained could be kept incommunicado or without providing any information about his whereabouts, had become a matter of anguished disquiet for many families. The new form permits the establishment of the fact of the detention as well as the responsibility of the authorities.
9. In reference to this same point, however, there exists a problem which, in our judgment, must be satisfactorily resolved. The subject relates to decree-law Nº 521, published on June 18, 1974, the text of which we also transcribe. This concerns a decree-law which created, or rather institutionalized, the National Intelligence Bureau (DINA), which is governed by three principal standards:
a) It is a military agency of a technical professional character, in charge of bringing together all necessary information for the national security and the development of the country.
b) It is directly responsible to the Junta of Government and, therefore, not to the Ministry of the Interior or the Ministry of Defense.
c) It possesses powers to obtain the background information that it considers necessary from all the Services of the State and from any institution to which the State contributes or in which it participates.
In addition, this Bureau has the powers specified in Article 8. In accordance with these, the DINA may carry out the investigations to which reference is made in articles 156 to 183 of the Code of Penal Procedure, which were extended by law 17.798, concerning control of arms, to the Corps of Carabineros and the Armed Forces, when there is a presumption of the existence of clandestine arms or the commission of the crime of organizing armed groups. The investigations to which allusion is made concern entry and search of closed places, and include the detention of persons. Decree-law Nº 521 states expressly that these investigations may be carried out only in the form and under the conditions specified in these precepts. This means that they are appropriate only when they concern serious cases and when there is an order issued by a Court. The investigation must be reported within 24 hours, the detained persons and the seized effects being placed at the disposition of the Court.
We observe, therefore, that none of the mentioned agencies (Investigations, Armed Forces, Carabineros and DINA) may act on its own initiative.
10. Now then, the difficulty consists in a kind of vicious circle that must be clarified. In effect, the fifth “consideration” of the preamble of decree-law 1009 asserts that it relates to specialized agencies of which the President of the Republic makes use to exercise the authority granted by Article 72 of the Political Constitution of the State. However, Article 1 of the decree-law refers to the fact that the same agencies must, within 5 days, report the arrest they have carried out, placing the arrested person at the disposition of the pertinent Courts or the Ministry of the Interior, the latter in cases that concern the application of powers granted by the state of siege. In other words, on the one hand we are told that such agencies may act only on orders from the President of the Republic or the Judiciary Power, and on the other hand, it is asserted that the agencies may, first, order an arrest and, only later, five days later, decide whether they will place the person at liberty or send him to the Courts or to the Minister of the Interior, in order that the President may exercise his authority, which was the indispensable basis for ordering the arrest.
The point of this, then, is the fact that, implicitly, Article 1 of the cited decree-law appears to be recognizing that the DINA, and other specialized agencies of this type, have the power to detain persons without a court order or a supreme decree of the Ministry of the Interior. In this sense, there is a retrogression in the prior situation, except for the fact that the period of detention by the extra-judicial and extra-ministerial agencies may not exceed 5 days.
A simple reading of decree-law Nº 1009 seemed to encourage one to believe that, with its approval, a solid, progressive step was being taken: no more detentions for indefinite periods, no more detainees whose whereabouts are unknown to their families.
But a more careful reading of this same text and an examination of the many denunciations received by the Commission considerably diminish such hopes. And our concern was deepened when we carefully read the transitory article of decree-law Nº 521, concerning the DINA (National Intelligence Bureau), to which a large proportion of the arrests are attributed, which states: “Articles 9, 10 and 11 of this decree-law shall be published in an annex of the Diario Oficial which has restricted circulation.” Concerning this point, the magazine “Política y Espíritu” makes the following comment:
This means obviously that the said provisions have validity for citizens, even though they do not know what they contain. We must state that this itself implies a serious violation of the law and of the State of Law, which does not permit the existence of secret laws.1
15. In order to have a better basis for judgment concerning the problem of appraising the extent to which there had been evolution in the application in Chile of the right of physical liberty of persons, the Commission sent an inquiry to the Government of Chile in a note of September 9, 1975, in which the Commission requested the following information related to the subject of this chapter:
1. How many persons are deprived of their liberty–-on the basis of information that is as current as possible—in each of the following categories:
a) Detained preventively in application of the extraordinary powers of the Government under the state of siege;
b) Submitted for trial for crimes against the public order and the security of the State, including the law concerning arms control:
c) Sentenced for the crimes mentioned in item b).
2. The names of persons deprived of their liberty for the reasons indicated in the preceding number, who are less than 18 years of age.
3. The names of the persons who have been submitted for trial before the competent courts with an indication of Court or juzgado [Court of First Instance] in which they will be tried.
4. How many persons—foreigners and nationals—have been expelled from the country—up to a date as close as possible to the date this information is sent?
In another note, dated October 7, 1975, it was respectfully requested that the Government provide information in response to the following question:
4. From the time that Decree-law 228 went into effect, has the authority given to the Executive Power by Article 72, Nº 17, of the Constitution, been exercised in all instances by the issuance of supreme decrees? If not, what is the basis for the decisions that have been made in a form distinct from the issuance of Supreme Decrees? What is the current practice in this matter?
16. The answer to the first of these communications, contained in a note of October 17, 1975, states:
1. a) There are 470 persons under preventive detention, in exercise of the powers conferred by the state of siege. Of these, about 200 are the subjects of decrees that require them to leave the country.
b) Those submitted for trial number 1,198.
c) Those sentenced number 2,117.
It is added that a Commission for the Commutation of Sentences has been created to consider the cases of those who have been sentenced by the Military Courts and who request permission to leave the country. This Commission has received 369 petitions, accepting 324 and rejecting 10, while the others remain under study.
2. There are no detained persons of less than 18 years of age, since the law prohibits this.
3. As concerns the names of the persons submitted for trial, it is stated that these will be sent later, when they are available.
4. Persons expelled from the country number 693, including both foreigners and nationals, the provisions of decree-law 81 of 1973, and decree-law 2032 of 1974, having been applied in such cases.
17. This reply of the Government of Chile merits some comment.
1. Two years after the installation of the Military Government, 4,478 persons are still deprived of their liberty or have been expelled from the country for political reasons.
2. There has been no answer, as yet, to the request for an indication of the names of the persons who have been tried for crimes against public order and the security of the State, which would have permitted a comparison of that list with the names that our Commission possesses.
3. The statements based on legislation concerning minors, denying that there are detained persons less than 18 years of age, are not sufficient to decide the question, as long as the Commission, while the same legal provisions have been in effect, has been able to confirm, in fact, that these provisions have been violated.
4. The Government of Chile admits, by implication, that its conduct is not consistent with the provisions of Article VIII of the American Declaration [of the Rights and Duties of Man], and with Article 22, section 5, of the Convention of Costa Rica, which prohibit the expulsion of nationals. It would seem, in fact, that the Government of Chile considers it practically a generous solution to give a Chilean the possibility of leaving the country, his family, and his place of work. This is the meaning of the so-called “decree requiring departure from the country,” applied to nationals and foreigners alike.
18. The second question, relating to decrees adopted in exercising the powers of the state of siege, from the time that decree 228 came into effect, is one of the many which the Government of Chile, by virtue of the doctrine contained in its note of January 8, 1976,1 has been left completely without any reply.
But what we are interested in clarifying is whether the high constitutional power reserved exclusively for the President of the Republic, acting under the Contralor [monitoring] of the Congress, has been, in reality, employed by lesser authorities.
The proof of this emerges from decree-law 228, especially its Article 2, which validates “a posteriori” those acts of infraction of the constitutional order, which damage personal liberty, a situation which has become so much more serious since the issuance of decree-law 951, the contents of which have already been examined in Chapter I, point 4, of this report.
19. The Commission, in the same note of October 7, 1975, and entirely for the purpose of finding out to what extent the physical liberty of persons was being respected in Chile, asked the following:
5. From the date of application of the decree-law of April 30, 1975, which bears the title Standards for juridical protection of procedural rights of persons detained for crimes against the national security,
a) Are the provisions of Article 1 of this Decree being applied effectively in the entire country?
b) In case an authority does not observe the said Article 1, is the detained person or his representatives empowered to present a recurso de amparo or habeas corpus to the competent civil court?
c) In the event of an affirmative reply to the preceding question, could the Illustrious Government of Chile send to the Commission copies of some of the decisions issued in response to recursos of this nature?
d) If, in the situation outlined in question b), an authority responsible for infraction of Article 1 has been punished by the competent agency or court, a copy of the formal decision would be appreciated.
6. What are the limits at present in effect, on the period that a detained person can remain incommunicado, under the powers that are conferred by the state of siege? If the established periods are exceeded, is it possible to obtain the protection of Civil Justice to terminate the status of incommunication. If the reply to this is in the affirmative, could the Government of Chile indicate specific cases of such protection?
20. This note is one of those that has received no reply whatever from the Government of Chile.
We know, nevertheless:
a) That decree-law 1009 (which is dated May 5, and not April 30, but whose subject was correctly indicated) was not sufficient to prevent new arbitrary arrests carried out by DINA and other arresting authorities.
b) That there continue to occur cases of detentions for indefinite periods of time in the exercise of the powers of the state of siege itself, delegated to the Ministry of the Interior and to other authorities of lower rank.
c) That, at least up to the application of Supreme Decree 187, families of detained persons were continuing to try to find out, often futilely, where the detained persons were being confined.
d) That the limitations placed on the submission of cases to the Councils of War or to procedures of wartime—a status which the Government recognizes to have ended—are subject to so many exceptions, by reversion to the law of security of the State, that likewise in this sense, decree-law 1009 does not constitute any effective progress.
e) That neither “habeas corpus” nor the recurso de amparo really function in Chile, by virtue of the theory that detentions ordered under the provisions of Nº 17 of Article 72 of the Constitution are not subject to such recourse. In good constitutional doctrine, no form of arbitrary detention (irregular, abusive, contrary to law) is excluded from the control of legal regularity that is presupposed by the principle of habeas corpus. And it is unnecessary to demonstrate that this vice of arbitrariness can be presented in the case of deprivation carried out by a low-ranking policeman as much as it would be if this act were performed by the President of the Republic who has delegated to the policeman (regularly or not) this exceptional power. It is clear that the Judge cannot dispute the merit of the decision, that he is not able to discuss whether the exigencies of maintaining public order make it necessary or do not make it necessary that citizen “X” be preventively detained; but he should be able, on the other hand, to require that the body of the detained person be brought into his presence (“habeas corpus”), which would enable him to ascertain whether he is alive or not, whether he had his physical integrity or not, whether he shows signs of bad treatment or torture; it would permit him to know where he is and whether or not he has someone to give him legal advice; he would be able to decide whether the order for his detention had come from a competent authority or not and whether it fulfills the indispensable form requirements; he would be able to find out whether the detained person is in an adequate place, or whether he is mixed with common criminals in an ordinary jail, etc. This is the enormous, the transcendental significance of the recourse to “habeas corpus” in those exceptional cases, a recourse which has lamentably not been recognized by the Supreme Court of Chile.
21. As concerns the number of detentions carried out in Santiago alone, after decree-law 1009 went into effect, and the ultimate fate of the detained persons, we consider it necessary to quote the study of the Committee of Cooperation for the Peace, whose figures, obviously, do not coincide with the most recent ones given by the Government of Chile.
Decree-law 1009 was announced to the country by General Augusto Pinochet on May 1, 1975, and was published in the Diario Oficial on the 8th of the same month.
There follows a summary of the detentions carried out in Santiago since May of this year and registered by the Committee of Cooperation for the Peace.
NOTE: This table has been prepared on the basis of figures available on November 30. It has been normal that the detentions which occur in a particular month are the subject of denunciations, by members of families, about two months later. From this it will be deduced that, by January 31, 1976, the figures for persons detained in October and November will have increased significantly as compared with the above numbers.
Taking into consideration the statistical norm observed up until the present in this matter, it can be indicated that the detentions in October will number more than 160 and less than 180. In the same way, the figure for November will probably be more than 100 and less than 120.
Observing the numbers of detentions each month since the effective date of decree-law Nº 1009, some tendency toward a reduction in number is noted during the first three months (May, June and July). However, in the four months after those, there was a notable resumption, with a peak in September. In addition, the volume of detentions in November, in spite of being the lowest of the period of the last four months, will, when the above-described statistical estimate is taken into consideration, be no less than the number in May which was the highest month of the first three.
Characteristics of the detentions from the point of view of Decree-law 1009
a. Article 1 of this Decree-Law indicates that the DINA or other security agencies “when they proceed, in the exercise of their own powers, to arrest preventively persons presumed to be fundamentally guilty of placing in danger the security of the State, shall be required to give notice of the detention, within 48 hours, to the members of the immediate family of the detained person.”
This clause of Article 1 has not been complied with at all since the decree went into effect. In order for this clause to be complied with, the Security Agencies must proceed to inform the members of the family of the detained person, within 48 hours after the detention, of the fact of the detention. This is indispensable, at least, with regard to those detentions that are carried out with the presence of members of the family as witnesses (in public places, places of work, etc.). Of course, this has never been done in the cases of the detentions that are here described (and which must be, at least, 80% of the detentions carried out in Santiago for a period longer than 48 hours.)
On the other hand, apparently, this formality may seem superfluous when the detention is carried out in homes, in the presence of the closest members of the family. Nevertheless, in a large majority of the cases, the arrestors do not identify themselves; other times, they come disguised or with false credentials. They operate often in private light trucks or other vehicles, sometimes without license plates or with plates that do not exist in Chile. Therefore, it is not sufficient that the arrest has been carried out in the presence of members of the immediately family for them to consider that this constitutes automatic notification. This becomes clear when the Government, specifically the Ministry of the Interior and the Security Agencies (especially, the DINA), repeatedly deny the fact of the detention in their official replies to the Court of Appeals, during the period when the person has disappeared or is incommunicado. The Courts of Appeals, for their part, proceed to deny the recurso de amparo with the sole negative reply of the Government, even when the members of the most immediate family were personally witnesses to the detention and so declare in such requests for habeas corpus.
It has been notably exceptional for the Government, and the Ministry of the Interior and the DINA, to recognize the fact of detention, during the period when a detained person is incommunicado or has disappeared, and it has likewise been exceptional for the personnel who carry out the arrests to identify themselves.
From the preceding, it can be emphatically affirmed that the first clause of Article 1 of Decree-law 1009 has not been complied with during the entire period described in this report.
b. Clause 2 of Article 1 of Decree-Law 1009 indicates that the detention carried out by the Security Agencies (read DINA) “shall not continue for more than five days, and within that period, the detained person shall be either placed at liberty or placed at the disposition of the pertinent court or of the Ministry of the Interior when it concerns a case of application of the extraordinary powers or of the powers granted by the state of siege, as the case may be, along with a written report of the background information collected.”
With respect to this point, the following may be indicated, observing the characteristics of the detentions already mentioned:
1) On the average, 90, or 3% of the detentions registered in these 7 months, involved a specific period of time during which the whereabouts and the survival of the detained person has been totally and absolutely unknown to the members of his or her most immediate family, and during which the Government has denied repeatedly the fact of the detention and the Courts of Justice find this negative governmental information sufficient to deny the requests for recurso de amparo that are presented on behalf of the detained persons.
2) 25% of the persons who disappeared for a period after their detention, disappeared, on the average, for five days, even after—we repeat—there was non-compliance in these cases with the requirement that the members of the family be notified of the detention within 48 hours.
The remaining 75% disappeared for a period longer than 5 days or even continue to have disappeared. 28, or 7% of the persons who disappeared continue to have disappeared.
3) The fate of the persons who disappeared for some period after their detention by the Security Agencies, especially the DINA, is described in the following statistical analysis:
- 44.1% were placed at liberty.
- 50.4% were placed at the disposition of the Ministry of the Interior and continue in the category of persons arrested under the state of siege.
- 1.9% were placed at the disposition of the wartime military courts, for trial.
- 3.6% died during the period of their disappearance.
4) The persons who disappeared for an average period of five days are in the following situations:
- 58% have been placed at liberty.
- 39.4% were placed at the disposition of the Ministry of the Interior in the category of persons arrested under the state of siege.
- 2.6% were placed at the disposition of the wartime military courts, for trial.
5. The persons who disappeared for a period longer than 5 days are described by their families as in the following situations:
- 39.9% are placed at liberty.
- 58.1% are placed at the disposition of the Ministry of the Interior.
- 1.3% are in process of trial by the wartime military courts.
Summarizing the preceding points, it can be stated that practically all persons who are detained by the Security Agencies of the Military Government remain for a specific length of time without the members of their families knowing their whereabouts or their condition, with the Government denying the very fact of detention.
Three-quarters of these persons disappear for a period of time greater than 5 days, in clear violation of clause 2 of article 1 of Decree-law 1009. More than a quarter of the persons who have disappeared for more than 5 days remain in this situation in a practically definitive way.
Half of the persons who disappeared during the period in which they were at the disposition of the Security Agencies, remained subsequently in the category of persons arrested under the state of siege, in some camp for political prisoners. Less than half of these persons have been placed at liberty. A very small proportion are placed at the disposition of the wartime military courts to be tried, and practically 4% of the persons have died during the period of their disappearance because of the torture or bad treatment to which they are subjected.
The general tendency is for those persons who disappear for up to 5 days, to be subsequently placed at liberty. Likewise, those who disappear for more than five days are, in the majority of cases, placed at the disposition of the Ministry of the Interior in the category of persons arrested under the state of siege.
Present situation of persons detained in recent months:
The persons detained by the Security Agencies in the 7 months under discussion are at present in the following situations:
- 223 continue to have disappeared (26%)
- 253 continue under arrest under the state of siege (30%)
- 38 are in process of trial by the wartime military courts (5%)
- 310 are at liberty (37%)
- 18 died (approximately 2%)
- 1 was expelled from the country (less than 1 percent)
- 2 are carrying out sentences imposed by wartime military courts (less than 1 percent)
Summarizing the situation of all the persons who were detained in the Province of Santiago and whose detentions were registered with the Committee, we find the same tendencies that we have already indicated, that the great majority of the persons detained by the Security Agencies of the Military Government (especially the DINA) either remain in the category of more or less definitively disappeared persons or continue for an indefinite period, generally more than a year and a half, under arrest in a camp of political prisoners without having any charge formulated against them and without any legal process, or they are placed at liberty a short time after they have been detained. A very small percentage have been placed at the disposition of the wartime military courts to be tried.
22. In conclusion, we must affirm that the right of physical liberty of the person, consecrated by the American Declaration [of the Rights and Duties of Man] in its Article I, continues to be frequently ignored by the Government of Chile, and that some of the standards issued [by the Government of Chile] more or less recently on this subject seem to be intended more to serve as instruments of propaganda rather than as effective measures for the protection of human rights, as could occur with supreme decree 187, if it is strictly applied; [we must affirm] that recourse to the system of so-called “exempt decrees,” for the purpose of ordering the departure from the country of native Chileans, or for the confiscation of property, has eliminated the possibility of any moderating action by the Comptroller; and, that while decrees are being issued for the purpose of tranquilizing or confusing world opinion, the practice of arbitrary jailing and persecution and torture continues up to the present.
These campaigns of repression are directed especially against the labor and university sectors, particularly against labor leaders (as has been indicated by the International Labor Organization) against students and against professors.
1 A summary of its principal provisions is found in Chapter I of this report.
2 We indicate that, from here on, the underlinings that appear in the text are ours.
1 For more information concerning the cited decree-laws, see Chapter I of this report.
1 See the Introduction, paragraph 10.