CHAPTER III

PHYSICAL LIBERTY OF THE PERSON, HABEAS CORPUS AND RECURSO DE AMPARO

American Declaration: Article I. Every human being has the right to life, liberty and the security of his person.

Article 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 nonfulfillment of obligations of a purely civil character.

Every individual who has been deprived of his liberty has the right to have the legality of his 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 views the release of some 300 political prisoners at the end of 1976 as a prima facie step. However, this news must be interpreted in the light of statements made by the majority of those individuals as to the difficult prison conditions they endured, including the many allegations of torture. Furthermore, given the less-than-adequate system of registering prisoners and the number of individuals listed as missing, it becomes very difficult to evaluate the full significance of this measure.

2. However, obtaining precise information concerning violations of the right to liberty in Chile remains difficult. As we suggested in our earlier Reports, the difficulty inheres in the methods employed by the Chilean security forces and the inefficacy of normal legal remedies and procedural safeguards. The difficulty is aggravated by the incomplete answers given by the Government of Chile in response to the pertinent questionnaire submitted to it by the Commission.

3. It nevertheless remains possible to form a clear picture of the situation by reference to such information as has been provided by the Government and to information supplied by individuals and groups within Chile based on extensive research and personal experience. In this regard, we note particularly the detailed statements concerning conditions in Chile affecting the right to liberty which was prepared by five practicing Chilean jurists with long experience.

4. This statement was made available to the Minister of Foreign Affairs who participated in the sixth General Assembly, and was delivered to the Chairman of this Commission. Submitted in June 1976, more than three months after the completion of the Commission's Second Report, the statement indicates continuation of the following state of affairs:

The principal instrument in Chile to make arrests, interrogate and detain individuals regarded as threats to state security is an organization known as the DINA, which is responsible only to the Junta de Gobierno. As a matter of course, its agents arrest persons at all times and places. Normally the agents wear civilian clothes. They do not identify themselves, do not produce either a court order or an order signed by the President of the State, and do not indicate the reasons for the arrest or the place to which the person arrested will be conducted.

5. Under Decree Law 1009, news of any arrest must be communicated within forty-eight hours to the detainee's immediate family. And within five days following the arrest, “the detained person shall be either released 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.”

6. Even if enforced, these requirements are of doubtful consistency with appropriate standards for the protection of individual freedom from arbitrary arrest and subsequent abuse. In a nation endowed with modern means of communication and where arrest occurs within the town or city where the family of the arrested person resides, under ordinary circumstances it is hard to imagine a suitable justification for failing to notify his family within twenty-four hours. Of course if a country were beset by great turbulence, then there might possibly be some temporary excuse for delay.

7. The failure to require any formal charge until the passage of five days also is anomalous and dangerous to the vindication of individual rights. Moreover, it seems inconsistent with other provisions of Chilean law. Decree Law 1009 appears to anticipate that the arrested person may be held incommunicado for five days. As Chilean law recognizes, detention incommunicado is, in itself, a severe punishment to be used only in extreme cases, on the basis of a judicial order and subject to careful limitation. In its recent response to the Commission's questionnaire, the Government of Chile noted these preconditions to legitimate detention incommunicado and declared flatly that it could not be applied to persons detained without charge pursuant to the state of siege.

8. Regrettably, this answer is not entirely responsible to the Commission's inquiries. The Commission was inquiring not about theory but rather actual practice. The response merely reiterates the law and makes no reference to the anomaly noted earlier between the requirements of Law 1009 and the apparent preclusion of detention incommunicado. Secondly, there is no response at all to the related question under item 6 of the questionnaire concerning the practical availability of the remedy of Amparo as a means of terminating illegal detention incommunicado.

9. When applied outside the strict restriction of the law, detention incommunicado also violates the rights of a person's family who are entitled at least to knowledge of his or her whereabouts and some assurance of proper treatment.

10. Unlawful detention incommunicado is, moreover, an encouragement to other crimes, particularly that of torture. For if the officials in charge of detention facilities need not produce the detainee in a short time, they may with impunity employ brutal means, whether for purposes of interrogation or intimidation. The detention can be prolonged until the signs of torture have abated or, if the detainee is permanently injured, he or she may be liquidated and the very fact of detention denied.

11. Reliable sources, including the statement of the five Chilean lawyers referred to above, support allegations in complaints received by the Commission to the effect that detainees are held incommunicado for long periods, apparently until their interrogation has been completed to the satisfaction of the DINA.

12. Until January 1977, there were no effective legal means for securing access to persons illegally detained incommunicado. The security services regularly deny knowledge that the person in question is detained. They adhere to those denials even where the arrests have occurred before many witnesses. On the basis of these denials, until January of this year the Courts of Appeals, supported by the Supreme Court, had rejected applications for writs of habeas corpus. This practice continued despite many instances in which a person whose detention had previously been denied, was subsequently released by the DINA or another security service.

13. But we have been informed that on at least four occasions, the Vicaría de la Solidaridad of the Archdiocese of Santiago had applied to the Supreme Court for the appointment of a Minister authorized to investigate the large number of unsolved disappearances in cases where there was persuasive evidence that the disappearance had occurred subsequent to arrest. The Court rejected the petition. But we have been informed that on January 31, 1977, the Court responded affirmatively to a similar appeal brought by eight workers' organizations and various private individuals in connection with the arrest and disappearance during the just preceding months of November and December of thirteen former leaders of trade unions. The Court's decision suggest that the pattern of arbitrary arrest and illegal detention continues at a time when the country appears to experience tranquility. It may at least be said that the Government of Chile has not reported the continuing existence of a serious disturbances or threats to state security emanated from other sources.

14. The liberty of the person includes the freedom to remain in the country of which he is a citizen and which is the center of his professional, family and social life. The expulsion of a citizen by his own government is, under normal circumstances, absolutely precluded by existing human rights norms. The gravity of this measure is mitigated only when expulsion is offered as an alternative to imprisonment in cases where a person has been convicted of a serious crime pursuant to fair procedures for the ascertainment of guilt. It is difficult to ascertain the number of persons expelled from Chile either recently or during the entire period from September 1973 until the present.

In its most recent questionnaire, the Commission asked the Government of Chile:

How many individuals, foreigners and nationals, have been expelled from the country, as of the date most proximate to that of transmittal of the information?

The response was as follows:

On this subject, the Ministry of Justice has reported that as of December 30, 1976, the number of individuals who have left the country, aided by the provision contained in Supreme Decree 504 of April 30, 1975, which allowed individuals condemned by military courts to change their sentences to that of exile, rose to 752.

15. The figure of 752 relates only to those expelled under Decree 504. This is, then, a very incomplete response to the Commission's inquiry. We noted in our Second Report that on May 18, 1975, “The Washington Post” reported that, according to General Benavides, the Minister of the Interior, 2,744 persons had been expelled since 1973.

16. It is clear that not all the expulsions effected since 1975 have occurred in connection with commutation of sentence under Decree 504. There are the notorious cases of Jaime Castillo Velasco and Eugenio Velasco Letelier detained and then expelled on the sixth of August, 1976, wholly on the basis of an administrative decree. Both men were signers of the lawyers' statement referred to above. During the day of the sixth, immediately following their detention, an Amparo proceeding was initiated in the Court of Appeals designed to test the validity of the decree of expulsion. The Court took cognizance of the petition and ordered suspension of the expulsion decree pending its decision. This order was communicated immediately to the Minister of the Interior. The Commission was informed that, on receiving formal notice of the Amparo proceeding, the Minister of the Interior declared in effect that the proceeding was not relevant because expulsion had already been carried out.

17. The Commission has been unable to determine precisely how the Chilean Court of Appeal's action in this case should be construed. However, whatever that Court's conclusion about the requirements of contemporary Chilean law, the Commission must recall the obligation of all members of the OAS to observe the human rights standards of the Hemisphere. We reiterate that the expulsion of a citizen is impermissible with the single exception noted. Moreover, we must as well recall Resolution AG/RES. 243 (VI-0/76) adopted by the sixth regular session of the General Assembly of the OAS calling on Chile to “provide appropriate guarantees to persons or institutions that may provide information, testimony, or other types of evidence.” Although it has been alleged that the expulsion was unrelated to the statement submitted to the Chairman of this Commission and made available to the Foreign Ministers attending the Assembly, the failure to enumerate the other acts which purportedly justify expulsion or to allow the expellees to defend themselves make it difficult to avoid the conclusion that expulsion was carried out in violation of Resolution 243.

18. Even expulsions effected through the modality of Decree 504 may raise serious questions concerning their consistency with accepted restraints on state power. In our earlier reports we have commented on deviations from due process which occurred in connection with many trials. If persons convicted in proceedings which fail to satisfy minimum conceptions of fair procedure are then offered the alternative of exile or continued detention, the choice of exile cannot be considered volitional and does not relieve the Government of responsibility for the prior failure to provide a fair trial.

19. A person's nationality is an equally important aspect of his liberty. For if he can be striped of his nationality, if he can, by government fiat, be converted into an alien, his vulnerability to a whole range of other deprivations is vastly increased. Under the law of this Hemisphere, the right to the nationality acquired at birth is inviolable. This absolute position is required not only to protect the isolated individual but also for the defense of the historical community. Expatriation must be voluntary. The intent to expatriate may be implicit, as where the national of one state swears exclusive allegiance to another or joins an enemy army in time of war. But where it is implicit, it must nevertheless be unequivocal.1

20. We turn now to the overall picture of political detention within Chile. The Government of Chile has stated that as of the 27th of January, only one person remained detained pursuant to the State of Siege. They provided no figure in response to the question concerning persons now in the process of being tried and they state that 395 persons are now incarcerated having been convicted of crimes against the security of the State.

21. To begin with, the Commission must express grave doubt that the continued detention of Jorge Montes Moraga under the powers conferred by the State of Siege is consistent with the human rights norms which prevail in this Hemisphere. The Government of Chile has offered to exchange Mr. Montes for Major Huber Matos, a Cuban political prisoner. Although the end is a humanitarian one insofar as Major Matos is concerned, the means are improper. In its Fifth Report on human rights in Cuba the Commission reiterated its condemnation of the treatment of political prisoners in that country. But an incontestable principle of international law is that one state cannot justify inhumane treatment of one person on the grounds that another government has violated the human rights of some person within its jurisdiction.

22. The Commission has consistently noted the legal impermissibility of prolonged detention without formal charge and conviction pursuant to fair procedures. Mr. Montes has been imprisoned for three years. All other persons detained under identical circumstances, except for those who have disappeared, have either been released, convicted or are now being tried. The release of other detainees, and the willingness of the Government of Chile to trade Mr. Montes for Major Matos constitute implicit omissions that even in its view, continued detention is no longer necessary for the security of the state.

23. A second category of political detainees consists of those who have been sentenced and are now serving those sentences in the ordinary jails. The Chilean Government's figure for this group is 395. In the Government's apparent view, these cases are closed. The fact remains that many of the convictions resulted from trials in which various fundamental procedural safeguards—for example, adequate opportunity to prepare a defense, to call and cross-exam witnesses, to enjoy confidential communication with lawyers chosen by the defendant and free to pursue a vigorous defense—were unavailable. In those cases where procedural safeguards where lacking or the charges were tainted by an ex post facto element, conviction does not satisfy human rights norms. Hence the continued detention of the defendants in those cases cannot be justified. On the basis of its own research, the Vicaría de la Solidaridad concluded that as of December 1976 there were 524 convicted detainees.

24. A third category consists of those detainees who have been charged and whose cases are now being processed. In the Government of Chile's response to the Commission's questionnaire, no figure was provided for persons falling into this category. Statistics provided by other sources indicate that as of December 1976, 324 cases were being processed. Sixty one of the defendants were in prison and 263 were in a state of provisional liberty awaiting the outcome of their proceedings.

25. We come finally to a fourth category which should be considered under this heading as well as others. We refer to persons who have “disappeared.” One figure provided to the Commission is 914. In those instances of disappearances presented to the Commission, the response of the Government of Chile to information that these persons had been detained prior to their disappearance has generally been to deny detention and to suggest that the person either had joined clandestine groups, had left the country, or had been killed in Argentina during confrontations between radical groups or in battles with Argentine security forces.

26. This latter explanation, which was tendered to the Commission as recently as February 7, 1977 in connection with the case of Carmen Cecilia Bueno Fuentes (Case 2047) is particularly disturbing. It relies on stories attributed to two publications, one in Argentina, the other in Brazil. The Commission has been informed that only one issue of these two publications was published. There is no other evidence that these confrontations occurred. Some mutilated bodies were recovered in Argentina, but the events leading to their death are unknown. Moreover, some of the identifications ultimately made by family members did not coincide with names on the supposed list. In short, the story appears to have been fabricated by persons unknown. Nevertheless, the Government of Chile continues to rely on it as one explanation for the disappearance of people.

27. Overall, then, the picture seems to be as follows: In the months immediately following the completion of our last report, there were a substantial number of new detentions, the peak months being May when, according to statistics presented to the Commission, 94 persons were detained, and August when the figure rose to 97. Again according to those same statistics, 20 per cent of the persons detained during 1976—109 persons to be precise—have “disappeared,” that is to say, the Government of Chile denies knowledge of their whereabouts. This compares with a 12 percent figure for persons detained between 1973 and 1975 who, having disappeared, have yet to reappear.

28. Since August detentions and disappearances have declined sharply in number although, as noted earlier, they have not ceased. The formal detention centers either have closed or appear to be in the process of closing. Which leaves open the question of whether, as many reliable sources allege, there remain secret detention centers where some of the disappeared continue to be held.

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1 For more information on the Right of Citizenship, see Chapter IX.