CHAPTER V

RIGHT TO JUSTICE AND DUE PROCESS

American Declaration: Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

Article XXVI. Every accused person is presumed to be innocent until proved guilty.

Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

1. Habeas corpus and amparo are simple and short procedures provided by Chilean law so that individuals may be protected against acts of authority that violate their basic rights. The limits that continue to impinge upon the exercise of such remedies in Chile have been examined in Chapter I (Modifications in the System of Juridical Standards) and in Chapter III (Physical Liberty of the Person, Habeas Corpus and Recurso de Amparo) of this report.

2. The implications of the fact that the State of Siege continues in force in Chile should now be examined in the light of Articles XVIII and XXVI of the American Declaration of the Rights and Duties of Man presented above, which guarantee the right to due process, defined as the guarantee given every individual accused of a crime to an impartial and public hearing and to be tried by courts previously established, with a presumption of innocence until guilt is proven and wherein cruel, infamous and unusual punishments cannot be imposed.

3. Article 9 of Decree-Law 940, of September 2, 1974, provides that in cases of declaration of a state of siege in the degree of simple internal disturbance, there shall come into effect the provisions of Section 14 of Article 10 of Decree-Law Nº 527 of 1974 and of the Military Code of Justice. Thus the Military Courts would be responsible for considering cases involving those crimes referred to in articles 4, 5.a, 5.b, and 6, paragraphs c), d) and e) of the Law on Security of the State.

4. In note Nº 17562, dated September 16, 1975, the Government of Chile informed this Commission that by Decree-Law 1181, published in the Diario Oficial of September 11, 1975, the degree of the State of Siege in force had been reduced to that of “internal security,” for a period of six months. That change, as stated in the note, means that, except in the case of certain especially serious crimes against the security of the state, expressly referred to in Decree-Law 1009 of 1975, the jurisdiction of the Military Courts will be exercised in accordance with procedures applicable in peacetime and not wartime. By Decree-Law 1550, published in the Diario Oficial of September 11, 1976, the Junta de Gobierno continued the State of Siege in the degree of “internal security,” for another period of six months, as of the date of its publication.

5. However, it should be pointed out that according to Decree-Law 1009, “In cases of State of Siege in the degree of internal security, the provisions of Title II of Book I of the Military Code Justice shall govern with respect to peacetime Military Courts with their own jurisdiction, and application shall be given to the standards of Title II of Book II of the mentioned Code concerning penal procedure in peacetime and the punishment established for peacetime augmented by one or two degrees.”1 These legal provisions state the following:

Article 4 of the law concerning the Security of the State (Law 12.927, text brought up-to-date by Decree Nº 890 of July 9, 1975, Diario Oficial Nº 29239 of August 26, 1975) provides for the punishment of 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 our induce to the 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 the commission of crimes found in Title 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 indiscipline or disobedience to the orders of the constituted Government or of their superiors;

c) Those who meet together, concert or arrange 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, or 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 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 disseminate 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 disseminate, 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 securities and bills of exchange and means of supplying population centers, and those Chileans who, being outside of the country, disseminate such news abroad.

Article 5 a) of Law 12.927 of the Security of the State provides for the punishment of “those who, for the purpose of altering the institutional order or public security or of intimidating the people, make attacks against the life or physical integrity of persons.”

Article 5 b) of the same law provides for the punishment of 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 his liberty.”

Article 6 c) of the law of the Security of the State provides for the punishment of those who “incite, promote or foment, or by action or any other means 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, transportation 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 provides for the punishment of “those who incite, promote or foment, or by action or any other means, destroy, make 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 provides for the punishment of those who “incite, promote or foment, or by action, poison foods, water or other fluids intended for public use or consumption.”

6. According to the statements made by the Government of Chile in its Comments on the Second Report of the Commission,1 these are the violations to be accorded special treatment in that they are to continue to be submitted to the penal process applicable in Wartime, as these crimes are generally regarded as acts of subversion, sabotage, kidnapping and terrorism.

7. In order to have evidence upon which to make a judgment and to be in a position to provide to the General Assembly a conclusion based on the most objective and impartial study possible of the situation, and in view of the denunciations received by the Commission, the latter requested of the Government of Chile, through a number of notes dated November 30, 1976, information with regard to the observance of human rights in that country. But the reply of the Government of Chile dated January 27, 1977 does not include sufficient information on the rights referred to in this chapter. This also occurred in the case of the Chilean Bar Association, whose Chairman was asked to provide information on the matter in a note dated November 30, 1976. It is important to recall that in December 1975, the officers of the Bar Association provided information, parts of which appeared in the Second Report on the Situation of Human Rights in Chile, and which the General Assembly considered at its sixth regular session. However, as stated earlier, as of the date of preparation of this Report, the information requested of the Bar Association has not been received.

8. In a note dated November 30, 1976, the Chairman of the Commission requested the Vicaría de la Solidaridad to provide information with regard to the enforcement of certain human rights, among them the so-called “Right to Justice.” The note in question requested information and documentation on:

a) Cases of lawyers jailed for defending political prisoners, and

b) Cases of other forms of pressure brought to bear to see to it that defense lawyers abandon cases of political prisoners.

As yet, the Commission has not received a response to its request.

9. As to the rights referred to in this chapter, the Constitutional Act Nº 3, published in the Diario Oficial of the Republic of Chile on September 13, 1976, contains certain provisions that refer to the right to justice and due process, such as the principle of equal protection under the law in the exercise of rights, the right of an individual to legal defense, the right to be judged by the court that the law stipulates and established previously by law, the right whereby no crime is to be punished with penalties established prior to perpetration of the act, unless a new law favors the accused; if the authorities make an arrest or detain an individual, they are to advise the competent judge within forty-eight hours, placing the individual concerned at his disposition. The judge may, upon a finding of good cause, extend this period to five days. Chapter II also contains the following provisions with regard to procedural remedies:

Article 2. Anyone who, on account of arbitrary or illegal acts or omissions, is deprived of, or disturbed or threatened in the legitimate exercise of his guarantees, as provided in Article 1, numbers 1 and 3, paragraph four, numbers 7, 9, 10, 11, 12, 14, 15, paragraph one, numbers 16, 17, 19, final paragraph, number 20, paragraph eight, number 22, paragraph one, or in his right to select work freely, may personally or through a representative appeal before the respective Court of Appeals, which is required to adopt the necessary measures to reestablish enjoyment of the right and guarantee the affected party due protection, notwithstanding other rights he may assert before the corresponding authorities or court.

The Supreme Court will issue a writ to regulate the formalities to be observed in connection with these remedies.

Article 3. Any individual who is placed under arrest, custody or imprisonment, in violation of the provisions of this Constitutional Act, may personally or through a representative appeal to the pertinent Court of Appeals, to the effect that such court may require observance of the due legal formalities and adopt such measures as it may consider necessary to reestablish enjoyment of his rights and guarantee him due protection. This court may require that the individual concerned be brought before it, and this requirement will be strictly observed by all officials in charge of prisons or other places of detention. Once it is duly informed of events, the court will decree his immediate release, ensure that the legal defects are corrected, or will present the individual before the competent magistrate. The court will proceed with all due haste, correcting such defects or reporting them to the corresponding authorities for correction.

The same remedy may be taken, moreover, in favor of anyone who is deprived of his personal freedom or sees his individual security disturbed or threatened. The respective Court of Appeals shall in such cases determine the measures indicated in the foregoing paragraph as it may deem necessary to reestablish enjoyment of his rights and guarantee him due protection.

10. This new law is obviously a step forward with regard to the observance of the rights to which this chapter refers; but as of preparation of this report, the Commission still does not have enough information to enable it properly to determine how far the beneficial results of these juridical standards extend in practice.

Notes________________

1 Text taken from our Second Report.

1 OEA/Ser.P/AG/doc.667/76, May 25, 1976.