CHAPTER VII
THE RIGHT TO NATIONALITY
A. GENERAL ASPECTS
1. The right to have a nationality and not to be deprived arbitrarily of it has been recognized by the American Declaration of the Rights and Duties of Man and by most of the international instruments on human rights. [1]
2. Furthermore, this elementary right has been respected by all the countries of the hemisphere, which in their constitutions have provided for the loss of nationality solely on grounds that involve an authentic voluntary severance of the person--implicitly or explicitly stated--from the State of which he is a national. Loss of nationality as a punishment for political acts has been an example of intolerance alien to the legislation and practice of this hemisphere and has constituted a serious retreat.
B. DEPRIVATION OF NATIONALITY ORDERED BY THE GOVERNMENT JUNTA
3. Article 6 of the 1925 Constitution provided that nationality could be lost solely on the grounds of naturalization in a foreign country; cancellation of the naturalization paper, against which a complaint could be lodged with the Supreme Court, and the rendering of services to enemies of Chile or their allies during a war.
4. In the exercise of the constituent power, which it had attributed to itself and pursuant to Decree Law No. 175 of December 3, 1973, the Government Junta amended the Constitution in force by adding that nationality is lost:
4. By reason of a serious attack from abroad against the essential interests of the state during the states of emergency provided for in Article 72 (17) of this Political Constitution.
5. Article 2 of this Decree Law provided that loss of nationality on the above-mentioned grounds would need to be declared by a substantiated supreme decree, following agreement of the Council of Ministers and should take into consideration a written report from de respective Chilean diplomatic or consular authority.
6. It is interesting to note that the cancellation of nationality on these grounds was only valid when a state of alert or a state of siege had been declared in a part of the national territory. The Inter-American Commission earlier noted the contradiction resulting from the application of a permanent penalty on the basis of a state of emergency, which is, by its very nature, temporary. To this must be added the fact that the right to nationality is not susceptible of suspension when those states of emergency are in force. [2]
7. Subsequently, Decree Law No 335 of March 2, 1974 granted the person affected the remedy of appealing to the Supreme Court, which would hear the case as a jury. Decree Law No 1,301, published on January 7, 1976, amended the foregoing provisions and provided that the supreme decree by which loss of nationality was enforced should take into consideration a written report from the Ministry of Foreign Affairs based on official reports obtained from Chilean diplomatic missions or consular offices abroad or from other reliable sources. It also modified the procedure of appeal to the Supreme Court and extended the period granted to the person affected for making his presentation and ordered that that presentation should be granted preferable attention. For its part, the Chilean Supreme Court, by decision of January 26, 1976, issued regulations governing the exercise of the above-mentioned complaint appeal.
8. According to information provided by the Government of Chile to the Commission, up to 1976 the following persons had been deprived of Chilean nationality: Messrs Anselmo Sule Candia, Hugo Vigorena Ramirez, Orlando Letelier del Solar, Volodia Teitelboin Volosky and Jaime Suarez Bastidas. [3] All these persons had held important posts as ministers of state, senators or ambassadors during the Government of President Salvador Allende. In 1977, the Government also deprived the trade union leaders: Messrs Humberto Elgueta Guerin, Luis Meneses and Ernesto Araneda and the General of the Air Force Sergio Poblete of their nationality. [4]
9. It is important to note that in the case of Mr. Humberto Elgueta Guerin the Supreme Court accepted the complaint appeal he filed lodged with it pursuant to the judgment of December 19, 1977, in which it resolved that:
There is no liable evidence that leads to the conviction that Humberto Elgueta Guerín seriously attacked the essential interest of the State from abroad and consequently that it is in order to apply to him the extreme measure that a citizen of the Republic of Chile may suffer of depriving him of Chilean nationality, and therefore the complaint appeal filed must be accepted...
10. On that occasion the Commission stated that that judgment--which was possibly the first in which the highest Chilean court corrected an abuse of governmental authority--constituted a positive development [5]
C. PRESENT SITUATION
11. Subsequent to the above-mentioned Supreme Court decision it is also important to point out that no Chilean has again been deprived of his nationality. However, the Commission has not been informed that nationality has been restored to the other persons that were arbitrarily deprived of it. On the contrary, the Commission has been informed that, in the case of Mr. Orlando Letelier del Solar, the administrative and judicial steps taken by his relatives to ensure, post mortem, that he could recover his Chilean nationality have so far not been successful.
12. Another positive fact is that the 1980 Constitution does not include the grounds provided for in Decree Law No. 175. Article 11 of this instrument includes the grounds for loss of nationality provided for in the Constitution of 1925, to which it adds that Chilean nationality is lost:
3. By means of a judicial condemnatory sentence for crimes against the honor of the country or the essential and permanent interests of the State, regarded as such by a law approved with a qualified quorum. In such proceedings, facts shall, at all times, be weighed in good conscience.
13. Up to the date of the approval of this report, the Commission has not been informed that a law has been promulgated defining the “crimes against the honor of the country” or “the essential and permanent interests of the State”. It is also necessary to point out that, until a parliament is installed, the exercise of the legislative power continues to be concentrated in the Government Junta and therefore the possibility of complying with the requirement for the imposition of such punishment, that is, to enact the respective law, continues to be open. Furthermore, the weighing in good conscience of the facts that can lead to the imposition of this punishment is a negative aspect.
14. In accordance with Article 12 of the present Constitution, a person affected by an act or resolution of the administrative authority that deprives him of Chilean nationality or disregards, it may appeal, on his own behalf or through any person on his behalf, within a period of 30 days, to the Supreme Court, which will try the case as jury and en banc.
The lodging of the appeal will suspend the effects of the act or resolution appealed.
D. CONCLUSIONS
15. In short, since the important Supreme Court decision of December 1977, which made it possible for a Chilean citizen to recover his nationality, and since the promulgation of the Constitution of 1980, which did away with the criteria that made it possible, for reasons of political intolerance, to deprive Chilean citizens of their nationality, this punishment has not been re-imposed. During the first four years of the present Government, this punishment was imposed on nine persons who, with the exception of one, have so far not been able to recover their nationality. In view of the positive change of attitude of the Government of Chile in this regard, the Commission hopes that nationality will be restored to the persons who were affected by that measure
Notes___________________
[1] See Article XIX of the American Declaration of the Rights
and Duties of Man; Article 15 of the Universal Declaration of Human Rights;
Article 20 of the American Convention on Human Rights; and Articles 8 and 9
of the United Nations Convention on the Reduction of Statelessness, adopted
on August 30, 1961.
[2] See, for example, Article 27 (2) of the American Convention on Human Rights, which expressly states that the right to nationality cannot be suspended and the Inter-American Commission on Human Rights, Third Report on the Situation of Human Rights in Chile. OEA/Ser.L/V/II.40 Doc. 10 of February 11, 1977, pp. 79-80.
[4] Annual Report of the Inter-American Commission on Human Rights, 1977. OEA/Ser.L/V/II.43 Doc. 21. April 20, 1978, p. 93.