CONCLUSIONS
The account given in this report permits the Commission to draw the following conclusions:
1. In the period that began on September 11, 1973, one can observe a marked concentration of powers in the Government Junta of Chile, and especially in the Presidency, in which is vested the exercise of the constituent, legislative, and executive powers, without any control or constitutional accountability. This fundamental characteristic of the structure of the Chilean State is formalized in the provisions of the 1980 Constitution.
2. One can also observe in the period covered by this report certain advances made at the normative level in defining and recognizing certain human rights--as in the case of personal freedom and the inclusion of the right to health in the Constitution--as well as the institution of new remedies for protecting those rights--such as the appeal complaint and the remedy of preventive amparo. However, the Commission must point out that these normative advances are offset by the constitutional provisions, which, through specific and generic restrictions, put serious limitations on the exercise of the human rights embodied in the 1980 Constitution.
3. These restrictions are significantly increased when constitutional states of emergency are in effect; during these states the variety of rights which can be restricted or suspended has been enlarged, compared with those that could be the subject of limitations in the period prior to the 1973 military coup. During constitutional states of emergency the remedies for protecting the rights recognized are not applicable and the courts cannot evaluate the factual bases on which the administrative authorities base the measures adopted against those persons affected.
4. The scope of these limitations, due to the grant of extraordinary powers to the President, is clearly shown in Transitory Provision 24 of the present Constitution; the President can pursuant thereto apply real sanctions, sometimes of an indefinite nature, based on situations that are defectively codified from the normative point of view, without reasons justifying them, and without affording redress to the persons affected other than that of an appeal to the President so that this remedy becomes a mere petition for grace.
5. The analysis in Chapter II of this report leads the Commission to conclude that the restrictions on human rights during the constitutional states of emergency are excessive; the uninterrupted duration of these states of emergency since September 11, 1973 is in marked contradiction with the strictly temporary nature of these instruments according to the international human rights treaties applicable to Chile.
6. The limitations on the exercise of human rights resulting from the above-mentioned situation, and the weakening of the remedies instituted for protecting them, have been possible because of the limitations imposed on the powers of the Judiciary due to the assumption of the legislative and constituent powers by the Government Junta. To these have been added the limitations the Judiciary has imposed upon itself by abdicating the supervision of military courts, its mechanical and formalistic application of the rules emanating from the Government Junta and its reluctance to investigate violations of human rights reported or resulting from the records of the cases submitted to it. This situation has signified a serious violation of the right to justice. The Commission must point out, however, that there have been praiseworthy exceptions to this behavior on the part of some members of the Judiciary, which are all the more meritorious if one bears in mind the negative conditioning to which they have been subject resulting from the situation described.
7. The right to justice has also been affected by the fact that the jurisdiction of the military courts has been significantly increased by subsuming cases of new political offenses when committed by members of the opposition, or common crimes when committed by personnel of the Chilean security forces. In addition, this increase in the jurisdiction of the military courts has occurred because of the introduction of new ways of assigning judicial competence.
8. These military courts do not guarantee the exercise of the right to justice since they lack the independence that is a basic requirement of the exercise of that right; in addition, they have shown marked partiality in the judgments they have handed down. Thus, the grave sanctions imposed on persons who have committed acts deemed attempts against the security of the State have been in manifest contrast with the total lack of sanctions imposed on members of the security forces who have been involved in extremely serious violations of human rights.
9. To this damage to the right to justice must be added the serious restrictions imposed on the right to due process, reflected, in particular, in the consideration of petitions filed for protecting the various human rights in question, as a result of which persons have remained defenseless against the measures adopted by the Executive.
10. The above-mentioned concentration of powers, the restrictions on human rights during the uninterrupted imposition of states of emergency, the damage inflicted on the right to justice and to due process, and the lack of sanctions imposed on the persons responsible for human rights violations lead the Commission to conclude that the rule of law does not exist in Chile at present. This is what has made it possible for serious and systematic violations of human rights to occur during the period covered by this Report.
11 With respect to the right to life, the Commission considers that this right has been seriously violated in Chile during the entire period covered by this Report. The magnitude of these violations has been characterized by a clear political orientation, since the victims have largely been persons who supported political positions opposed to that of the Government, or who, in public acts, have expressed their disagreement with it. The magnitude of the violations of the right to life that have occurred is explained by the fact that that Government has used virtually all known means to physically eliminate dissidents, including: disappearances, summary executions of individuals and groups, executions ordered in trials lacking legal guarantees, and torture.
12. The solid evidence collected by the IACHR and set forth in the respective chapter of this Report, enables it to affirm that torture has been a continuous, deliberate, and systematic practice throughout the entire period, which began in 1973. This assertion is confirmed by the fact that not a single official has been punished for his participation in torture, to which must be added the allocation of the material and human resources required for that practice. All this, in the judgment of the Commission, has had a clear political purpose--to obtain information or self-incriminating confessions from the victims--leaving profound consequences on them and on their relatives.
13. With respect to the violations resulting from the repression of public protest demonstrations, the Commission notes that those violations have increased significantly since 1983 as these demonstrations became larger. The Commission is not unaware that the violence, which presently prevails in Chile has also caused victims among the members of the security services of that country. The Commission regrets those victims and condemns, as it has always done, the use of violence as a means for settling social disputes. However, the Commission must conclude that the fundamental responsibility for those acts of violence is with the Government of Chile, which, through the excessive methods used, has created a climate of insecurity and fear.
14. With respect to the right to personal liberty, the Commission considers that this right has suffered a marked and sustained deterioration during the period covered by this Report. This has been the result of the successive extensions of the period during which a person may be detained without being brought before a judge, the lack of effective remedies guaranteeing the exercise of this right during the uninterrupted states of emergency, and the increase in the personnel authorized to carry out arrests, including intelligence officials who do not have the legal authority to do so. The right to personal liberty has also been seriously impaired by the fact that the present legislation authorizes persons to be forcibly relocated to remote places in Chile.
15. The practice of the Government of Chile with respect to personal liberty is characterized by a marked failure to observe the legal formalities required for making arrests, such as the failure of officials that carry them out to identify themselves, the non-existence of arrest warrants or the failure to exhibit them. This is complemented by the physical restrictions placed on many prisoners to prevent them from recognizing their destination, to which must be added the secret nature of certain places of detention. Although recently the location of some barracks of the National Intelligence Agency in which arrests are carried out has been revealed, they remain inaccessible to the relatives and lawyers of the victims, and even to court officers. The appreciable deterioration of this right is reflected in the practice of mass arrests carried out recently by the Government during military operations, which covered entire neighborhoods and resulted in thousands of detainees.
16. With respect to the right to residence and movement, this right has also been seriously affected during the period covered by this Report. Although an improvement is to be noted, beginning with the measures adopted by the Government of Chile to permit the return of persons that until now have been deprived of that right, the Commission must point out that the prohibition to return to Chile still affects a significant number of Chilean citizens; also still in force are the rules that permit the President to expel or prohibit the return of the persons he specifies, for an indefinite period, without the need to give the reasons for such measures and without the persons affected being provided with any effective remedy against them. The President is thus invested with even greater powers than those that are prerogative of the Judiciary.
17. With respect to the right to nationality, the Commission must point out that there has been a considerable improvement in that no one has been deprived of nationality as a punishment for political reasons or reasons of another nature. The Commission also believes that the elimination in the 1980 Constitution of the power of the President to apply this penalty during states of emergency is a positive step forward. The Commission must, however, point out that the eight persons who are still affected by this measure have not yet succeeded in having it corrected, as justice requires.
18. With respect to the right to freedom of expression and opinion, the Commission is of the opinion that it has been seriously affected by the actions of the Government of Chile based on the broad powers, which it has assumed through the exercise of the legislative power. The stringent limitations on this right have occurred during the states of emergency, during which the President, and the Chiefs of the areas under the state of emergency, can restrict and even suspend the publication or broadcasting of information when they deem it necessary and even close down organs of the media when they consider it advisable. These measures, which have included a system of prior censorship, have affected all the information on, and opinion about, political life in Chile, actions defined as terrorist acts, and even certain issues relating to high officials of the government. Despite the negative factors mentioned, the Government, in the face of public pressure, has occasionally and for shor6t periods, allowed relatively broad freedom of expression, which, it is also necessary to recognize, has sometimes been brought to an abrupt end.
19. With respect to labor union rights, the Commission considers that they have sharply deteriorated as a result of the application of rules that openly contradict the international instruments governing the matter and which are applicable to Chile. In this regard, the right to strike, the right to organize unions, and the right to collective bargaining have been seriously impaired. To the above must be added the elimination of the labor courts and the submission of labor cases to the ordinary courts of justice, whose criteria for the evaluation of the cases submitted to them do not correspond to the requirements of equity and justice generally accepted in the labor field.
20. The Commission must also point out that the Chilean labor movement has been very seriously affected by the measures applied by the Government to achieve the goals it has fixed for itself; many labor leaders have disappeared 3while others have been arbitrarily arrested, expelled from the country, and sent into forced relocation. Despite the harassment to which the labor movement has been subject, and the adverse conditions placed upon the exercise of its rights arising from the general economic situation, this movement is of particular importance in Chile, and agreements have been made within it to obtain the full reestablishment of labor rights in the context of a system of representative democracy.
21. With respect to the situation human rights organizations, the Commission has found that they have performed their functions under particularly adverse conditions. This has been determined by the fact that the Government has considered their activities to be politically motivated or to constitute an obstacle to the achievement of the goals it has set itself. This negative conception led to the dissolution, on the initiative of the President himself, of the Comité pro Paz, the first organization of this type to be founded. Subsequently, the organizations for the defense of human rights have had to face various forms of harassment by the Government, which include arbitrary arrest of their officials, forced relocation, and indefinite expulsion from the country. Despite all these limitations, and precisely because of them, the work of these organizations has been laudable from every point of view and deserves the most sincere praise of the Commission.
22. It is in the exercise of political rights that the Commission finds the synthesis that makes it possible to explain both the serious situation characterizing human rights in Chile and the alternatives that will make it possible to change it. To a very large extend, the violations of human rights reported throughout this report have stemmed from the disproportionate measures used by the government to achieve the goals it has set itself. Regardless of the value judgment those merit, none of them justifies their achievement at the cost of sacrificing the inalienable rights of the human person.
23. In practice, the conduct of the government of Chile has marginalized in the extreme various political sectors and has deprived the population decisions, which affect them. This disregard of political rights is paradoxically reflected in the provisions of the 1980 Constitution, which does not fulfill the basic requirement of a constitution--that of distributing power among the significant political sectors of the country; on the contrary, it consecrates a personal government to which the people and the institutions of Chile are subordinated.
24. The disregard of political rights arising from the rigid adherence to the provisions of that Constitution has caused a dangerous increase in social tensions which the Government has encouraged through the means with which it has tried to repress them; that situation is aggravated by the lack of willingness of its members and of its institutional support, the Armed and Security Forces, to consider the various proposals for reversing the polarization which characterizes Chilean political life today.
25. Hence the Commission considers that it is essential for the Government of Chile to put in place the institutional mechanisms it deems pertinent to achieve a consensus among the political sectors representative of the Chilean people and the fundamental institutions of that country, with a view to restoring, without delay, the system of representative democracy which, as pointed out repeatedly by the Commission is the best guarantee of the observance of human rights and is the basis of solidarity among the countries of the hemisphere.