* For the initial report submitted by the Government of Chile, see CAT/C/7/Add.2; for its consideration, see CAT/C/SR.40 and 41, and Official Records of the General Assembly, forty-fifth session, Supplement No. 44 (A/45/44), paras. 341-375. An additional report (CAT/C/7/Add.9) was submitted by the Government of Chile and considered by the Committee. See documents CAT/C/SR.77 and 78, and Official Records of the General Assembly, forty-sixth session, Supplement No. 46 (A/46/44), paras. 237-262.
For the second periodic report, see CAT/C/20/Add.3; for its consideration, see CAT/C/SR.191 and 192, and Official Records of the General Assembly, fiftieth session, Supplement No. 44 (A/50/44), paras. 52-61.
The information submitted in accordance with the consolidated guidelines for the initial part of reports of States parties is contained in document HRI/CORE/1/Add.103.
The annexes to the present report submitted by the Government of Chile may be consulted in the secretariat files.
CONTENTS (By paragraphs)
I. INTRODUCTION ........................................................................ 1- 26
Legal and political framework ......................................................... 2- 7
Situation and functions of law enforcement officials within
the criminal justice system ............................................................... 8- 17
New measures taken to prevent and punish torture .......................... 18- 26
II. FIRST PART: INFORMATION ON MEASURES AND
DEVELOPMENTS RELATING TO THE IMPLEMENTATION
OF ARTICLES 10-16 OF THE
CONVENTION ............................................................................ 27-117
Article 1 ......................................................................................... 27-28
Article 2 ......................................................................................... 29- 50
Article 3 ......................................................................................... 51-53
Article 4 ......................................................................................... 54-57
Article 5 ......................................................................................... 58-64
Article 6 ......................................................................................... 65
Article 7 ......................................................................................... 66-68
Article 8 ......................................................................................... 69-73
Article 9 ......................................................................................... 74
Article 10 ....................................................................................... 75-94
Article 11 ....................................................................................... 95-96
Article 12 ....................................................................................... 97-109
Article 13 ....................................................................................... 110-112
Article 14 ....................................................................................... 113-114
Article 15 ....................................................................................... 115
Article 16 ....................................................................................... 116-117
III. SECOND PART: ADDITIONAL INFORMATION
REQUESTED BY THE COMMITTEE DURING ITS
CONSIDERATION OF THE PREVIOUS REPORT .................... 118
IV. THIRD PART: COMPLIANCE WITH THE COMMITTEE’S
CONCLUSIONS AND RECOMMENDATIONS ....................... 119
Annexes .............................................................................................................. 46
I. Introduction
1. The
second periodic report of the State of Chile to the Committee against Torture
on measures adopted to give effect to the provisions of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/C/20/Add.3)
was submitted in February 1994. The Committee considered that report in November
of that year (CAT/C/SR.191 and 192) and suggested the adoption of a number
of measures. Subsequent to the adoption
of the Committee’s recommendations, several initiatives have been taken with
the aim of bringing
Legal
and political framework
2.
3. The
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, like the other international human rights treaties to which
Chile is a party, has the rank of a legal instrument forming part of the domestic
legal order, with the special value conferred by the Constitution on such
treaties in article 5, second subparagraph, which stipulates: “It is the duty of the organs of the State to
respect and promote these rights as guaranteed by this Constitution, and by
the international treaties which have been ratified by Chile and are in force.”
Through this provision, the range of human rights protected by the
Constitution is broadened, and so it must be understood that the fundamental
rights, duties and guarantees forming part of the Convention- which has been
ratified and is in force in Chile- have the same constitutional status as
the fundamental rights established in article 19 of the Constitution.
There is, however, no provision within the Chilean legal system which
expressly stipulates that, in the event of a conflict of provisions, those
of the human rights treaty shall prevail. The
continuing debate in
Supreme Court during recent years have recognized the importance of the international treaties relating to human rights and humanitarian law, giving effect to their provisions and drawing attention to their value in a number of cases. [1]
4. As
stated in
5. Notwithstanding the above, constitutional provisions which jeopardize the full exercise of certain fundamental rights remain in force. These provisions relate to the following areas: binominal system of election of public authorities, which does not permit adequate proportional representation of majorities and minorities, favouring the second electoral force and eliminating minority groups, which are thus left without parliamentary representation unless they conclude electoral pacts; existence of nine senators who are not elected by popular ballot but are appointed by the members of the Supreme Court, the National Security Council and the President of the Republic; decisive character and functioning of the National Security Council, which enables decisions to be taken by absolute majority and to be heavily influenced by the Commanders-in-Chief of the armed forces and the Director-General of the Carabineros (four out of the eight members of the Council); non-removable character of the Commanders-in-Chief of the armed forces (army, navy and air force) and the Director-General of the Carabineros; the President of the Republic cannot exercise his constitutional power to remove them from their posts without a proposal to that effect by the senior command of the military or the Carabineros. Presidents Aylwin and Frei submitted to Congress constitutional amendments designed to change this situation, but the political opposition has repeatedly refused to lend them its support. During the present Government of President Lagos, discussions are again being held about the above-mentioned constitutional reforms, on the basis of a Constitutional Reform Bill formulated by the Senate Commission on the Constitution, Legislation, Justice and Regulations.
6. The systematic practice of torture ended completely with the installation of the democratic Governments. As stated in the report on the visit to Chile in 1995 by Sir Nigel S. Rodley, Special Rapporteur on torture, submitted at the fifty-second session of the Commission on Human Rights: “… torture is not practised in Chile either systematically or as a result of government policy …” and a profound difference in relation to the period of the military regime “… was the real commitment of the civilian Governments to human rights and, in particular, to the need to eliminate the perpetration of torture or cruel, inhuman or degrading treatment or punishment by officials of the State” (E/CN.4/1996/35/Add.2, paras. 10 and 71).
7. The Special Rapporteur also says that, in order to deal with cases of torture which still occur, the State’s rejection of torture must be reflected in the adoption of specific measures, and ends his report with a number of recommendations on this question. Many of these have been put into effect through legal and other initiatives taken during the past few years. Not only have the mechanisms for the prevention of torture been considerably improved, but also practical steps have been taken to prevent it from occurring, through the reform of legislation intended to prohibit and punish it. Consequently, following the conclusions and recommendations of the report on his visit to Chile, and after receiving from the Chilean State considerable information on these advances, in his report to the fifty‑third session of the Commission on Human Rights (E/CN.4/1997/7, para. 54), the Special Rapporteur thanked the Government of Chile: “… for the very detailed response and the extensive information, indicating its continuing serious and constructive approach to cooperation with the Special Rapporteur and the Commission” and he commended “the Government on its efforts to amend the Penal Code and reform the Code of Criminal Procedure”. He went on to suggest that “the Government and Congress consider acting with special expedition towards the adoption of the bill amending the existing Code of Criminal Procedure and the Penal Code in respect of detention and introducing rules for strengthening the protection of civic rights”. All these suggestions by the Special Rapporteur have been put into effect through the measures described in the present report.
Situation
and functions of law enforcement officials
8. The 1980 Constitution devotes a special chapter to the armed forces and the forces responsible for order and public security, drawing a clear distinction between the armed forces, on the one hand, and the forces of order and public security, on the other. The two latter forces are made up of the Carabineros and the Investigaciones Police (uniformed and civil police forces respectively), which together made up the “forces of law and order”. These forces have the specific duty to guarantee internal public order and security and to assist the courts of justice in the execution of judicial decisions, since the courts have no enforcement bodies of their own; the Investigaciones Police also have the duty to monitor the entry and departure of persons into and from Chile and to represent Chile in Interpol. In 1974, with the promulgation of Decree- Law No. 444 during the military regime, responsibility for the Carabineros and the Investigaciones Police, both of which had formerly been subordinate to the Ministry of the Interior, was switched to the Ministry of Defence, and specifically the Carabineros and Investigaciones Under- Secretariats respectively. Although Carabineros officers have the necessary legal powers to take action in crime control, in the matter of public order- in practice and without this implying mandatory authority- they receive instructions and guidance from the Ministry of the Interior, since the Ministry of Defence has no powers in that respect. This relationship between the Ministry of the Interior and the Carabineros is also given effect by the fact that this Ministry is responsible for coordination with the other ministries in matters involving public security. Despite their common dependency, there are differences between the two police forces. While the Director- General of the Carabineros cannot be removed from office, the Director-General of the Investigaciones Police may be appointed and dismissed at the discretion of the President of the Republic. The members of the Carabineros are subject to military justice while members of the Investigaciones Police, like any other civilians, may be tried in the ordinary courts. The Constitution grants the armed forces and the Carabineros the character of armed corps, excluding in that respect the Investigaciones Police, whose members are nevertheless authorized to use firearms under the institutional law establishing that force.
9. With the aim of ending the dual nature of the answerability of the above‑mentioned forces responsible for order and security, the Executive, in early November 2001, submitted to Congress a constitutional reform bill which will transfer responsibility for the Carabineros and the Investigaciones Police from the Ministry of Defence to the Ministry of the Interior.
10. As regards the National Gendarmería, this body is subordinate to the Ministry of Justice and is composed of public officials responsible for the operation of prisons. It is their responsibility to deal with and guard untried and convicted prisoners, and to take the necessary educational action to bring about the social reintegration of prisoners.
11. In the context of the return to a democratic institutional system, a process of upgrading law enforcement officials to comply with the parameters of the rule of law is beginning. The Special Rapporteur’s report states that one feature of the measures taken by the civilian Governments to combat torture “has been the initiation of a purge and a change of attitude in the police forces”, and that “the changes are proving fairly successful” in the Investigaciones Police (E/CN.4/1996/35/Add.2, para. 39).
12. The Investigaciones Police, the Carabineros and the Gendarmería all possess internal control mechanisms to supervise the performance of their officers; these mechanisms are fully operational and are helping to prevent torture (see paragraphs 38-44, 89-92 and 97-104 below).
13. In addition, the bodies mentioned above have made changes in the curricula of the educational institutions responsible for providing ordinary and further training for their members, and the subject of human rights has been incorporated in courses (see paragraphs 75-86 below).
14. Furthermore, the external control mechanisms available to victims of torture or ill‑treatment, through applications for amparo or complaints addressed to the courts in connection with offences committed by police officers, are fully operational and have been used by victims or put into practice through investigations initiated ex officio by the competent courts (see paragraphs 105-109 below).
15. Since March 1990, control of the legality of detentions has been exercised without restrictions through the proper handling of amparo applications (habeas corpus) by the Chilean courts. The attitude of the courts has changed in that they have repeatedly recognized in their decisions the rights granted by the constitutional and legal order to detained persons, while at the same time applying the provisions intended to protect detainees and prevent torture.
16. In addition to the corrective supervision of the Supreme Court, which consists of the authority to impose penalties and adopt measures in order to ensure that judicial officials comply with the provisions regulating their conduct, there are specific provisions which enable the judges to monitor police activity in relation to detainees, such as articles 272 bis and 323 of the Code of Criminal Procedure (see paragraph 29 below).
17. The measures referred to, together with the protection of the right not to be tortured- which has been given effect through the legal reforms described below- have resulted in a gradual decrease in the number of individual cases of this violation of human rights which may possibly occur in Chile, as indeed is the case in any democratic society.
New measures taken to prevent and punish torture
A. Reform of the system of criminal procedure
New Code of Criminal Procedure
18. Specifically
with regard to the legal framework and measures to prevent and punish torture
and other cruel, inhuman or degrading treatment or punishment, a process of
modernization of justice is currently under way with the aim of bringing all
institutions involved in the administration of justice into line with the
processes of political and economic development which have occurred in Chile
over the past two decades. While the
justice system in
19. The
reform of criminal procedure constitutes the first substantive step towards
the reform of the criminal justice system as a whole. The relevant bill was sent to Congress on
(a) The constitutional reform establishing the Public
Prosecutor’s Office, Act No. 19,519, in force since
(b) The Constitutional Act relating to the Organization
of the Public Prosecutor’s Office (No. 19,640), in force since
(c) The amendments to the Courts Organization Code, which establish the judges responsible for guarantees or supervision of pre-trial proceedings and the Oral Court (Act No. 19,665), in force since 9 March 2000;
(d) The Office of the Public Criminal Defender, established
by Act No. 19,718 of
(e) The bill relating to provisions adapting various laws to the new system of criminal procedure which, has reached the second constitutional stage in the Senate.
20. One of the general principles underlying the proposed system, as stated in the Presidential Message introducing the Bill relating to the new Code of Criminal Procedure, consists of the “direct application of the relevant constitutional and international human rights provisions regarding to the regulation of criminal procedure”. The Message goes on to say “that the basic parameters used in the design of the Bill have been the Constitution and the international human rights instruments binding on the country, special account having been taken, among the latter, of the American Convention on Human Rights and the International Covenant on Civil and Political Rights”. This position is in keeping with the need to strengthen the notion that criminal procedure is organized on the basis of the development of the general principles of the legal order which regulate the relationship between the State and citizens, and which are incorporated in these normative instruments. In this connection, an effort is being made to emphasize the importance of these principles over and above the specific procedural mechanisms established in law. The judges will have to integrate the procedural provisions with those of a constitutional and international character, interpreting and applying the former so that they give effect to the requirements contained in the latter. This Bill provided for substantive changes in order to guarantee the protection of detainees, changes which affect the prevention of torture (see paragraphs 31 and 32 below).
B. Characterization of the offence of torture, abolition of arrest
on suspicion and establishment of rights of detainees
(Act No. 19,567 of 1 July 1998)
21. A
further important step in the prevention and punishment of torture has been
taken with the adoption of this Act, which reforms a number of legal instruments
with the aim of characterizing the offence of torture, improving the rights
of detainees and abolishing arrest on suspicion. The Act originated in a motion submitted by a
group of deputies to the Chamber of Deputies on
C. Abolition of the death penalty
22. This
penalty was abolished in
D. Modernization of the Investigaciones Police
23. In
E. Withdrawal of reservation
24. Through
Supreme Decree No. 1,562 of
F. Contribution to
the United Nations Voluntary Fund for Victims of Torture
25. Since
April 1997,
G. Additional Protocol to the Convention against Torture
26. In
the context of international cooperation, attention should also be drawn to
II. First part: Information on measures and developments
relating to the implementation of articles 1-16 of the Convention
Article 1
27. Following a recent reform of the Penal Code, the Chilean domestic legal order has characterized and laid down penalties for torture pursuant to the definition contained in article 1 of the Convention (see paragraphs 54-56 below).
28. In
Article 2
29. In
30. As
stated in the introduction, subsequent to the submission of the second report,
a process of modernization of justice has been put in train with the aim of
reforming the criminal procedure system as a whole. As of November 2001, the new Code of Criminal
Procedure was fully operational in the Second, Third, Fourth, Seventh and
Ninth Regions of Chile. The old Code
remains in force in the rest of the country.
Gradually, the application of the new Code will be extended to the
rest of the country until it culminates in its application in the Metropolitan
Region in 2004. In addition, with the
aim of bringing forward in practice the provisions of this new Code relating
to detention and detainees’ rights, on
New Code of Criminal Procedure [4]
31. The fundamental change in this initiative consists in replacing the current Chilean inquisitorial procedure by a criminal procedure system which meets the requirements of an oral, public and adversarial trial, under the responsibility of a collegiate court which will weigh the evidence and pass sentence, and of investigations by a prosecutor from the Public Prosecutor’s Office with the cooperation of police officers. It is hoped that the separation of the functions of investigation, on the one hand, and trial, on the other, will permit more diligent, complete and technical police investigations based on a variety of methods of evidence- gathering, avoiding the possibility of coercing the accused in order to obtain his confession as a means of support for the prosecution. According to a number of studies, [5] this situation was liable to occur under the old Code of Criminal Procedure in view of the wide powers and autonomy enjoyed by the police during the first stage of criminal investigation. In the new procedural system, the judge is freed of the task of undertaking the investigation; he will be able to devote himself to ensuring that it remains within legal bounds and supervising observance of the rights of the persons involved. This system grants broad powers to the Public Prosecutor’s Office during the pre-trial proceedings, powers which are limited by the individual rights of the person concerned. These rights are protected by judicial intervention if they are infringed.
32. The new Code contains substantial changes in order to guarantee the protection of the detainee, changes which affect the right not to be tortured. Among these changes reference may be made to:
(a) Recognition of various rights of the accused as from the first act in the procedure against him: the right of the detainee to be informed of the reason for his detention and of his other rights; his right not to be obliged to make a statement or not to make it under oath if he agrees to make a statement; and his right to be assisted by a lawyer as from the initiation of the investigation (arts. 93, 94 and 135). Through the entry into force of Act No. 19,567 of 1 July 1998 (see paragraph 33 below), these rights of the detainee already formed part of the legislation in force aimed at preventing acts of torture;
(b) Reduction in the period of police detention to a maximum of 24 hours on police premises (art. 131). The old Code stated that this period could, by a substantiated decision of the judge, be extended to 5 days and up to 10 days in the case of the investigation of terrorist offences;
(c) Interrogation and other investigation procedures to be carried out by the Public Prosecutor’s Office with the help of the police, who will do their work under the direction, and in accordance with the instructions, of that Office (arts. 77, 79 and 80). The old Code granted the police, during the periods mentioned, powers of investigation in relation to detentions ordered by the judge, including interrogation of the accused and witnesses;
(d) At the request of the prosecutor and with the aim of ensuring the success of the investigation, the court may prohibit communications by the detainee or prisoner for up to 10 days, but this will not preclude access by the accused to his lawyer, medical attention or the court (art. 151).
Reforms of the old Code of Criminal Procedure introduced by Act No. 19,567 [6]
(a) Abolition of arrest on suspicion
33. Article
260 of the old Code was amended by abolishing arrest on suspicion, which authorized
the police to arrest “Any person wearing a disguise or other means of concealing
his true identity or avoiding recognition, and refusing to give his identity”
and “Any person found at an unusual time or in places or circumstances giving
reasonable grounds for believing that he may be acting with criminal intent
if his explanations of his conduct do not dispel suspicion”.
The vague nature of this provision gave the police a wide margin of
discretion and gave rise to situations which went beyond the constitutional
framework and the framework of the international instruments in force in
(b) Rights of the detainee
34. Substantial progress in preventing torture or similar action has been achieved through the establishment, by means of this Act, of the obligation on the arresting officer to inform the detainee of his rights and the reason for his arrest at the time of arrest or immediately after his arrival at the police station. Before the adoption of the legal amendments listed below, the arresting officer was only obliged to show the arrest warrant and hand a copy to the detainee. As a result of the reform, the following requirements have been added to article 284: obligation on the police officer at the time of the arrest verbally to inform the arrested person of the reason for his arrest and of his rights, which must be displayed in every police detention centre; obligation on the officer responsible for the first place of detention to which the detainee is taken to provide the same information; obligation to display in a clearly visible place in every detention centre a separate placard showing the rights of the detainee, whose text and format were established by supreme decree of the Ministry of Justice. The placard must mention the following rights:
(1) To be informed of his rights and the reason for his arrest;
(2) To remain silent in order to avoid incriminating himself;
(3) To be taken immediately to a public place of detention;
(4) The right of a relative or a person named by him to be informed, in his presence, of his arrest, the reason for the arrest and the place where he is being held;
(5) The right not to be subjected to torture or cruel, inhuman or degrading treatment;
(6) The right to request the presence of his lawyer in order to speak to him;
(7) The right to receive visits, unless he is being held incommunicado by court order;
(8) The right to legally defend himself by means of a lawyer;
(9) The right to be placed at the disposal of a court;
(10) The right to have, at his expense, facilities compatible with the regime of the detention establishment.
35. The reform establishes the effects which ensue from non‑compliance with these duties for officers responsible for detention and for the relevant judicial procedure, since the judge will regard as null and void statements made by the detainee before arresting officers who fail to comply with the above‑mentioned duties, and will send a report to the competent police unit for the purpose of the application of the corresponding disciplinary penalties.
36. The enforcement of the above‑mentioned provisions will result in the effective prevention of torture. Firstly, if the police officer fulfils his obligation to inform the detainee of his right to remain silent, it will be contradictory for him at the same time to exert any type of pressure on the detainee in order to obtain a statement from him. In addition, if the detainee is not informed of this right, any extrajudicial statement by him is regarded as null and void; consequently, it would be absurd for a police officer to try to obtain through coercion a statement that will be completely valueless.
37. An amendment was made to article 293, regulating the right of a detainee, including a detainee held incommunicado, to notify his situation to persons named by him in a much more expeditious and peremptory manner than that required before the reform. Officers failing to comply with this obligation are liable to punishment.
Gendarmería
38. In the area of prison policy, the Prison Establishment Regulations [7] approved in 1998 (Supreme Decree No. 518 of the Ministry of Justice), which superseded the regulations of December 1992 (Supreme Decree No. 1,771 of the Ministry of Justice), are in force. The regulations have been updated with the aim of incorporating the principles of the relevant international instruments, establishing as the basis for prison policy respect for the fundamental rights of the prisoner and laying down penalties for any Gendarmería officer found guilty of torture, cruel, inhuman or degrading treatment by word or deed, or the use of unnecessary force on the person of the prisoner. The regulations guarantee the prisoner ideological and religious freedom, the right to honour, the right to be designated by his own name, and the right to privacy, information, education and access to culture, the aim being the full development of his personality. Provision is also made for the right to transmit requests and, as stipulated in the international principles relating to prison policy, the regulations establish the duty of the State to ensure the prisoner’s life, person and health. Furthermore, the regulations recognize as a guiding principle of prison activity the prisoner’s public-law relationship with the State, with the result that, apart from the rights forfeited or curtailed through his arrest or pre-trial or post-conviction imprisonment, his legal status is identical to that of a free citizen. The principle of innocence is also established. Consequently, Chilean legislation in this respect reflects current trends in the area of criminal prosecution and prison policy, and incorporates the principles established by the relevant international instruments. In Title III of the regulations, “The rights and obligations of prisoners”, recognition is given to the right to medical attention, communications, information, visits, education, training, prison work and basic living conditions, and the right to make requests. The Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations Economic and Social Council, together with the International Covenant on Civil and Political Rights, the Convention against Torture and the Universal Declaration of Human Rights, have served as the theoretical framework for these regulations.
39. As a result of joint work by the Chilean Gendarmería and the Chilean Human Rights Commission, a non‑governmental organization, a “Human rights training manual for Gendarmería officers” was published in 1997. It has been distributed to all Chilean prisons.
40. On 23 November 2000, the Ministry of Justice concluded a cooperation agreement with the British Council for the study and preparation of a strategic planning model aimed at increasing the ability of the Gendarmería to meet the requirements of human rights, prison policy and the reform of criminal procedure under way in Chile. In this context, teams of Gendarmería officers visited the Prison Service, Probation Service and Prison Service Training Institution in the United Kingdom. In addition, officials from these bodies have travelled to Chile to train Gendarmería personnel, particularly in the Fifth Region, which has been designated a pilot region for the purposes of the implementation of this agreement.
Carabineros
41. Since January 1989, the “Institutional Doctrine and Code of Ethics” has been in force. [8] This text lays down the main guidelines for the conduct of officers in the performance of police work. It contains provisions governing the work of a police officer, among them article 14, which stipulates: “He shall fulfil his obligations as guardian of public order, rationally applying the legal powers conferred on him by the Constitution and the law, and avoiding any abuse of functions, excess of zeal in their performance and, in general, any arbitrary action”. Failure to comply with the provisions of the Code by members of the Carabineros may give rise to internal penalties which range from reprimand to dismissal.
42. General Order No. 1,052, of 11 March 1995, which is entitled “Essential rights deriving from the nature of man”, is intended to publicize among all Carabineros personnel the Universal Declaration of Human Rights and the Code of Conduct for Law Enforcement Officials, adopted by the General Assembly in its resolution 34/169 of 17 December 1979. It stipulates that the Universal Declaration should be included in courses for staff undergoing ordinary or further training, and among the subjects covered in competitive examinations leading to promotion.
43. Instructions relating to the legal reforms of the Penal Code and the Code of Criminal Procedure effected by Act No. 19,567, which abolished arrest on suspicion, established new rights for the protection of detainees and characterized the offence of torture:
(a) Order No. 445 of 26 June 1998 issued by the Directorate for Order and Security, giving specific instructions concerning the rights of detainees, the Rights of Detainees Bill and other documents;
(b) Communication No. 473 of 30 June 1998 from the Directorate for Order and Security, reiterating instructions relating to the “Legal amendments to detention and protection of citizens’ rights”;
(c) Official Message No. 216 of 1 July 1998 issued by the Directorate for Order and Security, giving instructions about the publication of Act No. 19,567 in the Diario Oficial;
(d) Circular No. 1,513 of 3 July 1998 issued by the Carabineros personnel department, giving instructions about “Provisions for the protection of citizens’ rights and legal amendments to detention”;
(e) Circular No. 1,521 of 30 October 1998 issued by the Directorate-General of the Carabineros, reiterating instructions on “Official conduct in police procedures”.
Investigaciones Police
44. From 1992 until the time of writing, a sustained and expanded modernization plan has been under way in this police force; under the plan, the force’s regulations and organization have been revised and reformulated. As part of this process, the following internal measures, inter alia, have been taken with the aim of contributing effectively to the prevention of torture:
(a) Guidance given to the already existing Department V on Internal Affairs, which, since the above‑mentioned date, has been cooperating actively in judicial investigations relating to cases of human rights violations, and has received complaints from private individuals, whether victims or third parties, relating to violation of the rights of individuals by Investigaciones Police officers;
(b) Establishment, in May 1993, of the Higher Council on Police Ethics, a collegiate advisory body to the Director-General of the Carabineros, which examines the behaviour of officers and institutional structures, proposing concrete decisions which may result, or have resulted, in the dismissal of officers who have deviated from correct practice;
(c) Establishment, in December 1993, of Department VIII on Control of Judicial Procedures, subordinate to the Inspector-General’s Office and responsible for critically reviewing the actions of officers and thereby improving working methods. In addition, when necessary, it reviews specific procedures for establishing irregularities or officers’ responsibilities in the procedures in question, which may result in administrative inquiries or judicial complaints;
(d) Issuance, in September 1995, of the “Code of Professional Ethics”, [9] through an internal decision (General Order) of the Investigaciones Police. This is a set of standards considered by this force as the highest expression of current thinking on standards of official behaviour. The Universal Declaration of Human Rights, the international human rights treaties and the Code of Conduct for Law Enforcement Officials form part of its underlying theses. Its provisions are binding in character and their infringement may result in the imposition of penalties on police officers, which may even include expulsion from the force. The text of this Code is framed and publicly displayed in every Investigaciones Police station;
(e) Issuance, on 17 October 2000, of General Order No. 1,762 to the effect that the principles contained in Commission on Human Rights resolution 2000/43, of 20 April 2000, entitled “Torture and other cruel, inhuman or degrading treatment or punishment”, should be considered as an integral part of the force’s regulations for such purposes as may be appropriate. Section 2 of this General Order states that “Officers of the Chilean Investigaciones Police, and in particular chiefs of units and districts, the Inspector-General’s Office, Department V on Internal Affairs, Department VII on Control of Police Procedures, prosecutors in administrative inquiries, directors of the Police Investigations College, the Higher Academy for Police Studies and the Professional Training Centre, and Investigaciones teachers engaged in education in human rights or related subjects shall bear the above-mentioned principles in mind, in their respective spheres of competence”. The issuance, in October 2000, of the above-mentioned General Order is the immediate response which the Directorate-General of the Investigaciones Police made on receiving from the Human Rights Department within the Ministry of Foreign Affairs, in September 2000, the text of Commission on Human Rights resolution 2000/43. Incorporating this resolution within the Investigaciones Police regulations highlights the constant interest of this police force in the prevention of torture.
45. It has been stated in the introduction to this report that, since 1990, the remedy of amparo has regained its normal force as an effective safeguard of individual freedom and means of verification of the legality of arrests.
46. For its part, the remedy of protection, which is also established in the Constitution, is aimed at safeguarding most of the fundamental rights guaranteed in the Constitution, including the right to life and the right to protection from physical and mental injury.
47. In addition, the courts of justice have tried and convicted persons responsible for cases of torture following investigations initiated ex officio or through proceedings brought by victims or their relatives. [10]
48. Since March 1990 no state of constitutional emergency has been declared in Chile, and consequently the fundamental rights guaranteed in the Constitution have not been suspended or restricted.
49. The regulations relating to states of emergency were amended in 1989. One of the changes made through the constitutional reform of that year permitted applications for amparo (habeas corpus), which ensures the protection of the detainee, and applications for protection, which safeguards a person’s right to protection from physical and mental injury, during states of alert and states of siege, the first relating to situations of external war and the second to internal war or internal disturbances.
50. On ratifying the Convention, the military Government entered a number of reservations. One of them rendered the provisions of article 2 inapplicable. As stated in Chile’s second periodic report, on 7 September 1990 the instrument withdrawing the reservation was deposited with the United Nations Secretariat. However, there remains within internal legislation article 334 of the Code of Military Justice, according to which the right, granted by laws or regulations, to protest against acts ordered by a superior does not obviate the requirement of due obedience. Article 335 of the Code stipulates that, in specific cases, the subordinate to whom the order is given may defer or modify its execution but, if the superior officer maintains the order, it must be carried out.
Article 3
51. The Code of Criminal Procedure regulates passive extradition in articles 664 et seq. In conformity with these provisions, when the Government of a foreign country asks the Government of Chile to extradite persons located on Chilean territory, the Ministry of Foreign Affairs will transmit the request and relevant information to the Supreme Court. The President of the Supreme Court will consider the request for extradition at first instance, and a division of the same Court will take it up at second instance. In the Supreme Court’s decision agreeing to or refusing extradition, the applicable international treaties and the principles of international law have to be taken into consideration. However, there are no internal provisions which expressly prohibit extradition when there are substantial grounds for believing that the person in question would be in danger of being tortured in the requesting country. And there are no internal provisions which prohibit return or expulsion in this situation.
52. As regards expulsion, Chilean legislation on migration expressly establishes the grounds on which this measure may be adopted, and also the authorities which may order it and the procedure which must be followed. The adoption of an expulsion order may be obligatory or optional for the authority concerned, in both cases in strict conformity with the grounds specifically enunciated in the law in question. In addition, both administrative and judicial mechanisms are provided for to enable the person in question to appeal against this sanction. In any event, when expulsion is ordered, the person is not necessarily returned to his country of origin; he may opt to travel to any country willing to receive him. It is important to emphasize that, in the case of asylum, the Chilean provisions establish and faithfully respect the principle of the non-return of a person who has been granted refugee status.
53. There are no internal provisions for determining the existence of a consistent pattern of gross, flagrant or mass violations of human rights in order to refuse the expulsion, return or extradition of a particular person.
Article 4
54. The offence of torture defined in accordance with the parameters of article 1 of the Convention, and carrying appropriate penalties which take into account its grave nature, did not exist in Chilean criminal legislation until the reform effected by Act No. 19,567 of 1 July 1998. [11] Prior to this reform, the concept of torture was not included in Chilean criminal legislation. In order to punish acts constituting torture, recourse was had to article 150 of the Penal Code, which punished persons who “order or unduly prolong the incommunicado detention of an unconvicted prisoner, cause him physical suffering or treat him with unnecessary severity”, and also persons who “arbitrarily cause him to be arrested or detained in places other than those designated by law”. These offences cover only physical injury and do not reflect the possibility that they may be constituted by acts causing psychological injury.
55. Act No. 19,567 has introduced the following amendments:
(a) It maintains the above-mentioned article 150 of the Penal Code, but with penalties ranging from 61 days to 5 years of rigorous or ordinary imprisonment for persons who order or unduly prolong the incommunicado detention of a person deprived of liberty, treat him with unnecessary severity or cause him to be detained arbitrarily in places other than those established by law;
(b) It adds to the Penal Code article 150 A, which specifically punishes the offence of torture, establishing special penalties for public employees who practise torture causing physical or mental injury, in the terms indicated below:
(i) The penalties range from 541 days to 5 years of rigorous or ordinary imprisonment for any public employee who practises against a detainee unlawful physical or mental oppression or who orders or who consents to such oppression (first subparagraph);
(ii) The same penalties reduced by one degree will be imposed on any public employee who, having knowledge of the above-mentioned conduct, fails to prevent or terminate it when he has the power or authority to do so (second subparagraph);
(iii) Aggravated penalties ranging from 3 to 10 years of rigorous or ordinary imprisonment will be imposed on any public employee who, by means of the above-mentioned conduct, forces the victim or a third party to make a confession, make any type of statement or provide information (third subparagraph);
(iv) Aggravated penalties ranging from 5 to 15 years of rigorous or ordinary imprisonment will be imposed on any public employee who causes serious injury to, or the death of, a detainee as a result of the above-mentioned conduct if this result is attributable to negligence or imprudence on the part of the public employee (fourth subparagraph);
(c) It also adds to the Penal Code article 150 B, which imposes penalties ranging from 61 days to 3 years of rigorous or ordinary imprisonment on persons who, not having the status of public employee, commit the offences punishable under articles 150 and 150 A (first subparagraph); penalties ranging from 541 days to 5 years of rigorous or ordinary imprisonment on persons who, not having the status of public employee, commit the offence punishable under 150 A (second subparagraph); penalties ranging from 3 years and 1 day to 10 years of rigorous or ordinary imprisonment on persons who, not having the status of public employee, commit the offence punishable under the final subparagraph of article 150 A.
56. All these penalties are applicable to the perpetrator of each of the unlawful acts mentioned in the case of a committed offence. In accordance with the general provisions of the Penal Code, it is also possible to punish an attempt to commit an offence of torture and also involvement in the offence as an accomplice or accessory. In such cases and as a general rule, the penalty is reduced by one or two degrees (Penal Code, arts. 50-54).
57. Article 330 of the Code of Military Justice applicable to members of the armed forces and the carabineros punishes any such member who “in executing an order from a superior or in the exercise of his military functions employ, or causes to be employed, without due reason, unnecessary violence in the execution of the acts which he is required to perform”. It establishes penalties ranging from 41 days of short-term imprisonment to 540 days of rigorous imprisonment if no injuries are caused or the injuries are slight, and from 5 years and 1 day to 15 years of rigorous imprisonment if the violence results in the death of the victim.
Article 5
Chilean jurisdiction over offences of torture
Offences committed in territory under Chilean jurisdiction
58. In Chile, the governing principle is the territoriality of the law, with certain exceptions. In this connection, the Penal Code states: “Chilean criminal law is binding on all inhabitants of the Republic, including foreigners” (art. 5). The concept of territory for the purpose of the application of criminal law covers:
(a) The land area included within the natural and conventional limits;
(b) The territorial sea comprising the maritime area from the base lines to points 12 nautical miles out to sea;
(c) The airspace over the land and maritime territory;
(d) The subsoil existing beneath the land and maritime territory.
59. In addition, the criminal law applies to:
(a) Ships (except warships of another Power) when located in Chilean territorial waters or anchored in ports on the Chilean coast; any Chilean ship on the high seas and Chilean warships anchored in waters of another Power. The Chilean courts may give effect to criminal responsibilities in a subsidiary fashion if offences committed on Chilean ships in waters subject to another jurisdiction go unpunished (Navigation Act, art.3);
(b) Chilean or foreign aircraft located in Chilean territory or airspace, Chilean military aircraft wherever they are located, and Chilean civilian and State aircraft when they travel in airspace not subject to sovereignty. Offences committed in these aircraft when they are in the airspace of another Power are subject to that jurisdiction, but if they are not tried by that jurisdiction, Chilean jurisdiction also applies (Aeronautical Code, arts. 2-5);
(c) The territory occupied by Chilean armed forces during or as a result of a war (Code of Military Justice, art. 3 (1)).
Offences committed by Chilean nationals abroad
60. Chilean legislation also provides for exceptions to the principle of territoriality which are established in the Courts Organization Code, the Penal Code and the Code of Military Justice, inter alia. Among these exceptions, and for the purposes relating to article 5 of the Convention, mention should be made of the following:
(a) When the alleged offender is of Chilean nationality and has committed an offence abroad against another Chilean, he is subject to the jurisdiction of the Chilean courts if he returns to Chile without having been tried by a court in the country where he committed the offence (Courts Organization Code, art. 6 (6)). In this case, the victim of the offence must also be a Chilean national;
(b) In addition, in conformity with the Bustamante Code (art. 345), Chile is obliged to try a national who commits an offence abroad if, when this person is in Chile, an extradition request by the State in which he committed the offence is refused. [12]
Offences committed abroad against a Chilean national
61. The above-mentioned article 6 (6) of the Courts Organization Code applies to this situation when the alleged offender is also a Chilean national and he returns to Chilean territory without having been tried in the country in which he committed the offence.
Jurisdiction over offences of an international character
62. Lastly, it should be pointed out that Chilean jurisdiction also applies to offences of an international character covered by treaties concluded with other States, such as, for example, the International Convention for the Suppression of the White Slave Traffic and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
63. If extradition is not granted, domestic legislation does not contain an obligation in the terms established in article 5, paragraph 2, of the Convention. Consequently, in order to give effect to that provision at the present time, the Convention would have to be applied directly by the Chilean courts, without prejudice to the express incorporation of that obligation in the internal legal order.
64. In internal Chilean law, there are no special provisions relating to the exercise of criminal jurisdiction over the offences provided for in the Convention. Consequently, in order to determine whether any of these offences is within the competence of the Chilean courts, the above‑mentioned internal provisions, the Bustamante Code when appropriate and the relevant provisions of the Convention itself would have to be applied. There are no judicial precedents for the application of these provisions.
Article 6
65. In Chile, there are no internal enactments which expressly regulate the implementation of the provisions of article 6, paragraphs 1 and 2. Nevertheless, their implementation is perfectly possible in conformity with the procedural provisions which regulate detention and guarantee the rights of the detainee. This procedure is the responsibility of the criminal courts. As regards the obligations established in paragraphs 3 and 4 of article 6, it should be stated that the international conventions signed by our country are fully applicable, in particular the Vienna Convention on Consular Relations (art. 36 (1) (b) and (c)). These subparagraphs relate to the right of persons in prison, custody or detention to communicate with the consular post of their country of origin and the duty to inform the consular post of the above-mentioned circumstances.
Article 7
66. The internal legislation regulating passive extradition does not contain an obligation in the terms of article 7, paragraph 1, of the Convention. On the other hand, article 655 (2) of the Code of Criminal Procedure establishes that, if the Supreme Court refuses extradition, the court shall proceed to release the detainee. Consequently, in order to give effect to that provision of article 7, at the present time the Convention would have to be applied directly by the Chilean courts, without prejudice to the express incorporation of that obligation in the internal legal order.
67. Any person, whether Chilean or of foreign nationality, tried by a Chilean court is subject to procedural legislation in equal conditions with regard to the provisions of article 19 (2) of the Constitution (equality before the law) and article 1 of the Code of Criminal Procedure (the Chilean courts exercise jurisdiction over Chileans and over foreigners for the purpose of trying offences committed in Chilean territory).
68. Every person tried by a Chilean court is protected by the guarantees of due process, in conformity with the provisions of article 19 (3) of the Constitution (“Equal protection under the law in the exercise of rights”) and various provisions of the Code of Criminal Procedure, the Penal Code and the Courts Organization Code.
Article 8
Inclusion of offences under article 4 of the Convention in extradition treaties concluded by States parties
69. Pursuant to this obligation, Chile has included in bilateral extradition treaties which have been concluded or have entered into force since 1994 clauses in which offences relating to torture are incorporated as extraditable offences. These treaties are listed below:
(a) Extradition treaty between the Republic of Chile and the Eastern Republic of Uruguay, signed on 19 August 1996 (it has not yet entered into force). In article 5, the treaty excludes extradition for political offences, which will not include “genocide, war crimes or crimes committed against peace and the security of mankind, in violation of the provisions of international law”;
(b) Treaty on extradition and judicial assistance in criminal matters between the Republic of Chile and the Kingdom of Spain, which was concluded on 14 April 1992 and entered into force in January 1995. In article 5, this treaty excludes extradition for political or related offences, which will not include “war crimes and crimes committed against peace and the security of mankind, in conformity with international law”;
(c) Extradition treaty between the Republic of Chile and Australia, which was signed on 6 October 1993 and entered into force in January 1996. In article IV relating to exceptions to extradition, the treaty excludes extradition for political offences, among which “war crimes and crimes committed against peace and the security of mankind, in conformity with international law” are not included.
70. All these treaties also include a generic clause, providing that “offences included in multilateral conventions to which both countries are parties” are extraditable. These conventions include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Possibility of considering the Convention as a necessary legal basis for extradition for crimes of torture in relation to States which make extradition subject to the existence of a treaty
71. This provision has not been regulated in internal law and no specific cases relating to it have arisen.
Recognition of offences provided for in the Convention as extraditable offences between States which do not make extradition conditional on the existence of a treaty
72. This provision has not been regulated in internal law and no specific cases relating to it have arisen.
For the purposes of extradition, such offences shall be treated as if they had been committed not only in the place in which they occurred, but also in