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CHAPTER
V THE
SITUATION OF HUMAN RIGHTS IN VARIOUS COUNTRIES
The purpose of this section is to analyze the situation of human
rights in a number of countries, both in fulfillment of the work of the
Commission and in compliance with specific mandates in this regard, as
contained in the corresponding resolutions approved by the General
Assembly of the Organization of American States at its ninth regular
session, held in La Paz, Bolivia, October 22 through 31, 1979.
General Assembly Resolution 443, approved on October 31, 1979,
requests the Inter-American Commission on Human Rights “to continue to
monitor the exercise of human rights in Chile, Paraguay and Uruguay and
report thereon to the tenth regular session of the General Assembly.”
General Assembly Resolution 446, of that same date, resolves to request
the Inter-American Commission on Human Rights “to continue monitoring
the situation of human rights in El Salvador, and to include its
conclusions in its report to the tenth regular session of the General
Assembly.”
As for the first three countries mentioned, Resolution 443 was
adopted when the Annual Report of the Inter-American Commission on Human
Rights was approved. As for El Salvador, Resolution 446 was adopted when
the General Assembly took up the special Report on the Situation of
Human Rights in El Salvador.
In fulfillment of those mandates, the following is an analysis of
the situation of human rights in Chile, Paraguay, Uruguay and El
Salvador.
1.
INTRODUCTION
In previous general1
or special2
reports included in its Annual Report, the IACHR covered the situation
of human rights in Chile.
At its ninth regular session, the General Assembly stipulated in
operative paragraph 5 of Resolution 443 approving the Annual Report of
the Inter-American Commission on Human Rights as follows:
To urge the Government of Chile to step up adoption and
implementation of the measures necessary effectively to preserve and
ensure the full exercise of human rights in Chile, especially regarding
clarification of the situation of those detained persons who have
disappeared, return of exiles to their country, lifting of states of
emergency, and prompt reinstatement of the right to vote.
It also stipulated that the exercise of human rights in Chile
should continue to be monitored and the findings should be reported to
the General Assembly at its next regular session.
This report deals with those events occurring in Chile in 1979
that relate to the observance of human rights. However, in order to keep
the report timely and to present information as up-to-date as possible
on the Chilean situation, and in light of the importance of the events
occurring in 1980, a number of matters relating to that year have been
introduced. 2.
AMENDMENTS TO THE LEGAL CODE RELATING TO HUMAN RIGHTS
The main legal provisions affecting human rights that were put
into effect during the period covered by this report are as follows:
a)
The State of Emergency
The state of emergency, which was declared by Supreme Decree Nº
391 of March 10, 1978, of the Ministry of National Defense, has
continued to be successively extended for additional six-month periods
and is currently in force.
Continuation of the state of emergency plus the additional
legislation enacted for that specific purpose give the President of the
Republic extraordinary authority, thereby retaining its similarity to
the exceptional rules of a state of siege.
b)
Decree Law 2866 of 1979
Decree Law 2866 amends Law 12927 (Law of Internal State
Security), thereby introducing a new punishable offense. This rule was
included as a new subparagraph h) of Article 6 of that law and penalize
anyone who solicits, receives or accepts money or aid of any kind from
abroad to commit crimes or abet the commission thereof.
Although this provision is unobjectionable in itself, the
Commission feels that in light of the range of political offenses
included in Chilean law by the present government, the lack of
definition of the criminal conduct and the lack of clear and precise
definitions of the penalties to be imposed, this new provision might be
invoked to punish a variety of activities, including those intended to
provide solidarity assistance to victims of human rights violations.
c)
Decree Law 2621 of April 25, 1979 (Anti-Terrorist Law)
This Decree Law amends a number of provisions of the Penal Code
and other laws in force, such as the State Security Law, the Air
Navigation Law and the Arms Control Law. The main changes introduced by
the Decree Law are as follows:
Articles 292, 294, and 295 of the Penal Code are amended. The
amendment of Article 292 provides that henceforth the law will presume
the existence of an unlawful association when one or more of the members
thereof commit any act that constitutes an offense against the social
order, public decency, persons or property.
Article 294 states that “Any person who knowingly and
voluntarily supplies the association with mounts, weapons, ammunition,
instruments to commit crimes, lodging, hiding places or meeting places
is guilty of a criminal offense.” The amendment replaces “mounts,
weapons, ammunition, instruments,” by “means and instruments,” so
that the previous specific list is replaced by a generic term.
Last, a new Article 295 bis is added to the Penal Code, as
follows:
Article 295 bis. Any person having credible information on
the plans or activities carried out by one or more members of an
unlawful association who fails to inform the authorities promptly
thereon shall be subject to imprisonment ranging from minimum to maximum
terms.
Spouses, legitimate blood relatives of direct lineal of
consanguinity or collateral consanguinity through the second degree,
fathers, and natural or illegitimate sons of any member of the
association shall be exempt from the penalties stipulated in this
article. This exception shall not apply in cases where information was
not reported to the authorities in order to abet the use by association
members of the results of the crime or simple offenses.
Under this new Article, the penalties imposed on those knowing of
plans or activities of the members of unlawful associations, who do not
report thereon to the authorities, range from 41 days to 540 days.
Legitimate family members related through direct lineal, consanguinity
or affinity, such as parents, children or siblings, and in collateral
consanguinity up through the second degree, in other words, cousins, are
exempt from such penalties. However, such relatives are subject to
penalty when they conceal information from the authorities in order to
abet commission of the offense.
Article 2 of Decree Law 2621 also provides that unlawful
associations shall be presumed to be designed to commit crimes against
the social order, public decency, persons or property “when one or
more of their members have initiated commission of any of the offenses
provided for in Article 5a), 5b) and 6c), d), e) and g), of State
Security Law 12927; Article 58 of DFL Nº 221 of 1931, on Air
Navigation; the first subparagraph of Article 8 of Law 17798 on Weapons
Control; or the offenses provided for in Articles 323 to 326, 474 to 476
and 480 of the Penal Code.
Article 4 of the same law provides that the authors of the crimes
stipulated in the various laws mentioned shall not be released on bail,
and to that end, adds a new provision to Article 363 of the Code of
Criminal Procedure.
Regarding substantive law, the Decree Law establishes two legal
presumptions of the existence of unlawful associations and also
establishes a new offense consisting of failing to report certain facts
(included as Article 295 bis of the Penal Code).
Decree Law 2621 which was apparently issued to combat terrorism,
contains elements than can convert it into an instrument of human rights
violation. It particularly affects the right of persons to be presumed
innocent until they are proven guilty; the right of association and
freedom from arbitrary interferences in one’s private life, and
illegal assaults upon one’s honor and reputation.
d.
Amendment to the Laws Affecting the Mapuche People (Decree
Law 2568 of March 22, 1979, amended by Decree Law 2750 of
July 10, 1979)
The main purpose of this Decree Law is to establish a legal
situation under which the land of the Mapuche reservations can be
divided up in five years into individual holdings, which will replace
the previous common property.
The Chilean public authorities have stated that participation in
the new system of land division is voluntary. However, the decree
specifies that it is enough for one occupant of a reservation to request
division for the process to be initiated.
A number of international groups have expressed their opposition
to Decree law 2568, arguing that it will represent the cultural
extermination of the Mapuche people. Thus after a visit to Chile by an
Inter-faith committee mission, the Director of the World Council of
Indigenous Peoples, George Manuel, said that actually the main concern
with this new law was that it could become a threat to indigenous
peoples in all countries. Mr. Manuel said that the effect of the new law
would be to “expropriate all existing Indian land and eliminate the
Mapuche as a race and as a people.”
Some of the features of this decree law are as follows:
Community lands can be divided up into small individual holdings
at the request of one occupant who need not necessarily be a Mapuche.
The decree law does not provide effective measures to prevent
coercion or threats to get the Mapuches to accept division of their
land.
The new law does not refer to the Mapuche people as a people; it
refers only to the land of the Mapuches.
The status of the Mapuche people has been the subject of special
concern for a number of international groups on protection of human
rights and for the national community and the Chilean Catholic Church in
1979. In May, the bishops of Concepción, Los Angeles, Temuco,
Araucania, Valdivia and Osorno, issued a pastoral letter on the new
Indian law, referring to the problems and difficulties being encountered
by the Mapuche people and calling attention to the respect due to the
cultural identity of this people.
The Mapuches are the most numerous ethnic minority in Chile. They
are now facing serious problems in their standard of living with regard
to such factors as health, nutrition and education, which combine to
create one of the most serious cases of poverty in Chile.
e.
Decree Law 2882 of November 9, 1979
Decree Law 2882 amends Decree Law 1878 of August 12, 1977, which
established basic rules to govern the integration and operation of the
National Information Bureau (CNI).
The amendments included in the law regulating the operation of
the CNI are essentially as follows:
i.
Those that concern the management of the CNI, which provide that
the National Deputy Director and the Comptroller of the CNI shall be
designated by supreme decree, a requirement that heretofore did not
exist. Also added is a provision stipulating that the National Director
of the CNI may delegate part of his authority to the National Deputy
Director.
ii.
Provisions relating to CNI funds, amending Article 5 of Decree
Law 1878, indicate that funds assigned under the Budget Law will be in
lump sums and included under the item for the Ministry of the Interior;
for all legal purposes, they are to be reserved funds.
iii.
Provisions relating to CNI staff. Subparagraph e) of the single
Article of Decree 2882 of November 9, 1979, amends the last subparagraph
of Article 3 of Decree Law 1878, which provided that: “When staff must
be hired who do not come from national defense institutions, approval
must be granted by supreme decree, which must be signed also by the
Ministry of the Treasury. The legal rules and salaries for them shall be
the same as those governing civilian personnel of the Armed Forces, and
they shall be considered as such for al jurisdictional and disciplinary
purposes.” The present rule replaced the first part of this Article
and provides only that “CNI staff shall be regarded as members of the
Armed Forces for all jurisdictional and disciplinary purposes.”
The purpose of this decree law was to give the CNI greater
operational independence and remove from it any type of external
control. The reserved nature of its funds and its militarily disciplined
staff give it an exceptional status within the Chilean state.
f)
Decree Law 3451 of July 17, 1980
Decree Law 3451, published in the Official Gazette of July 17,
1980, issued by the Government Junta, allows the periods of detention
that the President of the Republic can order during the state of
emergency to be extended to 20 days.
The authority of the Executive to restrict personal liberty has
always existed under the emergency regime known as “state of siege”
in Chile. However, Decree 1877, published in the Official Gazette of
August 13, 1977, provided that “by declaration of the states of
emergency, which the State Security Law regulates, the President of the
Republic shall be authorized to detain persons up to five days in their
own homes or in places other than jails” (Article 1).
Decree Law 3451 adds to that provision the following new
subparagraph: “The period established in the previous paragraph may be
extended up to 20 days when crimes against the security of the state
that result in death, injury or abduction of persons are being
investigated.”
Last, Decree Law 3168, of February 6, 1980, adds the following
subparagraph to this same first article: “This authority shall be
exercised by supreme decree signed by the Ministry of the Interior, with
the formula: ‘By order of the President of the Republic’”.
The following observations should be made on this new decree law:
1.
It is one further step in the process of making the state of
emergency only one more degree of the traditional state of siege.
Until Decree Law 1887 was issued, the state of emergency provided
for in the State Security Law did not include authority permitting the
restriction of personal liberty.
With issuance of Decree Law 1887, the Executive Branch was given
the following additional powers during this “state of emergency”.
1. To detain persons up to
five days (this period may now be extended to twenty days);
2. To provide for the
expulsion or departure from the country of persons under Decree Law 81,
which originally was applicable only during a state of siege;
3. To provide for the forced
stay of persons in a particular location in the national territory for
up to three months. (Decree Law 3168, of February 6, 1980).
2.
Extension of the period of detention up to twenty days is
provided for those cases where “crimes against the security of the
state that result in death, injury or abduction of persons are being
investigated.”
This means that the Executive Branch has been given powers that
previously were exercised only by the courts.
Obviously, the purpose of giving the Government the authority to
detain persons up to twenty days in cases where crimes are being
investigated that should be brought before the courts is precisely to
sidestep the minimum safeguards established in the law to guard against
detention of innocent persons.
3.
The Government’s authority to retain persons is not subject to
any control of legality or justification of such measures. Arrest
warrants are exempt from registry with the Comptroller General of the
Republic.
This has made possible repeated unjust detentions, which now may
be extended up to twenty days, during which time no court is empowered
to rule on the lawfulness of arbitrariness of the detention.
4.
Exercise of the authority to detain up to five days has in
practice been delegated to the security services, particularly the CNI
agents, who make the arrest and then request the Ministry of the
Interior to issue the arrest warrant. According to complaints received
by the IACHR, a high percentage of persons arrested recently by CNI
agents have complained that they were submitted to interrogation under
various kinds of torture.
g)
Adoption of a new Political Constitution
In August 1980, the Military Government Junta approved a new
Political Constitution to replace the 1925 Constitution. The new
Constitution was submitted to a plebiscite on September 11, 1980.
At this time, the IACHR will make no reference to its provisions,
some of which will not go into effect for nine years. In any event the
Commission cannot fail to point out that, according to major Chilean
agencies and eminent persons, the procedures under which the
Constitution was adopted were manifestly irregular, in view of the
existing state of emergency in Chile under which public liberties are
suspended; the lack of impartial control over the balloting, which was
entirely under the Government authorities; and the fact that blank
ballots were counted as votes in favor. 3.
THE RIGHT TO LIFE
a)
Homicides imputed to the authorities
During the period of this report, the Commission has received
three complaints on the cases of persons who, after their arrest, died
under irregular circumstances while detained by Government authorities.
The complaints are being handled in accordance with the Commission’s
Regulations. Among these complaints is the case of Professor Federico
Renta Alvarez Santibáñez (Case 4573).
Federico Renato Alvarez Santibáñez, Case 4573
On
Wednesday, August 15, 1979, at 5:00 hours, he was arrested by members of
the national police of the Ninth Police Station. On that same day, 15
civilians arrived in approximately five automobiles and forcibly entered
his home. He was first detained by the national police, but was later
transferred to an office of the National Information Bureau (CNI). On
Monday, August 20, at about 15:30 hours, he was seen being taken to the
prosecutor’s office, and at that time was in very bad condition. He
was barely able to stand up and was staggering so badly he almost fell
to the floor. He acted like a robot and had lost his sight completely.
They held him up the entire time and had to help him to walk since he
could not do so alone. They took him from there to solitary confinement,
and he was then transferred to the infirmary. At about 23:00 hours, they
took him to the central station, where he died around 7:00 hours, as a
result of the torture he had received during the six days of his
detention.
The death of Mr. Alvarez Santibáñez, as a result of
mistreatment and torture while he was illegally detained in the CNI
offices, as verified by the Commission, constitutes, in the
Commission’s judgment, a grave violation of the rights to life, humane
treatment, liberty and personal security. The Government of Chile has
not responded to the Commission’s request for information.
Although the Commission has not received any formal complaint, it
has been informed that other persons have died as a result of the
actions of the security agencies. In many of these cases, the families
have requested an investigation. Among such cases are those of Juan
Carlos Soto Vega and Mercedes Luzmila Polden Pelmen.
In addition, there are, according to the complaints or
information received by the IACHR the cases of alleged murder, while
detained by government agents under irregular circumstances, of Ricardo
Núñez Muñoz, Rosalindo Eugenio Durán Barahona, David Acuña Sepúlveda,
Jorge Alejandro Cabedo Aguilera, Julio Hernán Peña Mardones, Ricardo
Osvaldo Peña Escobar, Ricardo Ruz Zañarín and José Eduardo Jara
Aravena. The latter, according to the complaints, was a journalism
student who died on August 2, 1980, as a result of the torture by
Investigation detectives who were members of a self-styled “Comando
Vengadores de Mártires.” After abducting Jara along with another
person, they held him incommunicado for ten days until they released
him, but in such a state that he was unable to survive. Because of the
gravity of this event, the Supreme Court appointed a Visiting Magistrate
to investigate the crime.
b.
Important events occurring in 1979/80 in connection with
persons who have disappeared from 1973 on
The trial that took place after bodies were found in the ovens of
Lonquén, which was covered in the previous report, had repercussions on
the situation of human rights in Chile in 1979. In addition to the
information in the 1978 report, it must be added that the families of
the Lonquén victims were not satisfied with the fact that the Military
Prosecutor accused eight national policemen (Carabineros) of committing
the crime of unnecessary violence by causing the death of fifteen youths
and campesinos on the island of Maipú. According to the families, the
acts that took place were multiple abductions and homicides and
falsification of public documents, so that they appealed the Military
Court’s decision. This appeal has not been ruled on by the Court,
which avoided pronouncing judgment and ordered the prosecutor to decide
on the amnesty requested by the accused. Meanwhile, on July 30, 1979,
the prosecutor released the national policemen (Carabineros) under bail,
and this decision was approved by the Court Martial.
Finally, on August 16 of that year, the Military Judge of
Santiago, under Decree Law 2191 (Amnesty decree, covered in the previous
report), dismissed the charges against the “Carabineros”.
When appealed by the families, the decision was upheld by the
Court Martial on October 22, 1979.
During the trial, requests were repeatedly made to have the
remains of the Lonquén victims turned over to their families. The
requests, however, were always denied.
Except for the body of Sergio A. Maureira Lillo, the bodies were
all buried in a common grave, on instructions from the Military
Prosecutor, despite the Court Martial order of September 11, 1979, to
turn over the remains to “those persons proving their family
relationship.”
In summary, the way the “Lonquén trial” was handled
demonstrated the fate of many of those who have disappeared in Chile
since September 1973.
In addition to the Lonquén discovery, other information has been
submitted on the possible fate of persons who have disappeared
particularly the discovery of nearly 300 graves with bodies of persons
unidentified (except in two cases) in section 29 of the general cemetery
of Santiago, and the discovery of hidden graves in Yumbel and Mulchen.
The first of these cases was completely cleared up by the authorities,
but that is not the case of the Mulchen discovery, concerning which the
courts have thus far not complied with demands that an investigation be
made. 4.
PHYSICAL LIBERTY OF PERSONS
a)
Arrest of individuals
In 1979, according to information in the Commission’s
possession, Chilean authorities have continued the practice of irregular
arrests, without complying with the legal provisions governing the
arrests procedure.
The Commission has received a number of complaints from persons
who were arrested and then, after a number of days of interrogation and
torture, were released.
These complaints are being handled in accordance with the
Commission’s Regulations.
In addition, information in the Commission’s possession reports
numerous arrests with the same characteristics. The number of arrests
recorded in 1979 is shown in the following table:
In the actions to arrest persons, both the “Carabineros” and
personnel from other security agencies and the CNI took part.
b)
Mass arrests
In 1979, there were numerous mass arrests designed to repress
public demonstrations. It should be stressed that all of these
demonstrations were absolutely peaceful.
The best-known cases were the following: -
On January 20, 1979, around fifty persons were arrested by the
“Carabineros” in Plaza Almagro and accused of public disturbances.
The demonstrators were released a few hours later, after their residence
was verified. - On March 8, 1979, International Women’s Day, some thirty
persons were arrested and accused of public disturbances. Most of them
were released the following morning. -
On April 18, 1979, sixty-two relatives of arrested persons who
have disappeared chained themselves to the fence of the National
Congress, where the Ministry of Justice now is installed, and were
arrested by the “Carabineros.” They remained in jail for three days. -
On May 1, 1979, on the occasion of the mass public demonstration
celebrating Labor Day, over four hundred persons were arrested. Two
hundred eighty persons were held for from four to fifteen days. The
remainder were released from the police stations.
- On September 4, 1979, three persons were arrested on the public
road and accused of causing disturbances. The demonstrators were
commemorating the “civil Day” of the Chilean people, since
presidential elections traditionally took place on September 4. The
prisoners were held for five days of the police station, under the
authority of the President of the Republic to detain persons for that
time, according to the powers given him under the state of emergency. - On September 15, 1979, a funeral mass was held at the Metropolitan Cathedral of Santiago for the Lonquén victims. On leaving the Cathedral, forty-three persons were arrested and detained fo | |||||||||||||||
