RESOLUTION Nº 11/85
1. The complaint
received by the Inter-American Commission on Human Rights on April 9,
1984, which reports the arrest and subsequent expulsion from Chile of
Messrs Jaime Insunza Becker and Leopoldo Ortega Rodríguez, the
Secretary General of the Movimiento Democrático Popular and the
physician of the Chilean Commission of Human Rights, respectively.
2. The reply of
the Government of Chile dated May 24, l984, which informs the Commission
that Messrs Insunza and Ortega were expelled from the national territory
pursuant to the provisions of Transitory Provision 24 of the National
Constitution, against which an appeal for reconsideration to the
authority that ordered it is in order and because of which three
applications for amparo to the respective Appeal Court are being
3. The judgment of
the Santiago Appeal Court of June 26, 1984, in which it accepts the
remedy of amparo lodged on behalf of Messrs Insunza and Ortega and
recognizes the right of both to return to Chile.
4. The appeal
against the judgment mentioned in the foregoing paragraph by the
Director of Public Prosecutions (Ministerio Público).
5. The return to
Chile of Messrs Insunza and Ortega, their arrest by the Chilean
authorities as they disembarked from the aircraft which took them to
Chile and their subsequent provisional release while the Supreme Court
was deciding on the remedy of appeal submitted to it.
6. The judgment of
the Supreme Court of Justice of Chile dated July 9, 1984, which quashes
the judgment of the Santiago Appeal Court on the grounds that the
expulsion from the country of the persons affected was carried out in
accordance with the law by the pertinent authorities.
1. Messrs Insunza
and Ortega were arrested in Santiago, Chile, on April 6, 1984 and
expelled from the country on the following day, under the provisions of
Exempt Decrees Nº 4542 and 4546 dated April 5 and 6, respectively, of
the same year.
2. The two Exempt
Decrees ordered the expulsion of Messrs Insunza and Ortega on the
grounds that they constitute a danger to the internal peace of the
country, "in accordance with reliable information in the possession
of the authority".
3. According to
the Executive Power of Chile, the measure of expulsion is in order in
accordance with Transitory Provision 24 of the Constitution that
stipulates in its pertinent part:
prejudice to what is prescribed for in Article 39 et seq. the states of
exception contemplated by this Constitution, if during the period
referred to in the Thirteenth Transitory Provision acts of violence,
designed to alter public order, occur, or should there be danger of
disturbance of internal peace, the President of the Republic shall so
declare and he shall have the following powers for a renewable period of
To prohibit the entry into the national territory or to expel
therefrom those who propagate doctrines alluded to in Article 8 of the
Constitution, those accused of being or have reputed to be activists for
such doctrines, as well as those who act contrary to the interests of
Chile or constitute a danger for internal peace;
President of the Republic shall exercise the powers provided for herein
through a Decree signed by the Minister of the Interior in the form of
"by order of the President of the Republic". The measures
adopted by virtue of this provision shall not be subject to any recourse
whatsoever, except that for reconsideration thereof by the authority who
4. Supreme Decree
Nº 263 of March 6, 1984 had declared a state of emergency because of
the danger of disturbance of the peace.
5. In accordance
with subsequent information furnished by the authorities the judgment of
the Santiago Appeal Court summarizes in the following terms the charges
on which the expulsions are based:
Leopoldo Ortega Rodríguez and
Jaime Gonzalo Insunza Becker are members of the Communist Party;
The petitioners (amparados) committed
acts very harmful to the internal peace of the country;
Both constitute a danger to the
internal peace of the Republic, and
Reliable information on all these
facts is in the possession of the authorities.
interpretation of the Santiago Appeal Court is that the Judiciary of
Chile is empowered to accept remedies of amparo filed with it in the
case of measures adopted pursuant to Transitory Provision 24, basing
itself on Article 41 (3) of the Constitution which stipulates that the
remedy of amparo shall be invalid only when a state of siege or alert
has been declared.
7. The Santiago
Appeal Court, basing itself on the interpretation set forth in the
foregoing paragraph and on the case law of the Supreme Court of Justice,
was of the opinion that the Judiciary, when accepting remedies of
amparo, is empowered to determine the factual bases of the measure that
is the subject matter of the remedy.
8. The Appeal
Court, when determining the factual bases of the expulsions in question,
found that only the membership of the two persons affected in the
Communist Party was proven, which " is not sufficient in and of
itself to support the belief that Ortega Rodríguez and Insunza Becker
are a danger to the internal peace of the country and, in addition, does
not lead to the conclusion that the above-mentioned decrees have been
issued on a sound basis...".
9. That, in
determining the factual bases mentioned, the Appeal Court also stated:
it has not been proven in the proceedings in any legal way that Insunza
Becker and Ortega Rodríguez have committed acts seriously harmful to
the internal peace of the country since no evidence to that effect was
produced nor were the alleged reliable information in the possession of
the authority provided and that they should indicate accurately and on a
substantiated and clear basis each one of those acts that have allegedly
occurred and the way in which each one of the accused committed them;
in addition no evidence whatsoever has been provided in the proceedings
tending to prove the fact that the petitioners are a danger to the
internal peace of the country, as stated in the expulsion orders...
The Santiago Appeal Court concluded by accepting the remedies of
amparo filed on behalf of Messrs Insunza and Ortega and declared that
they were entitled to enter the national territory.
When the judgment of the Appeal Court was submitted on appeal to
the Supreme Court of Justice, the highest court, by a judgement dated
July 9, 1984, quashed the judgment of the Appeal Court on the grounds
that, according to the wording of the Transitory Provision 24, in the
case of Messrs. Insunza and Ortega
was not in order to verify ... whether or not the activities of the
above-mentioned persons constitute a danger to the internal peace. Of
course, the way in which this ground for expulsion is drafted gives it a
clear content of relative and subjective appreciation. In which cases
the conduct of the agent reveals a danger to the internal peace depends
exclusively on the criterion of the person who is to make the
evaluation. It is for this reason that, the adoption of the measure
being also an exclusive and excluding administrative act, the study and
determination of the factors that make up the grounds for danger belong
solely to the President of the Republic.
The interpretation of the Supreme Court of Justice is that, in
the case of the measures adopted under Transitory Provision 24, the
Judiciary may accept a remedy of amparo but it limits itself to
verifying whether the measure appealed has complied with the formal
requirements stipulated by that Transitory Provision. In the cases of
Messrs Insunza and Ortega, the Supreme Court points out in its judgment
that "the factual circumstances on which they may base themselves
are all of subjective appreciation and depend on the criterion of the
Government authority", therefore
must be concluded that the measure of expulsion that motivated the
remedies of amparo on behalf of the above-mentioned Ortega and Insunza,
has come from an authority with legal power to order it in the cases
characteristic of its competence and, that being so, it is incumbent to
reject the above-mentioned remedies.
The American Declaration of the Rights and Duties of Man embodies
the right of residence and movement in Article VIII in the following
person has the right to fix his residence within the territory of the
State of which he is a national, to move about freely within such
territory, and not to leave it except by his own will.
The Inter-American Commission on Human Rights, in its Annual
Report 1980-1981 (page 119) stated:
the last few years some states of the hemisphere have expelled
nationals--something that was conceivable until very recently only as a
penalty for a very serious crime and after due process--as a means of
eliminating those political dissidents that the Government considers a
threat to its internal security.
expulsions have been administratively decreed, without any type of due
process, and generally for indefinite periods of time, which further
increase the cruelty and irrationality of the measures, by making this
punishment even more onerous than that which applies to the commission
of a crime, which is usually a specific penalty in its temporal
application. Likewise, on some occasions these expulsions have been
carried out without the approval of the State to which those expelled
have been transferred, which is a violation of International Law.
The American Declaration of the Rights and Duties of Man embodies
the right to due process in Article XXVI, which stipulates that:
accused person is presumed to be innocent until proved guilty.
person accused of an offense has the right to be given an impartial and
public hearing, and to be tried by courts previously established in
accordance with preexisting laws and not to receive cruel, infamous or
The American Declaration of the Rights and Duties of Man
recognizes the right to a fair trial in Article XVIII, which stipulates:
person may resort to the Courts to ensure respect for his legal rights.
They should likewise be available to him a simple, brief procedure
whereby the Courts will protect him from acts of authority that, to his
prejudice, violate any fundamental constitutional rights.
The right to residence and movement is recognized by Article 19
(7) (a) of the Constitution of Chile.
The Inter-American Commission on Human Rights, in its Report on
the Situation of Human Rights in Paraguay, 1978, when referring to the
states of emergency and examining their pertinence in justified
the Commission contends is that it cannot be admitted, for any reason,
that during disturbances of the public order while one of those
exceptional measures is in effect, the rights of the individual can be
left without legal protection, in the face of the omnipotence of the
authorities (page 18).
In its Annual Report, 1980-1981, the Inter-American Commission on
Human Rights again referred to states of emergency, stating that:
more serious is the enactment of these states of emergency for
indefinite or prolonged periods of time, above all when they grant the
chief of state a broad concentration of power, including the inhibition
of the Judiciary concerning the measures enacted by the executive, which
may lead, in certain cases, to the denial itself of the existence of the
rule of law (p.115).
The records of the case of Messrs Jaime Insunza Becker and
Leopoldo Ortega Rodríguez reveal the extent to which the powers
concentrated in the Executive Power of Chile may be exercised pursuant
to Transitory Provision 24 of the Constitution.
Those records also show that the procedure instituted for
reviewing the measures adopted by the President under the
above-mentioned Transitory Provision converts the Executive Power into
the sole authority for the appeal of revision, which thus violates the
rules that regulate the exercise of the right to due process.
The records of the case of Messrs Insunza and Ortega show that
the powers granted by Transitory Provision 24 to the President of Chile
may be used, without any control, against the political opponents to the
present Government of that country, which are clearly defenseless before
the political power, in open violation of the civil and political rights
embodied in the American Declaration of the Rights and Duties of Man.
INTER-AMERICAN COMMISSION OF HUMAN RIGHTS, RESOLVES:
1. To declare that
the Government of Chile has violated the right to residence and movement
embodied in Article VIII of the American Declaration of the Rights and
Duties of Man by expelling Messrs Jaime Insunza Becker and Leopoldo
Ortega Rodrígues from the national territory.
2. To declare that
the Government of Chile has violated the right to due process and the
right to a fair trial of Messrs Jaime Insunza Becker and Leopoldo Ortega
Rodríguez, embodied in Article XXVI and XVIII of the American
Declaration of the Rights and Duties of Man.
3. To recommend to
the Government of Chile that in a period of 60 days it rescind the
measure of expulsion affecting Messrs Jaime Insunza Becker and Leopoldo
Ortega Rodríguez and that, if it believes that sufficient grounds
exist, it submit them to a judicial proceeding in which the rules of due
process are observed, such as those stipulated by the international
instruments to which Chile is a party.
4. To communicate
this resolution to the Government of Chile.
5. If after the period of 60 days has elapsed, the Government of Chile has not fulfilled the recommendation made in paragraph 4 above, the Commission will include this resolution in the report it is to submit to the General Assembly, in accordance with the provisions of Article 59 (g) of the Regulations of the Commission.