REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE
PRINCIPAL MODIFICATIONS IN THE SYSTEM OF
STANDARDS RELATED TO HUMAN RIGHTS
In its Second Report on the situation of human rights in Chile1
the Commission presented under this heading an analytical review of the legal
provisions which the Government of Chile enacted during the period between
August 2, 1974, the date on which the on-site investigation concluded, and March
12, 1976, the date on which the Second Report was adopted.
A synopsis of those legal measures is repeated here in order to
facilitate comparison and references:
Decree-Law Nº 604, of August 9, 1974 (Diario Oficial Nº 28.925 of
August 10, 1974)
Under penalty of the maximum imprisonment set forth in the law, this
decree-law prohibits the entry into Chilean territory of persons, nationals or
foreigners, who propagate doctrines opposing the social order of the country or
its system of Government, or who commit acts against external or internal
security, against the public order or the interest of the country.
Decree-Law Nº 640, of September 2, 1974 (D.O. Nº 28.950 of September
This decree-law systematizes the provisions related to various emergency
regimes, including the State of Siege, and stipulates those cases in which it is
to be applied and the degree to which it may be decreed, according to the
Nº 641, of September 2, 1974 (D.O. Nº 28.957) and Decree-Law Nº 922, of March
11, 1975 (D.O. Nº 29.100 of that same date)
Decree-Law 641 declared the entire territory of Chile to be “in a State
of Siege in the degree of Internal Defense,” for a period of six months
beginning September 11, 1974. At the end of the six-month period, Decree-Law
922, of March 11, 1975, extended the State of Siege for another six months.
Decree-Law Nº 951, of March 31, 1975 (D.O. Nº 29,119 of April 4,
This decree-law provides that the powers to transfer and arrest
individuals, conferred upon the president of the Junta during the State
of Siege, can be exercised in his name by the Minister of Interior or by the
Regional or Provincial Intendentes (Military Governors).
Decree-Law Nº 1.008, of May 5, 1975 (D.O. Nº 20.147 of May 8, 1975)
This decree-law increases to five days the period during which an
individual may be detained before placing him at the disposition of the
competent judge, in cases of individuals suspected of crimes against the
security of the State during an emergency.
Decree-Law Nº 1.009 of May 5, 1975 (D.O. Nº 20.147 of May 8, 1975)
This decree-law provides that when an individual is detained during the
State of Siege, his most immediate relatives must be informed within 48 hours.
The detention may not continue beyond five days.
The decree-law also contains a considerable variety of provisions on the
competence and jurisdiction of the “Military Courts in time of war and in time
of peace” and on other related matters.
Decree-Law Nº 1.181, of September 10, 1975 (D.O. Nº 29.253 of
September 11, 1975)
This decree-law declares the entire territory of Chile in a State of
Siege in the degree of internal security, for a period of six months counting
from the date of publication of said decree-law in the Diario Oficial; it
also annuls Decree-Law Nº 922, of March 11, 1975, which declared the entire
territory of the country in a State of Siege in the degree of internal defense.
The foregoing means that except for certain especially serious crimes, the
jurisdiction of the Military Courts shall be exercised in accordance with
peacetime, and not wartime, procedures.
Supreme Decree Nº 187, of January 26, 1976 (D.O. of January 30, 1976)
This decree enacts standards to guarantee the rights of individuals
detained under the State of Siege. The standards include: a medical examination
of the individual detained upon entry into and departure from detention centers;
a requirement to report all acts of mistreatment to the competent authorities;
requirements on orders of arrest; requirements on search and seizure orders; a
requirement to maintain a record of the arrest, and so on.
Decree-Law Nº 1.281 of December 10, 1975 (D.O. of December 12, 1975)
This decree-law contains provisions on control of newspapers, magazines,
pamphlets and printed matter, radio and television stations, and, generally
speaking, of all forms of mass communication media.
Decree-Law Nº 679, of October 10, 1974 (D.O. Nº 28.974 of October
This decree-law regulates the showing of motion pictures, creates the
Council of Film Classification and establishes penalties for violators.
Nº 930 of March 17, 1975, (D.O. Nº 29.107 of March 19, 1975)
This decree-law provides a number of new justifications for termination
of labor contracts.
Presented below are the various types of emergency situations in effect
as of publication of our Second Report and the changes introduced through
Constitutional Act Nº 4.
Decree-Law Nº 640, of September 2, 1974 (D.O. Nº 28.950 of September
Article 1 provided that the states of emergency were the following:
State of External or Internal War
State of Assembly
State of Siege (and its degrees)
A situation of internal or external war;
Internal Defense, which shall occur in cases of internal disturbance
provoked by rebel or seditious forces that are found to be organized or about to
be organized, whether openly or clandestinely;
Internal Security, which shall occur when the disturbance is provoked by
rebel or seditious forces found to be organized; and
Simple internal disturbance, which shall occur in the other cases
provided for in existing legislation.
State of Emergency Zones, and
Decree-Law Nº 1.553, of September 11, 1976 (D.O. Nº 29.558 of
September 13, 1976)
Article 2 of Constitutional Act Nº 4 provides for the following states
of emergency with their respective degrees:
a) Situation of External
State of Assembly
b) Situation of Internal
State of Siege
State of Siege
State of Defense Against Subversion
State of Catastrophe.
We feel it advisable to give a brief account of the juridical situation
hat has been in effect in Chile with regard to the State of Siege and its
Nos. 3 and 360 of September 11, 1973 and March 13, 1974, respectively, declared
a State of Siege in the degree of “internal or external war” from September
11, 1973 to September 11, 1974.
Decree-Law Nº 640, of September 2, 1974, declared a State of Siege in
the degree of “internal defense” throughout the territory of Chile for a
period of six months, beginning on September 11 of that year.
Nº 922, of March 11, 1975, extended for another six months, as of that date,
the State of Siege in the degree of “internal defense” throughout the
territory of Chile.
Nº 1.1.181, of September 10, 1975, changed the degree of the State of Siege
from that of “internal defense” to one of “internal security”, and
imposed it for a period of six months throughout the country.
Nº 1.369, of March 11, 1976, extended this State of Siege in the degree of
“internal security” for another six months, in other words, up to September
11, 1976, the date on which the last three constitutional Acts went into effect.
Nº 1.550, of September 6, 1976 (D.O. Nº 29.557, of September 11, 1976). This
Decree-Law extended the State of Siege in the degree of “internal security”
for a period of six months throughout the country.
It is worthwhile pointing out that this last decree-law was published in
the issue of the Diario Oficial immediately preceding that issue in which
Decree-Law Nº 1.553 change the states of emergency in effect since September 2,
An entire network of jurisdictional, procedural and administrative
subtleties and differences separates each one of these systems from the other,
leaving a common element which is the predominance of special legislation over
permanent and regular institutions, or the primacy of the power of the head of
state over written law.
Of the most recent legislative changes, not included in the Second
Report, the following merit special attention:
Decree-Law Nº 1.319, of December 31, 1975
This decree-law, enacted as Constitutional Act Nº 1, establishes the Council
of State, as the Supreme Consultative Body of the President of the Republic
in matters of government and civil administration.
2) Decree-Law Nº 1.458, of May
31, 1976 (D.O. Nº 29.469 of June 1, 1976)
This decree-law sets forth the basic standards for operation of this
Council. A third decree, dated June 3 of that year, establishes the membership
of that consultative body, composed of a total of sixteen members, including
three former presidents of Chile, one former president of the Supreme Court, a
former Comptroller General of Chile, a former Commander from each one of the
Armed Forces, a former cabinet ministers, a former rector of any one of the
state universities, a former diplomat with the rank of Ambassador, a
representative from a women's organization, a representative on behalf of youth
and a worker, employee or laborer representing labor activities.
The role of the Council is limited to that of providing the information
requested by the President of the Republic on specific matters, including the
following: a) proposed amendments to the constitution; b) proposed decree-laws
or specific aspects thereof pertaining to important matters in the areas of
economics, finance, taxation, administration or social affairs; c) international
treaties or agreements of singular significance to the country; d) agreements,
contracts and negotiations which by their nature might compromise the standing
and interests of the State; and e) any other matter of singular importance to
As stated in paragraph 5 of the Preamble to the Act, “The indicated
objectives must be attained without impairing the prerogatives and
decision-making authority of the President of the Republic.”
Therefore the Council of State of Chile has neither power nor
administrative functions. It simply issues opinions or ideas that are in no way
binding upon nor commit the Government. Nor does it, as in other countries,
serve as an administrative tribunal.
Although it does not bear any immediate relation to the question of human
rights, establishment of this Council is mentioned here because, according to
the preamble, establishment of the Council serves the objectives of the present
government, that is, to put into effect gradually those organic precepts that
respond to development of the national situation and serve as basis for the
fundamental and definitive institutional framework of the republic.
The definitive institutional framework of the country will undoubtedly
represent a return to full and effective recognition of the essential rights and
basic guarantees of citizens.
3) Decree-Law Nº 1.551, of
September 11, 1976 (D.O. Nº 29.558 of September 13, 1976)
This decree, issued as Constitutional Act Nº 2, proposes to provide
Chile a new institutional framework, and lays the basis for the new
constitutional order of the State.
The decree begins by recalling that the objectives proposed by the Armed
Forces and the Carabineros, on assuming leadership of the Republic, were to
“preserve its cultural and historical identity and to rebuild its spiritual
and material greatness”; among the essential values upon which the bases for
the new institutional system are to rest, the following sound be emphasized:
The Christian humanistic concept of the individual and society, which
considers the former as being endowed with spiritual dignity and a high calling
wherefrom the individual derives natural rights which precede and outrank the
State, and which require the latter to serve and promote the common welfare.
The concept of a State of Law, which assumes an objective and impersonal
juridical order, the provisions of which are inspired in a high sense of justice
equally binding upon the Government and the people.
The concept of a new and solid democracy which enables the members of the
community to participate in the review and solution of great national problems
and, moreover, is provided with tools to protect itself from the enemies of
freedom who, supported by a misinterpreted pluralism, seek only to destroy it.
Among the essential bases of the institutional framework specified in the
decree, the following merit special mention:
Article 5 – Chile is a republic that is being structured as a new
democracy with community participation and provided with the tools required to
guarantee its protection, strength and authority.
Article 6 – Not even by claiming extraordinary circumstances2
may any magistrate, individual or group assume other authority or rights than
expressly conferred to them by law.
Any act in violation of this article shall be null and void, and shall
create liabilities and penalties under the law.
This Constitutional Act entered into force on September 18, 1976, and
nullifies Chapter I and a number of other articles of the 1925 Constitution.
Nº 1.552, of September 11, 1976, (D.O. Nº 29.558 of September 13, 1976)
One of the most important legislative measures enacted by the Government
of Chile is Constitutional Act Nº 3, which deals with “constitutional rights
and guarantees.” The Act carefully enumerates each of the various rights and
guarantees. Because of the importance of the matter, the Commission considers it
both useful and appropriate to present here a substantial part of that Act,
knowing that in Chile certain sectors on some labor organizations have already
shown their lack of agreement with its approach to the exercise of certain
The Act is introduced by a preamble which contains the following
paragraphs that merit attention:
The rights of the individual take preference over the State, and his life
in society represents the justification for any juridical system; the protection
and guarantees of the basic rights of the individual must necessarily become the
essential basis for the organization of the State;4
Chilean juridical and historical tradition has been in accord with such
principles and has reflected a permanent purpose of strengthening the rights of
the individual and the procedures that guarantee the effective protection
The bitter experience endured by Chile in the years prior to September
11, 1973 has shown, however, the need to strengthen and improve those rights
established in the Constitution of 1925, by incorporating new guarantees in
harmony with the contemporary constitutional doctrine and as set forth in
Among such guarantees, it is necessary to point out the right to
individual life and integrity, legal protection of unborn life, equality of
rights for men and women, due process, right to counsel and other rights that
require a constitutional rank, inasmuch as they reaffirm the value of the
individual as the basic cell of our society;
Inasmuch as freedom of opinion and information is one of the most
significant freedoms in the world today, it becomes necessary not only to
consecrate it but, likewise, to enact essential provisions so that abusive use
thereof cannot violate the rights of the individual or those superior values
which regulate community life;
Regardless of how efficient the protection of the individual may be, the
people are not convinced that such protection is satisfactory unless its full
development is sought and promoted in the various stages of life, thereby making
it necessary to contemplate, in addition to freedom of education, the right to
receive education and the correlative duty of imparting it which is the concern
of the national community as a whole, but which begins with the parents
themselves who, not only enjoy the preferential right to educate their children,
but have the duty to do so;
However perfect a declaration of rights may be, such rights become mere
illusions unless the necessary resources are devoted to their protection. One of
the most significant resources is the establishment of a new tool to protect
human rights in general, whereby juridical protection is not limited to personal
freedom and habeas corpus, but is actually extended to cover as many
rights as the nature thereof will allow;
To better safeguard the contemplated juridical system, it is provided
that one may invoke any constitutional or legal precept whatsoever, in violating
the rights under this Act, or in attempting to subvert the integrity or the
operation of the State or the established regime.
The Commission considers it both necessary and advisable to present only
some of the provisions contained in the operative part of the Act, which because
of its importance would otherwise merit presentation in its entirety. Those
provisions are as follows:
rights and guarantees
Article 1. Men are born free and equal in dignity. This Constitutional
Act guarantees all individuals:
The right to life and the integrity of the individual, subject to the
penalties established by law.
The law protects the life of the unborn child.
The application of any illegal force is prohibited.
Equality before the law. There are no privileged individuals or groups in
Men and women shall enjoy equal rights.
Neither the law nor any authority may establish arbitrary
Equal protection under the law in the exercise of individual rights.
All individuals have a right to counsel and no authority or individual
may prevent, restrict or disturb due participation of counsel when required. In
connection with members of the Armed and Public Security Forces, and insofar as
administrative and disciplinary matters are concerned, this right shall be
governed by the pertinent provisions of the respective laws of such forces.
The law shall administer all means to furnish legal assistance and
defense to those unable to provide it for themselves.
No one may be tried by special commissions, but only by the courts
determined under the law and as previously established thereby.
Verdicts of jurisdictional organs must necessarily be based on prior,
legally completed proceedings. The legislator shall be responsible for
establishing guarantees for rational and fair proceedings.
There shall not be a presumption of guilt.
In criminal prosecutions, no punishment shall be levied other than that
provided in a law enacted prior to the commission thereof, unless a subsequent
law should prove of benefit to the affected party.
Admission to all public employment and functions, without other
requirements than those established by the Constitutional Acts, the Constitution
and the law.
Equal distribution of taxes and assessments, in proportion to individual
assets or in the progression or manner established in the law, and equal
distribution of other public levies.
The right to personal freedom and individual security and, consequently,
the right to reside and remain anywhere within the Republic, to travel from any
place to another therein, and to enter and leave its territory, as long as the
provisions of the law are observed and no damage is caused to third parties.
No one may be deprived of his personal freedom or be confined, except in
those cases and in the manner established by the Constitutional Acts, the
Constitution and the law;
No one may be arrested or detained, except by order of public officials
expressly authorized under the law, and then only after such person has been
legally notified. However, anyone found in the very act of committing a crime
may be arrested, but only to be taken before the competent judge within the
ensuing twenty-four hours.
If the authorities should arrest or detain an individual, such
authorities shall so inform the competent judge within forty-eight hours and
deliver the individual to him. Upon a finding of good cause the judge may extend
this period up to five days;
No one may be arrested or detained, placed under preventive custody or
imprisoned, except in his own home or in public establishments intended for this
Officials in charge of prisons shall not allow anyone to remain arrested
or detained, under indictment or imprisoned therein, without recording the
corresponding order of a legally empowered authority in the registry which shall
remain available to the public.
The fact that individuals are being held incommunicado may not prevent
the official in charge of a place of detention from visiting those individuals
under arrest or detention, indictment or imprisonment. In the event that the
person under arrest or detention should so require it, such official shall be
under the obligation to provide the competent judge with a copy of the order of
detention to require that such order be provided, or to issue himself a document
certifying the detention, if at the time of such request this requisite should
have been omitted;
Individuals under detention or preventive custody shall enjoy the right
of parole. Parole shall be available at all times, unless the judge should
consider detention or preventive custody to be strictly necessary for the
purpose of investigation under the summary proceedings, or for the safety of the
offender or society. The law shall establish the formalities and requirements
needed to obtain such parole;
In criminal cases, the defendant may not be compelled to testify against
himself, nor his ancestors, descendants, spouse or other persons as may be
established under the law, according to the particular case and circumstances
Notwithstanding seizure in cases provided by law, loss of social security
rights or expropriation of assets may not be imposed as penalty.
However, assets may be legally confiscated as a penalty in cases of
In the event of dismissal or acquittal, individuals indicted or convicted
as a result of a decision the Supreme Court should declare to be unjustifiably
erroneous or arbitrary, shall enjoy the right to be compensated by the State for
the economic or moral harm sustained. This compensation shall be determined
judicially, by brief and summary proceedings, wherein evidence shall be
considered in equity.
The right to meet peacefully, without prior authorization and unarmed. In
town squares, streets and other places open to public use, meetings shall be
governed by the general provisions of the law.
The right to submit petitions to the authorities, on any matter or public
or private interest, without other limitation than to proceed in respectful and
The authorities shall reply to such petitions as may be submitted to them
under the provisions of the law.
The right to associate without prior authorization.
In order to enjoy legal status, associations must be established under
No one may be compelled to join an association, except as provided in
paragraph six of Nº 20 of this article.
Associations which are contrary to moral principles, public order and the
security of the State are hereby forbidden.
Respect and protection of the private life of the individual and his
Inviolability of homes and of all kinds of private communications. Homes
may be searched and private documents intercepted, opened or searched only in
those cases and in the manner provided by law.
Freedom of conscience and expression of all creeds and free exercise of
all religions that do not violate moral principles, good behavior or public
order, therefore, enabling the respective religious creeds to erect and maintain
temples and outbuildings according to safety and sanitation measures required by
Freedom of opinion and information, in all ways and by all means, without
prior censorship, notwithstanding responsibility under the law for such offense
or abuse as may be committed in use of these freedoms. However, the court may
prohibit publication or circulation of opinions or information affecting moral
principles, public order, national security or the private life of individuals.
The law shall establish a system of censorship for motion pictures and
Moreover, this Constitutional Act guarantees the right to receive
information truthfully, duly and objectively on national and internal events,
without any limitation other than provided in the first paragraph of this
Any individual or institution offended or unduly alluded to by the mass
communication media, shall have the right to have his or its explanation or
rectification circulated freely by such mass communications media, under the
conditions provided by law.
All individuals and institutions shall have the right to establish,
publish and distribute newspapers, magazines and other periodical publications,
under the conditions provided by law.
There shall be an autonomous National Radio and Television Council, the
composition and operation of which shall be determined by law, entrusted with
the authority established thereunder, with a views to ensuring that radio and
television stations meet the purpose of informing and promoting the objectives
of education set forth in this Constitutional Act.
The law shall provide the way in which radio broadcasting licenses shall
be extended, renewed and revoked.
The State and those universities and individuals which the law shall
determine, may establish, operate and maintain television stations.
Individuals who may have been at any time convicted of attempting to
subvert the institutional order of the Republic, may not own, direct or manage
mass communications media, nor may they in any way participate in functions
connected with the publication or broadcast of opinions or information.
Only the law may modify the system of ownership and operation of mass
Expropriation of mass communications media may be carried out only under
a special law which authorizes it, and then only after payment of compensation.
In response to the Commission's questionnaire on the right to education,
the Minister of Foreign Affairs, echoing the opinion expressed by the Minister
of Education in that same regard, states that such questions are answered more
than adequately by Decree-Law Nº 1552, on the Constitutional Rights and Duties.
The Commission feels that text recognizes a majority of the essential
rights and basic guarantees. But government sanction of that law constitutes
less than full and effective implementation and the Commission, duty-bound to
deal with realities, cannot limit itself to expressions of hope.
OEA/Ser.L/V/II.37 doc.19 corr. 1. See also the “First Report
on the situation of human rights in Chile”. (OEA/Ser.L/V/II.34
See Chapter VI, Freedom of Expression of Thought and Freedom of
Information, page 58.