HUMAN RIGHTS COMMITTEE BEGIN'S CONSIDERATION OF CHILE'S FOURTH PERIODIC REPORT19990324
Chile was not afraid to make the changes needed in order to initiate the practices and rules required by international law. Alejandro Salinas, Director of the Division of Human Rights, Ministry of Foreign Affairs of Chile, told the Human Rights Committee this morning, as it began consideration of Chile's fourth periodic report on its implementation of the International Covenant on Civil and Political Rights.
Introducing the report to the Committee, its first since a democratically elected government replaced General Augusto Pinochet's military regime, Mr. Salinas said the key to the process was the amendment to the country's 1980 Constitution. The Government's efforts went beyond just overcoming the negative aspects of Chile's former military regime. The new Government had also worked on structural issues and was addressing others, such as women's rights, lack of housing and marginalization. While new initiatives had not been free of difficulties, the rule of law had been strengthened and the legitimacy of democratic institutions had not been jeopardized. There was now an atmosphere in which fundamental human rights could be enjoyed.
Rajsoomer Lallah, expert from Mauritius, said there seemed to be great defects in terms of Chile's compliance with the Covenant. The pervasive intrusion of the military in a democratic system was a violation of certain principles of the Covenant. It was also a contradiction to the principles of the Universal Declaration of Human Rights, which stated that government was the will of the people.
He noted that the situation with regard to holding detainees without trial was a clear violation of article 9 of the Covenant, which concerns the right to liberty and security of person. It was inconceivable that a number of prisoners had been detained for about six years without trial. That situation must be remedied as quickly as possible, if not tomorrow.
* The 1732nd meeting was closed.
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Fausto Pocar, expert from Italy, said that improvements were clearly visible during this period of Chile's Government. The frankness of the report confirmed that the Government was clearly aware of its deficiencies. He noted that, under international law, the fact that the Government was trying to implement legislation and was being blocked by the Senate was not in accordance with the Covenant, which clearly stated that the State was the responsible party, not the Government.
Christine Chanet, expert from France, asked how the Amnesty Decree Law would be amended to accommodate the trial of Augusto Pinochet, the former President of Chile.
Also this morning, Eduardo Tapia, Claudio Troncoso, Carmen Bertoni and Christian Arevalo, all members of the Chilean delegation, provided answers to the list of issues taken up by the Committee on Chile's report. Questions were also raised by the experts from Argentina, Canada, Germany, United Kingdom, Poland, Colombia, Israel, Japan and Tunisia.
The Committee will meet again today at 3 p.m. to continue its considerations of the report.
Committee Work Programme
The Human Rights Committee met this morning to begin consideration of the fourth periodic report of Chile (document CCPR/C/95/Add.11), which covers the period 11 March 1990 -- when a democratically elected government replaced the military regime of General Augusto Pinochet that had ruled since 1973 -- to December 1996.
Under article 40 of the International Covenant of Civil and Political Rights, every State party has undertaken to submit reports to the Committee concerning its implementation of the Covenant. According to the article, the report should include information on the measures the States parties have adopted and the progress made in accordance with the relevant rights of the Covenant. The first three reports submitted by Chile to the Committee were prepared by the former military regime.
In its current report, the first submitted since the return of democratic government, Chile states that the incorporation of international human rights instruments into domestic legislation was given particular attention after 11 March 1990. Since that date, Chile has ratified seven human rights Conventions, including the Convention on the Rights of the Child, and withdrawn reservations to two others. Six more are currently before the Congress. The Chilean Government has also taken steps to resolve the human rights problems inherited from the military regime. The National Commission on Truth and Reconciliation was established to investigate the most serious human rights violations committed between 11 September 1973 and 11 March 1990. The National Compensation and Reconciliation Corporation, established by law in 1992 and which had worked to its December 1996 deadline, implemented the recommendations in the report of the National Commission on Truth and Reconciliation, especially by taking up those cases which this Commission had left unresolved.
The report notes that Chile's justice system had not changed since the mid-nineteenth century, and that there was a consensus in the country that, as Chile instituted democracy and a market economy, the judiciary should be modernized. The report identifies three areas for reform -- access to justice, child law and the penal system. As a result, a new draft code on criminal procedure was sent to Congress in June 1995. The draft proposed amendments to the current Code to directly apply constitutional and international human rights standards to penal procedures. Legal reform in 1991 also allowed for victims to bring judicial review proceedings against judgements of the military courts. The Government also proposed the establishment of family courts to replace the current juvenile court system.
Chile has also placed emphasis on the protection of the most vulnerable sectors of society in accordance with the rights of the Covenant, according to the report. Measures taken include the adoption of a national plan of action
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for children, the establishment of the National Women's Service,and the enactment of the Indigenous Peoples' Bill. The national plan of action for children was developed to complement the Convention on the Rights of the Child. According to the report, it identifies a number of government actions in cooperation with civil society, to improve child survival, development and protection, with particular attention being paid to the poorest.
In addition to the establishment of the National Women's Service, the Chilean Government has instituted several other reforms aimed at overcoming the remaining imbalance between men and women with regard to the enjoyment of their rights. For example, it has passed legislation to abolish the offence of adultery -- penalties were previously heavier for women than for men. The Indigenous Peoples (Protection, Promotion and Development) Act ensures the integration and assimilation of these communities and enables them to develop socially in accordance with their own cultural norms. The Act also provides for the protection of indigenous peoples' lands and waters.
The report goes on to describe steps taken to implement Covenant provision article by article. With reference to article 1 -- the right to self- determination -- the report describes in some detail the process of political negotiation that took place between 1980 and 1989 to restore this right, ending with the elections of 1993. It also describes several parts of the institutional structure of the 1980 Constitution that present obstacles to self-determination, including the list-based electoral system, the existence if nine senators not elected by popular vote, a constitutional court whose composition is not democratic and the fact that the commanders-in-chief of the armed forces cannot be removed from office by the President. The report states that constitutional amendments to correct those deficiencies had been submitted to the Senate, but they failed, due to condemnation by legislators opposed to the Government.
As for article 2, the report states that it had been manifested in the incorporation of an amendment to article 5 of Chile's Constitution, so that the position of human rights in the domestic legal order could be strengthened. According to the report, the current civilian Government "has not only dealt with the serious effects of the violations of basic rights that occurred under the military regime and incorporated international instruments protecting and complementing those rights into the domestic legal order, but has also taken a series of measures of various kinds" which would give effect to the Covenant and other conventions to which Chile is party.
On the Covenant provisions on the presumption of innocence, the report says that this principle is recognized in the Constitution. The Courts Organization Code indicates that no one can be sentenced for an offence unless the court has been persuaded, by legally obtained evidence, that a punishable act has actually been committed, and that the accused is guilty of participating in this act and must be punished by law. Afterwards, a rational and just procedure should follow.
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Great importance has also been placed on article 6, which upholds the right to life by all individuals. However, while a bill was tabled, in 1990, to abolish the death penalty, the Senate rejected the initiative, although it agreed to reduce the number of crimes for which the death penalty may be imposed. The report also, at some length, describes violations of the right to life committed under the military regime. The report states that investigation of such violations and compensating the victims have been "central tasks of the democratic transition in Chile". The report then elaborates on the work of the National Commission on Truth and Reconciliation and the National Compensation and Reconciliation Corporation.
The report also refers to the Amnesty Decree Law which granted a general amnesty to anyone who might have committed offences during the previous report period, while the state of siege was in effect. However, despite the situation created by the Law, the Chilean Government has been able to convict 15 police officers, including the head of the National Intelligence Department (DINA) who, according to the report, served during the most critical period of human rights violations of the military regime.
In addressing article 7, the report states that the institutional framework that allowed the use of torture during the last regime had been eliminated. The Special Rapporteur on torture of the Commission on Human Rights, who visited Chile in 1995, said in his repot that the civilian governments had achieved "considerable progress in re-establishing human rights and have made a real commitment to the need to eliminate the practice of torture". The report was submitted to the Commission at its fifty-second session.
Freedom of expression, as outlined in article 19, is guaranteed under the Constitution, the report states. The 1991 reform of the penal process amended the definitions of offences against the armed forces and Carabineros. It reduced the associated penalties and specified that, to constitute the offences concerned, the threats must be uttered in the terms of the Penal Code and the perpetrator must be aware that the recipient of the threats is a member of either of those bodies. The Penal Code also amended the Abuse of Publicity Act by reducing penalties for offences against the armed forces and Carabineros committed by means of a broadcast medium. It also establishes that these cases should be investigated and tried by the ordinary courts.
Concerning article 22, the right to freedom of association, the report says that, under Chilean legislation, the State may not interfere with the exercise of this freedom. However, the Constitution prohibits "associations contrary to public morals, public order or the security of the State". The current Constitution also guarantees political pluralism. Also under this article, the Constitution guarantees the right of workers to form a union and legal reforms since 1990 have expanded those rights.
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In keeping with article 23 of the Covenant, the Chilean Government has established a National Commission for the Family, as well as made public its decision to pay more attention to Chilean families in public policies. The "Family Policies" programme identified legal reforms that would bring legislation into line with the current needs of families, and arranged comprehensive programmes of support for especially vulnerable kinds of families.
Presentation of Report by Chile
ALEJANDRO SALINAS, Director of the Division of Human Rights, Ministry of Foreign Affairs of Chile, presenting his country's fourth periodic report, said Chile's new Government was attempting to institute democratic practices. New initiatives, however, had not been free of difficulties due to the fragility of institutions. Nevertheless, the rule of law had been strengthened and the legitimacy of democratic institutions had not been jeopardized. There was now an atmosphere where fundamental human rights could be enjoyed.
The newly restored democracy was also endeavouring to overcome enormous social and economic problems, he continued. There was a struggle to overcome the poverty that placed many Chileans in positions of inequality. Chile accepted that human rights and freedom were interdependent concepts, and there were now a number of new legislative initiatives in relation to human rights.
He said that one of the first measures taken by Chile's new Government had been to ratify the international instruments in the area of human rights. Chile was not afraid to make the changes needed in order to initiate the practices and rules required by international law. Key in that process was the amendment to the country's Constitution. Efforts by the present Government went beyond just overcoming the negative aspects of the military era in Chile. The new Government had also worked on structural issues. It was also addressing such issues as the rights of women, the lack of housing and marginalization. The present state of affairs regarding those issues was unacceptable.
He said there had been modest success in other areas that affected human rights, as well. There was now a tendency in court for decisions to give added value to international instruments on human rights. That was relevant in the area of investigating serious human rights violations. Action by the Government to promote and protect human rights was hampered by problems inherited by the recent past. And there were still certain aspects in the new democracy that needed to be corrected to guarantee freedom and promote full human rights. Some practices, especially those by public officials regarding the interpretation of law, must be revised and brought in line with the requirements of international law.
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Response to Questions
Responding to written questions provided by Committee members, CLAUDIO TRONCOSO (Chile) said that the State's efforts to implement constitutional and legal reforms was difficult, because of a blockage in the Senate. Since 1990, there had been efforts to eliminate several senators who were not a reflection of the people's choice. They were selected in 1989 to work with the opposition to force changes in the democratic process. As a result, six attempts to send reform bills to Congress had failed.
In response to the question on the direct invocation of the Covenant on Civil and Political Rights before the courts, he said there had been a delay from its publication to ratification. However, it had been used by the courts in different cases. He pointed out that the last decision of the Supreme Court was influenced by the Covenant. The creation of the Ombudsman was another reflection of its implementation. The development of a constitutional justice system needed to be worked on, and there were plans for the implementation of a public defence system.
The democratic Government has never recognized the Amnesty Decree of Law, since it was established by the military government. As a result, it had not been interpreted in legislation, because it was a distortion of the people's will. The Government used it only in the court system. Two factors influenced its implementation and possible amendment. One was that the Senate was responsible for the system, as it related to the Amnesty Decree, and the other was the fact that the penal law was not retroactive. Possibilities for amendment had been basically judicial interpretations. The Supreme Court has to make a final decision on the matter.
He added that there were 186 cases open and 307 that could be opened in the future, if new data could be found regarding the perpetrators. He further stated that the Amnesty Decree definitely provided an obstacle to the investigation of the human rights violations committed during that period.
On the question of whether all cases against military personnel were tried in military courts, he said that some were, while others were tried in the common courts. The competence of the military courts was broad. The Government had tried to reform that, but they had been unsuccessful because of opposition in the Senate. However, in current military cases, many are now being tried by civil courts -- another initiative instituted by the Government.
On the question of implementation of reforms as recommended by the National Commission on Truth and Reconciliation, he said the first tangible implementation was the construction of a memorial to the political victims. Also, a park of peace was constructed, and a home for persons who may have been displaced. One law in particular granted certain benefits in favour of the family members of the victims. They had been exempted from military
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service, among other things. In the area of criminal reform, the most important effort was the systematic reform of criminal procedure.
CARMEN BERTONI (Chile), responding to a question which addressed the excessive use of force by law enforcement officials, said her Government had seriously addressed violations to the right to life, and there was an all-out effort to institute corrective measures in relation to that issue. She cited a number of cases where officials such as policemen were being tried for excessive use of force.
Mr. TRONCOSO, responding to a question on the death sentence, which, according to Chile's report, had not been carried out in the country since 1990, said the first legal initiative to abolish the death sentence had been presented to the Chilean Parliament. In addition, half of the cases in which the death sentence was applied had been abolished. Some death sentences had been reduced to life sentences. In that respect, the Government had adhered to the Second Optional Protocol of the Covenant on the abolition of the death penalty.
Ms. BERTONI, responding to a question about the security of human rights defenders, said information was sent to the courts to reopen cases that had not been sufficiently investigated during the military regime. At the same time, many cases processed under the military court were being referred to the civil court. Any human rights defenders who received threats received rapid and effective help from the Government.
On the question raised on abortion, she said information on that practice was difficult to obtain, since abortion was illegal in Chile. Only when cases ended up in a hospital were there records. Moreover, most abortions took place in clandestine locations and usually in the poorer areas. The medical risks involved were great. Chile's approach to reducing the problem was family planning. There was a demand for contraceptive services -- a demand that was not being met. In that respect, the focus must be on expanding the supply of contraceptives to the highest risk groups -- adolescents, women heads of households, and women who had previous abortions. Sex-education programmes were also key in that process. There was also an education programme to prevent adolescent pregnancies in communities and schools.
CHRISTIAN AREVALO (Chile), responding to a question on the prohibition of torture, said there were two divisions, including an internal affairs department, to address that issue. They had full powers and enough authority and ranking to carry out investigations. Codes on ethics and disciplinary rules had also been established for policemen and officers. As part of a training and education programme, a number of courses on the proper treatment of prisoners and detainees had been put in place. There were also courses on human rights. People also had the right to take legal action and lodge complaints about police abuse.
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He pointed out that in July last year a new law was passed that established a procedure to inform prisoners on their rights. That law also derogated detention by suspicion, which had been a practice by the police. Torture was criminalized, as well. The police were also required to inform detainees of their rights -- and of those rights, one was the right to remain silent.
Mr. TRONCOSO, also responding to the question of informing prisoners of their rights, said that on entering a Chilean police station there was a poster that advised detainees of their rights. That poster was on the walls of all the detention centres of the country and listed all the rights of detainees: the right to remain silent; the right to have their detention reported to their families; the right to not be subjected to torture; and the right to an attorney, to have visitors, to defend themselves and to a public defender.
Regarding the issue of the treatment of prisoners and the human rights education of policemen and officers, he said there was a programme in the prisons for officers, addressing such issues as ethical behaviour and promoting the respect and dignity of persons.
Addressing the question of the draft code on criminal procedure, he said it was hoped that by 2002 the system would be operational throughout the country. Reform, of the criminal procedure system, however, required enormous investments, was complex and involved constitutional reform. The process was well along, but had not yet come into effect. It had also been published.
Regarding pre-trial detention, he said the police could order a detention in the case of flagrant crime. An appointed judge then had five days to decide whether a person would be given a trial or the case would be dismissed due to lack of substantive evidence. Turning to a question on the measures taken to apply article 10, concerning treatment of persons deprived of their liberty, he said an investment plan had been established to build centres for juvenile offenders. Twelve new centres for juvenile violators were being built. The aim was to establish a system where people would be able to return to society afterwards.
Mr. Troncoso made reference to the issue of the military courts system. He stated that the present penal law allowed for the trial of civilians in military courts. In the hope to limit the competencies of those courts, three bills were sent to the Senate, the most recent in 1994. However, after 1994 nothing was done, since the Government realized that, as long as the Senate remained the same, nothing could be done.
He reiterated that military justice clearly presented a deficit as to the right to be tried in a competent court, explaining that military courts were made up of officers from armed forces. Prosecutors were military
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officers of the justice system and military judges pronounced sentences. That was why trials were limited to military crimes by military personnel. However, the Government would not stop attempts to limit the sphere of the military courts. That was a fulfilment of article 14 of the Covenant, which provides for the rights of persons to fair and equal treatment before courts and tribunals.
Questions from Experts
HIPOLITO SOLARI YRIGOYEN, expert from Argentina, referred to the 1993 World Conference on Human Rights held in Vienna and noted that it dealt with issues related to torture. He wondered, therefore, how the Chilean Government proposed, in terms of the International Covenant, to deal with the case in which a United Nations official was kidnapped and killed in Chile in 1976, given the fact that the Supreme Court was handling the case. In response to the question on the Government's implementation of the new draft Code of Criminal Procedure on pre-trial detention, the Chilean representative had said that the military courts did not guarantee a fair trial. That, he noted, was also in opposition to article 14 of the Covenant.
MAXWELL YALDEN, expert from Canada, asked if there had been any discussion of establishing the office of the Ombudsman and the creation of a statutory body to investigate complaints. Also, on the question of excessive use of force against prisoners and detainees, he said that apparently it would go to trial only if an internal investigation approved the complaint. Was there in place any means of independent investigation of such offences?
CHRISTINE CHANET, expert from France, said that the Government of Chile was making considerable and persevering efforts to establish a democratic regime. However, she was surprised to observe the disempowerment of the Government, due to the blockage in the Senate. The Chilean delegation had been very discreet in dealing with that issue. The Committee would, therefore, wish to have a more in-depth look at the reasons for the obstruction and what was being done about it.
With regard to the State's judicial organization, she said the delegation had informed the Committee that the Government deplores the situation in the military courts. Would that, therefore, result in a change of the membership of the Supreme Court and the removal of the military personnel there? Also, with regard to the possibility of a trial for Mr. Pinochet, how would the present law, the Amnesty Decree, be amended to accommodate his trial.
ECKART KLEIN, expert from Germany, asserted that there was an awareness of the difficulties that Chile was facing, and the report gave the impression that the Government was doing much to get rid of past human rights violations. However, the current compromise was not in accordance with human rights requirements. It is a contradiction that the main perpetrator of those
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violations had been granted immunity. The solution, he declared, was the repeal of the Amnesty Act. Political inability did not liberate the Government with compliance from its legal obligations.
Many areas still seemed to be suffering from the legacy of the past, putting heavy burdens on future development. With the army and security forces, there were still areas that were not really covered by constitutional rules and rules of the Covenant. He had the impression that many violations were continuing, such as torture and ill-treatment. That is in conformity with neither the Covenant nor the Constitution of the Government.
Lord COLVILLE, expert from the United Kingdom, requested clarification about the numbers of persons who were in preventive detention. His interpretation was that nearly a half of the people in prison had not been convicted of their violations. What was going to be done about that, since they were presumed innocent according to the Constitution? If the suggested reforms are indicative of the time they would go to trial, then three years would pass before that occurred. That was in violation of article 14 of the Covenant.
ROMAN WIERUSZEWSKI, expert from Poland, inquired whether the families of victims had not received compensation because of the implementation of the Amnesty Decree and whether the process in the civil courts was also being affected by the Decree.
PILAR GAITAN DE POMBO, expert from Colombia, underlined the Committee's concern with the Amnesty Decree. Was there going to be a popular referendum to get rid of the blockade in the Senate? she asked.
FAUSTO POCAR, expert from Italy, said that improvements were clearly visible during the constitutional period of Chile's Government. The frankness of the report confirmed that the Government was clearly aware of its deficiencies. He noted that under international law the fact that the Government was trying to implement legislation and was being blocked by the Senate was not in accordance with the Covenant, which clearly stated that the State was the responsible party, and not the Government. (Article 2 states that each State party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant.)
DAVID KRETZMER, expert from Israel, asked about Chile's National Security Council. Standing alongside the Government, that body made certain decisions. For instance, the State decision to not have former President Augusto Pinochet extradited from Britain was a decision made by the Council. He wanted to know what was the purpose and scope of the Council, since its decisions could undermine article 25 of the Covenant.
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(Article 25 states that every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections.
Article 2 states each State party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.)
Continuing, he said that regarding pre-trial detention, more information was needed on incommunicado detention. He requested clarification of the grounds for holding a person on the basis of pre-trial detention and on the specific parameters used by courts to enforce that practice.
NISUKE ANDO, expert from Japan, said, while he accepted that there were many problems to be solved in Chile's transition from a military regime to democratic State, there was still no explanation as to why the present report was so late. In the report, the delegation mentioned the creation of a judicial academy. According to the report, that body was governed by a labour code that was not part of the judiciary. Yet, the academy was intended to provide further training for judges and court staff. He needed more of an explanation on that issue and its effect on the judicial independence of the country.
RAJSOOMER LALLAH, expert from Mauritius, said that, based on his consideration of the report, there seemed to be great defects in terms of Chile's compliance with the Covenant. It was generally recognized that the pervasive intrusion of the military in a democratic system was a violation of certain principles of the Covenant. It was also a great contradiction to principles set forth in the Universal Declaration of Human Rights, which stated that government was the will of the people.
Continuing, he said the situation with regard to holding detainees without trial was a clear violation of article 9 of the Covenant.
(Article 9 states everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.)
He said it was inconceivable that a number of prisoners who had been awaiting trial and were under investigation -- worse by the military -- had been detained for about six years without trial. That situation must be remedied as quickly as possible, if not tomorrow. International human rights
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norms had a higher place than a country's constitutional law. Chile's whole system of criminal procedure and trial seemed to be an obvious violation of the principle set forth in article 14 of the Covenant.
(Article 14 states that all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.)
ABDELFATTAH AMOR, expert from Tunisia, said he wanted to know if the Chilean authorities or private institutions had carried out a serious study of public opinion in lieu of the degree of change that had taken place in the country. He asked whether there were any measures to better control the military power's domination of civil power. That question was fundamental and led to the third question -- the protection of the liberal and democratic order. Greater protection was needed in that respect.
On the issue of abortion, which was illegal, he wanted to know whether the Government was bound by religious or sociological precedents. Addressing reform of the judiciary, he asked, with respect to judges who were not properly trained, what specific measures would be adopted to make reform of the criminal procedure more effective.
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