HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF CHILE'S FOURTH PERIODIC REPORT19990324 Augusto Pinochet was a lifetime Senator and had parliamentary immunity -- he could only be deprived of that immunity by a court and not Parliament, Claudio Troncoso of the Chilean delegation told the Human Rights Committee this afternoon as it concluded its consideration of Chile's fourth periodic report.
If stripped of that immunity, he continued, the Senator could then be delivered to the court as an ordinary citizen. That had already happened to another Chilean Senator who was being tried, and it had set a precedent. Of the 19 complaints against Senator Pinochet, there were some that were covered by the Amnesty Decree. Given the antecedents of the case the judge in charge could order an investigation, then order a trial. It would, however, depend on each judge to see if the Amnesty Decree would be implemented in this case.
The violations of human rights underscored in Chile's report were not isolated incidents, Alejandro Salinas, Director of the Division for Human Rights in the Ministry of Foreign Affairs of Chile said. That, however, should not lead to any assumption that there were persistent violations of those rights. Instead, the State aimed to promote human rights and essential freedoms. There had to be, however, a far-reaching policy of education and change with regard to State officials. The report of the rapporteur on torture showed that cases had decreased. That did not mean that there were no new cases -- there were still occurrences of that nature which were investigated and the guilty were punished.
Elizabeth Evatt, expert from Australia, said despite the good intentions of the Chilean Government, it seemed unable to comply fully with its obligations under the International Covenant on Civil and Political Rights. There was need for some change in the law and the Constitution. She was shocked to learn that there was an obligation by the staff of public hospitals to report women who terminated a pregnancy. That was an outrageous violation of the privacy of an individual -- it could turn a woman who experienced trauma into a criminal. Such a practice would also prevent women from seeking medical assistance when they needed it and contribute to maternal mortality.
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Cristian Arevalo of Chile, said a special body had been set up to protect, promote and restore the cultures of those indigenous people who had inhabited the country before the Europeans. Much effort had been expended in returning land which was originally theirs and in transferring to them State land that they inhabited.
Carmen Bertoni of Chile told members of the Committee that they should recall that this was the first report presented since the democratic Government had been installed in her country. She informed them that the decision had been made to publicize human rights as they related to the Covenant as widely as possible.
The Committee will meet again tomorrow to begin consideration of a draft general comment on article 3 of the Covenant.
Committee Work Programme
The Human Rights Committee met this afternoon to continue its consideration of the fourth periodic report of Chile. It was expected to hear replies from the Chilean delegation to the list of questions raised by the Committee on the report. (For background information, see Press Release HR/CT/526 of 24 March.)
Statement by Expert
ELIZABETH EVATT, expert from Australia, said despite the good intentions of the Chilean Government, it seemed unable to comply fully with its obligations under the International Covenant on Civil and Political Rights. There was need for some change in the law and the Constitution. Regarding abortion, she said was shocked to learn that there was an obligation by the staff of public hospitals to report any women who appeared to have terminated a pregnancy. That was an outrageous violation of the privacy of an individual -- it could turn a woman who had gone through a traumatic experience into a criminal. Such a practice would also prevent women from seeking medical assistance when they needed it and contribute to maternal mortality.
She also sought confirmation of the following: that the provision of emergency contraception was not allowed; that rape victims could not get abortions; and that sterilization could only occur if a woman had the consent of her husband.
Replies from Chilean Delegation
ALEJANDRO SALINAS, Director of the Division of Human Rights, Ministry of Foreign Affairs of Chile, began by responding to the question raised previously on the disappearance in Chile, during the military dictatorship, of Mrs. Camelesorias, a United Nations employee. The initial investigation had not proceeded very far, he said. Later, the facts had been investigated again, and the judicial process had been reactivated. After a long judicial battle, the facts had been brought before the Supreme Court. While Mrs. Camelesorias was an official of the Economic Commission for Latin America and the Caribbean (ECLAC), it could not, however, be proved that she was a high official of the United Nations, and, therefore, she was outside of the protection of the Convention that was meant to protect her. Later, the Government had offered the family a series of reparatory measures, including a foundation in her name, with monetary contributions for it in 1996 that had totalled $1 million.
The National Commission on Truth and Conciliation had been created by the Government when it came to power in 1990, he said. It was charged with looking into the most serious violations of human rights. All recommendations adopted by the Commission had been implemented by the Government. However,
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because of the legal nature of the Commission, judicial enquiries could not be carried out.
On the question of the powerlessness of the Government, he said it was recognized that that was the case and that there was an inability on the Government's part to solve inherited problems. The change from a military regime to a democratic State had been a transition agreed upon by the political forces with a view to avoiding violence. The nature of the transition recognized the existence of real institutional obstacles. The nature of the process must be understood and all its dimensions evaluated.
The violations of human rights underscored in the report were not isolated incidents, but reflected the situation of human rights in the country, he said. That, however, should not lead to any assumption that there were persistent violations of human rights. Instead, the State aimed to promote human rights and essential freedoms. There had to be, however, a far- reaching policy of education and change with regard to State officials. The Rapporteur's report on torture showed that cases had decreased. That did not mean that there were no new cases -- there were still some. They were investigated, however, and the guilty were punished.
CLAUDIO TRONCOSO (Chile), concerning the group of questions relating to article 14, said Chile recognized its shortcomings in that area of reform. It believed, however, that military courts were in conjunction with the international Convention. The Supreme Court was made up of 21 civilians. There was a penal hall presided over by five of the members. The Court did not have several persons from the army, he stressed. The sixth person was a military controller from the army, although, in civilian cases, the military order did not participate.
The draft law had been presented to make the law compatible with the Constitution, he said. The Government's intention was to eliminate any integration with the Supreme Court. Reiterating the commitment for reform, he said that in Chile the decisions, even those of the Supreme Court, did not generate mandatory jurisprudence, even for future cases.
In connection with the Amnesty Decree, he said it was an obstacle to the objective of truth and justice being undertaken by the Chilean Government. The object of the Government was to keep open the cases of persons being held in detention.
There had been a decision by the Supreme Court in 1990 stating that the Amnesty Decree was compatible with the Constitution, he said. In that particular case, the Covenant had been invoked, and it had been declared incompatible with the Constitution. The Government disagreed with the 1990 decision. Therefore, it was not a precedent for dealing with cases in other courts.
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The 1998 decision of the Supreme Court, which is new, stated that there could be no amnesty in cases of prisoners who had disappeared, because it would be tantamount to a violation of article 43 of the 1943 Geneva Convention, which stated that there could not be amnesty for such persons. Why had the Government, in 1990, approved of the decision -- it had been done in conjunction with the provisions of the internal law in Chile? However, provisions had been made that amnesty could not be applied, and the investigation must be continued. The Government felt that the procedures could advance once it was determined that the violation had occurred, and that someone was responsible.
With regard to the changes in that area, he reiterated that since Chile was experiencing a transition to democracy, there had been an attempt at modification from within. The Government insisted that the Congress, as frequently as necessary, approved those changes, since they wanted to honour international obligations.
There had also been very specific areas where solutions had been achieved, he said. A far-reaching system for reform of the Supreme Court had been undertaken by the Government in 1997. It had proposed to have certain members of the Court removed after age 75. Six members had been forced into retirement as a result. Also, four new positions had been created, and it had been stipulated that five of the ministers be from outside of the judiciary profession so that they would have a fresher vision of the application of the law. Therefore, by 1998, 11 of the members of the Supreme Court were replaced. In addition, there had been penal reform which had been approved by unanimous vote in the lower house.
A completely new trial system was being designed and would go into force during next year, he said. The State's Attorney would be taken from a list of five persons, and the President would make the final decision. A similar system was also being designed for the public defence system.
Regarding the situation of the people who had been tried and convicted in Chile, he informed the Committee that the penal system had one judge who investigated, indicted and convicted. He also noted that 46 per cent of persons who had been charged were in preventive custody, and that 48 per cent had been tried and sentenced.
Fifty persons who had committed serious crimes after 1990 were in a special high security prison. Those crimes included the murder of a senator, among other serious offences. Those persons had been tried by both military and civilian courts. Many of them, even though sentenced, had other matters pending.
CARMEN BERTONI (Chile) said that her country, by virtue of its Constitution, was obliged to respect life from the very start, including conception. Abortion was a difficult subject for the Government to tackle. A great deal of society was against penalization of that practice.
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Referring to the question of blood transfusions for Jehovah's Witnesses and discrimination against minority religions, she said that authorization was given to the doctors to do transfusions, but the sect refused because of their religion.
Regarding the question on discrimination of women, she said that, by law, women could have joint assets. For their protection, the law also granted them the right to renounce their joint property and retain their own property.
Concerning parental authority in the case of separation, the law stated that parental authority could be, by an agreement, signed by both parents at the civil register. If there was no agreement, however, the father was granted authority. Custody, on the other hand, was usually given to the mother. However, if mistreatment of children could be proved, the judge could give custody to the father.
Replying to the question on adolescent pregnancy, she said that had increased tremendously. There was a bill in Congress that prohibited the expulsion of minors from school because of pregnancy. There was also a programme to strengthen teenage awareness of their sexual lives. That was carried out in schools and communities with the participation of teachers.
She said there was also an amendment to the labour code to prevent women from being subjected to a pregnancy test when they were contracted for employment. In addition, there was an initiative to establish that no sex could exceed 60 per cent of parliamentary candidates.
There were now new laws on sexual abuse, she said, in response to a question on that issue. In cases of abuse or sexual violence, measures had been put in place to enable examinations to be conducted by both hospitals and the police. In such cases, the victims' rights were also protected. A law on violence within the family was also in place.
Mr. TRONCOSO (Chile), responding to the question of discrimination, said people affected by discrimination could now report such acts to the courts and petition for protection.
CHRISTIAN AREVALO (Chile), addressing the issue of religious freedom, said that other religious entities had to apply for permits from the authorities to become a legal entity. In doing so, they would be recognized by public law and, therefore, enjoy the same tax benefits as other denominations. That recognition also put them on an equal footing with the Catholic and Orthodox churches who had the same rights.
Mr. TRONCOSO (Chile), responding to the question on prohibition of political parties, said there was no such prohibition. That had ended with Chile's constitutional reform in 1989.
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Ms. BERTONI (Chile), replying to a question on domestic violence, said a national prevention programme had been created. Between 1997 and 1998, the programme had worked through 111 projects with over 60 networks. In 1997, the courts had seen 61,000 cases. However, there was as yet no precise data on sentencing.
Mr. TRONCOSO (Chile) said there was a draft law on family courts. That court would hear everything to do with family matters, such as property, violence, the establishment of civil status and divorce actions. The draft also emphasized mediation as an alternative way of solving family problems.
Mr. AREVALO (Chile), addressing the question on the rights of Chile's indigenous people, said a special body had been set up to protect, promote and restore the cultures of those people who had inhabited the country before the Europeans. Much effort had been expended in returning land which was theirs and in transferring to them State land that they inhabited.
Mr. TRONCOSO (Chile) said it must be recalled that there had never been a state of emergency declared in Chile since democracy.
Ms. BERTONI (Chile) regarding the conclusions of the Committee on Communications, said it should be recalled that this was the first report presented since the democratic Government had been installed, and the decision had been made to publicize human rights as widely as possible as they related to the Covenant. Non-governmental organizations had been appraised of the report at a meeting in January this year, and had been told how requirements of the Covenant were implemented. Regarding education and training in connection with the Covenant and the Optional Protocol, the National Truth and Reconciliation Commission had drafted a report that had been distributed to various organizations in the country, especially those affiliated with the judicial system.
That project involved the publication of all human rights treaties presently in force in the country, not only as they related to domestic laws, but also to the Covenant, she said. That represented a great step forward for the people of Chile.
With regard to training in human rights, both the Carabineros and armed forces had instituted human rights courses in their programmes. It must be stressed that outstanding human rights professors were the ones giving those courses in both police institutions.
Questions from Experts
Lord COLVILLE, expert from the United Kingdom, asked whether the law governing domestic violence applied to unmarried partners. He wondered whether the courts exercised continuing power to enforce the order since, in
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his opinion, the only way to deal with the problem was instant recourse to the courts.
MAXWELL YALDEN, expert from Canada, expressed disappointment that his questions on the creation of a human rights commission and on the ill- treatment of prisoners remained unanswered. He commented on the protection of individuals against discrimination in employment, housing and other areas, and said there was no reference that there was another body apart from the courts which dealt with that matter. Also, no mention had been made about homosexuality of consenting adults, and he wondered whether there was a law against discrimination against these persons.
With regard to indigenous peoples, he said he remained interested in the concepts as they related to the communities and associations and the issues of self-government and self-determination. Was anything actually being done for the assimilation of indigenous peoples into Chilean life and society? he asked.
MARTIN SCHEININ, expert from Finland, noted that the minimum age for marriage in Chile was not in compliance with the Covenant. Agreement by parents was not a sufficient argument for the implementation of that law. He also referred to the question of freedom of religion. He wondered, in terms of the article 18 of the Covenant, what the situation was with regards to conscientious objection to military service.
He noted that interesting information had been provided on measures implemented regarding indigenous peoples. What might be the negative developments -- for example the construction of hydro-electricity projects -- that might constitute a threat to those people's way of life.
Mrs. EVATT, expert from Australia, observed that there were only two women in the Chilean Senate and asked whether any of the positions presently being created would be available to women. She asked whether there were specific laws relating to the discrimination of women in the workplace.
Also, on the question of divorce, she said there were consequences to women and children due to the lack of divorce law. Was it the case that there was no property regime for persons who were unmarried? she asked. Was it true that half of Chile's children were born out of wedlock? If there was an annulment, what rights to property and maintenance were available to women and children?
NISUKE ANDO, expert from Japan, noted that there was only one paragraph in the report on freedom of assembly. What, he asked, defined public meetings which required prior authorization? He also asked how the rights of agriculture workers and of civil servants were protected.
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RAJSOOMER LALLAH, expert from Mauritius, asked Ms. Bertoni whether mental maturity, as well as biological maturity, were taken into consideration when the law on the minimum age for marriage was being formulated, since the Covenant required possession of mental maturity for marriage to occur.
SOLARI YRIGOYEN, expert from Argentina, said he was worried about the minimum age of marriage and whether Chile had also approved it for ethnic minorities. Also, he would like further clarification on women who were imprisoned and on the unhealthy conditions of the prisons.
ABDALLAH ZAKHIA, expert from Lebanon, observed that there had been a great number of bills presented on women and children. If they had not become law, what was preventing that from happening?
Replies by Chilean Delegation
Mr. SALINAS, addressing the possibility of the institutionalization of human rights, referred to Chile's Public Defender. Within that democratic institution there were standing committees that made up a commission on human rights which heard denunciations on ill-treatment.
On the issue of education, he said there were no barriers -- education was accessible to all members of society.
Addressing a question for ethnic minorities, he said that special legislation provided for them to organize in the form of communities or associations. Those groups had full freedom for self-determination or self-government as groups of persons. They also acquired their legal personality merely by virtue of registering their charter with the appropriate authorities.
Responding to a question on associations or trade union organizations for public officials, he said that during the term of office of the first democratic Government, a law had been passed making it possible for State officials to enter into associations. An International Labour Organization (ILO) agreement was soon to be approved and would allow for collective negotiations between public officials and State authorities. There was, however, a constitutional provision in force that did not allow strikes by officials whose duties involved operations of a strategic nature. That provision was still applicable.
Ms. BERTONI, addressing the question of shared parental authority in marriage, said the law provided the possibility for either sharing, or for one parent to exercise authority.
Clarifying a question on the issue of abortion, she said the practice was a punishable violation, and the possibility existed that a person who
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arrived at a hospital could be denounced because there were public officials whose duty entailed reporting such violations.
On the issue of the legal age of marriage, she said there was no project for reform. While it was possible for children 12 and 14 years of age to get married, it caused no problems and was not a frequent occurrence. However, a study could be initiated with a view to providing greater protection of minors in that area.
Addressing a question posed on labour laws to protect women, she said appeals could be presented in the labour court.
Unmarried people could opt for protection under the domestic violence law since it did not discriminate between married or unmarried couples, she said.
Referring to the procedure to support victims of violence, she said the law's provisions were very rapid -- measures could immediately be established for the security of the victim. Attackers could be prevented from going into a home for 60 days and that term could be increased to 180 days if the violence continued. If it continued after that, the relevant authorities would be informed and legal action against perpetrators would be taken.
Mr. TRONCOSO, answering a question on conscientious objectors, said that his country's legislation had no provisions in that respect. The subject had been brought up frequently and the issue was now in the Ministry of Defence. However, not every male of 18 years of age was called to the military -- only the number that was needed.
Regarding the rights of homosexuals, he said Chile's penal code allowed punishment for the crime of sodomy and that might include consensual relations between homosexuals. The code was being reformed and the provisions to decriminalize it had been agreed upon by both houses of Parliament.
Addressing the issue of the trial of Augusto Pinochet in Chile, which had been raised in the morning session, he said Senator Pinochet was a lifetime Senator and therefore had parliamentary immunity. He could only be deprived of that immunity by a court and not the Parliament. If stripped of that immunity, the Senator could then be delivered to the court as an ordinary citizen. That had already happened to another Chilean Senator who was being tried, and that had set a precedent. Of the 19 complaints against Senator Pinochet, there were some that covered the period of the Amnesty Decree. Given the antecedents of the case, the judge in charge could order an investigation, then order a trial. It would also depend on each judge to see if the Amnesty Decree would be implemented in this case.
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