United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1998 - Chile, 26 February 1999, available at: http://www.refworld.org/docid/3ae6aa5d18.html [accessed 20 September 2014]
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Chile is a multiparty democracy with a constitution that provides for a strong executive and a bicameral legislature. Approved by referendum in 1980 and amended in 1989, the Constitution was written under the former military government and establishes institutional limits on popular rule. President Eduardo Frei, a Christian Democrat, began his 6-year term in 1994. The National Congress comprises 120 deputies and 48 senators. The government coalition of six parties holds a majority in the lower house. An opposition coalition, including several independent and many of the 10 nonelected senators, controls the upper chamber, although the senate president is from the ruling coalition. Former president General Augusto Pinochet retired from the army on March 11 and assumed a lifetime senate seat. The Constitutional Tribunal rejected a lawsuit that sought to prevent Pinochet from entering the Senate. Following his assumption of the seat, the Chamber of Deputies on April 9 rejected an attempt to remove Pinochet from the Senate. Turnover in the courts has led to a significant diminution in the influence of General Pinochet's appointees over the constitutionally independent judicial branch. The armed forces are constitutionally subordinate to the President through an appointed Minister of Defense but enjoy a large degree of legal autonomy. Most notably, the President must have the concurrence of the National Security Council, which comprises military and civilian officials, to remove service chiefs. The Carabineros (the uniformed national police) have primary responsibility for public order and safety and border security. The civilian Investigations Police are responsible for criminal investigations and immigration control. Both organizations--although formally under the jurisdiction of the Ministry of Defense, which prepares their budgets--are under operational control of the Ministry of Interior. The security forces, mainly the police, committed a number of human rights abuses. The export-led, free-market economy experienced its 15th consecutive year of expansion, but growth moderated in 1998 due to the impact of the Asian and global economic crises. The most important export remained copper; salmon, forestry products, fresh fruit, fish meal, and manufactured goods were also significant sources of foreign exchange. Gross domestic product (GDP) grew at a 7.1 percent rate in 1997, and inflation fell to 6.6 percent. Unemployment stood at 7.2 percent, although it was expected to rise. From 1987 to 1997, the percentage of the population living below the poverty line decreased from 45 to 23 percent. Annual per capita GDP rose to approximately $5,300 in 1997. The Government generally respected its citizens' human rights; however, there continued to be problems in some areas. The most serious cases involved torture, brutality, use of excessive force by the police, and physical abuse in jails and prisons. Discrimination and violence against women and violence against children are problems. Discrimination against the disabled and minorities persists. Many indigenous people remain marginalized. Child labor is a problem. Almost all other human rights concerns are related to abuses during the former military government, primarily between 1973 and 1978. In October the United Kingdom detained retired General Pinochet pending resolution of an extradition request from Spain on charges of genocide and murder. The British High Court originally ruled that Pinochet had immunity as a former head of state; however, a November Law Lords panel overturned that decision. In December the Law Lords set aside their previous ruling and agreed to reconsider the case. At year's end, another panel was to hear the case, and Pinochet remained under house arrest in England. The detention of General Pinochet led to a reexamination of what, if anything, could and should be done to deal with the sometimes conflicting demands for justice and for national reconciliation. Efforts to bring abusers to justice in cases dating back to the early years of the military government often have been stifled by the judiciary. The military authorities continued to resist a full accounting of the fate of those persons who had disappeared, and the courts continued to close, without investigation or prosecution, many cases of abuse that occurred during the first 5 years of military rule, citing the 1978 Amnesty Law. Over the past 6 years, the Government and opposition parties have debated various proposals that effectively would close all cases covered by the Amnesty Law that are still under judicial investigation. These efforts largely have stalled, and the judicial system continued to investigate and either prosecute or close pending human rights cases.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
There were no reports of political killings. On January 12, taxi driver Raul Palma Salgado died while in police custody, allegedly as a result of torture. Four National police members implicated in the death are under arrest, and the case is in the courts. The Committee for the Defense of People's Rights (CODEPU) identified Palma's death as the third instance of suspects dying while in police custody due to torture or excessive force since 1990. The other two alleged cases occurred in 1995 and 1997. Legal action continued in these two earlier cases. Police used water cannons and tear gas when violence broke out during demonstrations on the anniversary of the September 11, 1973 coup against the Allende government. Two persons died. One was a Communist Party official who apparently suffered a stroke while marching; party officials claimed that the stroke was brought on by tear gas. The other was a 25-year-old woman who was shot under unclear circumstances; at year's end her death was under investigation (see Sections 2.a. and 3). In December 1996, Pedro Soto Tapia, a 19-year-old military conscript, disappeared from his regiment at San Felipe after having written many letters to his family describing mistreatment at the hands of his superior officers. In March 1997, his remains were found in a cave in San Felipe, accompanied by what was purportedly a suicide note. In February the judge handling the case fell ill and a series of temporary substitutes were named. In September the family's attorneys, assisted by the CODEPU, succeeded in having a new permanent judge named. They continue to allege that Soto's death was a homicide. Important advances were made in clarifying events surrounding "Operation Albania," the June 1987 killings of 12 "Manuel Rodriguez Patriotic Front" (FPMR) members. The authorities brought charges of use of unnecessary violence against nine former and current intelligence and security officers; all were in custody. At year's end, the judge was considering a motion to raise the charges to aggravated homicide. Proceedings against General Pinochet continued in Spain for his alleged responsibility in the deaths, torture, and disappearance of Spanish and other citizens. On October 16, authorities in the United Kingdom detained General Pinochet, who was recovering in London from a back operation, following the UK's receipt of a Spanish arrest order sent via Interpol. An extradition request followed. The Spanish request grew out of two separate Madrid court proceedings (consolidated into one on October 20 under Judge Baltasar Garzon) involving persons who were killed, tortured, or who disappeared in Chile during the military regime. One investigation had focused on those killed in Chile during the military era, while the other focused on persons killed outside of Chile in "Operation Condor," an undercover operation in which several military governments in the region, led by Chile, cooperated to eliminate leftist opponents. Judge Garzon and a colleague had spent the past 2 years collecting evidence and taking testimony regarding human rights violations in Chile and Argentina during the military dictatorships. The British High Court ruled on October 28 that Pinochet enjoyed sovereign immunity as a former head of state. This decision was overturned on November 25 by the House of Lords' Law Lords panel, and on December 9 the British Home Secretary decided to allow the extradition process to proceed. On December 17, the Law Lords set aside their previous ruling and agreed to reconsider the case following an appeal from Pinochet's lawyers that one of the deciding judges had not revealed a potential conflict of interest involving his links with one of the parties that supported the Spanish request. At year's end, Pinochet remained in England under house arrest. Former Chilean intelligence agent Enrique Arancibia Clavel continued to be detained in Argentina after an Argentine judge denied his January request to be set free; this decision was reaffirmed in another court decision in September. Arancibia is charged with involvement in the 1974 car bombing in Buenos Aires that killed former Chilean army chief Carlos Prats and his wife, Sofia Cuthbert. The case was reopened in 1992 as a result of a petition filed by the Prats family containing new evidence. The Chilean Government has agreed to be a coplaintiff in the Argentine trial of Arancibia. Legal efforts to gain the testimony of retired General Manuel Contreras and retired Brigadier General Pedro Espinoza, former director and operations director, respectively, of DINA (the army intelligence branch during the military regime), allegedly implicated in the killing, continued. Contreras and Espinoza had been convicted in 1993 of the 1976 killings in Washington, D.C. of former Chilean foreign minister Orlando Letelier and his assistant Ronni Moffitt. On November 6, the judge investigating the 1982 death of labor leader Tucapel Jimenez and the related homicide of carpenter Juan Alegria Mundalca closed the case, ruling that there was insufficient evidence to bring anyone to trial for the murders. This decision is being appealed. Four former agents of the National Intelligence Center (the successor to DINA) had been under investigation for the killings. Some alleged perpetrators of human rights abuses during the military regime remain on active duty in the army. Army General Sergio Espinoza Davies, who commanded the United Nations observer mission along the India-Pakistan border, was accused of being involved in an October 1973 "war council" that sentenced five socialists to death without due process. Following the UN's announcement that it would investigate the charges against him, the Government consulted with the UN. The issue became moot when General Espinoza Davies, promoted to army Inspector General, returned to the country in December. In September Swiss authorities denied the Government's request for extradition from Switzerland of a member of the FPMR terrorist group who escaped from prison in December 1996. The individual was convicted in Chile of killing a police officer in 1991 (see Section 1.e.).
There were no reports of politically motivated disappearances. The major human rights controversy involved past disappearances and efforts by political forces and the Government to reinterpret the 1978 Amnesty Law in such a way as to achieve both justice and national reconciliation. As interpreted under the so-called Aylwin doctrine (named after former President Patricio Aylwin), the courts should not close a case involving a disappearance until either the body is found or credible evidence is provided to indicate that an individual is dead. This could affect over 500 cases, which cover about 1,000 persons still classified as "detained or missing" from the early years of the military regime. However, application of the Aylwin doctrine has been uneven, as some courts continue the previous practice of applying the 1978 amnesty to disappearances without conducting an investigation to identify the perpetrators. On December 29, a Supreme Court panel overruled a 1997 application of the Amnesty Law to the August 1974 disappearance of Alvaro Miguel Barrios Duche. The Supreme Court ruled that the law only could be applied following the completion of a full criminal investigation and the identification of the guilty parties and ordered the military court to begin an investigation into the case. According to the Social Aid Foundation of Christian Churches (FASIC), 2 disappearance cases were pending before the Supreme Court at year's end, with 12 cases having been closed in 1998 through application of the Amnesty Law; 4 other cases were closed for other reasons, including 1 temporarily closed and subject to being reopened. Application of the Amnesty Law was denied in five cases, with four of these cases reopened; another case involving a disappearance was reopened under a different legal doctrine. The Supreme Court had sometimes ruled in the past that when judges receive criminal complaints related to actions by armed services members in the period covered by the amnesty (September 11, 1973 to March 10, 1978), they were required to close the case immediately without further investigations. In September the Supreme Court revoked the amnesty granted by a lower court, ruling that the Geneva Convention (on internal conflicts) was applicable in the 1974 disappearance of Movement of the Revolutionary Left (MIR) member Pedro Enrique Poblete Cordoba. At year's end, the case was being investigated. FASIC, CODEPU, and other human rights organizations have a total of nine denial-of-justice cases pending before the Inter-American Commission on Human Rights (IACHR) regarding previously closed disappearance and execution cases. They have filed 11 cases before the United Nations Committee on Human Rights. In April the IACHR ruled that 22 previously closed disappearance cases that had been appealed to the commission should be reopened. In November France joined Spain in seeking the extradition of General Pinochet from the United Kingdom, based on the disappearance of three French citizens in 1973-77. Switzerland also filed an extradition request for Pinochet.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution forbids the "use of illegal pressure" on detainees, but the CODEPU has received reports of abuse and mistreatment by both the National police and the Investigations Police. When requested by other human rights organizations or family members, CODEPU lawyers visit detainees during the interrogation (see Section 1.d.) and represent some suspected terrorists in court. The CODEPU continues to investigate alleged use of excessive force against detainees. The Minister of Interior asks the courts to conduct independent investigations of credible complaints of police abuse, but such investigations often do not result in arrests, due in part to the reluctance of judges to pursue the issue vigorously. FASIC reported in March that it had received 27 complaints of mistreatment from persons who had been in police custody during the first 2 months of 1998. Of these reports, 25 involved the National police and 2 the Investigations Police. CODEPU reported in January that during the previous year the authorities had found 13 National police guilty of abuse and applied administrative sanctions against 11 others whom the courts had absolved. As of August, 21 cases of alleged police abuse were pending in the court system. In March four members of the Investigations Police allegedly tortured Pedro Navarro Pozo in the city of Castro. Passers-by heard Navarro's screams and alerted the Chiloe provincial governor and a judge. The two officials entered the police station and witnessed an unclothed and handcuffed Navarro being beaten. The authorities fired the four police officers and indicted them. At year's end, the case was in the courts. In June Osvaldo Baeza accused police in Talca of beating him. Similar charges were made by four minors also detained in Talca on suspicion of robbery. According to a press report, the human rights office of the Metropolitan Legal Aid Office, an arm of the Justice Ministry, released a report in January stating that it had received 400 complaints against the police in 1997, a large increase over previous years. The report stated that 42 cases had been presented to the civilian or military courts that year. Most of the cases were lodged against the national police, while four cases involved the Investigations Police. The report asserted that there was a growing trend of human rights complaints, as five lawsuits were lodged against the police during the first 20 days of January. On July 1, a new law entered into effect that clarified the illegality of any use of force against persons detained by the police. The law provides that if a member of the police force uses "torture or unlawful coercion," either physical or mental, or orders them to be applied, or commits them against a person under arrest or detention, the officer would be sentenced to imprisonment. Officers who know about the abuse and have the "necessary power and authority" to prevent or stop it would also be considered accessories to the crime if they fail to do so (also see Section 1.d.). Human rights groups claim that military recruits sometimes are mistreated. The CODEPU reported that by the end of June, human rights groups had received 537 complaints of mistreatment of recruits over the prior 2 years. Of this number, 80 dealt with torture allegations; 46 of these cases are under judicial investigation, and 18 of the alleged victims are in psychotherapy. In July, 14 military conscripts stationed in Puerto Varas filed a legal petition claiming that they were, among other things, beaten during a military exercise. A military investigation identified a corporal as directly responsible. He was removed from the military and is awaiting trial. A new judge was named to handle the case of military conscript Pedro Soto Tapia, who alleged mistreatment in 1996 and whose remains were found in March 1997 (see Section 1.a.). At year's end, the court of appeals had not yet ruled on the August 1997 filing by attorneys for Carmen Gloria Quintana that appealed efforts by the Government to set aside an award of approximately $600,000 in compensation that the IACHR had recommended for Quintana in 1988. Army Captain Pedro Fernandez Dittus set fire to Quintana and her companion Rodrigo Rojas Denegri while they were participating in a protest against the military regime in 1986. Rojas died 4 days later, while Quintana survived with severe and disfiguring injuries. Prisons are often overcrowded and antiquated, but the conditions are not life threatening. Food meets minimal nutritional needs, and prisoners may supplement the diet by buying food. Those with sufficient funds often can rent space in a better wing of the prison. Prison guards have been accused of using excessive force to stop attempted prison breaks. Although most reports state that the guards generally behave responsibly and do not mistreat prisoners, several prisoners have complained of beatings. There were 346 minors in adult prisons (see Section 5). The maximum security prison houses 56 prisoners, most of them charged with or convicted of terrorism. Prisoners continue to complain that strict security measures, prohibition of visitors, hidden cameras, and rigid regulations violate their rights. In 1997 the Ministry of Justice confirmed that there were listening devices in prison cells but said that they were never used. The Government permits prison visits by independent human rights monitors.
d. Arbitrary Arrest, Detention, or Exile
The Constitution allows civilian and military courts to order detention for up to 5 days without arraignment and to extend the detention of alleged terrorists for up to 10 days. The law affords detainees 30 minutes of immediate and subsequent daily access to a lawyer (in the presence of a prison guard) and to a doctor to verify their physical condition. The law does not permit a judge to deny such access; police authorities generally observe these requirements. In practice, many detainees are not promptly advised of charges against them, nor are they granted a speedy hearing before a judge. Early in the year, 7 percent of the general prison population of 24,791 was under investigation but not charged with a crime; 44 percent were charged with an offense and were awaiting trial or had been convicted and were awaiting sentencing; and 49 percent were serving sentences. On July 1, a new law entered into force that eliminated the right of the police to stop persons, demand identification, and arrest them based on suspicion that they may have committed a crime. (This right to arrest persons on suspicion often was used against minors.) The new law also requires police to inform those detained of their rights and to expedite notification of the detention to family members. The law also deals with physical abuse by police against detained persons (see Section 1.c.). On July 22, the Government legal aid corporation filed its first lawsuit based on the law. The lawsuit was filed against a number of Investigations Police officers for failing to follow the new arrest procedures and for beating the person arrested. Police officials failed to investigate fully an October 1997 allegation that police and military officials arbitrarily detained Marlene Martinez and her son for questioning in an effort to coerce the child's father concerning a business controversy. The September kidnaping of Martinez brought the case to public attention, prompting two criminal and military investigations and government acknowledgement of the prior lack of official diligence. The Constitution provides for the right to legal counsel, but this is a reality only for those who can afford to pay. The poor, who account for the majority of the cases, may be represented by law students doing practical training (who often are overworked), on occasion by a court-appointed lawyer, or by a lawyer from the Government's legal assistance corporation. The Constitution allows judges to set bail. There were no cases of forced exile.
e. Denial of Fair Public Trial
The Constitution calls for a judicial system independent of the other branches of government. Although the judiciary, and particularly the Supreme Court, has been dominated in the past by appointees of the former military regime, turnover in the courts has led to a significant diminution of that influence. Cases decided in the lower courts can be referred to appeals courts and ultimately to the Supreme Court. Criminal court judges are appointed for life. In December 1997, constitutional reforms were approved that set 75 as the age limit for Supreme Court justices, gave the Senate the right to approve or disapprove presidential nominees to the Court, and increased court membership from 17 to 21. Of the 21 justices on the Supreme Court, only 3 were appointed under the military regime. The Supreme Court prepares lists of nominees for the Supreme Court and appeals courts, from which the President makes appointments. The Senate must approve nominees to the Supreme Court. The Supreme Court continues to work with the other branches of government on broad judicial reform. The jurisdiction of military tribunals is limited to cases involving military personnel. If formal charges are filed in civilian courts against a member of the military, including the National police, the military prosecutor asks for, and the Supreme Court normally grants, military jurisdiction. This is of particular consequence in the human rights cases from the period covered by the 1978 Amnesty Law. In addition, military courts have the authority to charge and try civilians for defamation of military personnel and for sedition. Rulings by military tribunals can be appealed to the Supreme Court. In September 1997, President Frei signed a judicial reform law that created the post of Attorney General and a related ministry that are expected to be in full operation by 2002. The new law provides that national and regional prosecutors investigate crimes and formulate charges, leaving judges and magistrates the narrower function of judging the merits of evidence presented before them. The Government has designated two regions to begin gradual implementation of the reform. Training and administrative setup is to begin in 1999, with the first oral trials expected in 2000. Based on the Napoleonic Code, the criminal justice system does not provide for trial by jury, nor does it assume innocence until proven otherwise. Criminal proceedings are inquisitorial rather than adversarial. The Constitution provides for the right to legal counsel, but the poor do not always get effective legal representation (see Section 1.d.). Four FPMR ringleaders broke out of Santiago's maximum-security prison in December 1996 in an elaborately orchestrated escape via helicopter. In September 1997, one of the escapees, Patricio Ortiz Montenegro, requested political asylum in Switzerland, claiming that he had not received justice in Chile. (In June 1995, a military court had convicted Ortiz of the 1991 murder of a police officer and sentenced him to a 10-year prison term.) Swiss authorities initially detained Ortiz at Chile's request but in September denied an extradition request and freed Ortiz from detention. There were no reports of political prisoners, although among the 56 inmates in Santiago's maximum-security prison, those who have been convicted of terrorist acts routinely claim to be political prisoners.
f. Arbitrary Interference With Privacy, Family, Home, or Correspondence
The Constitution prohibits such practices, government authorities generally respect these prohibitions, and violations are subject to effective legal sanctions. A 1995 privacy law bars obtaining information by undisclosed taping, telephone intercepts, and other surreptitious means, as well as the dissemination of such information, except by judicial order in narcotics-related cases.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and of the press, and the authorities generally respect these rights. The press maintains its independence, criticizes the Government, and covers issues sensitive to the military, including human rights. However, investigative journalism is still a rarity. Two major media groups control the print media, which are largely independent of the Government. The State is majority owner of La Nacion newspaper, but it is editorially independent. The electronic media also are largely independent of government control. The Television Nacional network is state-owned but not under direct government control. It receives no government subsidy and is self-financing through commercial advertising. It is editorially independent and is governed by a board of directors that, although politically appointed, encourages the expression of varied opinions over the network. Under the Internal Security Law of 1958, it is a criminal offense to besmirch the honor of state institutions and symbols, such as the Congress, the military services, the flag, and the President. Military courts have the authority to charge and try civilians for defamation of military personnel and for sedition, but their rulings can be appealed to the Supreme Court. Human Rights Watch criticized these restrictions on freedom of expression and information. In 1996 Congress passed a privacy law that set penalties for those who infringe on the private and public life of individuals and their families. At the time of the law's passage, journalists argued vigorously that applying it to media reporting would have a chilling effect on freedom of the press. To date, this privacy law has not been applied to the media. On November 4, the Supreme Court overturned a ruling by a lower court that had prevented Caras magazine from publishing a report on the suffering that an airplane accident caused to a family. Caras refrained from publishing the story, since it was no longer timely. There have been unsuccessful attempts to incorporate language and penalties similar to those in the privacy law into a draft press law. On January 21, the authorities jailed two journalists in a libel case brought against them by Supreme Court justice Servando Jordan. They were released on bail the following morning. The case was brought under provisions of the Internal Security Law. On January 28, following public criticism of the lawsuits, Jordan withdrew his libel charge against the journalists. Jordan also filed libel charges against the director and deputy director of La Tercera daily newspaper. On January 30, a court rejected this case, and an appeals court reaffirmed the decision on June 17. However, on September 16 another appeals court reinstated the case. The two journalists spent the night of September 16 in jail before being released on bail. At year's end, judicial proceedings were still open. On June 4, La Epoca newspaper journalist Jorge Molina received a written threat warning him to stop writing about a 1994 bribery case involving military hospital procurement. The journalist was provided with police protection. In mid-July, retired General Pinochet asserted that he was misquoted in La Tercera newspaper following a breakfast meeting with four members of the press. He brought a libel suit, which a court dismissed in November. The 1980 Constitution established a Film Classification Council (CCC) with the power of prior censorship. The Council has banned over 50 films and approximately 700 videos. Local and foreign film distributors regard the CCC's screening process as insufficiently transparent. The Lawyers Association for Public Liberties petitioned the IACHR to object to censorship of the film "The Last Temptation of Christ." (The 1989 ban on the film had been lifted in 1996.) The Government continued efforts to abolish the CCC through constitutional reform. The National Television Council (CNT), created by legislation in 1989 and supported with government funding, is charged with assuring that television programming "respects the moral and cultural values of the nation." The CNT's principal role is to regulate violence and sexual explicitness in both broadcast and cable television programming content. Films and other programs judged by the CNT to be excessively violent or to have obscene language or sexually explicit scenes can be shown only after 10 p.m. when "family viewing hours" end. In practice, the ever-increasing volume of programming makes the CNT's job all but impossible. The CNT issues occasional warnings to networks and cable providers and sometimes obliges them to postpone the showing of certain films until after 10 p.m. It also occasionally has levied fines. Debate continues over the CNT's role. The courts can prohibit media coverage of legal cases in progress but do so rarely. Courts issued two gag orders involving criminal cases during the year, but both were overturned on appeal. The press has begun using foreign Internet web sites to publish articles when gag orders are issued. The Government does not restrict academic freedom.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for these rights, and the Government respects them in practice. The police used water cannons and tear gas to break up violent demonstrations on the anniversary of the September 1973 coup. Two persons died, 77 were injured, and over 300 were arrested. Property damage was considerable; several buildings were vandalized along the parade route (also see Sections 1.a. and 3).
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government respects this right in practice. All denominations practice their faiths without restriction. Although church and state are officially separate, the Roman Catholic Church receives official preferential treatment. Chile's 1 to 2 million Protestants assert that the Government discriminates against them, based upon differing legal status afforded to non-Catholics. They cite the absence of Protestant armed forces chaplains, difficulties for pastors to visit military hospitals, and the predominantly Catholic religious education in public schools. To remedy this situation, the lower house of Congress unanimously approved a bill to afford greater legal equality among all churches late in 1997; however, the bill remained pending in the Senate at year's end. There was one false bomb threat against a Santiago synagogue in late August.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government generally respects them in practice. For minor children to leave the country, either alone or with only one of their parents, they must have notarized permission from both parents. The Government cooperates with the office of the United Nations High Commissioner for Refugees and other humanitarian organizations in assisting refugees. The law include provisions for granting refugee and asylee status in accordance with the provisions of the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol. The issue of the provision of first asylum has not arisen. There were no reports of the forced return of persons to a country where they feared persecution.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Chile is a constitutional democracy, and citizens have the right to change their government through periodic elections. There is universal suffrage for citizens 18 years of age and over. The Government still operates under some political restraints that were imposed by the previous regime. Under the 1980 Constitution, various national institutions--including the President, the Supreme Court, and the National Security Council (acting on nominations by the armed forces)--appoint an additional nine Senators (beyond those elected) to 8-year terms. Nine newly appointed institutional senators took their seats in March, along with former President Pinochet, who became a Senator-for-life. The Constitutional Tribunal rejected a suit seeking to prevent Pinochet from entering the Senate. Following his assumption of the seat, the Chamber of Deputies on April 9 rejected an attempt to remove Pinochet from the Senate. The legislative branch, with the exception of the institutional senators, is elected freely and is independent from the executive branch. The former military government wrote the 1980 Constitution and amended it slightly in 1989 after losing a referendum on whether General Pinochet should stay in office as president. The Constitution provides for a strong presidency and a legislative branch with limited powers. In addition, it includes provisions designed to protect the interests of the military and the rightwing political opposition. These provisions include limitations on the President's right to remove military service chiefs (including the chief of the army, a post which Pinochet finally relinquished in March); an electoral system that gives the second-place party (or coalition) in each district disproportionate representation in Congress; and the provision for nonelected institutional senators. The Government has pledged to amend these provisions, which it views as "authoritarian enclaves" left over from the previous regime; the opposition has pledged to fight to retain what it views as important checks and balances in the system of government. As in previous years, demonstrations on the anniversary of the 1973 coup resulted in harm to persons and property. Two persons died, 77 were injured, and over 300 were arrested. However, in the future, the coup anniversary is to be replaced by a "Day of National Unity," to be observed on the first Monday in September (see Sections 1.a. and 2.a.). Women have had the right to vote in municipal elections since 1934 and in national elections since 1949 and are active in political life at the grassroots level. Women make up a majority of registered voters and of those who actually cast ballots, but few women are in leadership positions. There are 13 women among the 120 deputies, 2 women in the 48-seat Senate, and 3 women among the 19 cabinet ministers. No women serve among the 21 Supreme Court justices. The level of female participation in government is not increasing markedly. The over 1 million indigenous people have the legal right to participate freely in the political process, although relatively few are active politically. Only one member of Congress is of indigenous descent.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
There are several nongovernmental human rights organizations. The Chilean Human Rights Commission, a nongovernmental organization (NGO), is affiliated with the International League of Human Rights and gathers evidence of police abuses. The Social Aid Foundation of Christian Churches is also very active on the full range of human rights issues. The CODEPU provides legal counsel to those accused of politically related crimes and to victims of human rights abuses. Local NGO's say that the Government cooperates with their efforts to investigate current accusations of human rights violations. Many international NGO's also follow human rights issues closely. In May President Frei advocated the creation of a "national defender of citizens," a state body that would receive complaints about abusive government acts. However, implementing legislation had not been introduced in the Congress by year's end.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution provides for equality before the law, but it does not ban specifically discrimination based on race, sex, religion, or social status. Women The public is only beginning to appreciate the extent of physical abuse of women. The National Women's Service (SERNAM), created in 1991 to combat discrimination against women, found in a 1996 study of more than 12,000 reports of domestic violence that 3 years after the Law on Intrafamily Violence went into effect, only 1 in 5 accusations resulted in judicial action. The study indicated that spouses or domestic partners were responsible for 88 percent of family violence, and that 63 percent of the reports involved physical attacks. The study showed that in nearly three-quarters of reported cases of domestic violence, the accusation led to a positive change in the domestic situation regardless of the judicial outcome. SERNAM also conducted courses on the legal, medical, and psychological aspects of domestic violence for police officers and judicial and municipal authorities. The courts may order counseling for those involved in intrafamily violence. In 1997 there were approximately 61,000 reports of domestic violence. In 1994 (latest data available) there were 2,280 reported cases of rape; 75 to 80 percent of rapes are believed to go unreported. Under a 100-year-old law, if a man charged with rape asks the rape victim to marry him and she accepts, he would be released immediately, but the fact of his arrest for rape would remain on his criminal record. SERNAM is working to have this law abolished. Legal distinctions between the sexes still exist. The law permits legal separation but not divorce, so those who wish to remarry must seek annulments. Since annulment implies that a marriage never existed under the law, former spouses are left with little recourse for financial support. Although a recent law created conjugal property as an option in a marriage, some women saw this as a step backward, since the law on separate property (which still exists) gives women the right to one-half their husbands' assets but gives husbands no rights to assets of a wife. In the face of heavy opposition from the Catholic Church, the Chamber of Deputies approved a divorce bill in September 1997; the bill still is awaiting Senate action. Another SERNAM study in 1997 found that the average earnings of female heads of household are only 71 percent of those of male heads of household. Women with no schooling averaged a salary that was 87 percent of their male counterparts without schooling, while female heads of household with university training averaged only 57 percent as much as their male counterparts. SERNAM has a pilot program that provides occupational training and child care in an effort to alleviate this disparity. Employers no longer have the right to ask women to take pregnancy tests prior to hiring them; legislation prohibiting this practice took effect in November. Children The Government provides free education through high school; education is compulsory from first through eighth grade. A 1996 survey by the National Minors Service indicated that sexual abuse of minors occurs but that few cases are reported. A 1996 United Nations Children's Fund (UNICEF) report stated that 34 percent of children under 12 years of age experience serious physical violence, although only 3.2 percent of the victims of intrafamily violence reported to the National police family affairs unit were below the age of 18. A 1994 law on intrafamily violence was designed in part to deal with this problem. According to UNICEF, some form of corporal punishment is used by one or both parents in 62 percent of households. A Catholic Church study released in August 1998 estimated that 12 percent of children are beaten by their mother and 10 percent by their father. UNICEF estimates that approximately 107,000 children between the ages of 12 and 19 are in the work force. The Catholic Church's study estimated that some 50,000 children under age 15 are working (see Section 6.d.). Investigations of child abuse within Colonia Dignidad, a secretive German-speaking settlement 240 miles south of Santiago, received widespread publicity throughout the year. The 34,000-acre enclave, inhabited by 350 colonists, was founded by 77-year-old Paul Schaefer, who immigrated from Germany in 1961 with 300 followers. Armed with a court order seeking Schaefer's arrest on multiple counts of child molestation and tax evasion, police conducted extensive search operations on the grounds of Colonia Dignidad, but were unable to apprehend Schaefer, who remained at large throughout the year. In March the police detained several members of the community during a raid. By law, juvenile offenders (i.e., those under the age of 18) are segregated from adult prisoners. The Government had reduced the number of minors in adult prisons from 6,630 in 1992 to around 346 by the end of 1997. Congress approved a law in September, which is to take effect in late 1999, that gives illegitimate children the same legal rights (e.g., of inheritance) as those enjoyed by children born to a married couple. People With Disabilities Congress passed a law in 1994 to promote the integration of the disabled into society, and the Government's National Fund for the Handicapped has a $1.5 million budget. The 1992 census found that 288,000 citizens said that they had some form of disability. The disabled still suffer some forms of legal discrimination; for example, blind persons cannot become teachers or tutors. Although the law requires that new public buildings provide access for the disabled, the public transportation system does not make provision for wheelchair access, and a new subway line in the Santiago metropolitan area provides no facilitated access for the disabled. Indigenous People According to the 1992 census, nearly 1 million persons, slightly less than 7 percent of the population, consider themselves as indigenous. The Mapuches from the south constitute over 90 percent of the indigenous population, but there are small Aimara, Atacameno, Huilliche, Rapa Nui, and Kawaskhar populations in other parts of the country. A committee composed of representatives of indigenous groups participated in drafting the 1993 law that recognizes the ethnic diversity of the indigenous population and gives indigenous people a voice in decisions affecting their lands, cultures, and traditions. It provides for eventual bilingual education in schools with indigenous populations, replacing a statute that emphasized assimilation of indigenous people. However, out of the population that identifies itself as indigenous, about one-half remain separated from the rest of society, largely because of historical, cultural, educational, and geographical factors. In practice, the ability of indigenous people to participate in governmental decisions affecting their lands, cultures, traditions, and the allocation of natural resources is marginal. Indigenous people also experience some societal discrimination. The National Corporation for Indigenous Development (CONADI) was created in 1994, and indigenous people directly elected representatives to this body in 1995. It advises and directs government programs that assist the economic development of indigenous people. In August eight Mapuche families rejected an offer from the Endesa power company to exchange their traditional lands for other property as part of a hydroelectric project. Some of the other indigenous families that had signed land-transfer forms claimed that they had done so under pressure. The Indigenous Law allows for the exchange of traditional lands for property of equal or greater value, provided that the owners and CONADI approve. The Government argued that the electric services law that permits expropriation of property in the interest of providing energy for the general good took precedence over the Indigenous Law. The Government dismissed the CONADI director and two board members when they disagreed with this position. The parties continued in negotiation at year's end. National/Racial/Ethnic Minorities Chile assimilated a major European migration in the last century and a major Middle Eastern and Croatian migration in the early part of this century. Smaller racial and ethnic minority groups (Chileans of Asian descent and African-Chileans) experience some societal intolerance.
Section 6 Worker Rights
a. The Right of Association
Workers have the right to form unions without prior authorization and to join existing unions. The work force is estimated at 5.7 million persons, of whom 3.7 million are salaried. The latest available statistics place union membership at approximately 655,000, or roughly 12 percent of the entire work force. A 1995 law provides government-employee associations with the same rights as trade unions. However, this right is not enjoyed by police or military personnel, nor by employees of state-owned companies attached to the Ministry of Defense. Members of unions are free to withdraw from union membership. The 1992 Labor Code permits nationwide labor centrals, and the Unified Workers Central (CUT), the largest and most representative of these, legalized its status in April 1992. Labor unions are effectively independent of the Government, but union leaders usually are elected from lists based on party affiliation and often receive direction from parties' headquarters. There are no restrictions on the political activities or affiliations of unions or union officials. Registering a union is a simple process. Employees in the private sector have the right to strike, and the Government regulates this right. However, some restrictions on the right to strike remain. The law proscribes employees of some 30 companies--largely providers of essential services (e.g., water and electricity)--from striking; it stipulates compulsory arbitration to resolve potential strikes in these companies. Public officials do not enjoy this right, although government teachers, municipal, and health workers have struck in the past. Public school teachers struck for almost a month in October. There is no provision for compulsory arbitration in the public sector. Employers must pay severance benefits to striking workers and must show cause to fire workers. Employees who believe that they have been dismissed unfairly or dismissed because of their trade union activities file complaints with the Ministry of Labor. If the claim is approved, the employer must make special and additional compensatory payments. The burden of proof rests with the employer in cases in which employees allege illegal antiunion activity. The CUT and many other labor confederations and federations maintain ties to international labor organizations.
b. The Right to Organize and Bargain Collectively
Despite legal provisions for collective bargaining, most workers negotiate individual contracts. Employers say that this is due to the workers' preference, distrust of union leaders, and loyalty to companies. Union leaders counter that the Labor Code--which does not allow union shops--prevents successful organization in many sectors. Employers also may include a clause in individual employment contracts that bars some classes of supervisory employees from collective bargaining. Employees may object to the inclusion of such clauses in their contracts and may appeal to the Ministry of Labor to excise them. The Ministry of Labor arbitrates about one-half of the complaints it receives. Workers may take unarbitrated cases to the courts. If complainants succeed in proving that they were fired unjustly, the employer must pay discharged employees twice their normal severance payment. There are no statistics available concerning the disposition of complaints of antiunion behavior. Allegations exist that employers fire workers for union activity and attempt to avoid a complaint by immediately paying them some multiple of the normal severance pay. Temporary workers--defined in the Labor Code as those in agriculture and construction, as well as port workers and entertainers--may form unions, but their right to collective bargaining remains dependent on employers agreeing to negotiate with unions of temporary workers. Likewise, inter-company unions enjoy the right of collective bargaining only if the employer agrees to negotiate with such a union. Labor Code sanctions against unfair bargaining practices protect workers from dismissal only during the bargaining process. Labor leaders complain that companies invoke the law's needs-of-the-company clause to fire workers after a union has signed a new contract, particularly when negotiations result in a prolonged strike. Labor laws apply in the duty-free zones.
c. Prohibition of Forced or Compulsory Labor
The Constitution and the Labor Code prohibit forced or compulsory labor, and it is not known to occur. While the Labor Code does not specifically prohibit forced and bonded labor by children, there were no reports of such practices.
d. Status of Child Labor Practices and Minimum Age for Employment
The law allows children between the ages of 15 and 18 to work with the express permission of their parents or guardians. Children 14 years of age also may work legally with such permission, but they must have completed their elementary education, and the work involved may not be physically strenuous or unhealthy. Additional provisions in the law protect workers under 18 years of age by restricting the types of work open to them (for example, they may not work in nightclubs) and by establishing special conditions of work (they may not work more than 8 hours in 1 day). Labor inspectors enforce these regulations, and compliance is good in the formal economy. The Labor Code does not specifically prohibit forced and bonded labor by children, but such practices were not known to occur (see Section 6.c.). Many children are employed in the informal economy. A government study estimates that 15,000 children between the ages of 6 and 11 and 32,000 children between the ages of 12 and 14 are in the work force. UNICEF estimates that approximately 107,000 children between the ages of 12 and 19 work (see Section 5). An August Catholic Church study estimated 50,000 children under the age of 15 worked. The majority of these were males from single-parent households headed by women; among these were children who worked more than 40 hours per week and did not attend school. The Ministry of Labor convenes regular meetings of a tripartite group (business-labor-government) to monitor progress in eradicating child labor.
e. Acceptable Conditions of Work
The law sets minimum wages, and the minimum wage is adjusted annually. This wage is designed to serve as the starting wage for an unskilled single worker entering the labor force and does not provide a worker and family with a decent standard of living. Only 11 percent of salaried workers earn the minimum wage. A tripartite committee comprising government, employer, and labor representatives normally suggests a minimum wage based on projected inflation and increases in productivity. In May Congress approved the Government's proposal setting the minimum monthly wage at approximately $170 (80,500 pesos) as of June 1. The law sets hours of work and occupational safety and health standards. The legal workweek is 48 hours, which can be worked in either 5 or 6 days. The maximum workday length is 10 hours, but positions such as caretakers and domestic servants are exempted. All workers enjoy at least one 24-hour rest period during the workweek, except for workers at high altitudes who voluntarily exchange a work-free day each week for several consecutive work-free days every 2 weeks. In late October, Congress approved new legislation (which became effective November 9) modifying the Labor Code to provide domestic employees the same pregnancy benefits as female employees who work outside private homes. The same legislation prohibits employers from requiring prospective female workers to take pregnancy tests (see Section 5). Occupational health and safety are protected under the law and administered by both the Ministries of Health and of Labor. The Government has increased resources for inspections by over 60 percent since 1990 and targeted industries guilty of the worst abuses. As a result, enforcement is improving, and voluntary compliance is fairly good. A law that became effective in 1996 increased the number of annual occupational health and safety inspections and provided that they be carried out by an expanded labor inspection service in the Ministry of Labor. Insurance mutual funds provide workers' compensation and occupational safety training for the private and public sectors. There was a 24-percent decline in reported occupational injuries in 1997 compared with the previous 5 years, although 11 percent of the work force still submitted claims. Workers who remove themselves from situations that endanger their health and safety have their employment protected if a real danger to their health or safety exists.