U.S. Department of State Country Report on Human Rights Practices 1999 - Chile
|Publisher||United States Department of State|
|Publication Date||25 February 2000|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1999 - Chile , 25 February 2000, available at: http://www.refworld.org/docid/3ae6aa6d1c.html [accessed 6 March 2015]|
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, which expires in March 2000. At that time, Ricardo Lagos, winner of the January 16, 2000, presidential runoff election, is to take office. International and domestic observers found both the December 12 presidential elections and the subsequent runoff election to be free and fair. The National Congress consists of 120 deputies and 48 senators. The government coalition of four major parties controlled the lower house. An opposition coalition, including several independents and many of the 10 nonelected Senators, shared control in the upper chamber, although the Senate president was from the ruling coalition. Former President General Augusto Pinochet assumed a lifetime Senate seat in March 1998. Turnover in the courts continued to diminish strongly the influence of military-era 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 consists of military and civilian officials, to remove service chiefs. The Carabineros (the uniformed national police) have primary responsibility for public order, 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 first setback after years of expansion. Growth moderated and final figures were expected to show a contraction of 1.1 percent for the year, with inflation at 2.3 percent. The most important export remained copper; salmon, forestry products, fresh fruit, fish meal, and manufactured goods also were significant sources of foreign exchange. Unemployment averaged 10.8 percent for the year. From 1987 to 1998, the percentage of the population living below the poverty line decreased from 45 to 22 percent. Annual per capita gross domestic product was approximately $4,500.
The Government generally respected its citizens' human rights; however, problems remained in some areas. The most serious cases involved killings, torture, brutality, police use of excessive force, and physical abuse in jails and prisons. The due process rights of detainees were not always respected. Violence and discrimination against women and violence against children are problems. Discrimination against the disabled and minorities persists. Indigenous people remain marginalized. Child labor is a problem.
Almost all other human rights concerns are related to abuses committed during the former military government. The bulk of these abuses occurred between 1973 and 1978, although a number took place after this period. A July Supreme Court decision expanded the possibilities for clarifying cases involving persons who disappeared. The court ruled that lacking legal proof of death, disappearances that occurred in the 1973-78 period (covered by the Amnesty Law) must be considered as continuing kidnapings, thus potentially falling outside the amnesty period. The court's ruling stated that only after the circumstances surrounding a disappearance are clarified, and the legal death of the person who disappeared is proven to have fallen within the 1973-78 timeframe, can application of the Amnesty Law be considered. Nonetheless, military authorities continued to resist a full accounting of the fate of those who were killed and who disappeared, and some cases continued to be stifled by the judiciary. There were several important legal decisions made in regard to high profile investigations of such past human rights abuses, including the Caravan of Death and Operation Albania cases.
In October 1998, the United Kingdom detained retired General Pinochet pending resolution of a Spanish extradition request on charges of torture, kidnaping, genocide, and murder. A series of court rulings by the Law Lords denied Pinochet's effort to avoid an extradition hearing, but limited the charges against him to abuses occurring after December 8, 1988. Pinochet's extradition hearing began on September 27. On October 8, a British magistrate determined that Pinochet could be extradited, but Pinochet appealed this decision. At year's end, legal maneuvering continued, and Pinochet remained under house arrest in the United Kingdom.
Nearly 60 human rights cases have been filed in Chile against Pinochet and are under active investigation. However, some in the human rights community are skeptical about the possibility of bringing Pinochet to trial and convicting him of a crime if he were to return. General Pinochet's continuing detention, along with advances in a number of human rights cases and the July Supreme Court ruling, contributed to the continuing societal reexamination and the intensified public and private discussion of what, if anything, could and should be done to deal with the sometimes conflicting demands for truth, for justice, and for national reconciliation. There were renewed efforts to reach a human rights understanding during the year, including at a "dialog table" organized by Defense Minister Edmundo Perez Yoma that brought together military officers and human rights attorneys for the first time since the return to democracy. At year's end, such discussions continued, and the judicial system continued to investigate and either prosecute or close pending human rights cases.
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; however, the police killed two persons during the year.
A police officer allegedly shot and killed University of Tarapaca student Daniel Menco Prieto in Arica during a May 19 student demonstration called to protest the size of the government budget devoted to higher education. The authorities brought charges against the police officer for the shooting; at year's end, the matter remained in the legal system.
On September 1, the authorities arrested two San Antonio Carabineros for their alleged responsibility in the death of Jonathan Moya Jara. On August 8, Moya's partially clothed and lifeless body had been found with its head buried in sand. The two Carabineros allegedly detained Moya illegally, citing a repealed law that allowed the police to stop, question, and detain persons based upon "suspicion" (see Section 1.d.). At year's end, the case remained in the courts.
The courts sentenced four police officers in February to 10 years and 1 day in prison for the death of taxi driver Raul Palma Salgado, who died on January 12, 1998, while in police custody, due to torture. The four officers are appealing the decision, and the case remained in the courts at year's end. Palma's family has filed a $1.2 million (600 million pesos) compensation claim against the State. 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 case of 25-year-old Claudia Alejandra Lopez, a University of Christian Humanism Academy student shot under unclear circumstances during 1998 demonstrations in Santiago on the anniversary of the September 11, 1973 coup, also remained under investigation.
In December 1996, Pedro Soto Tapia, a 19-year-old military conscript, disappeared from his regiment at San Felipe after having written letters to his family describing mistreatment at the hands of superior officers. In March 1997, his remains were found in a cave in San Felipe, accompanied by what was purportedly a suicide note. On May 26, 1998, the judge handling the case closed the investigation for the second time, ruling that he had been unable to determine the circumstances of Soto's death. However, the case was reopened in July when a witness appeared who claimed to have seen six persons beat Soto Tapia on his military base on the evening of December 15. Fifteen former recruits interviewed following the witness's claim were unable to corroborate it. On November 9, the investigating judge again closed the case. At year's end, Soto Tapia's family was considering its legal options (see Section 1.c.).
After having been closed temporarily since 1996, an appeals court reopened on November 30 the investigation into the September 1989 murder of Movement of the Revolutionary Left (MIR) leader Jecar Nehgme.
Important advances were made in clarifying events surrounding Operation Albania, the June 1987 killings of 12 Manuel Rodriguez Patriotic Front (FPMR) members. Judge Hugo Dolmestch reconfirmed in January charges of use of unnecessary violence against those implicated in the case, denying a motion to increase the charges to aggravated homicide. Due to a normal judicial rotation, another jurist, Milton Juica, replaced Dolmestch in March. On October 29, the authorities charged retired generals Hugo Salas Wenzel and Humberto Leiva with this crime. They accused Wenzel, Director of the National Intelligence Center (CNI) in 1986-88, of being an author of the crime, and Leiva, CNI Subdirector in 1987, of covering up the incident. At the same time, the authorities detained six other former CNI agents; one of whom, Major Emilio Neira, was still on active duty. Judge Juica also increased the charges against the 10 persons detained earlier from unnecessary violence leading to death to kidnaping and homicide. On November 15, the authorities also detained retired Captain Nernan Miquell for his role in the case. In September the press reported that unknown persons allegedly linked to the former security services threatened Rafael Castillo, a prominent investigator for the Investigations Police. He reportedly also received threats in August 1998 when former CNI agents were charged in the Operation Albania case (see Section 4).
In November eight former CNI agents, including Alvaro Corbalan, were charged with the September 1986 murder of journalist Jose Carrasco. Five of the eight persons charged in this case also have been named in the Operation Albania investigation. Carrasco's killing took place 2 days after a failed assassination attempt against General Pinochet and was widely believed to have been in reprisal for that act.
Efforts by Spanish Judge Baltazar Garzon to have former President and retired General Pinochet extradited from the United Kingdom to Spain for his alleged responsibility in the deaths, torture, and disappearances that took place during the military dictatorship continued. On January 18, a Law Lords panel convened to rehear Pinochet's appeal that he enjoyed sovereign immunity and should be freed immediately from house arrest and allowed to return to Chile. A November 1998 Law Lords ruling against Pinochet had been set aside in December of that year following an appeal that one of the deciding judges had not revealed a potential conflict of interest involving links with one of the parties supporting the Spanish request.
In a complex decision on March 24, the new Law Lords panel found that General Pinochet had been arrested in connection with certain extraditable crimes under British law, did not enjoy sovereign immunity with respect to the alleged crimes, and that extradition proceedings could begin. However, the panel also ruled that the extradition request only could invoke charges of torture and conspiracy to torture related to incidents after December 8, 1988, the date the United Kingdom (following both Chile and Spain) ratified the International Convention Against Torture. This initially limited the charges against Pinochet to one 1989 case of alleged police torture leading to death and one count of conspiracy to torture, but Judge Garzon subsequently amplified his complaint to include many other alleged instances of abuse.
On April 15, the British Home Secretary decided to allow the extradition process to proceed, and Pinochet's extradition hearing began on September 27. On October 8, a British magistrate determined that Pinochet could be extradited; the retired general appealed this ruling. At year's end, legal maneuvering continued, and Pinochet remained under house arrest in England.
Investigations in Spain resulted in no new action regarding 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 collected evidence and taken testimony regarding human rights violations in Chile and Argentina during the military dictatorships.
Former Chilean intelligence agent Enrique Arancibia Clavel continued to be detained in Argentina, charged with involvement in the 1974 car bombing in Buenos Aires that killed former 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; Arancibia was detained in 1996. In January Arancibia petitioned for his release based on an Argentine law stating that no one can be held in preventive detention for more than 2 years. The court rejected his petition, stating that the law's release provision was not automatic; each case had to be reviewed on its own merits.
On April 9, charges against Arancibia were broadened to include "illicit association;" the court also reaffirmed the Chilean Government's right to participate in the trial as a coplaintiff. Upon issuance of this ruling, attorneys for the Prats family asked that General Pinochet and several former senior officials of DINA (the army intelligence branch during the military regime), including retired generals Manuel Contreras, Pedro Espinoza, Raul Iturriaga Neumann, and Jose Zara Holger, and civilian Jorge Iturriaga Neumann, also be charged in the case. (Contreras and Espinoza are serving prison terms for the 1976 killings in the United States of former Foreign Minister Orlando Letelier and his assistant Ronni Moffitt.)
In mid-May attorneys for those newly implicated – with the exception of Pinochet who did not have legal representation – asked to have the statute of limitations invoked. In mid-August the Argentine judge handling the case, Maria Servini de Cubria, sent an official request to Pinochet in London asking that he name an attorney for this hearing. The judge noted that if Pinochet did not name a legal representative, one would be appointed. Arguing that it wanted to focus its energies on the actual prosecution of Arancibia, the Chilean Government declined to take part in this phase of the legal proceedings. In December the judge ruled that Contreras and Espinoza could be included in the case; Contreras and Espinoza appealed this ruling. At year's end, decisions were pending on the other defendants who tried to invoke the statute of limitations; oral proceedings against Arancibia had yet to begin.
On March 30, a Santiago appeals court ordered the reopening of the case involving the 1982 death of labor leader Tucapel Jimenez and the related 1983 homicide of carpenter Juan Alegria Mundalca. Investigating Judge Sergio Valenzuela Pinto had closed the case on November 6, 1998, by ruling that there was insufficient evidence to bring anyone to trial. In reopening the investigation, the appeals court ordered the detention of 12 persons, including retired General Ramses Arturo Alvarez Scoglia and several former intelligence officers.
Acting on a petition by the Government's Council for the Defense of the State, on April 9, the Supreme Court replaced Valenzuela Pinto, who had been criticized for his handling of the case since taking it on in 1982, with Sergio Munoz Gajardo. In the months that followed, Judge Munoz charged five other persons; the authorities held two of these individuals and granted bail to the others. On May 27, the Supreme Court approved a request by Munoz to send a list of questions to Pinochet in London seeking clarification of what the retired general knew about Tucapel Jimenez' death. At year's end, these questions had not yet been presented to Pinochet.
In mid-September Judge Munoz ordered 2 further high-profile detentions, bringing the total number of persons charged to 19. He ordered retired General Humberto Gordon, former CNI director and army representative on the military junta in 1986-88, and retired Brigadier Roberto Schmeid, former CNI chief for Santiago, detained on complicity charges. A September 21 Santiago appeals court ruling reduced the charges against Gordon to involvement in covering up the crime, but did not order him released. Two days later, in a split decision, a Supreme Court panel reinstated the complicity charges. Gordon was released on bail on November 12; at year's end, 16 of 19 persons implicated in the crime were free on bail, 2 still were detained and extradition of another from France was being sought.
The authorities took retired air force Colonel Edgar Ceballos Jones, who led air force intelligence and the "joint command" in the years following the coup, into custody following a January 25 appeals court ruling. The court ordered Ceballos detained for his alleged role in the 1974 death of Alfonso Carreno Diaz and the disappearance the same year of Jose Luis Baenza Cruces. In June Ceballos filed to have his case transferred to the military justice system; the Supreme Court rejected this petition on September 23. Ceballos was released on bail on October 11; at year's end, legal proceedings were continuing.
The daughter of Carmelo Soria, a Spanish citizen working for the United Nations who was killed in Santiago on July 14, 1976, appeared before the Inter-American Commission on Human Rights (IACHR) in March, charging the State with denial of justice in her father's case due to an August 23, 1996, amnesty ruling closing the investigation. In 1997 the Soria family rejected a compensation offer from the Government.
On April 19, a Concepcion military court detained five former CNI agents for the August 23-24, 1984, murders of eight MIR members. In 1997 a military court had closed the case, ruling that the deaths occurred during an armed confrontation. However, a September 1998 Supreme Court ruling ordered the case reopened.
In a compensation case, a Santiago civil court awarded approximately $1.2 million (600 million pesos) to the mother of five MIR members who were killed or who disappeared between 1974 and 1976. The compensation was awarded for "moral damages." At year's end, the Government was considering whether to appeal.
In early October, Italy requested the extradition of retired General Manuel Contreras for his role in the attempted killing of Bernardo Leighton. Along with another Chilean, Contreras was convicted of the crime in absentia in Rome in 1995 and sentenced to 20 years in prison. On December 1, Judge Juan Guzman charged Contreras, along with former officers Marcelo Moren Brito and Armando Fernandez Larios, with the October 1974 disappearance of Communist Party member David Silberman Gurovich. The law precludes the extradition of any person being processed for a local crime, although the Italian request remained pending at year's end.
While most allegations of human rights abuses are directed at now-retired officers, some alleged perpetrators remain on active duty. For example, Army General Sergio Espinoza Davies, who commanded the U.N. 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 U.N.'s announcement that it would investigate the charges against him, the Government consulted with the United Nations. The issue became moot when General Espinoza Davies, promoted to Army Inspector General, returned to the country in December 1998.
There were no reports of politically motivated disappearances.
The major human rights controversy involved past disappearances and efforts by political factions and the judiciary to interpret the 1978 Amnesty Law in such a way as to achieve truth, 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. A version of this doctrine began to take hold in the court system, but its application was uneven, and some courts continued the previous practice of applying the 1978 Amnesty Law to disappearances without conducting an investigation to locate the missing person's remains or identify the perpetrators. Of the 1,289 individuals who disappeared under the military regime, the remains of 244 have been found and identified; over 1,000 have yet to be found.
The agency in charge of the compensation program for the families of those executed or who disappeared reported in mid-June that since 1992 the State had provided over $95 million in benefits. Survivor benefits include pensions, educational subsidies, and other assistance.
In December 1998, 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; it ordered the military court to begin an investigation. This doctrine remains controversial, and jurisprudence in this area was unsettled at year's end.
On June 9, Investigating Judge Guzman ordered the detention of retired General Sergio Arrellano Stark, who led the September-October 1973 Caravan of Death responsible for at least 72 killings. Guzman also ordered the detention of former military officers Sergio Arredondo, Marcelo Moreno, Patricio Diaz, and Pedro Espinoza (already in jail for the Letelier-Moffitt murders). In December Judge Guzman granted Arellano's bail request subject to appeals court approval. The appeals court rejected Arellano's request for bail, and at year's end Arellano was considering his legal options. Guzman charged the 5 men with aggravated kidnaping in the disappearances of 19 persons. In July the Supreme Court refused to dismiss the case against the former officers.
In ordering Arellano and the four others detained, Guzman resorted to controversial interpretations of the Amnesty Law and kidnaping statutes. The judge ruled that since the death of those 19 persons who disappeared during the Caravan had not been proven legally, the kidnapings must be presumed to continue and, therefore, the crime may fall beyond the period covered by the amnesty. Consistent with this interpretation, a proven 1973-78 death falls under the Amnesty Law; Guzman granted amnesty to five other former officers involved in the Caravan on these grounds.
A July Supreme Court ruling on a habeas corpus petition brought by the detained former officers explicitly supported Guzman's detention of the five on aggravated kidnaping charges and noted that the investigation into the disappearances had to be exhausted prior to the consideration of a grant of amnesty. In August family members of those executed or who disappeared during the Caravan period petitioned the Santiago appeals court to raise the charges against those detained to homicide and to revoke the amnesty granted to the five other former officers. On August 26, the appeals court declined to increase the charges against the five detained officers and declined to charge those not detained with homicide. In making its determination on the five persons who were not detained, the court ruled that there was insufficient evidence of their involvement in the murders; it did not reaffirm the amnesty decree.
The court further ordered that Armando Fernandez Larios, one of the five former officers granted amnesty by Judge Guzman, be charged with aggravated kidnaping and that his extradition be sought. In March the family of Winston Cabello Bravo, 1 of 16 persons executed in Copiapo in October 1973 during the Caravan of Death, filed a civil suit in a foreign country for damages against Fernandez. As of year's end, an extradition request for Fernandez had not yet been presented.
On October 5, Judge Guzman asked the Supreme Court to send a list of questions to General Pinochet in London seeking information on what he knew about the Caravan of Death, the structure of the DINA, and other human rights matters. On November 3, Guzman announced that Pinochet's response, received a day earlier, did not directly answer the questions. Instead, Pinochet sent back a short note stating that his detention in the United Kingdom prevented his access to the material necessary to respond to the questions.
On May 25, the authorities detained former DINA agent Basclay Zapata (also known as "El Troglo") for his alleged involvement in the May 1974 disappearance of two MIR members. On June 3, the Supreme Court rejected an appeal by Zapata to be released; he remained under arrest at year's end.
The Vicariate of Solidarity Document and Archive Foundation reported that in the first half of 1999, courts revoked three prior amnesty rulings. An amnesty ruling was overturned in another instance, but the case was closed temporarily due to lack of evidence. Several other previous cases in which amnesty was granted are being appealed.
Prior to 1998, the Supreme Court sometimes had ruled 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 investigation. Court rulings in 1998 and 1999 called this determination into question, without completely ruling out the possibility that cases could be closed.
Military courts, in particular, continued to be prone to close cases. Nonetheless, on January 18 the highest military court revoked a lower military court amnesty ruling in the illegal arrest case of Arsenio Poupin, declaring that the perpetrators of the crime had not been identified. Vice Minister of Government at the time of the coup, Poupin was arrested in La Moneda on September 11, 1973 and later disappeared. While the military court did order the case temporarily closed due to lack of evidence, the finding leaves open the possibility of a future reopening.
In September 1998, the Supreme Court revoked an amnesty granted by a lower court covering the 1974 disappearance of MIR member Pedro Enrique Poblete Cordoba on the basis that the Geneva Convention (on internal conflicts) was applicable. This is the only Supreme Court or appeals court ruling that has interpreted the Geneva Convention as applicable to the military era, overriding the Amnesty Decree.
In a subsequent 1998 case similar to Poblete's, the Supreme Court declined to invoke the Geneva Convention. An August Santiago appeals court panel also declined to address the Geneva Convention issue in a Caravan of Death ruling, despite the plaintiffs' arguments that the convention should be invoked.
The Social Aid Foundation of Christian Churches (FASIC), the CODEPU, and other human rights organizations have several denial-of-justice cases pending before the IACHR regarding previously closed disappearance and execution cases. Denial of justice cases based on application of the Amnesty Law also have been filed with the United Nations Commission on Human Rights (UNCHR). The most recent of these was filed in April, alleging that justice had been denied in the disappearance case of Eduardo Paredes Barrientos, an adviser to deposed President Salvador Allende and once head of the Investigations Police. An August 1998 Supreme Court ruling had upheld a previous amnesty finding in Paredes' case.
In 1998 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 and Belgium also filed extradition requests for Pinochet in 1998.
Investigations of military-era detentions and disappearances of persons at Colonia Dignidad (renamed "Villa Baviera"), a secretive German-speaking settlement 240 miles south of Santiago, led to an April 28 detention order issued by Judge Guzman against Paul Schaefer for the kidnaping and disappearance of Alvaro Vallejos. Schaefer, already wanted by the authorities on other charges, remained a fugitive at year's end. The 34,000-acre enclave, inhabited by 350 persons, was founded by the 78-year-old Schaefer, who immigrated from Germany in 1961 with 300 followers.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution forbids the use of illegal pressure on detainees; however, 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.
The Human Rights Office of the Metropolitan Legal Aid Office, an arm of the Justice Ministry, released a report in March noting that it had attended 815 persons in 1998, twice the number seen the previous year. The report further stated that the Legal Aid Office presented 70 cases to civilian or military courts in 1998; 42 cases were filed in 1997. Of the more recent cases, 48 were lodged against National Police officers for abuses, while 7 cases involved the Investigations Police, and 6 involved military personnel. The remainder involved various government civilian authorities and private security guards.
In July 1998, 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 uses 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 also would be considered accessories to the crime if they fail to do so (see Section 1.d.).
Human rights groups continue to claim that military recruits sometimes are mistreated. The Commission on Juvenile Rights (CODEJU), a nongovernmental organization (NGO) claimed on November 5 that it had received 380 complaints of recruit mistreatment in the previous 5 years. This statement followed the October 29 departure from an Iquique military base of recruits Leonardo Guerra Leandro and Mario Jesus Basaubre. Once home Guerra claimed that he was mistreated on the base; Basaubre committed suicide at home on October 30. In response, the army announced that its preliminary investigation backed the recruits' claims of mistreatment and promised to take administrative and disciplinary action against those allegedly involved. The army also referred the matter to the local military prosecutor. The recruits' families filed a criminal complaint charging the base's second in command and two other soldiers with responsibility for the mistreatment. The army stated Basaubre's suicide was the third by a soldier during the year; there was one suicide in the ranks in 1998, five suicides in 1997, and six in 1996.
On November 9, the investigating judge again closed the case of Pedro Soto Tapia, a 19-year-old military conscript who alleged mistreatment in 1996 and whose remains were found in March 1997. At year's end, Soto Tapia's family was considering its legal options (see Section 1.a.).
There was no new information available on the case involving 14 military conscripts who were reportedly beaten during a military exercise in 1998. One corporal involved in the incident was removed from the military and was awaiting trial at the end of 1998.
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 a compensation award of approximately $600,000 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.
In September a press report indicated that unknown persons threatened Rafael Castillo, a prominent investigator for the Investigations Police on Operation Albania, as well as the Letelier, Prat, and Leighton killings.
Prisons are often overcrowded and antiquated, but conditions are not life threatening. Food meets minimum 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 422 minors in adult prisons, according to 1998 figures (see Section 5).
The maximum security prison housed 56 inmates until early February, most of them charged with, or convicted of, terrorism. In February these prisoners were transferred to other penitentiaries while repairs were done to the facility and security measures upgraded. The prisoners complained that they were beaten and abused during the move; the Government denied this, but admitted that prisoners were handcuffed and that tear gas was used. On June 6, a Santiago appeals court, while recognizing that the inmates did not cooperate with the transfer, ruled that prison guards used excessive force. The court ordered prison authorities to abstain from using such force in the future. Prison authorities appealed the finding to the Supreme Court.
On March 29, 44 prisoners were returned to the maximum security prison; the other 12 remained in different penitentiaries. These prisoners continue to complain that strict security measures, restriction 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 asserted that they were never used.
The Government permits prison visits by independent human rights monitors.
d. Arbitrary Arrest, Detention, or Exile
The authorities generally respect constitutional provisions for arrest and detention; however, detainees are not always advised promptly of charges against them, nor granted a speedy hearing before a judge. 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 and are not granted a timely hearing before a judge. At the end of 1998, 7 percent of the general prison population of 26,449 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.
In July 1998, 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.). A case filed in July 1998 involving the new law remains in the courts.
On September 1, the authorities arrested two San Antonio Carabineros for their alleged responsibility in the death of Jonathan Moya Jara; prior to his death, the two policemen allegedly detained Moya illegally, citing the repealed Suspicion Law (see Section 1.a.).
The Constitution provides for the right to legal counsel, but this is a reality primarily for those who can afford to pay. The poor, who account for the majority of 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; however, while 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 power to approve presidential nominees to the Court, and increased the Court's 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 vacancies on the Supreme Court and appeals courts, from which the President makes nominations. 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 often 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. The army's Auditor General, Fernando Torres Silva, who was appointed during the military regime, was replaced in April. Human rights groups had accused Torres Silva of actively opposing investigations into cases involving alleged abuses under the military regime.
In September 1997, President Frei signed a judicial reform law that created the post of Attorney General and a related ministry that is expected to be in full operation by 2003. Congress passed enabling legislation for the Ministry in September, and the President signed it into law on October 8. On November 17, the Senate confirmed Guillermo Piedrabuena to a 10-year term as the first Attorney General. The judicial reform 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 to them. The Government has designated two regions to begin gradual implementation of the reform. Training and administrative preparations began during the year, with the first oral trials expected in December 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.).
There were no reports of political prisoners, although the inmates in Santiago's maximum security prison 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 recording, 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 Government generally respects 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 most of the print media, which are largely independent of the Government. The State is the majority owner of La Nacion newspaper, but it is editorially independent. A new privately owned Santiago-area daily, El Metropolitano, began publishing in May.
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 appointed by the Senate. Members reflect various political viewpoints, and the board encourages the expression of varied opinions over the network.
Under the State Security Law of 1958, it is a criminal offense to besmirch the honor of state institutions and symbols, such as the Congress, the Supreme Court, 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 has criticized these restrictions on freedom of expression and information, as has the OAS Special Rapporteur for Freedom of Expression; he visited the country in June and called for changes to the law.
In 1996 Congress passed a privacy law that set penalties for those who infringe on the private and public lives 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. As yet this privacy law has not been applied to the media. 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, 1998, the authorities jailed two journalists in a libel case brought against them by Supreme Court Justice Servando Jordan under provisions of the State Security Law. They were released on bail the following morning. Although a lower court rejected the charges against the two journalists and an appeals court reaffirmed this decision in June, on September 16, 1998, another appeals court reinstated the case. The two journalists spent the night of September 16 in jail before being released on bail. The case remained in the legal system until June 29, when the judge investigating the case absolved the two journalists. A Santiago appeals court confirmed this ruling on September 8. Jordan appealed the ruling to the Supreme Court and the case was under review at year's end.
On April 13, the "Black Book of Chilean Justice," by Alejandra Matus, went on sale in Santiago. On April 14, Supreme Court Justice Jordan, who was mentioned negatively in the book, filed charges against Matus under the State Security Law and asked to have all copies of the volume seized. Responding to Jordan's suit, a Santiago appeals court judge ordered all copies of the book seized from the publisher, Editorial Planeta, and from book stores. After seizure of the book, the La Tercera newspaper and the Planeta publishing house each placed the prohibited text on the Internet, using foreign servers. The book also was published in Argentina. On May 14, the Supreme Court declined to order release of the seized volumes while Jordan's complaint continued in lower courts.
After becoming aware of the lawsuit, Matus left the country. The charges against her, and seizure of the book, were widely criticized. The President called on the legislature to modify the State Security Law to ensure freedom of expression and, on October 7, the Chamber of Deputies approved modifications in the law; at year's end action still was pending in the Senate. In early October, Matus presented her case before the IACHR.
On June 16, Editorial Planeta general manager Bartolo Ortiz and chief editor Carlos Orellana were detained for their role in publishing Matus' book. They were released on bail 2 days later. The OAS Special Rapporteur criticized their detention and the seizure of Matus' book during his June visit. On July 30, a Santiago appeals court dismissed the case against Ortiz and Orellana. On September 16, the Supreme Court affirmed the lower court decision, rejecting a petition from Jordan to overturn the appeals court finding.
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 Commission ruled against the Government and the case is now before the Inter-American Court.
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 content in both broadcast and cable television programming. 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 service providers and sometimes obliges them to postpone the showing of certain films until after 10 p.m. It also occasionally levies fines. In July the CNT fined the La Red television station for "harming the dignity" of a municipal employee during a news spot. 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 in 1998, but both were overturned on appeal. On January 8, journalist Paula Afani was detained for 6 hours for failing to reveal her sources in a criminal case, but the arrest order was overturned quickly.
The press has begun using foreign Internet web sites to publish articles when gag orders are issued.
The Government does not restrict academic freedom. In May students demonstrated to protest the size of the Government's budget allocation for higher education; a police officer allegedly killed one student protester (see Section 1.a.).
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of assembly, and the Government respects this right in practice.
As is traditional in the month of September, a number of demonstrations took place related to the anniversary of the 1973 coup, among other issues. In an early September student demonstration near the University of Arcis, a Carbinero was burned badly by a Molotov cocktail allegedly thrown by an 18-year-old student who was later taken into custody. On September 22, a court dismissed charges against the student on grounds of insufficient evidence.
The Constitution provides for freedom of association, and the Government respects this right in practice.
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. Church and state are officially separate; however, the Roman Catholic Church receives official preferential treatment.
Many of the approximately 2 million Protestants, who represent about 12 percent of the population, 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 given 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. The Senate approved an amended version of the bill in July, and it entered into force in October. The new law allows other religious bodies to have a status that provides that a church cannot lose its juridical status administratively; for the Catholic Church, the law reaffirms that it cannot have its status questioned at all.
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 the nonaccompanying parent(s).
The law includes 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 Government cooperates with the office of the U.N. High Commissioner for Refugees and other humanitarian organizations in assisting refugees. The issue of 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. Free and fair presidential elections were held on December 12, with a runoff on January 16, 2000.
The Government still operates under some political restraints that were imposed by the military regime. Under the 1980 Constitution, various national institutions – including the President, the Supreme Court, and the National Security Council (the latter acting in part 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 1998 along with former President Pinochet, who became a senator-for-life. (Upon leaving office in March 2000, President Frei becomes eligible for a seat as a senator-for-life.) 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 conservative political opposition. These provisions include limitations on the President's right to remove military service chiefs (including the chief of the army); 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 called for modification of 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; however, during the year the opposition indicated a willingness to consider some changes.
Women have had the right to vote in municipal elections since 1934, 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; however, they are underrepresented in government and politics. There were 13 women among the 120 deputies, 2 in the 48-seat Senate, and 2 among the 20 cabinet ministers. No women serve among the 21 Supreme Court justices. The level of female participation in government is not increasing markedly.
The approximately 1 million indigenous people have the legal right to participate freely in the political process, although relatively few are active politically. One member of Congress is of indigenous descent.
Section 4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Several nongovernmental human rights organizations are active. The Chilean Human Rights Commission, an NGO, is affiliated with the International League of Human Rights. The FASIC is also very active on the full range of human rights issues. The CODEPU provides legal counsel to some claiming that they are being accused of politically related crimes and to victims of human rights abuses. Domestic NGO's state that the Government cooperates with their efforts to investigate accusations of human rights violations. Many international NGO's follow local human rights issues closely.
During the year threats occasionally were made against human rights activists. The Government provided protection as appropriate and none of the threats was carried out. On November 4, burglars entered the CODEPU's offices and stole computers and printers.
In September a press report indicated that unknown persons threatened Rafael Castillo, who had in the past investigated human rights abuses associated with Operation Albania, as well as the Letelier, Prat, and Leighton killings for the Investigations Police. The unconfirmed report indicated that he also received threats in August 1998 when former CNI agents were charged in the Operation Albania case.
In May 1998, President Frei advocated the creation of a "national defender of citizens," a state body that would receive complaints about abusive government acts; however, the executive branch had not forwarded legislation to Congress to create this entity by year's end.
In April the UNCHR issued a report that criticized the Amnesty Law, the existence of nonelected senate members, and the lack of a divorce law. The Government cooperated with the Commission's work, providing a submission to the group expressing its views.
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.
The most serious violations of women's rights involved sexual and domestic violence. The public is becoming increasingly aware of 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. It 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. The 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. The Citizens' Peace Foundation indicated that there were 993 cases of rape reported to the police in 1997, and 1,052 in 1998. It is believed that a majority of rape cases go unreported. On July 2, a new law took effect that increased the penalties for sexual abuse. The legislation includes clauses to facilitate proof of the crime and protect the privacy and safety of the woman making the charge. The new law also overturned 100-year-old legislation that permitted a man charged with rape to be released if he asked the victim to marry him and she accepted.
The Constitution was amended on June 16 to emphasize the principle of equality between men and women and now states that "persons are born free and equal in their dignity and rights" (rather than using the generic term "men").
Nonetheless, 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. Despite 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. The SERNAM has a pilot program that provides occupational training and child care in an effort to alleviate this disparity. The Labor Code provides benefits for pregnant workers and recent mothers. Employers do not have the right to ask women to take pregnancy tests prior to hiring them; legislation prohibiting this practice took effect in November 1998.
The Government provides free education through high school; education is compulsory from first through eighth grade.
Violence against children is a problem. A mid-year report by the National Minors Service (SENAME) noted that it had handled the cases of 5,453 mistreated children through June; 583 of these cases were judged severe enough to be presented to legal authorities. The SENAME reported that cases of abuse brought to its attention totaled 9,723 in 1998 and 7,676 in 1997. In October the SENAME reported that 22 percent of child abuse cases brought to court were dismissed without investigation; SENAME stated that this was a large improvement over the 90 percent figure prevalent in the 1980's. A 1996 SENAME survey indicated that sexual abuse of minors occurs, but that few cases are reported. A report from the La Morada Corporation for Women released in May estimated that there are 20,000 cases of sexual abuse of children every year. Of such cases, only 10 percent go to trial and only 3 percent result in the accused receiving a sentence.
A 1996 U.N. 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. UNICEF estimated 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 at Colonia Dignidad, the secretive German-speaking settlement 240 miles south of Santiago founded in 1961 by Paul Schaefer continued. Police conducted several unsuccessful searches throughout the year for the 78-year-old Schaefer. In August the authorities detained six persons, following the July appearance of a minor missing for 2 years who last had been seen at the Colonia and was feared to have been sexually abused by Schaefer. They released one of these persons on September 16, after a Supreme Court decision that he had not been involved in the crime; another received bail on October 11. Two persons, including the child's father and a former CNI agent, had been detained earlier in the disappearance.
A joint SENAME-UNICEF study in 1995 estimated that there were 4,200 child prostitutes between the ages of 6 and 18 in the country. UNICEF estimated in June that this figure had grown to roughly 10,000.
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 346 in 1997, although this figure reached 422 by the end of 1998.
Congress approved a law in September 1998, which took 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; the Government's National Fund for the Handicapped has a small budget to encourage such integration. 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 a 1994 law requires that new public buildings provide access for the disabled, the public transportation system does not make provision for wheelchair access, and the newest subway line in the Santiago metropolitan area provides facilitated access for the disabled only in some areas.
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 Aymara, 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 and again in November. It advises and directs government programs that assist the economic development of indigenous people.
The Government announced a renewed effort in June to have Congress approve a constitutional reform that would recognize explicitly the existence of indigenous people and the State's responsibility for promoting respect for their culture. However, Congress has not yet passed the constitutional reform, which has been pending since 1991.
In August the U.N. Committee for the Elimination of Racial Discrimination suggested that the Government consider formally apologizing to, and compensating, indigenous people for their historical treatment. The committee also suggested that the Constitution be changed explicitly to outlaw racial and ethnic discrimination.
In the first decision of its kind, a Temuco appeals court ruled on September 10 that an indigenous employee fired from a municipal job had been discriminated against by her immediate superior. The court based its ruling on the Indigenous Law, which outlaws discrimination on the basis of "origin and culture."
Several Mapuche families continued to object to exchanging traditional lands for other property as part of the Ralco hydroelectric project. The eight families involved continued to object to ENDESA's effort to have them resettled. In a related case, on September 8 a Santiago civil court ordered major construction on the project be suspended pending resolution of a suit filed by two Mapuches alleging that the preconstruction environmental impact statement was improperly done. On October 1, an appeals court overturned the suspension on further construction. At year's end, the matter remained before the courts.
In early March, the authorities arrested two foreigners for alleged participation in an indigenous demonstration against the dam in Bio Bio province and ordered them expelled. A March 15 Supreme Court ruling overturned the expulsion orders.
Land disputes between Mapuche Indian groups and private forestry companies arose throughout the year, leading to several arrests of Mapuches who committed violent acts. Beginning in May, a group of 300 Mapuches marched 420 miles to Santiago demanding the return of land rights and more political autonomy.
Chile assimilated a major European migration in the 1800's and a major Middle Eastern and Croatian migration in the early part of the 1900's. 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; however, the Government regulates this right and some restrictions 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. 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 on 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. There were allegations 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. Similarly, 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.
In November the Government reactivated long-stalled labor legislation designed to expand collective bargaining, including the facilitation of collective bargaining for temporary workers and across companies and sectors, among other goals. The lower chamber of Congress approved the draft legislation, but the Senate defeated it.
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.
Many children are employed in the informal economy. A government study estimated 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 estimated that approximately 107,000 children between the ages of 12 and 19 work (see Section 5). An August 1998 Catholic Church study estimated that 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. 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.).
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 1998, Congress approved the Government's proposal setting an escalating minimum wage through the year 2000; the minimum monthly wage as of June 1 was approximately $175 (90,500 pesos).
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 1998, Congress modified 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.
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 they believe endanger their health and safety have their employment protected if a real danger to their health or safety exists.
f. Trafficking in Persons
There are no laws that specifically prohibit trafficking in persons, although it may be prosecuted under other laws. There were no reports that persons were trafficked to, from, or within the country.