Chile: Information on the transition to democracy, part 1 of 5: Introduction, constitutional framework, and measures addressing past human rights violations

Introduction

        In 1988, after 15 years in power, General Augusto Pinochet called a plebiscite asking Chileans for a new eight-year term in power, which was defeated by a vote of 55 per cent "no" to 43 per cent "yes" (ibid., 219; Andean Newsletter 25 Oct. 1993, 2). On 14 December 1989, Chile elected a president and congress (Sigmund 1990, 219). As a "transitional" president, Patricio Aylwin would serve a four-year term (Armed Forces & Society Winter 1995, 262; HRW/A May 1994, 1). Shortly before the 1993 election, the terms of his successors were reduced from eight to six years by agreement of all party leaders (JISWA Summer 1994, 3).

In December 1993, Chileans elected a new president and congress for the second time since the end of the 16-year military dictatorship that followed the overthrow of democratically-elected President Salvador Allende Gossens in 1973. The two main electoral contenders represented broadly the same political forces that emerged during the Pinochet dictatorship (1973-1990) (BLAR May 1995a, 112) and which had contested the 1989 elections (ibid., 106). Senator Eduardo Frei Ruiz-Tagle, who represented the centre-left Coalition of Parties for Democracy (Concertación de Partidos por la Democracia — CPPD), won 58 per cent of the vote (ibid., 110; JISWA Summer 1994, 4). The CPPD coalition included Frei's Christian Democratic Party (Partido Demócrata Cristiano — PDC), the Socialist Party (Partido Socialista — PS), the Party for Democracy (Partido por la Democracia — PPD), the Radical Party (Partido Radical — PR) and the Social Democratic Party (Partido Social-Demócrata — PSD) (BLAR May 1995a, 106). Senator Arturo Alessandri of the right-wing Union for the Progress of Chile (Unión por el Progreso de Chile — UPC) secured 24.4 per cent of the vote (ibid., 110; JISWA Summer 1994, 4). The UPC coalition consisted of the right-wing National Renovation Party (Renovación Nacional — RN) and the Independent Democratic Union (Unión Democrática Independiente — UDI) (ibid., 3-4).

On 11 March 1994, Frei became Chile's second democratically elected president since the transition to democracy (Country Reports 1994 1995, 341). His share of the vote totalled three per cent more than Aylwin had achieved in 1989 (BLAR May 1995a, 110; JISWA Summer 1994, 6). This is significant given that Frei, unlike Aylwin, also had to compete against candidates from the radical left who together received over 11 per cent of the vote (BLAR May 1995a, 110, 125; JISWA Summer 1994, 4, 6).

According to one source, the tone and content of the 1993 electoral campaign indicated that a consensus existed among the government and major opposition parties in Chile to reach agreements and replace the confrontational ways of the past (BLAR May 1995a, 106). They agreed there was a need to continue implementing the neo-liberal economic policies brought in during the Pinochet regime, although the parties disagreed on the speed with which that should be done (ibid., 108).

Consistently high rates of economic growth over the last decade (between 6 and 7 per cent a year) help explain this "new consensus" among Chile's political adversaries (Report on the Americas Feb. 1993, 30; BLAR May 1995b, 132-33). According to the United Nations Economic Commission for Latin America and the Caribbean (ECLAC), since the end of the 1980s Chile has "remained in a path of rapid and sustained growth, with a continual decline in inflation" (CEPAL News Jan. 1996, 2). Unemployment has dropped from 12.2 per cent in 1989 (BLAR May 1995a, 105) to 5.4 per cent in 1995 (Country Reports 1995 1996, 2; The Washington Times 1 May 1996). Although the incidence of poverty fell from about 5 million in 1990 (out of a population of 14 million) to less than 4 million in 1994 (BLAR May 1995b, 128) about 28 per cent of Chile's population lives below the poverty line (Country Reports 1995 1996, 2).

 According to Oxford University's Alan Angell and University of Liverpool's Benny Pollack, the 1993 presidential campaign focused more on personality and issues such as administrative competence and the desire to consolidate the reforms of the Patricio Aylwin Administration (1990-1994), than on potentially more divisive issues such as human rights (BLAR May 1995a, 106). Frei benefited from the high public esteem that his father, of the same name and party, had enjoyed during his tenure as president of Chile (1964-1970) (ibid., 109) as well as from the success of the Aylwin administration which led the CPPD coalition (ibid. 107).

Chile's new-found consensus breaks down over discussions of how to deal with the past (HRW 1995, 75; Christian Science Monitor 5 Dec. 1995; La Nación 28 Dec. 1995, 4; Andean Newsletter Oct. 1995, 3). Chile's constitution, created in 1980 during the dictatorship, contains numerous measures to ensure a powerful military influence in society (Armed Forces & Society Winter 1995, 261; The New York Times Magazine 24 Sept. 1995, 46; Galleguillos 19 Mar. 1996). Those guarantees, including the 1978 Amnesty Law for members of the military who committed abuses, are an ongoing source of contention between civil and military society as Chile attempts to deal with past human rights abuses (Country Reports 1995 1996, 2). According to Amnesty International, the Chilean state officially recognizes that more than 2,000 Chileans were killed in extrajudicial executions or by torture and more than 1,000 were "disappeared" during the Pinochet regime (AI Dec. 1995, 23). Human Rights Watch reported that 3,129 people were "murdered for political reasons" (1994, 77). The Economist says there were "2,300 documented political killings" (9-15 Apr. 1994, 48). About 1,000 cases concerned with those crimes are still before the courts although about 800 of them have been "temporarily suspended [and] might thereby be definitively closed" (AI Dec. 1995, 3; Latinamerica Press 23 Mar. 1995, 12).

A number of events in 1995 reflected the ongoing struggle between civilian authorities and the military: the Supreme Court upheld a lower court ruling against two former military leaders who plotted the 1976 murder of a former foreign minister (Latinamerica Press 1 June 1995, 1; The Toronto Star 28 Aug. 1995, A15; The Ottawa Citizen 10 Feb. 1996, B2); the Supreme Court upheld a lower court decision not to apply the Amnesty Law and for the first time ever jailed two members of the military responsible for "disappearances" that occurred during the period covered by the law (1973 - 1978) (Country Reports 1995 1996, 5; AI Dec. 1995, 21; IPS 8 Dec. 1995, 5); and the government proposed appointing special judges to finally settle past human rights abuses and to remove power from the military through constitutional reform (The Globe and Mail 10 Oct. 1995, A16; HRW 1995, 75).

According to Claudio Fuentes, a researcher at the Latin American School of Social Sciences, "Until 1998 at least, civilian-military relations will be defined by the debate on democratic institutions (the political role of the Armed Forces), and by the way in which the issue of human rights is resolved" (La Nación 28 Dec. 1995).

Constitutional Framework

        Chile has a multi-party democracy based on a constitution which provides for three branches of government: an executive, a two-chamber legislature, made up of the National Congress and Senate, and an independent judiciary (Country Reports 1995 1996, 1). The 1980 constitution created a Constitutional Tribunal empowered to review the constitutionality of laws and have final authority in all constitutional disputes (Sigmund 1990, 215; Armed Forces & Society Winter 1995, 260). It also created a National Security Council (NSC) which was authorized to present the government with its opinion on matters that might affect national security or the country's government and institutions (ibid., 261; Sigmund 1990, 215). The NSC is made up of the army, navy, air force and police chiefs, the presidents of the Senate and the Supreme Court, the country's president and one other civilian (ibid.; Political Parties of the Americas 1992, 172). In Sigmund's view, the constitution empowers the NSC "to constitute a fourth branch of government, dominated by the military ..." (Sigmund 1990, 215). Nibaldo Galleguillos, an expert on Latin America,1 says that the NSC has "a supervising role over the government, the legislature and basically any other institution in the country" (Galleguillos 19 Mar. 1996). According to Galleguillos, the constitution, along with a law passed by Pinochet in 1989, guarantees the armed forces "absolute autonomy" (ibid.). General Pinochet is constitutionally empowered to remain as army commander until 1998 (ibid.; Country Reports 1995 1996, 11; AI Dec. 1995, 2). Moreover, as ex-president, Pinochet can sit as a senator for the rest of his life (ibid.; Sigmund 1990, 220). He is also entitled to a seat on the NSC (ibid.).

The 1980 constitution stipulates that while the president can appoint the heads of the three branches of the armed forces and the director of the national police (carabineros), under article 93 his choice is restricted to each body's five most senior officers (Armed Forces & Society Winter 1995, 262). Once named to their four-year non-renewable posts, the four commanders cannot be dismissed by the president (ibid.; The New York Times Magazine 24 Sept. 1995, 46; The Toronto Star 28 Aug. 1995, A1).

The constitution also provides for the appointment of up to nine senators (in addition to 26 elected senators) to eight-year terms (Country Reports 1995 1996, 10); at least four of them would be former commanders of the armed forces (Sigmund 1990, 215; Armed Forces & Society Winter 1995, 260). According to Country Reports 1995, the nine senators were, in effect, "hand-picked by General Pinochet, and they join with the opposition on most matters" (1996, 10). A 2 July 1994 article in The Economist says that the appointed senators hold the balance of power in the Senate (The Economist 2 July 1994, 42). A December 1995 Amnesty International report stated that eight of the nine senators appointed by Pinochet in 1990 were still in the Senate (AI Dec. 1995, 5n4).

Measures Addressing Past Human Rights Violations by the Security Apparatus

        Dealing with the past human rights violations by the military and security forces was one of the major concerns of the Aylwin government (Current History Mar. 1993, 132; BLAR May 1995a, 107). In 1990 it appointed the Commission on Truth and Reconciliation (Current History Mar. 1993, 132). Its 1991 report, known as the Rettig Report, listed about 2,000 cases of extrajudicial executions and disappearances leading to presumed death that the commission judged were committed by the state or by individuals who were "politically motivated" (AI Dec. 1995, 13; Current History Mar. 1993, 132).

Tensions between the military and the Aylwin government arose over issues relating to human rights violations by members of the security apparatus during the dictatorship: on at least two occasions in 1993, the military staged shows of force in the streets of Santiago in an attempt to underscore the army's demands that the government grant an amnesty to those who committed human rights violations after 1978 (Armed Forces & Society Winter 1995, 268, 269n3, 270n23; Andean Newsletter 28 June 1993, 2; The New York Times Magazine 24 Sept. 1995, 46).

The 1978 Amnesty Law already protected members of the security forces from prosecution for human rights violations that occurred between 1973 and 1978 (HRW 1995, 76; Latinamerica Press 23 Mar. 1995, 12; Country Reports 1995 1996, 2), which was the period when most of the crimes were reportedly committed (The New York Times Magazine 24 Sept. 1995, 49). Disputes continue over whether the fate of the disappeared must be known before a case can be closed (HRW 1995, 76; LAWR 9 Nov. 1995, 514; Country Reports 1995 1996, 5). The courts have not applied the Amnesty Law consistently (AI Dec. 1995, 17; Country Reports 1995 1996, 5): some judges trying cases under the law have simply closed those involving military officers (Christian Science Monitor 15 Aug. 1995) while others have made a point of investigating the cases, including trying to find victims' remains, and then granted amnesty to the guilty (ibid.).

In November 1995, Latin American Weekly Report suggested that the Supreme Court had adopted the position that cases should be dismissed as soon as the court determined that the offence took place during the period covered by the law (LAWR 9 Nov. 1995, 514). Neither guilt nor a penalty would have to be determined (ibid.).

Judicial Reform and Judicial Investigations

        The 1991 Rettig report had already stated that throughout the military regime, the judiciary had not reacted with "sufficient energy" in dealing with human rights violations (Comisión Andina de Juristas May 1995, 9). In response, the Aylwin government made judicial reform a principal part of its human rights policies (Current History Mar. 1993, 133). Among these measures were changes to the Code of Penal Procedure designed to end the practice of torture (AI Jan. 1995, 1). The changes reinforced the rights of detainees to legal counsel and independent medical attention (ibid.).

The U.S. State Department reports that Pinochet appointees continue to influence the judiciary, though to a diminishing degree (Country Reports 1995 1996, 1). It adds that the Supreme Court is working with the government to reform the justice system (ibid., 7). Country Reports concludes that the judicial system has had "mixed success" dealing with investigations into human rights cases from the past (ibid., 2). According to the Inter-Church Committee on Human Rights in Latin America, Pinochet's appointment of most of Chile's Supreme Court judges has hampered investigations (Alerta Jan.-Apr. 1995, 12). Professor Galleguillos, author of a recent paper on the Chilean and Mexican supreme courts, says that the judicial system is a "disaster" and it is "absolutely nonsense" to say that the system is becoming better at dealing with investigations into past abuses (Galleguillos 19 Mar. 1996). Pinochet appointees can remain for life, despite a section of the constitution that says otherwise (ibid.). The Supreme Court, he adds, "didn't do a single thing in terms of protecting human rights" primarily because it often refers cases to military courts (ibid.). According to the Christian Churches' Social Aid Foundation (FASIC), the Supreme Court "continues a practice of not defending human rights" (FBIS 15 Feb. 1996, 33).

Soon after his inauguration, President Frei was faced with having to ask for the resignation of the chief of the carabineros, General Rodolfo Stange, amidst allegations of a cover-up in the 1985 kidnapping and murder of three Communist Party activists (The Economist 9 Apr. 1994, 48-9; Latinamerica Press 12 Oct. 1995, 7; Alerta Jan.-Apr. 1995, 12-13; BLAR May 1995a, 108). Stange was eventually indicted by a judge for his part in the murders by the carabineros special unit (LAWR 19 Oct. 1995, 478). Nevertheless, the judge, with the backing of higher courts, decided not to file charges against the general (ibid.). On 7 October 1995, Stange announced his resignation (ibid.).

In May 1995 the Supreme Court upheld a 7-year jail sentence for retired General Manuel Contreras, the former head of the military regime's secret police, the National Intelligence Directorate (Dirección de Inteligencia Nacional — DINA), and a 6-year prison sentence for his top assistant, Brigadier Pedro Espinoza (Country Reports 1995 1996, 2; AI Dec. 1995, 15). A short time later the court reduced their sentences by one year to take into account time they had already spent in detention in 1978 during an unsuccessful bid to extradite them to the United States (ibid.). The men had been convicted of planning the 1976 assassination of former foreign minister and Pinochet opponent Orlando Letelier and his assistant Ronni Moffitt in Washington, DC (Latinamerica Press 1 June 1995, 1; Alerta Jan.-Apr. 1995, 12; The Toronto Star 28 Aug. 1995, A15). Because the murder did not occur in Chile and one of the victims was a U.S. citizen, the case did not fall under the 1978 Amnesty Law (ibid.; HRW/A May 1994, 11). It is the only case where former members of DINA were "fully prosecuted" or imprisoned for crimes committed between 1973 and 1978, the amnesty years (HRW 1995, 75). Contreras, however, was spirited away by army personnel and secluded in a naval hospital while his lawyer began appealing the sentence (ibid.; The Globe and Mail 10 Oct. 1995, A16; The Ottawa Citizen 10 Feb. 1996, B2). The appeals failed and in October 1995 Contreras was jailed in a special wing of the Punta Peuco prison built for him and Espinoza, the only other occupant (HRW 1995, 76; LAWR 2 Nov. 1995, 494).

Charges were dismissed against former DINA agent Osvaldo Romo in October 1995 after the Supreme Court applied the Amnesty Law in the case (Country Reports 1995 1996, 3; AI Dec. 1995, 19). Romo had been charged in connection with the detention and disappearance of two members of a former terrorist group, now presumed dead (Country Reports 1995 1996, 3). The Amnesty Law was applied again, in the case of the killing of Lumi Videla, who had been arrested by DINA agents in 1974 (FBIS 15 Feb. 1996, 33). Twenty-eight former members of the National Intelligence Center (Central Nacional de Informaciones — CNI), the successor to the DINA, may face charges in civilian courts after the country's highest military court ruled that the killings of 12 members of the Manuel Rodriguez Patriotic Front were homicides (Country Reports 1995 1996, 4; LAWR 23 Nov. 1995, 530). Because the killings occurred in 1987, the Amnesty Law does not apply in the case (ibid.). Fifteen ex-carabineros officers and one civilian were sentenced for the 1985 kidnapping and murder of three Communists (Country Reports 1995 1996, 4; LAWR 9 Nov. 1995, 514). Reports varied on the sentences handed out: Country Reports says five defendants received life sentences and the others were imprisoned for periods ranging from 41 days to 15 years (1995 1996, 4), while Latin American Weekly Report reported that four were jailed for life and the rest received terms of 15 to 60 years (LAWR 9 Nov. 1995, 514).

In 1995, for the first time, a court declared a crime committed by military forces between the period covered by the Amnesty Law (1973-78) to be outside the purview of that law (Country Reports 1995 1996, 5; IPS 8 Dec. 1995, 5). On 5 December, the Supreme Court ruled not to apply the law in the case of two peasants, Eleurio Cheuquepan and José Lleulen, detained by security forces in 1974 and not seen since (ibid.; IPS 8 Dec. 1995; LAWR 21 Dec. 1995, 585). Two former carabineros and a civilian were fined and sentenced to prison terms of 4 1/2 years (IPS 8 Dec. 1995; Country Reports 1995 1996, 5). The decision stated that the "abductions were permanent 'criminal offenses that continue after the actions themselves,' thus beyond the period covered by the amnesty" (ibid.). According to the army auditor, the abduction of children (Cheuquepan was only 15) "had been explicitly omitted from the amnesty law" (IPS 8 Dec. 1996).

The Supreme Court used the Amnesty Law to close 25 cases of disappearance and related crimes against military personnel in the last part of 1995, according to Latin American Weekly Report (Latin America Weekly Report 9 Nov. 1995, 514).

Legislative Measures

        On 22 August 1995, the government submitted the so-called "Frei Bill," which was comprised of three separate pieces of draft legislation, to the Senate (AI Dec. 1995, 4). One piece of legislation proposed transferring jurisdiction for "disappearance" trials from military to civilian courts (ibid.; LAWR 16 Nov. 1995, 526; HRW 1995, 77). A separate piece of legislation would have given the president power to choose the commander of the armed forces and to fire military officials (AI Dec. 1995, 5; HRW 1995, 77; LAWR 19 Oct. 1995, 478). The third part of the Frei Bill was a series of constitutional amendments which would change the composition of the NSC to give it a civilian majority, mend the mandate of the nine appointed senators in 1996 instead of 1998 and then eliminate future appointed senators, and permit the president to nominate members of the constitutional court (AI Dec. 1995, 5; IPS 12 Sept. 1995; LAWR 16 Nov. 1995, 526).

The draft legislation on judicial proceedings in disappearance cases was opposed by parties of the government and opposition coalitions and left serious divisions within both groups (IPS 6 Dec. 1995; Christian Science Monitor 5 Dec. 1995; Latin American Regional Reports 28 Dec. 1995a, 6). A compromise proposal was negotiated by the government and right-wing opposition and, on 5 December 1995, a senate committee approved a draft bill (known as the Figueroa-Otero Bill) that would close all prosecutions of cases of "disappearances" between 1973 and 1978 that might be covered by the Amnesty Law (AI Dec. 1995, 5; LAWR 21 Dec. 1995a, 585; IPS 6 Dec. 1995). The bill also provided for the Supreme Court to appoint judges to work exclusively on such cases for a one-year renewable period; they would be permitted to investigate only the location of the disappeared (AI Dec. 1995, 5). Evidence regarding the cases could be submitted in secret and in locations other than the courts (ibid.), and cases could be closed without the fate of the disappeared having been established (LAWR 16 Nov. 1995, 526; AI Dec. 1995, 6).

The other two aspects of the "Frei Bill" were also approved by the senate committee: on 7 December 1995 it voted in favour of the constitutional amendments proposed by the "Frei Bill" (AI Dec. 1995, 6); in January 1996, it approved the proposal to amend the constitution to eliminate appointed senators by 1998 (El Mercurio 17 Jan. 1996, A1, A9). In February, the National Renovation party submitted another proposal for constitutional reform to the ruling coalition (ibid. 14 Feb. 1996). The CPPD rejected the proposal and called on the opposition to participate in preparing the previously agreed-upon reform bills for submission to the Senate in March (ibid.). Both the constitutional amendments and the Figueroa-Otera Bill must be passed by the full Senate and Chamber of Deputies before becoming law; the Figueroa-Otero Bill requires only a simple majority while the constitutional amendments require at least a two-thirds majority (ibid.). The DIRB has no information as to whether the legislation has been submitted to the Senate and Chamber of Deputies for approval.

This Response was prepared after researching publicly accessible information currently available to the DIRB within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References

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NOTES:

1A professor of political science in the department of political science at McMaster University in Hamilton, Ontario, Galleguillos is the author of numerous articles on Chile and Latin America, the most recent being "Governance, Democratic Development and Human Rights, The Role of the Judiciary in the Chilean Transition to Democracy." A Chilean native, he was a human rights lawyer who defended political prisoners in that country until he left in 1976.