Events of 2009
Since the death of former dictator Gen. Augusto Pinochet in December 2006, Chilean judges have continued to prosecute and convict former military personnel accused of committing grave human rights violations under the military government. However, the Supreme Court's criminal chamber has reduced sentences in many recent cases, with the result that many convicted perpetrators eventually do not serve time in prison.
Police abuses continue to be reported in the Araucanía region, where members of some indigenous Mapuche communities asserting land claims periodically engage in violent attacks on homes and property. Overcrowding and inhumane conditions in many of Chile's prisons remain serious problems.
Confronting Past Abuses
In the pursuit of accountability for human rights abuses under military rule, as of October 2009, 559 former military personnel and civilian collaborators were facing charges for enforced disappearances, extrajudicial executions, and torture; 277 had been convicted (of whom 175 had had the verdict confirmed on final appeal), and 56 were serving prison sentences. Thirty-two of those charged or convicted had been generals in the Chilean army. Pinochet himself had been under house arrest and faced prosecution at the time of his death in 2006, but was unpunished for any crime.
In September 2009 Judge Víctor Montiglio indicted 129 former members of the DINA, Pinochet's secret police, for "disappearances" and extrajudicial executions dating from the 1970s. Half of them were facing charges for the first time. Also in September, the Supreme Court's criminal chamber confirmed a three-and-a-half year sentence against two retired air force officers for the torture of 17 people between 1973 and 1975. For the first time, the Court expressly declared torture, a systematic practice during the Pinochet years, to be a crime against humanity.
A majority of the five judges in the Supreme Court's criminal chamber now rule that an amnesty decreed by the military government in 1978 is inapplicable to war crimes or crimes against humanity, and that these crimes are not subject to a statute of limitations. However, not all of the judges agree that the amnesty is inapplicable. Given that court rulings in Chile are not binding in cases other than the one under review, and that the composition of the Supreme Court panel may change from case to case, the legal obstacles to convictions have not been entirely overcome. A bill promoted by the government to amend the criminal code so that crimes against humanity are not subject to amnesties or statutes of limitation has been deadlocked in Congress since 2005.
During 2008 and increasingly in 2009, the Supreme Court's criminal chamber has applied a "partial statute of limitations" (known in Chile as media prescripción) that allows those convicted for human rights violations to receive a reduced sentence in recognition of the time elapsed since the criminal act (more than 30 years in some cases). If the final sentence is less than five years, they can benefit from an alternative to prison. In fact, fewer than one-third of the 175 perpetrators whose prison sentence has been confirmed by the Supreme Court were actually serving time as of October 2009.
Criminal Justice System
Even though Chile has completely overhauled its criminal justice procedure in recent years and reinforced due process guarantees, military courts still have wide jurisdiction over civilians and over human rights abuses committed by the Carabineros (uniformed police), which is part of the armed forces. Following a 2005 decision by the Inter-American Court of Human Rights in the Palamara case ordering Chile to ensure that military courts no longer exercise jurisdiction over civilians, the government has been working on legislation to comprehensively reform the system of military justice. In October 2009, after long consultations, it finally presented two bills in Congress that would restrict the jurisdiction of military courts solely to military crimes committed by military personnel, and promised a third bill to ensure that military courts comply with the due process guarantees protected in the ordinary justice system.
Another issue has been the abuse of counterterrorism legislation to deal with common crimes, such as arson, committed by Mapuche activists, a practice about which several United Nations bodies have expressed concern. Under Chile's counterterrorism law, crimes against property such as burning homesteads, woods, or crops, or damaging vehicles or machinery, are considered to be terrorist crimes if judges see them as intended to spread fear in the population. Defendants under the law have restricted due process rights and face higher sentences. Unlike preceding administrations, President Michelle Bachelet's government adopted a policy of relying on the ordinary criminal law in dealing with crimes like these. However, as violence in the Araucanía region of southern Chile flared during 2009 and Mapuche activists armed with shotguns were reported to be holding up and burning trucks in nighttime attacks, the government reverted to using the counterterrorism law.
In repeated incidents, carabineros have used excessive force during operations in indigenous Mapuche communities in the Araucanía region. The abuses typically occur when police intervene to control Mapuche protests and prevent land occupations, or when they enter communities in pursuit of Mapuches suspected of crimes allegedly committed during ongoing land disputes with farmers and logging companies.
Since 2002 three Mapuches have been killed by police unlawfully using lethal force. In the most recent case, in August 2009 a carabinero fatally shot Jaime Mendoza Collío, age 24, who had been participating in a land occupation near Ercilla. The police claimed that the carabinero acted in self defense, but forensic reports indicated that the bullet hit Mendoza in the back and that he had not fired a weapon. The carabinero official responsible for the zone reportedly continued to defend the officer responsible, even after the forensic results had been reported in the press. Although military prosecutors filed charges of "unnecessary violence resulting in death" against the police involved in all three cases, at this writing military courts have yet to convict anyone.
There have also been repeated incidents involving alleged ill-treatment of detainees, including children. Few cases have been clarified by judicial investigations. In October 2009 Citizen's Watch, an NGO that monitors indigenous rights, reported the case of a 14-year-old Mapuche boy who was allegedly beaten and threatened with being thrown from a police helicopter after he was captured while gathering medicinal herbs. During the same month, the government announced that a carabinero caught on film kicking a Mapuche detainee in the head would be expelled from the force. The United Nations Children's Fund (UNICEF) urged the government to improve procedures for registering and investigating complaints against the police.
Chile has more prisoners per capita than any other country in South America. The prison population has grown by almost 50 percent since 2004, in large part due to the greater efficiency of a new code of criminal procedure progressively introduced since 2000. Despite the opening of six new privately contracted prisons, 74 percent of the prison population is still held in aging facilities, and overcrowding remains a serious problem. For example, in 2009 the Southern Santiago Center for Preventive Detention, with a planned capacity of 3,170 places, had 6,690 inmates. Violence in prisons has increased in recent years. According to prison service statistics cited in a major newspaper, 46 prisoners died in fights between prisoners in the first eight months of 2009.
In June 2009 a Supreme Court official testifying before the Senate Committee on Constitution, Legislation and Justice described the conditions in which prisoners are held in punishment cells without natural light or sanitary provision as cruel and degrading. Reacting to her report, the deputy minister of justice announced the formation of a Council for Prison Reform, including NGO experts, to analyze prison policies.
Chile is one of a handful of countries in the world that prohibits abortion for any reason, even in cases of rape or incest, or to save the life of the mother. Despite the comprehensive ban, an estimated 60,000 to 200,000 clandestine abortions are performed each year. In April 2008 the Constitutional Court ruled against a legal provision that allows free distribution of emergency contraception, including the "morning after pill." The World Health Organization recognizes that emergency contraceptive pills can prevent pregnancy and does not consider them to induce abortion. However, Chile's court ruled that such methods violate the constitutional protection of the right to life of the unborn. It thus ignored the rights of living women – particularly the poor and adolescents – to health, information, autonomy, non-discrimination, freedom of conscience, and freedom to enjoy the benefits of scientific progress.
Key International Actors
Chile has played an important advocacy role as a member of the UN Human Rights Council since 2008. Chile was one of the few governments to intervene during the 2009 Universal Periodic Review (UPR) of Cuba to raise significant human rights issues there. Chile also voted against a resolution co-sponsored by Cuba, Egypt, Saudi Arabia, and Brazil that failed to deplore the killing of civilians in Sri Lanka. It has insisted – as in the case of the Democratic Republic of Congo – that country-specific action is a key instrument of the UN to hold governments accountable, shed light on violations, and reveal the truth about the suffering of victims.
In May 2009 Chile's own human rights performance came under UPR scrutiny. Protection of the human rights of its indigenous peoples was an issue that came up frequently in questions and comments by states. Chile rejected only two recommendations, both of them concerned with extending access to abortion.
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