Chile

Background Information

Since its independence from Spanish occupancy Chile has experienced political instability despite the establishment of a parliamentary democracy in the late 19th century. The year 1973 represented a major turning point when General Augusto Pinochet overthrew the Marxist government of Salvador Allende in a military coup. Pinochet took complete control of public affairs and banned all political activity. Thousands of left-wing oppositionists and critics of the military junta died, disappeared or were tortured. A referendum in 1988 marked the end of the Pinochet era and the transition back to democracy. In the following years, the centre-left coalition Concertación governed the country until in 2010 current President Sebastián Piñera of the “Renovación Nacional” won the elections for the centre-right “Coalición por el Cambio”.

Chile’s liberal market economy has experienced a steady economic growth after the end of the military junta and has strengthened its export-orientation due to substantial resources of gold, silver, copper, nitrates and wine. A wide range of bilateral Free trade agreements (FTA) and very little public debt has helped Chile to reach the third largest GDP per head in Central and South America and has contributed to the constant rise of living standards. Although the rate of people in poverty and extreme poverty decreased, income distribution has almost remained unchanged since the 1960s.

The reestablishment of democracy after the Pinochet era has confronted Chile with several difficult tasks. The modernisation of the judicial system included two constitutional reforms in 1989 and 2005 and reforms of penal process, juvenile justice, family courts and labour law as well as the abolition of the death penalty in the penal code. Chile has struggled with its efforts to seek truth, justice and reparation with regard to the massive violations of human rights in the past. The prosecution of the perpetrators and reparation for the victims have developed very slowly. All attempts to repeal the Amnesty Decree Law which exculpates all persons who committed crimes between 1973 and 1978 from criminal responsibility have been unsuccessful. Despite its non-application since 1998, concerns remain that domestic courts may considerate the existence of the decree-law in their decisions.

The situation concerning rights of indigenous people remains very unsatisfying. Indigenous groups such as the Mapuche are still not recognised in the constitution and the application of Counter-Terrorism Acts on them for participating in the defense of their ancestral land during territory conflicts receives continuing criticism. Due to the ineffective and lacking measures to improve social and economic standards of indigenous groups, social tensions persist to exist and the majority remain disadvantaged in terms of life expectancy, infant mortality and illiteracy.

Respective to equality and non-discrimination, the Chilean legislation still comprises discriminative laws such as the joint property marital regime which does not allow women to administrate their own property in marriage. Chile is also one of the few countries in the world prohibiting abortion for any reason which results in 60,000 to 200,000 clandestine abortions per year.

Situation of Torture and Ill-Treatment

Legal Framework

Chile ratified most of the international human rights treaties including ICCPR in 1972, CAT in 1988, and OPCAT and ICCPR-OP2 in 2008. A National Preventive Mechanism (NPM) has been designated but the National Human Rights Institute entrusted with the tasks still remains to be established. By establishing the National Commission on Political Prisoners and Torture, Chile took a great step forward in terms of providing reparation to victims of torture during the military regime.

The constitutional reform of 2005 determines that international treaties may only be set aside, modified or suspended in the manner laid down in the treaty itself or in accordance with the general rules of international law¹. However, there is an urgent need for adoption of domestic legislation to international human rights, in particular concerning the definition of torture and the counter-terrorism law.

At national level, Article 19 of the Chilean constitution guarantees the right to life and physical and mental integrity to any individual and articulates in its final paragraph that “[…] the use of any ill-treatment is prohibited […]”. Article 93 of the Code of Criminal Procedure determines the right of the detainee “not to be subjected to torture or other cruel, inhuman or degrading treatment”. Furthermore, Art. 150 A. of the penal code (código penal) provides a definition of torture. It refers to it as a public employee applying illegitimate torments or pressure, both physical or mental, as well as ordering or giving permission for application. The non-impediment of the above-mentioned conduct while having the power to do so also falls under Art. 150 A. and allows for a sentence up to 15 years.

The definition of torture in the penal code is widely criticised² for being more restrictive than Art 1 CAT since the definition does not include suffering inflicted with the aim of “intimidating or coercing the victim, on discriminatory grounds”. Moreover, torture can only be committed against persons deprived of their liberty. If the active subject of torture is a uniformed police officer (Carabinero), Art. 150 A of the penal code is widely inapplicable as the criminal act then falls under Article 330 of the Military Justice code whose context is completely different than the definition contained in the convention. This is due to the still wide jurisdiction of military over human rights abuses by the Carabineros. Furthermore, the crime of torture falls under the statute of limitations after 5 years in cases where it is used to terrorise or punish. The crime is time-barred after 10 years when the victim is tortured to obtain information or a confession and the victim suffers death (Articles 21 and 94 of the Criminal Code).

Practice of Torture and Ill-Treatment

The coming to terms with the human rights violations during the military junta is steadily improving but Chile struggles with its responsibility of bringing perpetrators of torture under the dictatorship before court and the continuing impunity remains an imminent problem. Despite the establishment of the National Commission on Political Prisoners and Torture not all victims of torture during the Pinochet era have enjoyed the right to fair and adequate reparation.

Human rights groups such as Amnesty International (2009) and Human Rights Watch (2009) have registered numerous instances of ill-treatment and excessive use of force by the State police, especially by the Carabineros. There are frequent reports of increasing numbers of abuses in indigenous Mapuche communities in the Araucanía region. Hundreds of indigenous people have been put on trial for protesting against land occupations and crimes allegedly committed during ongoing land disputes. Police reportedly often bear down on demonstrators during student protests or demonstrations for the rights of indigenous people. The conflict peaked in 2009 when police forces shot Jaime Mendoza, who was involved in a land occupation organised by indigenous persons.

Prison conditions in Chile remain generally poor due to a lack of sanitary facilities, medical treatment and natural light. Inmate violence, prisoner abuse and use of excessive force are further areas of concern in Chilean detention facilities. The prison population of Chile has grown significantly over the past years which led to severe overcrowding (155% nation-wide) in a high number of prisons. According to Human Rights Watch (2009), Chile has more prisoners per capita than any other country in South America.

¹CAT/C/CHL/5 CAT State Report (2007)
²Report of the Chilean Civil Society to the United Nations Committee against Torture (2009); CAT/C/CHL/CO/5 Concluding Observations (2009)
Sources: Economist Intelligence Unit; Human Rights Watch; Amnesty International; http://treaties.un.org/; http://www.rwi.lu.se/tm/ThemeMaps.html; http://data.un.org/; http://www.apt.ch; http://www.state.gov; https://www.cia.gov/library/publications/the-world-factbook/geos/ci.html; http://www.todoelderecho.com/SeccionInternacional/Codigos/Chile/CODIGO%20PENAL-chile.htm
Documents:A/HRC/12/10 UPR State Report 2009; A/HRC/WG.6/5/CHL/3 UPR (2009) Summary of Stakeholder Information ; A/HRC/WG.6/5/CHL/2 UPR (2009) Compilation of UN information; CAT/C/CHL/CO/5 Concluding Observations (2009); CAT/C/CHL/5 State Report (2007); US State Department Human Rights Report 2009; Report of the Chilean Civil Society to the United Nations Committee against Torture, presenting the Fifth Periodical Report on the State of Chile regarding the application of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment April 2009

About Against Torture

News and background information about the situation of torture and ill-treatment worldwide.

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List of Issues

• Systematic Torture
• Widespread Torture
• Excessive Use of Force
• Inhuman Conditions of Detention
• Corporal Punishment
• Solitary Confinement
• Secret Detention
• Evidence Obtained under Torture
• Impunity
• Universal Jurisdiction
• Independence of the Judiciary
• Corruption
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• Violence Against Women
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