COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF CHILE

Committee against Torture
AFTERNOON

4 May 2009



The Committee against Torture this afternoon began its consideration of the fifth periodic report of Chile on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Jorge Frei, Vice Minister of Justice of Chile, said that Chile believed that the Committee was playing an important role in the prevention of torture. Promoting and protecting human rights had become a national endeavour in Chile. They had created a democratic and robust Government. They recognized their history, as well as the truth of past events. Chile was committed to human rights, there was no hiding place for torture and they had signed the Rome Statute and would ratify it in the coming months. With regards to Chile’s past history, respect for the memory of the victims of almost two decades of human rights violations was a central plank of the Government’s policy. Those responsible for crimes were tried and punished. Truth, justice and compensation were the pillars on which this policy was established.

Among noteworthy developments was the fact that more than 75 per cent of the current detainees in prisons were convicted persons. Before this two detainees out of three were awaiting judgement. This result had been achieved through the reform of the penal procedure. The Government had invested more than $ 7 million to improve detention facilities last year. This year they would also start building ten new centres which would also help improve detention conditions, said Mr. Frei. As of 11 January, the Optional Protocol to the Convention had entered into force in Chile; the ratification had been a specific demonstration of the concerns of the Government to prohibit any form of torture. In order to implement the protocol they were currently assessing the best way to put in place the preventive mechanisms.

Serving as Rapporteur for the report of Chile, Committee Expert Luis Gallegos-Chiriboga said that, on the definition of torture in Chilean legislation, it limited potential victims of torture to persons deprived of their liberty, and there had already been a comment in the Committee’s 2004 recommendations about the definition being incompatible with the definition given in the Convention. He also noted that demonstrations by Mapuche Indians had been reported by non-governmental organizations to have been referred to several times by the Government as terrorist acts. Non-governmental organizations had also expressed concerns over the practice of in-communicado detention, as a person could be detained for up to 10 days.

Fernando Marino Menendez, the Committee Expert serving as Co-Rapporteur for the report of Chile, expressed considerable appreciation for Chile’s efforts to bring its legislation in line with human rights standards. On the training of mercenaries, he said that this was an important issue. The Working Group on mercenaries had expressed concerns about the fact that Chilean nationals had been subcontracted by United States agencies to take part in the conflict in Iraq. This gave rise to various issues. Was this phenomena being addressed by the Chilean Government? Also, the number of suicides among inmates was high and rising, he noted. Had there been any investigations of the causes of these suicides, was it due to the conditions of detention?

Other issues of concern raised by Experts included the fact that the commissions that had been tasked with investigating the events during the military dictatorship had worked for only a short time. One of the past recommendations of the Committee was to reopen at least one of the commissions to look into the cases that were still open and to finally put the events of the past behind. There was still too much impunity in Chile, when one looked at the small number of people that had been convicted for the crime of torture. The result of the two commissions was not clear as not all the truth had come out, some of the younger victims, children, had not been found and on the other hand compensation had not been given to all that should have gotten it, because there had been some flaws in the system. This had already been observed by the Committee in its recommendations on the last report of Chile.

Also representing the delegation of Chile was the Social Defence Division of the Ministry of Justice, the Permanent Mission of Chile to the United Nations in Geneva, the Human Rights Division of the Foreign Affairs Ministry, the Chilean Carabineros, the Presidential Commission for Human Rights, the Chilean Investigation Police, the Ministry of Interior, the Sub-secretariat of the Carabineros, the Department of Cooperation of the Public Ministry and the Ministry of the Presidency.

The delegation will return to the Committee at 3 p.m. on Tuesday, 5 May to provide its responses to the questions raised today.

Chile is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 10 a.m. at Tuesday, 5 May, it is scheduled to begin consideration of the fourth periodic report of Israel (CAT/C/ISR/4).

Report of Chile

The fifth periodic report of Chile (CAT/C/CHL/5) highlights the new system of criminal procedure in force throughout the country. The safeguards offered by the current adversarial system for investigating offences are based on various checks on the use of power by authorities representing the public interest – the judge responsible for procedural safeguards, the Public Prosecutor’s Office and the police. Each authority does not use its power in isolation but always in conjunction with the other two, which ensures ongoing monitoring of the lawfulness of their actions. Also highlighted is the considerable number of victims of human rights violations under the military regime who received reparation through the work of the National Commission on Political Imprisonment and Torture which owed its origin - together with other initiatives - to former President Ricardo Lagos’s human rights proposal “No future without a past”. The current Government has incorporated the aforementioned initiatives into its programme of action and is continuing with their implementation. It has given special emphasis to the prompt creation of the National Human Rights Institute, whose remit will be to protect and promote the human rights established in the Constitution, international human rights treaties, laws, humanitarian law and international human rights law. The legal initiative for the establishment of this institute is now awaiting approval by the National Congress, along with that for the establishment of an ombudsman. As part of its programme of action, the Government also intends to proceed with ratifying important international human rights treaties and protocols, including the Rome Statute of the International Criminal Court and the Optional Protocol to the Convention against Torture, both of which are now awaiting approval by the National Congress.

The entrenched authoritarian clauses in the 1980 Constitution were a long-standing obstacle to the capacity building of the democratic institutional system. Their elimination was achieved through a process of negotiation, under the constitutional reforms of August 2005. These reforms also addressed the Committee’s recommendation that the police should cease to be answerable to the Ministry of Defence, by establishing that both the carabiñeros and the Criminal Investigation Police would come under a future Ministry of Public Safety. With regard to the repeal of the Amnesty Decree-Law, the current Government has made known its wish to find a way to end the legal effects of this decree, taking into consideration its international commitments and, in particular, recent decisions of the Inter-American Court of Human Rights. To this end, different legal possibilities are being studied in order to avoid impunity. Meanwhile, in the decisions they hand down, higher courts of justice have been declaring this amnesty to be inapplicable, invoking as a legal basis the implementation of the international human rights instruments ratified by Chile.


Presentation of Report

JORGE FREI, Vice Minister of Justice of Chile, said that Chile believed that the Committee was playing an important role in the prevention of torture. Chile reaffirmed its commitment to human rights and opposed every form of torture or cruel treatment. They had abolished the death penalty and since 1990 they had made practical efforts to prohibit torture.

Promoting and protecting human rights had become a national endeavour in Chile; they had created a democratic and robust Government. They recognized their history, as well as the truth of past events. For them, today represented an opportunity to acknowledge achievements and see where improvements were required, said Mr. Frei.

The Convention was guaranteed in full force, as the Chilean Constitution required that the legislation had to be in-line with the international treaties Chile had acceded to. If a citizen reported an event which might involve the crime of torture, competent bodies would carry out a complete and independent investigation. There was presently no institution in Chile which protected torture, said Mr. Frei. Any isolated events would be punished accordingly.

Mr. Frei noted that the Carabineros constantly received a higher trust from the public than any other public institution, including the Church. Referring to the main progress achieved in the last few years by Chile, he highlighted that Chile now had a system in place which clearly determined the rights of the victims and those of the accused. The presumption of innocence and the general rule of personal freedom were also included therein.

Noteworthy was the fact that more than 75 per cent of the current detainees in prisons were convicted persons. Before this two detainees out of three were awaiting judgement. This result had been achieved through the reform of the penal procedure. The detainees had to be brought without delay before a judge who would control the legality of detention, said Mr. Frei.

The Government was also committed to constantly improve the detention conditions of adolescents. The Government had invested more than $ 7 million to improve detention facilities last year. This year they would also start building 10 new centres which would also help improve detention conditions, said Mr. Frei.

The Government was currently working to reform the code of military justice to find means of restricting the number of offences. The State of Chile was also aware that prevention, law enforcement, and punishment had to be done in a coherent and integrated manner, said Mr. Frei.

In Chile, the Constitution established equality under the rule, noted Mr. Frei. Since the 1990’s the Government had started a policy of recognition of indigenous people, to valorise the added-value they brought to the society. A special body had been set up and a constitutional reform had been started to include indigenous people. They had also set up a special indigenous criminal defence unit. Also this year they had, for the first time, celebrated the Mapuche New Year.

Chile was committed to human rights, there was no hiding place for torture and they had signed the Rome Statute and would ratify it in the coming months, said Mr. Frei. For the Government of Chile it was a priority to assess the measures taken to prevent torture. They also wanted to promote new instruments.

In the Carabineros there were a number of internal instructions on the protection of human rights. They had to protect the health of detainees. Courses on human rights were also included in their training schedule. In the investigative unit, or civil police, there was a special service dealing with human rights, said Mr. Frei. In November 2007 they also had established a national unit for crime against human rights. In the prison service, the prison rule explicitly established the protection of human rights for detainees.

Mr. Frei said that Chile fully complied with Article 3 of the Convention; they had not expelled anyone to any country where they might be subjected to torture.

Mr. Frei also noted that since 2000 they had engaged in a programme to run prisons through a private partnership; however the State was still providing the surveillance services.

Turning to Chile’s past history, Mr. Frei said that respect for the memory of the victims of almost two decades of human rights violations was a central plank of the Government’s policy. Those responsible for crimes were tried and punished. Truth, justice and compensation were the pillars on which this policy was established.

This had also led in 1990 to the creation of the national truth and reconciliation commission. The Commission had investigated the cases of disappeared persons. In another effort, a national dialogue group had been established in 1999, which had also included the armed forces. In 2003 they had further established a national commission for political detainees and torture. This commission had recognized over 20,000 persons as victims. In order to do justice, they had had to go a long way and it had been a difficult task, said Mr. Frei. Reparation had also been paid to victims.

To provide symbolic reparation to the victims, or so-called moral reparation, many monuments had been inaugurated and a museum for memory was scheduled to open this year, indicated Mr. Frei.

As of 11 January, the Optional Protocol to the Convention had entered into force in Chile; the ratification had been a specific demonstration of the concerns of the Government to prohibit any form of torture. In order to implement the protocol they were currently assessing the best way to put in place the preventive mechanisms, said Mr. Frei.

Mr. Frei concluded by saying that they knew where they had started from in the fight to eradicate torture. It required constant efforts.

Questions Raised by Committee Experts

LUIS GALLEGOS-CHIRIBOGA, the Committee Chairperson serving as Rapporteur for the report of Chile, said that there was a need to look at the history of Chile, which had had a similar history as other South American countries.

One main element of concern to Mr. Gallegos-Chiriboga was the definition of torture in the Chilean legislation. It limited potential victims of torture to persons deprived of their liberty, and there had already been a comment in the Committee’s 2004 recommendations about the definition being incompatible with the definition given in the Convention.

Mr. Gallegos-Chiriboga also noted that several laws were pending before Parliament, or had taken a long time to be passed, could the delegation elaborate on why this had been the case? He also noted that the armed forces had their own legislation and that they could also punish civilians in Chile.

On the principle of non-refoulement, had any sentence been handed down? Were the judgments by the International Criminal Court subjected to limitations? Was there effective use of cameras during interrogations? Why was there a big increase in the prison population? Were there any social aspects to this, further asked Mr. Gallegos-Chiriboga.

Mr. Gallegos-Chiriboga noted that demonstrations by Mapuche Indians had been reported by non-governmental organizations to have been referred to by the government several times as terrorist acts. Non-governmental organizations had also expressed concerns over the practice of incommunicado detention, as a person could be detained for up to 10 days.

Finally, Mr. Gallegos-Chiriboga agreed that Chile had acted correctly in the case of former Peruvian President Fujimori’s extradition.

FERNANDO MARINO MENENDEZ, the Committee Expert serving as Co-Rapporteur for the report of Chile, said that, on training there was not much information included in the report. Perhaps there could be more included on the various curricula. Individuals responsible for deciding whether torture had taken place required in depth knowledge of the Istanbul Protocol, it was important that it was widely disseminated amongst those who had to investigate torture.

Concerning interrogations in police detentions centres, were such events recorded? These instruments could be used as safeguards for both interrogators and those that were being interrogated, noted Mr. Marino Menendez. Also was it true that a new security law was being drafted where such practice was covered?

Mr. Marino Menendez also expressed considerable appreciation for Chile’s efforts to bring its legislation in line with human rights standards.

On the training of mercenaries, Mr. Marino Menendez said that this was an important issue. The Working Group on mercenaries had expressed concerns about the fact that Chilean nationals had been subcontracted by United States agencies to take part in the conflict in Iraq. This gave rise to various issues, was this phenomena being addressed by the Chilean Government?

On treatment in prisons, Mr. Marino Menendez said that a United Nations Children's Fund report last year had looked at the juvenile detention system and had highlighted a number of difficulties, including the use of force in detention centres. Had there been any complaints from adolescents for the treatment they had received in prisons?

The number of suicides among inmates was high and rising, noted Mr. Marino Menendez. Had there been any investigations of the causes of these suicides, was it due to the conditions of detention?

Regarding reparation, Mr. Marino Menendez noted that there were still outstanding torture cases that had happened during the dictatorship. If the national human rights institute was not going to play the role of a final body to deal with torture cases, was there going to be another body that would take up this task or would the Government investigate those cases that remained pending?

On the treatment of indigenous people in Chile and the constitutional reform currently under way, Mr. Marino Menendez wondered whether the Constitution would recognise the rights of indigenous people. Had the indigenous people been consulted about this reform?

Other Committee Experts asked questions related to abortion, and what preventive measures had been taken to save lives? The events of the past had left a mark for many people in the world, said one Expert. The democratization had been broadly welcomed, it was a special challenge to deal with the past and thus the world had been very attentive when the first commissions had been created. Because of this it was important to address these sad issues. It was sad that these commissions had worked for only a short time. One of the past recommendations of the Committee was to reopen at least one of the commissions to look into the cases that were still open and to finally put the events of the past behind. There was still too much impunity in Chile, when one looked at the small number of people that had been convicted for the crime of torture.

Another Expert wondered about the number of Chileans in exile who were still unable to return. The results of the two commissions were not clear as not all the truth had come out, some of the younger victims, children, had not been found and on the other hand compensation had not been given to all that should have gotten it, because there had been some flaws in the system. This had already been observed by the Committee in its last recommendations.

The issue of prison overcrowding was also noted by an Expert. The major efforts by the Government in terms of infrastructure extension were recognized, but what were the modalities with regard to social rehabilitation? If effective measures would be taken it would help to bring down the prison population.

With regard to non-refoulement and non-expulsion to a State where a person risked torture, what was the State’s practice, had there been any cases and how had they been settled, asked an Expert.


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