COMMITTEE AGAINST TORTURE HEARS RESPONSE OF CHILE

Committee against Torture
AFTERNOON

5 May 2009


The Committee against Torture this afternoon heard the response of Chile to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Tuesday, 4 May, the delegation, which was led by Jorge Frei, Vice Minister of Justice of Chile, said the truth commissions had been innovative mechanisms to respond to global, moral, political and practical situations of disappearances, deaths and torture that had occurred during the military Government. Their existence had meant that today Chile recognized as indisputable those facts and allowed for the establishment of reparations. Truth commissions in Chile had not been intended to function as courts and had not set themselves the goal of identifying culprits. The National Truth and Reconciliation Commission had certified 3,195 victims of forced disappearances and extrajudicial executions and the National Commission on Political Prisoners and Torture, created in 2003, had received over 35,000 testimonies and established views on over 28,459 persons. The Commission, in its report, noted numerous forms of torture that had been carried out, including repeated beatings; application of electricity; simulated shootings; executions; rape and aggression; Russian roulette; being confined in subhuman conditions; being forced to watch the executions of others; and others. In the bill prepared by the National institute of Human Rights there was a proposal to set a new time period for hearing such testimonies.

Regarding the non-application of amnesty for certain crimes, the delegation said that, since 1998, the higher bodies in the justice system had not applied the amnesty law with regard to the offences of forced disappearances, torture and extrajudicial executions. It had been a lengthy argument that those violations achieved the status of a war crime. With respect to the non-application of the statute of limitations, the Supreme Court had decided, as with the amnesty law, that that should not run for these grave crimes. There had been three cases of forced disappearances with sentences handed down in 2008 and 2009, as well as a sentence in a torture case, which upheld this. In addition, there was currently a bill before Parliament in which torture would be accorded the status of a war crime and henceforth would not be subject to a statute of limitations.

Among further questions and comments, Luis Gallegos Chiriboga, the Committee Chairperson serving as Rapporteur for the report of Chile, noted an improvement with regard to draft legislation on torture, including on the Rome Statute, indigenous peoples, and even on the binomial system of election, and he asked when they could expect that legislation to be enacted. With reference to the Amnesty Decree, while he understood the political process in the country, Chile had to eliminate impunity if it was to stamp out torture. He also advocated for an explicit legal text setting out the crime of torture in Chilean law and recommended that Chile adopt comprehensive legislation on asylum-seekers and refugees and their identification. Fernando Mariño Menendez, the Committee Expert serving as Co-Rapporteur, expressed concerns about a draft law that would eliminate the statute of limitations for crimes against torture on the grounds that such crimes constituted war crimes, a crime against humanity or genocide, stressing that torture was a separate crime from those last three, with an internationally recognized definition.

Other Experts also raised a number of concerns, including light sentences or lowering of sentences handed down, in famous cases, such as for Paul Schäfer who was accused of violations against minors; reports of police abuse against indigenous minors; concern that it was the police themselves to investigate torture complaints brought against the police; and a concern that, under the new law, torture victims could not receive reparations unless they applied for them.

The Committee will submit its conclusions and recommendations on the report of Chile towards the end of the session on Friday, 15 May.

As one of the 146 States parties to the Convention against Torture, Chile is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10 a.m. on Wednesday, 6 May, it is scheduled to begin consideration of the initial report of Honduras (CAT/C/HND/1).

Response of Chile

Responding to a series of questions raised by Committee Experts on 4 May, the delegation of Chile said, with regard to domestic legislation penalizing torture, that the Criminal Code covered all of the elements in the Convention against Torture. All norms in Chilean law aimed at protecting the right to physical and psychological integrity. There was no need to adopt a comprehensive new law therefore.

Regarding Experts' concerns that the laws on torture only referred to those in deprivation of liberty situations, the delegation clarified that that included all such situations, legal and illegal, i.e., the person in question had to be under the control of the perpetrators.

The truth commissions had been innovative mechanisms to respond to global, moral, political and practical situations of disappearances, deaths and torture that had occurred during the military government. Their existence had meant that today Chile recognized as indisputable those facts and allowed for the establishment of reparations. Truth commissions in Chile had not been intended to function as courts and had not set themselves the goal of identifying culprits.

Providing more details, the delegation said that the National Truth and Reconciliation Commission had certified 3,195 victims of forced disappearances and extrajudicial executions. The National Commission on Political Prisoners and Torture had been created in 2003, and worked for 18 months. It had received over 35,000 testimonies and established views on over 28,459 persons. Its mandate was exclusively to determine those who had suffered from deprivation of liberty and torture for political reasons and to propose reparations. There had been more 190 offices set up for receiving testimony throughout the country as well as in consulates in 40 countries. The Commission, in its report, noted numerous forms of torture that had been carried out, including repeated beatings; application of electricity; simulated shootings; executions; humiliation and harassment; sexual rape and aggression; Russian roulette; being confined in subhuman conditions; being forced to watch the executions of others; sleep deprivation; and others. In the bill prepared by the National institute of Human Rights there was a proposal to set a new time period for hearing such testimonies. That bill also provided for pensions for widows for victims.

Another mechanism for identifying victims was the non-governmental organization the "President Allende Spanish Foundation" which had also received 27,000 complaints, including 3,201 new cases not established by the truth commissions. The Foundation had obtained money to pay out reparations to victims, under the aegis of the Corporation for the Promotion and Defence of the Peoples (CODEPU). For those victims who had also qualified under one of the truth commissions, they received 800,000 pesos per person, equivalent to $1,390 and those who had received payments from the State received lesser sums.

Regarding the prohibition of the circulation of testimony to the Commission, the idea was to protect the privacy of the victims, the delegation said. A bill containing the prohibition of the dissemination of the contents of the testimony of victims had been laid before Parliament. After a debate, it had been decided to put a 50-year ban on the release of that information.

The establishment of the National Human Rights Institute along the Paris Principles was the culmination of the Government's work to achieve reconciliation and to promote human rights. The current bill provided for full compliance with the Paris Principles requirements for independence and competence. The Institute was given a broad mandate to promotion and protection of human rights, to report to public bodies, to propose norms and laws, to propose harmonization of national legislation with international treaties, the ability to receive complaints of human rights violations and to refer those to the courts for prosecution. The bill also contained the idea of preserving the historical memory of Chile in terms of human rights violations, and therefore talked about reopening the truth commissions for a period of several months to ensure rectification for victims that had not been established earlier.

Regarding the non-application of amnesty for certain crimes, the delegation said that since 1998 the higher bodies in the justice system had not applied the amnesty law with regard to the offences of forced disappearances, torture and extrajudicial executions. It had been a lengthy argument that those violations achieved the status of a war crime. With respect to the non-application of the statute of limitations, the Supreme Court had decided, as with the amnesty law, that that should not run for these grave crimes. There had been three cases of forced disappearances with sentences handed down in 2008 and 2009, as well as a sentence in a torture case, which upheld this.

Again on the statute of limitations, the delegation added that there was currently a bill before Parliament in which torture would be accorded the status of a war crime and henceforth would not be subject to a statute of limitations.

Concerning military law and superior orders, the reformed Military Code had made a change in the provisions for due obedience, providing that subordinates would never be obliged to comply with an illegal order.

With regard to prisons and sentencing, in addition to improvements in the penal procedure mentioned yesterday, which had provided for fewer non-convicted persons in the prisons, there had been a strengthening of alternative sanctions. A bill presented to the legislature last year offered alternative solutions, including having imprisonment combined with ambulatory imprisonment, the delegation said.

With regard to increased suicides among prisoners in individual cells, there were new provisions regarding psychosocial evaluations for prisoners to address that phenomenon. In addition, security systems would be beefed up to keep a suicide watch.

The present security law of 1981 permitted the Government to investigate and accredit those who carried out private security functions. The Government took note of the report of the Special Rapporteur on the use of mercenaries for private security companies in that regard.

With regard to the training of Carabiñeros and other security officials, there was a programme to enable them to receive further training on legal and ethical aspects of their work. Internally it was hoped that human rights training would promote accountability. There were a number of civilian bodies and uniformed services that carried out such instruction.

In 1998, the higher body of police studies, in training for all levels, incorporated human rights in the curricula. The investigative police had also distributed the content of its human rights curricula.

The delegation noted that the Public Prosecutor had the obligation to protect victims of any offence, including torture. Persons had the right to psychosocial assistance and the guarantee of witness and victim protection, and the right to compensation.

Turning to concerns on incommunicado detentions, the delegation said that the new Procedural Code, enacted in 2000, had had the objective of protecting human liberties and provided for guarantees for detainees. Detainees could be held for up to 10 days under incommunicado detention in exceptional circumstances. The possibility of incommunicado detention could not, however, restrict access of the charged person to his lawyer or pose an obstacle to access by the court to the detainee or to medical attention being provided. This was an exceptional provision and required juridical oversight to ensure the measure was strictly necessary, the del. stressed.

On abortions, the law provided that prompt health service be provided to women who were in need of medical care following an abortion. Moreover, there were a number of family planning initiatives. Women who had suffered from abortions were specific targets for those programmes, which provided them with effective contraceptive methods.

With regard to the situation of indigenous people (Mapuche), there was a proposal for constitutional reform that would take into consideration the rights of the indigenous peoples. The Government had decided to undertake a national consultation with indigenous groups in that regard. Among provisions would be the recognition of the contribution of the indigenous peoples; the setting out of the individual and collective rights of indigenous peoples; the recognition of protections for indigenous culture and traditions; and protections for collective property rights to land and water.

Regarding the new law on adolescents and youth, the delegation said it set the age of criminal responsibility at 14, which provided that those over 14 received due process of law. Those under 14 received a reprimand, to combat the phenomenon of juvenile delinquency. Criticisms levelled at the new law by the United Nations Children's Fund had been done only a few months after it had come into force. Many of the concerns raised had been addressed. There had been no complaints about the application of sanction and the open system of penalties, where persons could carry out community service, victim reparation and other types of work, reserving prison sentences as a measure of last resort.

Questions by Committee Experts

LUIS GALLEGOS CHIRIBOGA, the Committee Chairperson serving as Rapporteur for the report of Chile, said that, since 2000, there had been an improvement with regard to draft legislation on torture, including with regard to the ratification of the Rome Statute, the recognition of the indigenous peoples, and even the binomial system of election. However, when could they expect that legislation to be enacted?

Regarding the Commission for reforming the Criminal Justice System, it was indisputable that there was a political will to clarify these topics and to restructure the judicial and legal apparatus so that it was in line with international obligations, Mr. Gallegos Chiriboga said.

On the Decree-Law on Amnesty, Mr. Gallegos Chiriboga stressed that there could not be impunity for torture. While he understood the political process in the country, Chile had to eliminate impunity if it was to stamp out torture.

Mr. Gallegos Chiriboga again advocated for an explicit legal text setting out the crime of torture. The clearer and more explicit the laws were the better they could combat torture. Moreover cruel and inhuman or degrading treatment and ill-treatment should also be included in Chile's definition of such crimes.

Finally, Mr. Gallegos Chiriboga recommended that Chile adopt comprehensive legislation on asylum-seekers and refugees and their identification.

FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Co-Rapporteur for the report of Chile, echoed his colleague's request for a comprehensive law on refugees. He also wondered if there were detailed migration policy guidelines.

Regarding the statute of limitations, and the proposal that such a statute should not apply to torture when it rose to the level of a war crime, a crime against humanity or genocide, Mr. Mariño Menendez stressed that torture was a separate crime from those last three, with an internationally recognized definition.

Other Experts then raised a number of concerns, including light sentences or lowering of sentences handed down, in famous cases, such as for Paul Schäfer who was accused of violations against minors; reports of police abuse against indigenous minors; concern that it was the police themselves to investigate torture complaints brought against the police; and a concern that, under the new law, torture victims could not receive reparations unless they applied for them.

Response by Delegation

Responding to additional questions raised, on the situation of refugees and stateless persons, the delegation of Chile explained that this did not arise in Chile as it observed both ius solis and ius sanguinis, which meant that children of migrants born in Chile received Chilean citzenship. With respect to refugees, said that a draft bill on refugees provided for a norm that would respond to the definitions, scope and principles of international law with regard to refugees. In Chile the programmes that existed with respect to assistance for migrants were related to health and education

Beyond the truth commissions, there had been a number of initiatives of the Ministry of the Interior to address the situation, including human rights programmes, requests for special judges with respect to detention, and ministerial visits to the courts to investigate, judge and sanction.

From Chile's perspective, having 56 sentences handed down on serious human rights violations was truly satisfying. Maybe it was not enough, but it represented an enormous amount of work.
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