Head of Chile’s Delegation tells Human Rights Committee of Exceptional Changes Sweepig Country Since Election of First Woman President
Exceptional changes had swept through Chile, especially since the election of Chile’s first female President last year, the head of the Chilean delegation told the Human Rights Committee today, adding that his presentation was motivated by a need to take stock of both the country’s progress and its failings.
Edgardo Riveros, Subsecretary in the Ministry of the General Secretariat of the Presidency, told the 18-member expert Committee, which monitors compliance with the International Covenant on Civil and Political Rights, that reforms called for a high degree of consensus in Chilean society. An ambitious social protection programme, spearheaded by President Michelle Bachelet, included profound reform of the social security and educational systems, seeking to give greater equality to individuals and ensure they received more dignified treatment.
He said a constitutional review in 2005 had removed the remaining “authoritarian enclaves”, such as lifetime senators, and the entire Congress was now elected by popular vote. The President could remove the head of the armed services, which had ceased to be the guarantor of national security, and the National Security Council could no longer choose senators and ministers. Congress could now establish commissions of inquiry and launch investigations. Meanwhile, the President’s term of office had been reduced from six to four years.
The resulting changes had enabled Chile to turn its back on its dictatorial past, he said, adding that the country was now paying reparations to victims of the previous military dictatorship and the families of those who had disappeared, as well as offering educational and medical benefits. The National Commission on Political Imprisonment and Torture, established to ascertain who had been deprived of their freedom and tortured during the period from 1973 to 1990, had heard testimony from more than 35,000 witnesses.
There would be no recurrence of what had happened in Chile and measures were being taken to provide moral redress and restore victims’ personal dignity, he said. The work to be done in that regard by the national human rights institute, once established, would be both symbolic and significant. The institute’s establishment was pending, as was the appointment of a public defender and an ombudsman. A citizen’s defence commission was also being set up.
In the initial round of comments and questions from the Committee’s members, one expert said it was particularly unfortunate that the National Commission on Truth and Reconciliation had not originally addressed cases of torture that had not ended in death. Fortunately, it now did. As for reparations, they seemed austere and merely symbolic. More information was needed on why the victims of abuse by prison guards, and their families, were not entitled to compensation.
A number of Committee members asked about the criminalization of abortion, with one expert noting that it seemed as though the State placed a lower premium on the mother’s life than that of the foetus. Other questions concerned the situation of sexual minorities, reported violations of the rights of the mentally disabled and the consequences of the anti-terrorism laws on indigenous people.
The Human Rights Committee will meet again at 10 a.m. tomorrow, Thursday, 15 March, to continue its consideration of Chile’s fifth periodic report.
Continuing its consideration of country-specific compliance with the International Covenant on Civil and Political Rights this afternoon, the Human Rights Committee took up Chile’s fifth periodic report (document CCPR/C/CHL/5), dated 5 July 2006, which contains responses to questions relating to the areas of concern, as well as recommendations set out in the Committee’s concluding observations on Chile’s fourth periodic report (document CCPR/C/79/Add.104).
According to the fifth periodic report, “considerable progress” has been achieved in the reform of criminal procedure. The length of the detention period can be modified and an analysis is under way for a complete reworking of the system for monitoring the enforcement of criminal sanctions. This encompasses the treatment of prison regimes, including persons in pretrial detention. In most of the world’s prisons, the number of inmates exceeds the official capacity, and Chile is no exception. Since 2000, the Government has introduced several initiatives to tackle this problem.
Under the Criminal Code, abortion is an offence, but given the very aim of preventing abortions, Chile has for 40 years been promoting family planning based on the concept of responsible parenthood, the report says. This resulted in pregnancies and births that are “freely desired” by both parents. In addition, the Chilean Institute of Public Health has authorized the sale of the product Postinor-2, designed for use in emergencies, specifically the day following unprotected sexual relations. This decision was challenged in the courts by the Ages Youth Centre and, in November 2005, the Supreme Court rejected all appeals lodged in this regard. Thus, the sale of the emergency contraceptive is now fully authorized.
The report states that a bill to amend the Civil Code, and additional laws relating to joint property or community property, conferring equal rights and obligations on husband and wife, was approved in the Chamber of Deputies and was at the second stage in the Senate. This bill introduces amendments to the Civil Registration Act, the Commercial Code and the Mining Code, among others, concerning the principle of equality. Divorce was introduced by the Civil Marriage Act of May 2004 and the minimum age for marriage for both sexes was raised to 16. The act amending the Labour Code made sexual harassment at work an offence. It entered into force in March 2005 and progress has been reported regarding the participation of women in political life. In addition, the provision of the Criminal Code criminalizing sodomy between consenting adults has been deleted.
Other reforms to which the report draws attention include the entry into force of the Religious Act in October 1999. It grants public-law status to all churches and ends the special situation enjoyed by the Roman Catholic Church. Civil servants were granted trade union rights under a 1994 act. In the context of the modernization of the justice system, criminal-procedure reform involved a range of institutions, rules, procedures and additional conditions that foster the transition from “an essentially written and secret inquisitorial criminal system to an open and public accusatory system”. The reform involved seven legal texts, including the Public Prosecutor’s Office Act, the new Code of Criminal Procedure and the Public Defender (Criminal Matters) Act. Related reforms have involved the family, with the establishment of family courts, as well as changes in the procedure governing labour disputes and cases involving minors.
Regarding international treaties, the report states that the most important constitutional reform has been the laying down of rules clarifying the gaps in Chilean legislation relating to the exclusive role of Congress in approving or rejecting international treaties submitted to it by the President. The most important of these rules indicates that the provisions of a treaty may be set aside, modified or suspended, “only in the manner laid down in the treaty itself or in accordance with the general rules of international law”. This reform is of the highest importance in terms of respect for international human rights law domestically, since it means that no international human rights standard that is binding on the State can be ignored or nullified by a domestic measure.
On efforts to secure truth, justice and reparation for victims of human rights violations committed by agents of the State under the military regime, the report says new measures have built on the achievements secured since the return of democracy in 1990. Especially important is the human rights proposal known as “No tomorrow without yesterday”, made public in August 2003. It contains a set of measures designed to throw further light on human rights violations committed under the military regime and to improve the social reparations to which the victims are entitled. It provides not only for practical measures in relation to past violations, but also for measures to promote human rights in the future, including the establishment of an institute of human rights. One outcome of that proposal by the President has been the establishment of the National Commission on Political Prisoners and Torture.
The report also highlights several legislative changes, which have led to major progress in protecting the rights set out in the Covenant. It also provides updates on Chile’s signature and ratification of various international instruments. Among them, Chile has signed the Optional Protocol to the Covenant, aiming at the abolition of the death penalty and the Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty. It has also ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; the Optional Protocol on the involvement of children in armed conflict; and The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families has also been ratified and is in force.
Introduction of Report
Prior to introducing the report, EDGARDO RIVEROS, Subsecretary, Ministry of the General Secretariat of the Presidency, introduced the members of his delegation: Heraldo Muñoz, Permanent Representative of Chile to the United Nations; Ignacio Llanos, First Secretary; Rodrigo Quintana, Adviser to the National Defence Council; Alejandro Salinas, Office of the National Defender; Andrea Soto, Planning Ministry; Claudia Bruneaud, Ministry of the General Secretariat of the Presidency; Juan Cristobal Gonzalez, Ministry of Justice; Marco Rendon, Ministry of National Service for Women; and Jorge Tagle, Foreign Ministry.
He said there had been exceptional changes in his country, especially since the election of its first female President. A constitutional review in 2005 had removed the remaining “authoritarian enclaves”, such as lifetime senators and the entire Congress was now elected by popular vote. The President could remove the chief of the armed services, which had ceased to be the guarantor of national security, and the national security council could no longer choose senators and ministers. Congress could now establish commissions of inquiry and launch investigations. Meanwhile, the President’s term of office had been reduced from six to four years.
Those changes had enabled Chile to turn its back on its dictatorial past, he said. Still, more changes were needed in the way in which deputies and senators were elected. There were currently only two political blocs in Congress, which meant minorities were not adequately represented. To address that, the Government had proposed a proportional system of election. A constitutional recognition of indigenous peoples was also needed and a draft law addressing that was still working its way through Congress.
In recent years, laws had been passed regulating freedom of expression and the press, he said. Cinematic censorship had been eliminated and any religion could obtain legal recognition. Military service was now almost entirely voluntary, education was now free and obligatory for 12 years instead of 8, and the death penalty had been eliminated. The 1999 constitutional reform had established equality between men and women. In 2005, the crime of sexual harassment had been introduced and, in 2004, the Law of Civil Marriage had permitted divorce. Domestic violence had been criminalized. There had been a transformation in the perception of the rights of women, with new laws on violence, economic responsibility for children and spousal relations.
Noting that reform of the judicial system was under way, especially the criminal justice system, he said far-reaching procedural reform had ended the practice of secret, written proceedings where a judge did the investigating, charging and sentencing. In its place was an adversarial and public system. The penitentiary infrastructure was also being improved as part of an effort to alleviate overcrowding and improve standards.
As for the rights of indigenous peoples, a 1993 law recognized their right to land, water, language and cultural expression, he said. Some 491,000 hectares had been transferred to indigenous communities and Chile was making progress in recognizing the multicultural nature of its society. In 2001, the Commission for Historic Truth had been established to reconstruct the history of native peoples. New policies expanded indigenous rights, including by awarding grants to young people and establishing new municipalities. In 2006, a national debate on indigenous peoples had involved more than 120 indigenous organizations. Chile was determined to adopt the United Nations Declaration on the Rights of Indigenous Peoples.
Regarding human rights and the legacy of the former military Government, Chile was now paying reparations to victims of the dictatorship and families of the disappeared, as well as offering educational and medical benefits, he said. The National Commission on Political Imprisonment and Torture had been established to ascertain who had been deprived of freedom and tortured from 1973 to 1990. The Commission had heard testimony from more than 35,000 persons.
He said his presentation was motivated by the need to take stock of both Chile’s progress and its failings. A lot had been achieved but much remained to be done. Reforms called for a high degree of consensus in Chilean society. The current Government had an ambitious programme of social protection, including profound reform of the social security and educational systems. That programme was spearheaded by the President and aimed at giving greater equality to individuals, ensuring that they received more dignified treatment.
Replying to written questions about the amnesty decree, a member of the delegation said that, since 1998, the Supreme Court and the appeals courts no longer upheld judgments handed down by the military tribunals that had applied it. The courts had also recognized that detainees who had disappeared were victims of kidnapping, in which case the Geneva Conventions applied.
At the legislative level, he said work was under way on a parliamentary initiative designed to enhance article 93 of the Criminal Code so that single events should not be constituted as crimes against humanity or war crimes. That legislation was under study, but all due urgency was attached to it. The establishment of a national human rights institute was pending, as was the appointment of a public defender and an ombudsman. A citizen’s defence commission was also being set up.
In terms of the Anti-Terrorist Act and proceedings against members of the indigenous community, he said his country had never used the law to evade the legitimate demands of indigenous people to defend their rights. Such demands had always been taken up and channelled through the appropriate machinery. In 1993, the Indigenous People’s Act had been adopted, and its implementation carried with it a budgetary allotment for land holdings. Under the Anti-Terrorist Law, however, eight members of the indigenous community had been punished because of violent situations threatening the rule of law. It had been invoked most recently in July 2003. Generally, guarantees of due process were fully respected; the accused received assistance and public counsel; and acquittals and release from prison were possible. Three members of the Mapuche community were currently on parole, apart from the eight people previously mentioned.
Turning to property in marriage, he said a bill was before the Senate pending approval in April. It would provide husband and wife with equal property rights and obligations.
Regarding gender-based discrimination, more and more Chilean women had entered the labour market, and various legal amendments had been introduced to help protect them. The main focus had been on protecting motherhood and ensuring equal family responsibilities for men and women. During President Bachelet’s first year in office, 800 nurseries for babies had been established, and a multitude of pre-schools had been made available to provide day care for children under the age of six. Efforts were also being made to close the wage gap, which had fallen to about 40 per cent by 2000. “Very often our societies are held hostage by old ways, which we do have to change,” he added.
Regarding political prisoners and torture, he said there was reparation both for the individual as well as at the collective level. What had happened in Chilean society that had led to calls for reparation would never recur. Measures were being sought to provide moral redress and restore the victims’ personal dignity. The work that would be done in that regard by the national human rights institute, once established, would be both symbolic and significant. As for the situation in prisons, many legal regulations governed incarceration. A bill was being prepared to establish a new provision for a review of the prison system, with the aim of having a single code that would protect the rights of prisoners, prison guards and associated staff.
He said Chile was moving ahead on amending the Code of Military Justice and protecting the rights of civilians. Civilians could not be tried by military courts and improper sedition was no longer an offence. Previously, journalists had been charged with improper sedition when exercising their freedom of expression. As for abortion, a large number of policies were aimed at preventing the circumstances that might lead to it, including sexual and birth-control education and support for teenagers, among others. Those were ongoing family policies, not part of any Government programme.
Experts’ Questions and Comments
NIGEL RODLEY, expert from the United Kingdom, welcomed the report, even if it was long overdue, but expressed regret over its focus on legal and institutional issues rather than practical ones. It would have helped if the core document from 1999 had been updated since it was out of date, particularly on constitutional issues.
Taking up the question of amnesty and enforced disappearances, he said it was not clear whether the amnesty law was applicable to extrajudicial executions and torture. Had there been a first-instance decision on whether former Peruvian President Alberto Fujimori could be extradited, or any sense of how long it might be before that case was concluded? Would the extradition provisions of the Convention against Torture be applicable to the Fujimori case?
It was unfortunate that the National Commission on Truth and Reconciliation had not originally addressed cases of torture that had not ended in death, he said. Fortunately, it now did. As for reparations, they seemed austere and symbolic. What was the logic of a mechanism by which the State seemed to be permitting itself to commit such crimes? For example, the more such crimes were committed, the smaller the reparations would be since they might otherwise overwhelm the budget. How consistent was that logic with the goal of deterring future occurrences? As for the pensions offered to victims, they were comparable to those given to many others, but what exactly did that mean?
He requested more information on the prison guard abuse inquiry. In the case of the guard sentenced to 61 days, how serious were the facts in that case? Was the verdict subject to appeal, and why were the victims of such abuse and their families not entitled to compensation?
On the subject of military law, he sought further clarification of the terms “unnecessary violence” and “due reason” for committing violence, asking also about the prospects for legislation in that area to be adopted.
Turning to abortion, he said it seemed that the State was putting a lower premium on the life of the mother than that of the foetus, which could be in violation of the Covenant’s protections relating to the right to life. Could the delegation provide more information on instances of prosecution for abortion, both of women who had had it done and those who had performed the procedure?
WALTER KÄLIN, expert from Switzerland, asked about the extent to which the national human rights institute was in compliance with the Paris Principles and sought more information on the Anti-Terrorism Act and its application in the context of indigenous issues. Did acts committed as part of land disputes amount to terrorism? What definition of “terrorism” was used, and how, if at all, had it been amended?
He said the Anti-Terrorism Act curtailed due process guarantees considerably by admitting faceless witnesses and allowing for confidential procedures and long detentions. To what extent did they fully respect due process, and to what extent were they compatible with the Covenant, especially in non-typical cases of terrorism? What kind of limitation on due process rights did the new legislation entail?
CHRISTINE CHANET, expert from France, noted positive developments, such as the marriage age, now 16, but which had previously been very low and different for boys and girls. Sexual harassment was now covered in the Criminal Code. What machinery was “in the works” to prevent it.
She agreed with her colleague’s views on the criminalization of abortion and the problems that it created, including its impact on the maternal death rate, which contravened article 6 of the Covenant. Contradictory legislation on abortion implied that some professionals had a reporting obligation whereas others had a duty to keep the confidence. How, in practical terms, could Chilean society deal with that ambiguity? Also how was it possible to have blocked a review of the Marriage Law for 10 years, and why had it now been in the Senate for 2 years. That was not just a cultural blockage, but an institutional one.
MICHAEL O’FLAHERTY, expert from Ireland, called attention to information he had received concerning incarceration of the mentally disabled and their loss of legal rights. A 2004 law on the interdiction of the mentally disabled essentially resulted in a loss of rights and declared that their parents or close family members might be appointed guardians in perpetuity. The concern was the permanent nature of such findings and the appointment in perpetuity of such guardians. There was a gap in the periodic reviews of such decisions and various other safeguards of fair hearings and legal representation. It had also been alleged that people were admitted to psychiatric institutions against their will.
Regarding sexual minorities, he said he had received highly detailed information on their very prejudicial place in society. What response did the delegation have to the multitude of allegations about improper police behaviour and arrests, and widespread discrimination against sexual minorities in the public and private sectors, such as in the health-care and education systems? For example, their access to HIV/AIDS treatment was compromised, according to a widespread and extraordinary volume of information from non-governmental organizations.
Did the delegation have in place, or propose to put in place, procedural oversight mechanisms so patterns of discrimination by police, teachers, doctors and others could be held accountable? he asked. To what extent had the State proposed public information programmes to tackle what appeared to be “very widespread prejudice” in the public sector? Could the delegation provide more information on the proposed equality legislation?
Also concerning the mentally disabled, ABDELFATTAH AMOR, expert from Tunisia, asked what if there was a specific regime of protection for them, particularly those who were incarcerated. Did they receive any special care, and was any kind of surgery imposed on them? Could delegates provide any additional information on abortion.
Response by Delegation
Responding to questions about the amnesty law and “permanent kidnappings”, a member of the delegation said Chile had no case law in that area and must therefore examine the issue on a case-by-case basis as Supreme Court jurisprudence evolved. The Geneva Convention should also apply to post-1973 events. The amnesty law had been voided by the Geneva Convention, so the Supreme Court had avoided applying it. A bill was needed to strengthen case law in that area.
In response to questions about the passive extradition process, another delegation member said that was dealt with solely by the courts. Regarding the extradition of Alberto Fujimori, the investigative phase had been concluded and a report was to be issued, hopefully very soon. No exact date could be cited since the Supreme Court was an independent branch of Government.
On prison matters, another delegate said the guard who had received a 61-day sentence had been charged with abuse, physical aggression and assault by force, and a threat involving a weapon. While it was true that no victims of prison abuse had received compensation, that was not due to any flaw in the institutional mechanism. Victims could submit requests for civil compensation but there was no compensatory body to grant it. Compensation must be done through judicial channels. Investigations were ongoing and there was no final judgment yet.
As for the anti-terror law, another delegation member said it provided for offences that combined ordinary crimes against indigenous groups with that of terrorism. Offences had been re-categorized as part of the 1991 constitutional changes.
Another delegate added that secret witness statements were allowed under the anti-terror law, and the implications of that for due process had been discussed. The law had not been invoked in years, but it was contained in the Anti-Terror Code as a way to ensure that parties were not harmed in any way. The courts considered each case individually. The unjustified granting of confidentiality was considered a breach and could void a case.
On economic equality between men and women, another representative clarified that there were three regimes for equality, with marriage being the main one. Men typically controlled the assets, but that could change after marriage, and women could also have their own assets. Meanwhile, the number of marriages had fallen by half over the last 10 years. A new regime of equality introduced in 1994 had not been widely adopted by the people because it required the parties to state that they wished to be married under that regime.
Regarding victim compensation, another representative said that the National Commission for Truth and Reconciliation and other bodies were working on that issue. State policy was focusing on both financial and symbolic aspects, such as facilitating access to health and psychological care and housing. Once victims of torture were identified, they received compensation of $209 a month for life. That varied by age bracket, but was in line with international standards for compensation and marked significant progress since 1990.
Another representative added that the reparation policy had been praised by the international community. Chile was establishing a human rights institute, where people could take their complaints and seek symbolic compensation. Another representative noted that, while the benefits might be austere, they were provided for life and many people received them, as well as other benefits.
On military justice reform, another delegate said the Government was fully aware of the need to reform the Military Justice Code and the military system in general. The Government was committed to submitting a bill that would change the powers of military tribunals so they would no longer deal with civilian cases. There was no exact definition or concrete date for its completion.
Turning to abortion, another member of the delegation said statistics on the number of people who had tried it were not readily available but he would find and provide them. Refusal to establish exceptions to the abortion law related to the rights of the unborn, which were covered in the Constitution. Necessary medical care was never withheld following an abortion, and confessions were not required in order to receive it.
On sexual harassment, he said it was important to distinguish between situations in the public and private sector. In the public sector, an investigation was required. In the private sector, a complaint must be made to the employer, who must then adopt protection measures. If the response was insufficient, the victim could apply to the Labor Directorate, which could take action.
Regarding disabilities, another representative said that, if they were mental in nature, they must be diagnosed and the appropriate treatment ascertained. Administrative internment could last up to 62 hours and if a diagnosis was not made in that time, the person must be released. The national commission to protect those with mental disabilities received complaints about individuals who might have been abused. A recent bill on equality of opportunity for persons with disabilities provided that they could not be treated against their will. A bill regulating that matter and the relevant civil implications would be submitted later in the year. Chile also planned to adhere to the Convention on the Rights of Persons with Disabilities.
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