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COMMITTEE ON ENFORCED DISAPPEARANCES EXAMINES THE REPORT OF CHILE

10 April 2019

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Chile on how that country is implementing the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.

Lorena Recabarren Silva, Human Rights Undersecretary at the Ministry of Justice and Human Rights of Chile, presenting the report, said the delegation included representatives from the three branches of government - a testament to the importance that Chile gave to this issue. While Chile was proud of its advancements, it acknowledged that challenges remained.  She reiterated Chile’s willingness to address these challenges with a democratic and forward-looking approach.  There had been numerous victims of enforced disappearances under the military dictatorship, which had governed the country between 1973 and 1990. Over 3,000 people had been victims of political assassination or enforced disappearance during that period, and the Government still did not know the whereabouts of about 1,000 of them.  While this remained an open wound in the country’s soul, the transitional justice process, which was initiated in Chile in the 1990s, had generated advancements on the judicial, memory and reparation fronts.  There had been 1,134 trials, which had led to 2,500 convictions.  While there were matters that still had to be tackled, Chile had shown a steadfast commitment to preventing enforced disappearances and, when they occurred, to investigate them, and sanction those responsible, as well as provide reparations to the victims.

During the discussion, the delegation was asked to provide additional, more detailed data. Committee Experts said that statistics allowed the development of indicators and guided policymaking. They asked about the number of enforced disappearances that were being investigated and the number of guilty verdicts that had been handed down.  The fact that the amnesty law had not been declared void in Chile, unlike in Argentina for instance, was a source of concern for the Committee. Turning to reparations, Committee Experts stressed that comprehensive reparations should not be merely financial, but also political. The Committee had received information to the effect that when detainees were transferred to legal places of detention, their families were not informed, and that a judicial procedure was necessary to obtain information on the transfer.  Access to such information should be free and fluid as per article 17 of the Convention. They also pointed out that issues of incompatibility between the Chilean definition of a victim and that in the Convention could impact the victim identification process.  

In his concluding remarks, Horacio Ravenna, Committee Expert and Country Co-Rapporteur for Chile, recalled that the return to democracy in Chile had signalled the return of justice and the recovery of institutions.  The trial of Augusto Pinochet had reflected the full force of the law.  It was important to make sure that legislation aligned with the values of democracy and the principles of truth, justice and the guarantee of non-repetition. The concluding recommendations would suggest additional guarantees to ensure that such events could not happen again. 

Daniel Figallo Rivadeneyra, Committee Expert and Country Rapporteur for Chile, said the victims were the guides for the Committee and the delegation: victims’ clamor for redress was their loadstar.

Ms. Recabarren Silva said it was natural that disagreement arose on the implementation of the Convention and that different opinions were expressed. This work was a way to honour victims of enforced disappearance.  There was an ethical obligation to delve into these issues.
 
Suela Janina, Committee Chairperson, said that the Committee and the delegation’s work was a testament to their willingness to address the issues of the past and take all necessary measures to ensure this crime would never be repeated again.

The delegation of Chile consisted of representatives of the Ministry of Justice and Human Rights, the Senate, the Supreme Court, the Ministry of the Interior, the Public Ministry, the Forensic Unit, and representatives of the Permanent Mission of Chile to the United Nations Office at Geneva.

The Committee will issue the concluding observations and recommendations on the report of Italy at the end of its sixteenth session on 18 April. Those and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 3 p.m. this afternoon to start its consideration of the initial report of Peru (CED/C/PER/1).
 
Report

The Committee has before it the initial report of Chile (CED//CH/1) as well as its replies to the list of issues (CED/C/CHL/Q/1/Add.1).

Presentation of the Report

LORENA RECABARREN SILVA, Human Rights Undersecretary at the Ministry of Justice and Human Rights of Chile, presenting the report, said the delegation included representatives from the three branches of government - a testament to the importance that Chile gave to this issue.  While Chile was proud of its advancements, it acknowledged that challenges remained.  She reiterated Chile’s willingness to address these challenges with a democratic and forward-looking approach.

There had been numerous victims of enforced disappearances under the military dictatorship, which governed the country between 1973 and 1990.  Over 3,000 persons had been victims of political assassination or enforced disappearance during that period, and the Government still did not know the whereabouts of about 1,000 of them.  While this remained an open wound in the country’s soul, the transitional justice process, which was initiated in Chile in the 1990s, had generated advancements on the judicial, memory and reparation fronts.  Three national institutions or truth commissions had been established to shed light on these violations.  There had been 1,340 trials, which had led to 2,500 convictions.

The State of Chile had undertaken important efforts to provide reparations to victims of political violence, notably families of victims of enforced disappearances.  Over 4 million dollars had been given to victims.  All the political forces in Chile had committed to maintaining the policies aiming at fostering truth, justice and reparation for the victims of human rights violations.  There was a report being drafted on the actions of the State in matters of transitional justice between 1990 and 2018.

Over 25 years since the return to democracy, Chile had seen four cases of enforced disappearances.  The State had sentenced those responsible or was continuing its investigations to punish those responsible.  There would be no impunity for those who perpetrated those crimes, she assured.

Enforced disappearance had been a crime under domestic law since the ratification in 2009 of the Rome Statute establishing the International Criminal Court.  Complementarily, the National Congress had adopted a law that integrated crimes against humanity, genocide and war crimes in Chile’s domestic legal system. The National Congress was examining draft legislation that would modify the criminal code so that enforced disappearance became a stand-alone crime.

History and the tragic events that had taken place between 1973 and 1990 had allowed Chileans to grasp the terrible scope of enforced disappearances. While there were matters that still had to be tackled, Chile had shown a steadfast commitment to preventing enforced disappearances and, when they occurred, to investigate them, and sanction those responsible, as well as provide reparations to the victims.

Questions by the Committee Experts

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Country Co-Rapporteur for Chile, asked which institutions, in addition to the Ministry of Justice and Human Rights, were involved in the preparation of the report.

On the issue of statistics, the delegation was asked to provide additional, more detailed data. Statistics allowed the development of appropriate indicators and policymaking.  He asked about the number of enforced disappearances that were investigated and how many had been tried and sentenced. How many guilty verdicts had been handed down?  How many were still in limbo?

Concerning the remains of the victims, he asked how many had been found. While noting the work that had been undertaken under the national search plan to search for the remains of victims, he asked about the status of the protocol that was to be established in that context. What role did civil society play in this process?  Had any of the recent victims of enforced disappearance been located or if their fate had been identified?

Regarding the draft legislation that was introduced in 2017 on enforced disappearance, he noted that the delegation used the word “review” to describe the current legislative process. Was the legislation amended?  If so, how?  What sentences could the courts impose for convictions, and were they
commensurate with the crimes.  He also asked about the duty not to obey an order that involved the commission of a crime of enforced disappearance.

According to Chilean legislation, both the victim of enforced disappearance and the perpetrator had to be Chilean for there to be jurisdiction, whereas the Convention only required that one of them be a national.  He asked the delegation to elaborate on this discrepancy.

Was there a bill to exclude the competence of the military court for crimes of enforced disappearances?

HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur for Chile, referring to article 12 of the Convention, asked for details about the mechanisms in place to ensure the protection of persons who denounced cases of forced disappearance.  What measures were in place to ensure that investigations were not hampered with when a law enforcement body was suspected of committing enforced disappearance? In which cases were officials suspended?  He asked about the case of a former director of the police who was implicated in the case of a forced disappearance.  He pointed out that in the case of suspicion of enforced disappearance, a democratic State must quickly remove the concerned person from office and refer the investigation to an independent entity. 

He sought further clarification regarding information the Committee had received about the Government’s decision to stop new judicial proceedings as of 2018. Could the Committee provide more information on the conditions in which there was a partial lapse of the statutory limitations?

He asked if the 50-year secrecy rule really benefited the victims. Did it hamper investigations and judicial procedures?

The amnesty law had not been derogated and this was a source of concern for the Committee. What did Chile intend to do about this?  Recalling that the amnesty laws were declared void in Argentina, he asked whether a similar annulment could happen in the immediate future in Chile.  He asked for details about the possible substitution of the deprivation of liberty with other punishments.

Another Committee Expert asked about the number of extradition requests Chile had received that were related to the crime of enforced disappearance.

Response by the Delegation

Responding to questions and issues raised by the Committee Experts, a delegate said that the cases of murder and enforced disappearance during the dictatorship were judged by the country’s highest judicial authorities.  The trials were governed by the criminal procedure code.  In 2019, 1,340 cases were open regarding cases of kidnapping, illegal detention, torment and disappearances, with 14 per cent that had been ruled on and appeals had been filed.  Of the cases that had been ruled upon in the past five years, there had been 2,570 convictions, while the Supreme Court had handed down a total of 447 rulings between 2002 and 2018, 55 per cent of these had to do with illegal detention, kidnapping, torment and disappearances, and millions had been provided in indemnity.  The criminal procedure code said that this type of procedure in the summary stage should be secret.  However, the judges handling these cases generally provided summaries to the parties once the process was underway.  When there was exhumation of victims, some files were kept secret to protect the dignity of the victims and their families.  A spotless record of the perpetrator could be used as a mitigating factor, and this had been used, with the sentence pronounced bearing this in mind.   

Over the past two years, the Supreme Court had handed down 20 rulings on cases of aggravated kidnapping between 1973 and 1990.  For 19 of these 20 cases, the Court had decided not to take the statute of limitations into consideration as an attenuating factor.  The criminal code created the possibility - not an obligation - for the judge to reduce the sentence based on mitigating factors and attenuating circumstances.

Civilian courts would always adjudicate on issues involving civilians and children, either as victims or alleged perpetrators of crimes. If both the perpetrator and the victim were part of the military, the Supreme Court would refer it to the appropriate court.

Concerning the removal of minors, the delegation said that proceedings were secret, and the delegation did not have access to information.  It should be noted, however, that the courts were seized of these issues.

On irregular adoption, a delegate said that between 1960 and 1998, and obviously before that, this issue was regulated by the law on adoption.  In 1999, with the aim of bringing the national legislation in line with the International Convention on the Rights of the Child, new legal provisions had been introduced. Since then, all children and adolescents who could be adopted had to be put on a list.  Persons who wished to adopt them must also be put on a registry.  A draft bill that would include preventive mechanisms to combat irregular adoption was being examined.  Parents of the children or adolescents would not be allowed to surrender their child to third parties.

Changes to deprivation of liberty sentences on humanitarian grounds were put in place to allow the elderly to replace the rest of their sentences with house arrest in three cases: persons suffering from terminal disease, persons suffering from a serious physical disability, or persons over the age of 75 who had served half their sentence.  This did not amount to impunity, as the persons concerned continued to serve their sentence.

There was a law on enforced disappearance that was being examined by the Chilean Senate which would punish civil servants who committed enforced disappearance, in keeping with the Convention.  The draft legislation included a definition of enforced disappearance that was aligned with the Convention.  The Chilean Parliament was also considering ratifying the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

The rule of secrecy was put in place to allow the victims of torture to go confidently before the Truth Commission and share their testimony, the delegation said.  This secrecy did not prevent the victims from providing documents containing their testimonies to third parties.  They could therefore testify before courts.  The confidentiality and secrecy did not prevent the trial on crimes that took place between 1973 and 1990, nor did it impose any restriction that would foster impunity.  There was a law being examined by the Senate that would end the secrecy rule.

On amnesty, the decree had not been enforced as the courts had declared that the crimes of enforced disappearance that took place between 1973 and 1990 amounted to crimes against humanity.  Therefore, no amnesty could be applied.  This non-implementation of the amnesty law was in line with the Convention.  What was more, there was a draft law still under consideration before Parliament that would void the amnesty.

Follow-Up Questions

HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur for Chile, asked if the authors of the crimes perpetrated between 1973 and 1990 were material authors or otherwise. The fact that statutory limitations could be considered as mitigating factors was surprising and went against the spirit and the letter of the Convention. This issue was a concern for the Committee. 

There were 279 children who were abducted.  Were these children abducted or born in captivity?  In this case, additional data would enrich the exchange.

On the issue of Colonia Dignidad, he asked if the excavation efforts were ongoing.  What was the current state of the cooperation efforts between Germany and Chile?

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Country Co-Rapporteur for Chile, noting that the delegation had made several references to draft bills, asked for copies to be submitted to the secretariat.  What was the lightest sentence handed down for enforced disappearance in Chile?

On the draft bill on enforced disappearances which was introduced in 2017, he asked how it would impact the military and the carabineros. He also asked for further details about the competent court for an enforced disappearance crime committed by a military officer against another military officer.

Another Expert asked whether Chile intended to expedite the judicial process for enforced disappearance.

Response by the Delegation

LORENA RECABARREN SILVA, Human Rights Undersecretary at the Ministry of Justice and Human Rights of Chile, said the principle of non-refoulement was set forth in the Chilean legislation, notably in article 4 of the law on refugees.

Answering questions about the partial lapse of statutory limitation, a delegate said if a person had contributed to a criminal investigation, for instance, the lapse of statutory limitation could be used to decrease her or his sentence.  This was drawn from a law article that did not distinguish between offences.

Regarding the children, there was no evidence that they were born in captivity, the delegate said.  As for the systematic plan to abduct minors, the investigation being in the preliminary stages, the delegation could not disclose information at this point.

Ms. Recabarren Silva said the Undersecretary for Human Rights had met with families of political prisoners and victims of enforced disappearances to share the report and obtain feedback.  Cooperation with civil society must be deepened, and this was one of the challenges faced by Chile. 

Responding to questions and issues raised by the Committee Experts on irregular adoptions, a delegate said that between 11 September 1973 and 11 March 1990, there had been investigations in 279 cases of irregular adoptions or abductions of minors.  Concerning the events that took place in Colonia Dignidad, on 29 December 2016, three German citizens and two Chileans were sentenced to five years of imprisonment plus one day, and in another case connected to an offence concerning arms, four persons were sentenced to seven years of imprisonment.  On the abduction of one person, two defendants were convicted of the crime of aggravated abduction and sentenced to 10 years and one day of imprisonment.  On the aggravated abduction of another person, six persons were sentenced to five years of imprisonment plus one day, and the Chilean body in charge had to pay a fine.  As for the aggravated homicide of another person, the leader of the group was sentenced to seven years of imprisonment, and two German citizens who were accessories to that crime were sentenced to 551 days of imprisonment. 

A mixed Chilean-German Commission was established in July 2017 to address the historical memory and the integration of Colonia Dignidad victims in society, another delegate said.  The Commission had had four meetings, the last of which had taken place in December 2018.  Crimes of various natures were committed in Colonia Dignidad.  While some of them were related to the political violence that took place between 1973 and 1990, others amounted to sexual abuse of children and adolescents who lived in the colony.

As a result of the Commission’s work, experts were appointed to develop a proposal for the creation of a documentation centre, as well as a memorial commemorating the victims.  The German and Chilean parties had also agreed on providing additional mental health services to the victims who lived outside of Villa Baviera and who had been excluded from both the private and public healthcare systems.  Other archival and commemoration projects would also be carried out in collaboration with German and Chilean universities and documentation centres, amongst others.

Follow-Up Questions

HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur for Chile, said that the Committee had analyzed the replies of the State party as well as information provided by non-governmental organizations.  He asked if there were irregular establishments that were used as places of detention, notably in the southern regions of the country and the Mapuche territory.

The Committee had received information to the effect that when detainees were transferred to legal places of detention, their families were not informed.  The Committee was told that a judicial procedure was necessary to obtain information on the transfer.  Access to such information should be free and fluid as per article 17 of the Convention.  He asked the delegation to explain this violation.

Mr. Ravenna asked for further details about the human rights component of the training offered to law enforcement officials.  Regarding the definition of victims, he asked whether the Chilean legal definition of victims was in line with the requirements of the Convention.

On comprehensive reparation, he stressed that it should not be merely financial, but also political.  Did the compensation process in Chile come only as a result of a trial against the State?  Or was there a law that recognized the right of victims to receive financial compensation?

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Country Co-Rapporteur for Chile, said there were issues of compatibility between the Chilean definition of a victim and that in the Convention that could impact the victim identification process.  How many individuals had been identified as victims of enforced disappearances?  When was there a presumption of death in the case of an absence due to an enforced disappearance?  What was the state of the national registry of victims of enforced disappearances?  He also asked about Chilean public policy on the protection of memory sites, as some of them had been damaged.

He asked if there were procedures to ensure that families could find their children who had been abducted or who were victims of irregular adoption.  Were there mechanisms in place to search for and identify these children?  What procedures were in place to allow for their return to their families?

Another Expert asked about the obstacles that were preventing the establishment of enforced disappearances as a stand-alone crime.

Other Experts asked further details on the reparations offered to victims and on the extradition process.  Did the national human rights institute have sufficient resources to discharge its duties?

Response by the Delegation

A delegate recalled that the Supreme Court of Chile had ruled that enforced disappearances amounted to crimes against humanity, which were not subject to a statute of limitation.  Concerning extraditions, she said that if there were no extradition treaties with the State requesting the extradition, there were specific requirements that had to be met for the extradition to take place.
On the four cases of enforced disappearance that took place after 1990, another delegate said the victims were José Huenante, José Vergara Espinoza, Ricardo Harex González and Hugo Arispe Carvajal.  For the second case, four members of the carabineros were sentenced to four years in prison in 2018.  Regarding the four cases that were cited earlier, two had been prosecuted under the former system, a delegate said.  The victims’ remains had not been found in any of these cases.
As regards consular assistance, the Vienna Convention stipulated that there was a right to consular assistance, but the individual could refuse it, a delegate said.

On the list of confirmed victims, a delegate said that 174 individuals had been declared dead and the families had been formally notified, which had led to various legal outcomes, such as dissolution of marriages.

As for the national search plan, she noted that the national human rights plan sought to coordinate action to shine light on the whereabouts of disappeared persons. There were also efforts to find documentation on the victims of enforced disappearances.

Concluding Remarks

HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur for Chile, recalled that the return to democracy had signalled the return of justice and the recovery of institutions.  The trial of Augusto Pinochet had reflected the full force of the law.  It was important to make sure that legislation aligned with the values of democracy and the principles of truth, justice and the guarantee of non-repetition. The concluding recommendations would suggest additional guarantees to ensure that such events could not happen again.  He commended the delegation for its high level of preparation and detailed responses that had allowed the Committee to delve deeper into the issues.  He added that the delegation and the Committee’s exchange would contribute to the betterment of their countries and the Americas.

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Country Co-Rapporteur for Chile, said the victims were guides for the Committee and the delegation: victims’ clamour for redress was their loadstar.  He thanked the delegation and wished them well on their travel back home.

LORENA RECABARREN SILVA, Human Rights Undersecretary at the Ministry of Justice and Human Rights of Chile, thanked the members of the Committee for the transparent dialogue. It was natural that disagreement arose on the implementation of the Convention and that different opinions were expressed.  This work at the Committee was a way to honour victims of enforced disappearance.  There was an ethical obligation to delve into these issues. She reiterated the desire to ensure non-repetition of these crimes.  Chile wanted to share its progress, such as the criminalization of crimes against humanity, which had garnered cross-political support. Chile also acknowledged the challenges that remained, including the areas in which it had to enhance the promotion and protection of human rights.

SUELA JANINA, Chair of the Committee, said they understood how painful the crime of enforced disappearance was. The Committee and the delegation’s work was a testament to their willingness to address the issues of the past and take all necessary measures to ensure that this crime would never be repeated again.



For use of the information media; not an official record

CED/19/3E