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Human Rights Committee considers report of Chile

08 July 2014

Human Rights Committee

8 July 2014

The Human Rights Committee today completed its consideration of the sixth periodic report of Chile on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Edgardo Riveros, Under-Secretary in the Ministry of Foreign Affairs of Chile, said that Chile had taken necessary actions to ensure that international standards were reflected in national policies and programmes.  Chile’s commitment to the protection and promotion of human rights was non-negotiable, and the notion of jus cogens was now strongly incorporated in Chile’s domestic legislation.  Chile was looking into amending the Criminal Code in order to prevent any possibility of amnesty for crimes against humanity or war crimes.  Based on progress in social and cultural areas, Chile’s society was now better able to broach topics which had not been broached before, including sexual and reproductive rights and abortion.  In the last Universal Periodic Review, Chile had accepted 180 out of 185 recommendations.
During the discussion, Committee Experts focused on the issue of the amnesty law and dealing with impunity for war crimes and crimes against humanity committed during the military dictatorship.  The Experts asked questions about the prevention of torture and the abuse of force by the police, prison facilities and the treatment of prisoners, use of private security companies, application of the anti-terrorism law to the Mapuche people, status of abortion, treatment of lesbian, gay, bisexual, transgender and intersex persons, conscientious objection to military service and the national plan on combating trafficking in persons.  Issues concerning the employment gap between men and women, marital inequality, violence against women, financing of non-governmental organizations, and the application of the Covenant in Chile’s courts were also raised.
In concluding remarks, Nigel Rodley, Chairman of the Committee, said that the developments in Chile had been strong and palpable, as the country had crossed a difficult path following the dictatorship.  Land rights for the indigenous people were among positive steps taken by Chile.  Concerns remained in place over the conditions of detention, the excessive use of force by the police and the abortion regulations.
Mr. Riveros said that the comments received would help Chile perfect its institutional framework.  The delegation had sought to answer questions and concerns in the best way possible.  The National Human Rights Institute worked hard to assure its independence, and was a beacon for human rights in Chile.  The entire process on evaluating human rights in Chile was closely connected with the strengthening of the democratic system in the country, they were inseparable.
The delegation of Chile included representatives of the Ministry of Foreign Affairs, General Secretariat of the Presidency, National Council on Childhood, National Service for Minors, Ministry of Social Care, Ministry of the Interior and Public Safety, Ministry of Justice, Police Forces of Chile, and the Permanent Mission of Chile to the United Nations Office at Geneva. 
The next public meeting of the Committee will take place at 3 p.m. this afternoon when it will begin its consideration of the fourth periodic report of Sudan (CCPR/C/SDN/4).   
The sixth periodic report of Chile can be read here (CCPR/C/CHL/6).
Introduction of the Report
EDGARDO RIVEROS, Undersecretary of External Relations of Chile, presenting the report, said that Chile had improved the protection and promotion of human rights over the years.  Since Chile had re-established democracy in 1990, the State policy had been firmly committed to human rights.  The State had taken necessary actions to ensure that international standards were reflected in national policies and programmes.  The process of embodying international law in domestic legislation had not been without difficulties, but Chile had been consistent about bringing its human rights standards in line with the principles promoted by the Committee.  On that path, Chile had set up a number of new institutions.
Aware that more progress needed to be made, the Government understood that international human rights treaties presented limitations on the State sovereignty.  In the 2005 constitutional reform, the hierarchy of international and domestic treaties had been reinforced.  Chile’s commitment to the protection and promotion of human rights was non-negotiable, and the notion of jus cogens was now strongly incorporated in Chile’s domestic legislation.
In 2007, the International Criminal Court statute and the International Labour Organization Convention 169 had been ratified.  Other milestones included an innovative policy of reparation for victims of the military dictatorship between 1973 and 1990, an effort not limited to the national arena, and the establishment of four truth commissions since 1990.  The Government had committed to setting up a single information system on all crimes against humanity.
Mr. Riveros stated that in 2010, the National Human Rights Institute had been established in line with the Paris Principles, and was today considered to be a “category A” institution, which was a recognition of its autonomy.  The electoral system guaranteed equal participation and access to Congress, thus eliminating traces of unequal treatment under the military dictatorship.  Significant progress had been made with regard to indigenous peoples, following 17 years of consultations in Congress.  Constitutional peoples still had to be recognized in Congress, while a separate Ministry to deal with indigenous issues ought to be created. 
Some vestiges of the dictatorial past still remained.  Chile was looking into amending the Criminal Code in order to prevent any possibility of amnesty for any crimes against humanity or war crimes.  Since the recovery of Chilean democracy, citizens had been much more emboldened to claim their rights, and it was incumbent on the State and the Government to take action and respond in line with the new circumstances.  There was now a new category of persons in Chile’s landscape – migrants.  The country had not been prepared for such a development, which was why it had to adapt its legislative and social frameworks. 
Based on progress in social and cultural areas, Chile’s society was better able to broach topics which had not been broached before, including sexual and reproductive rights and abortion.  In the recent Universal Periodic Review, Chile had accepted 180 out of 185 recommendations, including those related to the topics which had not been properly addressed earlier.  Chile was committed to advancing further and not reversing the progress made thus far.
Questions by Experts
A Committee Expert said that the report submitted by Chile had provided a lot of information, paving the way for a quality discussion.  Responses should have been received on time, which would have made the Committee’s work easier. 
The State party was called upon to support the follow-up procedures, which were applied in various human rights treaty bodies.  Some of the replies had led to concerns, as on abortion, when the State had repeated the same position as in the previous review. 
Could more information be provided on invoking and applying the Covenant in courts?  Were people in the judiciary and lawyers sufficiently trained in that matter?  The Expert inquired about possible barriers in the judiciary to the implementation of the Covenant.
The competence of the Committee should be recognized on all matters regarding the First Optional Protocol, the Expert noted.  Could the reservation to the Second Optional Protocol be removed?
Regarding the national human rights institution, the Expert asked how it was ensured that the work done there would reach the entire country. 
The State should think seriously about abrogating or repealing the amnesty law.  Someone convicted for crimes against humanity could now have a sentence lower than someone who had committed a murder. 
On applying the anti-terrorist legislation against the Mapuche, the Expert wondered whether such Universal Periodic Review recommendations had the support of the State party.
Another Expert said that there was a draft law to establish a council on indigenous persons.  What was the current status of that initiative? A national dialogue process on indigenous issues at the highest level ought to be seen.  It was not only a legal issue, but an issue of the change of mind-set, which was why such a dialogue would be needed.
If there were a repeal of the decree on prior consultation with the indigenous peoples, how would the prior consultation mechanism be implemented?
With regard to judicial proceedings connected to human rights violations, the Committee was concerned about the lack of the proper use of information, statistics and privacy. 
Could statistics on investigations into cases of torture be provided?  The statute of limitations should not apply to crimes against humanity or acts of torture.  Could the delegation provide more information in that regard?
An Expert raised the issue of burden of proof in cases of discrimination, and inquired about the rationale behind shifting the burden.
A draft law on gender identity was before Congress now, and the Committee would like to hear how that draft law related to the law on discrimination. 
On acts of torture committed by members of the police forces, disaggregated data was needed.  There seemed to be many complaints in that regard – what follow-up had been provided to those complaints? 
The question of inequality between a husband and wife when it came to property was raised by another Expert.  What were the obstacles preventing the elimination of such blatant discrimination, and when could action on this issue be expected?
An Expert noted that some 17,000 abortions were performed in Chile every year, many of which seemed to be carried out in substandard circumstances.  An example of an 11-year old girl raped by her father was brought up.  Could more information be provided on the status of draft bills authorizing abortion in cases of rape and for medical reasons?  The Expert wanted to know about the provision of contraception information to women.
Did women who had suffered psychological violence receive aid and care?  Was there a comprehensive strategy to address gender-based violence? Had there been any progress in training prosecutors and judges in that matter?
Why was there still a wide employment participation gap between men and women? Only 16 per cent of women seemed to enjoy permanent contracts for unlimited periods of time, offering them pension and social security.  The average woman in Chile earned only 49 per cent of what the average man made.  How could that tremendous gap be explained, the Expert wondered.
An Expert raised the issue of combating impunity. The total number of people registered as disappeared between 1973 and 1990 was estimated at more than 3,000.  Comparatively few persons had been brought to justice, and it seemed that many had managed to avoid justice.  Authorities had been urged by numerous non-governmental organizations to allow that military crimes be investigated under civilian legislation. When would the 1978 amnesty law be abolished?
What was the road map, if any, for the reformation of Chile’s judicial system?
Were the archives of Pinochet’s regime fully accessible to researchers and citizens at large?  Did current history books include chapters on recent past?
Response by the Delegation
The head of delegation thanked Committee Experts for the comments and questions put to them, which would provide them with an opportunity to sharpen the focus on some areas that Chile had been working on.  On 11 March, there had been a change of Government in Chile, and President Bachelet’s focus on some issues would be different than previously. 
The implementation of the provisions of the Covenant was frequent in Chilean courts.  It was not an isolated international instrument, but part of the system developed by the international community, which, along with other instruments, contributed to safeguarding the human rights of Chile’s citizens.  The judiciary always looked at the Intra-American Convention as well.  There was a progression in Chile’s judicial system, which brought the country closer to the comprehensive respect of jus cogens.  If there were no domestic remedies left, persons could take their cases to Intra-American institutions and other international courts.
The Constitution of Chile stated that decisions, resolutions and acts of the State were public, and only in exceptional cases were reservations expressed.  It was not simply up to the authorities to decide whether and when to withhold information.  In all cases a law was required for such reservations.  All of the instruments for the purpose of disseminating norms and decisions were in place, and Chile was complying with very high standards in that regard.
Regarding the question of impunity, the delegation said that the fight against it for crimes committed during the military dictatorship was an ongoing process.  The old amnesty law had been used systematically by military and civil courts until 1998.  The issue of criminal responsibility under the dictatorship had thus been avoided.  The Supreme Court had eventually come up with a list of mitigating circumstances, which had provided for privileges with regard to the length of the sentence, and some persons had gotten away without serving any custodial sentence.  Over the previous few years, those provisions were no longer being applied in Chile, and such privileges were no longer given. 
Now there were conditions in place, with the majority in the Parliament, to include in the new Constitution norms which stated that no crimes against humanity were subject to amnesty.  The delegation reaffirmed that amnesty and the statute of limitations were not being currently applied.  Many judges in today’s judiciary had been trained differently from their predecessors and were more aware of democratic norms and their human rights duties. 
Answering questions on indigenous issues, the delegation explained that Chile recognized its historical responsibility in that regard and their rights would be acknowledged in the new Constitution.  Indigenous peoples would thus have their individual and collective rights recognized.  A new model of coexistence as a pluri-cultural society would be created.  The Ministry of Indigenous Peoples and the Council on Indigenous Peoples would be set up through a series of consultations with indigenous people across the country. 
In many cases, for example of the Mapuche people, requests for ancestral lands had been fully answered.  There were two mechanisms for purchase, but the existing instruments seemed not to be keeping up with the demand.  New mechanisms were thus being envisaged, and the future Ministry and the Council would deal with this issue.  As to the northern communities, transfers had taken place. 
On the issue of marital property, a delegate explained that, following the societal changes, a draft bill was in the second reading at the National Congress.  It was currently being analysed whether the draft bill fully respected the equality between the spouses and the protection of the weaker spouse.  A wide array of civil society actors had also taken part in the discussion.  Changes to the conjugal system were expected to take place in the second half of 2014 or the first half of 2015, but the Government could not commit itself to a particular date. 
Regarding abortion, there had been a change in position compared to the previous Government.  A number of initiatives had been taken to the National Congress to introduce exceptions to the laws criminalizing abortion.  The current administration was considering proposing that abortion be allowed in cases of rape, if birth were a threat to the mother’s life or the foetus was not sustainable.  Five bills were being currently discussed, more details on which could be sent to the Committee.    
On violence against women, a delegate said that the existing law looked at both physical and psychological violence, but only in the family environment, which was why there were efforts underway to expand the definition of the place where such acts of violence occurred.   Whenever there was habitual maltreatment, be it physical or mental, there was a new bill that would look into the existing shortcomings.  The concept of sexual harassment and violence would be broadened.
Victims of psychological violence were given psycho-social and legal assistance through 92 centres across Chile.  There were plans to increase the number of such centres to 120.  The Government intended to provide specialized trainings for police, judges and prosecutors dealing with violence against women. 
Regarding the questions on women and employment, the delegate stated that the current Government was committed to increasing the number of Chileans employed, including women.  Increasing the number of women in the formal employment context would happen partly thanks to the affirmative action, which would make a particular difference at more senior levels. 
There had been 20 complaints with regard to unequal pay over the previous years.  Surveys showed that only 37 per cent of people were aware of the Equal Pay Act, and very few knew of complaints submitted under that law. 
The current Government was hoping to see the presence of the national Human Rights Institute spread to various regions of Chile.  An Under-secretariat for Human Rights was also to be established, with the view of establishing a national human rights plan.  It would also help with cross-sectoral human rights policies and would serve as a coordinating body. 
A delegate said that in duties carried out by the police, certain standards had to be respected, especially when it came to vulnerable groups.  The carabineros had dealt with complaints regarding the excessive use of force by the police.  A model had been developed on the use of force, in line with international standards.  Police were making every effort to avoid physical or psychological injury of those involved in searches.  New teaching programmes on human rights had been devised within police forces, with a particular focus on children and adolescents, particularly those from the Mapuche community.  The initiative to prevent torture had been extended to the prevention of genocide and other wide-spread atrocities, on which Chile was cooperating with its Latin American partners.
Efforts were being made to ensure the protection of the rights of the lesbian, gay, bisexual, transgender and intersex population, including adolescents, and children living in homosexual families.  The plan was to eliminate all discrimination against children and adolescents based on any ground, including gender, ethnicity and sexual orientation.
A delegate said that there had been cases dealing with summary executions when the Supreme Court had applied attenuating circumstances.   The instrument of the ratification of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity was now in the second reading at the National Congress, and there were hopes it would be ratified as soon as possible.
Regarding anti-discrimination, the existing legislation was an improvement to the previous laws, but there was further room for improvement.  All gender-related concepts were protected under the law.  It was a general act aiming to prohibit discrimination on a wide variety of subjects.  Persons could change their registered gender and name on their civil identity cards.  Medical examinations did not need to take place to back up the request for the change in the registry. 
The penitentiary system in Chile was taking steps to deal with the treatment of transsexuals.  Recently, a unit in the gendarmerie had been created to deal with gender-sensitive issues, including gender identity.  The new Criminal Code deleted articles on morals and good conduct.   Since 2013, the carabineros had been trained to provide dignified treatment to lesbian, gay, bisexual, transgender and intersex persons and prevent their harassment.
On regulating fertility, it was specified that 83.6 per cent of the municipalities provided the morning-after pill, even though the mayors had different political views.
Questions by Experts
An Expert asked about Chile’s position with regard to the two Optional Protocols.  What was the current status of earlier expressed reservations by Chile regarding the ratification of the Second Optional Protocol, which was celebrating its twenty-fifth anniversary in 2014? 
In a follow-up question on abortion, another Expert wanted to know whether the new law would contain an exception for cases of incest.  Would abortion be decriminalized or fully legalized?
Could the latest figures on land acquisition by indigenous peoples be provided?
An Expert noted that each arm of the State had to do its work in a coherent manner, and the amnesty act was formally still in force, even though it was not applied.  The Inter-American Court on Human Rights had provided enough guidance on how to proceed in related cases; the act should thus be fully repealed.
The Expert commented that human rights violations committed during the dictatorship ought to be widely known so that they would not be repeated.   Could the State keep the lists of persons asking for reparations for torture open, so that those who had not yet claimed reparations could now do so? 
Did the Ministry of Health have a category for intersex new-borns, so that mutilations were not performed? 
Another Expert raised the issue of the oversight of private security services.  The carabineros seemed to be granting licenses to small firms providing security services, whose employees had questionable human rights training.   What measures were being taken to deal with this?
A very high proportion of prisoners seemed to be subjected to solitary confinement, including on multiple occasions during the same year.  What accounted for the appearance of such a high rate of solitary confinement? Was there a maximum duration of a prisoner’s solitary confinement?
The Expert also raised questions about violence in prisons and suicide prevention among prisoners.  He wanted to know more about possible immunity of carabineros.
There did not seem to be specialized judges and prosecutors for juveniles between the age of 14 and 18, and few defenders were specialized for the same age group as well.  Pre-trial detention was often given to the adolescents even if they were given non-custodial sentences afterwards.
Regarding conscientious objection to military service, the Expert said that the statistics showed that the number of volunteers for military service was declining.  Would the new Government make provisions for the exercise of conscientious objection?
Speaking of a national mechanism to prevent torture, another Expert expressed concern that the full mechanism remained paralyzed and was not fully implemented.
How was the anti-terrorism law applied, especially with regard to the indigenous populations, such as the Mapuche?  The Mapuche seemed to represent over 60 per cent of those investigated or prosecuted on terrorism charges.  The law would thus probably need to be revised, as there was a problem with its structure.  The current provisions seemed to allow for secret investigations for six months at a time. 
An Expert asked for an update on the current state of play on the National Plan of Action on Trafficking in Persons?  Had the recommendations by CEDAW been adopted and incorporated, and did they address the needs of male victims of trafficking?  What services and assistance were provided to the victims?  Could more information be given on the database of trafficking cases?
Prison conditions were an issue of great urgency, as prisons in Chile suffered from inadequate safety and sanitation, and lacked medical and alimentary provisions.
Could an update on the draft migration bill be provided?  Did it include measures alternative to detention?  How long could a person wait until being expelled?   How were the rights of migrant workers protected?
An Expert wanted to know more about steps taken after an arrest warrant had been issued.  At what stage was the person’s lawyer notified and when could the lawyer see the detainee?
A question was also raised about unlawful arrests.  The use of force by police in demonstrations was reported to be violent and disproportionate.  Could the delegation explain what measures had been taken to punish those responsible for the excessive use of force in student demonstrations in August 2011.
What was the least invasive way to guarantee the freedom of expression and assembly of minority groups?  Had those groups taken part in drafting the report?
An Expert noted that enforced disappearances were a serious, continuing crime until the disappeared person showed up again.
The number of adolescents serving criminal sentences was worrying, another Expert noted.  Was the data on imprisoned adolescents disaggregated, and how many among them were from the Mapuche community?
A question was asked about the lack of financing of civil society organizations in Chile, which had led to the disappearance of many of them, and had a negative effect on the overall democratic climate.
Response by the Delegation
Regarding the reservations to the First Optional Protocol, the delegation said that the international treaties did not have a retroactive effect, as enshrined in the Vienna Convention.  If there was a chance to discuss that issue in the Congress again, that would be done. 
On the Second Optional Protocol, there was still an exceptional provision for the death penalty in the military justice system.  That would be looked at in the constitutional reform process.  The death penalty did not exist in the general, civil law of the country. 
With regard to the application of the Covenant in the judicial system of the country, a response in writing would be provided to the Committee.
The Government had expressed will and commitment to provide reparations for victims of torture and crimes against humanity.  People had the opportunity to submit cases which had not been submitted earlier.
Answering questions on the statute of limitations on crimes against humanity and war crimes, the delegation explained that the course of justice had been applied to deal with the situation of such offences and acts.  Sometimes they directly applied the Geneva Conventions.  In Chile, there was not a “full stop law”, which meant that the court could improve the conduct and apply justice over the years. 
President Bachelet’s Government had a very comprehensive human rights agenda in its plan.
The current plan on abortion included the decriminalization of voluntary abortion in only three cases, a delegate stated.
The will of the Government on the statute of limitations or amnesty might be subject to legislation, as there were three draft bills before the Congress dealing with those issues.
An inter-agency plan to combat trafficking in persons had been adopted in December 2013, and included prevention, awareness raising, monitoring, prosecution, assistance to victims, and international cooperation and coordination.   Training had been conducted for police, prosecutors and judges.  The status of trafficking victims was also being regularized, so that care was provided to the victims.  As for prosecution, it was very important to compile complete data, which was why there was a schedule in place for data collection.  That would tackle the problem of insufficient information.
The same laws were applied to internal trafficking.  Victims could be identified on either side of the border.  Internal trafficking had not been sufficiently visible so far, which was why it had been challenging to raise awareness on that issue.  Resources had now been allocated from all the Ministries involved, which had contributed a part of their budgets to combating internal trafficking.
A bill on aliens had been in the Congress since June, and the Bachelet Government would now have a fresh look at the bill.  The bill contemplated an integration of migrants, and had a more human rights approach rather than a purely economic one.  Police could temporarily confiscate the documents of a migrant, but this was being looked at right now.  Persons could not be kept in detention for more than 24 hours.

Carabineros of Chile were the national security force, and were subject to the criminal military law, the delegation explained.  It was legally a military institution, which was not a controversial situation with regard to the human rights law.  Carabineros did not forcefully intervene against social protests; they intervened to maintain public order and could dispel demonstrations if necessary.
When a person was detained, his rights were explained to him, after which he was taken to the police headquarters for a short period of time.  The public prosecutor’s office would ensure that the person could not be held for more than 24 hours.  The person was entitled to legal assistance from the moment of his detention, and was allowed to inform his family of the fact that he had been detained.
Regarding the juvenile justice system, it was stated that there were special criminal proceedings for minors.  Workshops and manuals were in place to assist lawyers, prosecutors and judges working in that specialized field.  National standards in line with international conventions were in place.  Some juveniles were serving alternative sentences outside of prisons. 
The majority of juveniles from indigenous communities had received alternative sentences.  Attacks on persons, sexual integrity and against public order were proportionately higher among the Mapuche juveniles than the population at large. No Mapuche juveniles had been prosecuted on terrorist charges.
Answering questions on the prevention of torture, the delegation said that consultations were ongoing, as the Government was committed to develop the necessary regulations and mechanisms before the end of its term in office.  In May 2013, the penitentiary system of Chile had set standards for solitary confinement, and a significant reduction of persons sent to solitary cells had been subsequently noted.  It was used as a last resort.
Significant resources had been allocated to improve prison conditions, including security measures.  The overcrowding currently stood at 20 per cent, which was why there were plans to construct additional penitentiaries. 
In Chile, people who voluntarily chose to join the military service made up the national military forces.  As their number was declining, the State would need to look into alternatives, while bearing in mind the comments on conscientious objection.
On police violence in social protests, a delegate said that criminal convictions had been handed down in cases when protesters had died.  The Government of Chile had announced that it would not use the anti-terrorism law in the context of Mapuche social protests.  It was a consensus that Chile was not currently facing the phenomenon of terrorism.  Basic legal guarantees ought to be respected under all circumstances.

Health protocols for transgender persons were being currently drafted.
Questions by Experts
An Expert expressed concern over the excessive use of force by the police, which he believed had not been properly addressed. 
On reservations to the Optional Protocols, the Expert raised the possibility of the Congress tacitly withdrawing the reservations, which should be considered.
What time frame for detention of individuals would be applied in more complicated cases, involving refugee status or non-refoulement?
Response by the Delegation
Withdrawing the reservations to the Covenant required the approval of the Congress.  If there was no agreement in the Congress within 30 days, the will of the executive would come into play.
Detained persons had to be released within five days, while the appeal was resolved.  The authorities might release the person if more than five days were needed.  There were normally no problems with identifying persons. 
Concluding Remarks
EDGARDO RIVEROS, Under-Secretary in the Ministry of Foreign Affairs of Chile, thanked all the members of the Committee.  He sincerely believed that the comments received would help Chile perfect its institutional framework.  Thanking members of his delegation, Mr. Riveros said that they had sought to answer questions and concerns in the best way possible.  The National Human Rights Institute worked hard to assure its independence, and was a beacon for human rights in Chile.  The entire process on evaluating human rights in Chile was closely connected with the strengthening of the democratic system in the country, they were inseparable.  The fundamentally important task of strengthening democracy was omnipresent. 
NIGEL RODLEY, Chairman of the Committee, said that the developments in Chile had been strong and palpable, as the country had crossed a difficult path following the dictatorship.  The electoral system did potentially raise issues, and it was encouraging to see that attempts were being made to modify it.  Land rights for the indigenous people were among positive steps taken by Chile.  Abortion issues remained a problem, and the Committee hoped that the draft bill would go forward, and include the cases of incest.  Questions remained over the conditions of detention and the excessive use of force by the police.  The delegation had another 48 hours to provide additional information in writing, if needed.

For use of the information media; not an official record