Chile

The information relating to domestic torture laws and commentaries are kindly provided by Karinna Fernández.

International Instruments:

  • Date of ratification of UNCAT: 30 September 1988
  • Date of ratification of Optional Protocol to UNCAT: 12 September 2008
  • Date of ratification of Inter-American Convention to Prevent and Punish Torture: 15 September 1988

Commentary:

The Inter-American Convention to Prevent and Punish Torture was ratified on 15 September 1988 with reservation to Articles 4, 8(3) and 13(final clause); these reservations were withdraws on 18 May 1990.

Although the UNCAT was ratified in 1988, the jurisdiction of the Committee Against Torture was only recognised in March 2004.

Relevant Laws:

  • Constitution of 1989
  • Law 20.357, 2009
  • Penal Code 1874

Relevant Articles:

Prohibition of torture:

  • Chapter I, Article 5 of the Constitution

Extract: Sovereignty rests essentially with the Nation. It is exercised by the people through the plebiscites and periodic elections, as well as by the authorities established by this Constitution. No sector of the people nor any individual may assume its exercise. The exercise of sovereignty recognizes as a limitation the respect for the essential rights originating from human nature.

Definition of torture:

  • Penal code 1874

Commentary: In the Chilean Penal Code of 1874, the definition of torture does not comply with current international standards.

At the beginning of the Chilean military dictatorship, domestic legislation did not include a legal definition of torture, and crimes committed during the dictatorship were charged under the offence of “apremios ilegítimos” (unlawful coercion) and for the injuries caused.

At the end of military rule, three thousand one hundred seventy-eight people had fallen victim to killings and enforced disappearances and twenty-seven thousand two hundred fifty-five were abducted, but were able to survive the torture they suffered.  These figures are set out in the reports “Informe de la Comisión Nacional de Verdad y Reconciliación”, 2 vols., Santiago de Chile, 1991 (p. 881 Volume II), “Informe de la Comisión Nacional sobre Política y Tortura” (Comisión Valech), Santiago de Chile, 2005 (p. 471), and “Informe sobre la Calificación de Víctimas de Violaciones de Derechos Humanos y de la Violencia Política” prepared by the Corporación Nacional de Reparación y Reconciliación, Santiago de Chile, 1996.

After the period of reopening of the two Commissions, established by Article 3 of Law 20,405, these figures have increased as follows: 30 victims were classified as disappeared detainees and political executions, and 9,795 as victims of political imprisonment and torture, raising the number of cases recognized by the Valech Commission and its predecessors to more than 40,000, including missing prisoners, political executions, victims of political violence, and tortured and political prisoners during the 17 years of dictatorship. This information is contained in the report  Informe de la Comisión Presidencial Asesora para la Calificación de Detenidos  Desaparecidos, Ejecutados Políticos y Víctimas de Prisión Política y Tortura, Santiago de Chile, 2011.

Penalties:

  • Article 7, Law 20.357

Extract: Article 7, section 1 of Law 20.357 punishes with the penalty of imprisonment in its minimum to medium degree the act of torturing another, under the circumstances described in Article 1, that is under their custody or control, by inflicting upon them severe pain or physical or mental suffering. The provision excludes from the definition of torture the pain or suffering that arises only from legal sanctions or which are incidental to them.

Commentary: The adoption of a special law was criticized, as legislative technique demands that criminal offenses are established the Code and not in special statutes, especially when it comes to the most serious crimes in any democratic system. The aim is to avoid the adoption of arbitrary rules of procedure or enforcement by the legislative branch.

Among the shortcomings of this law, some are associated with the full force and effect in the country of the general principles of criminal responsibility, enshrined in the Rome Statute and in various international instruments in relation to such serious crimes. Other problems are related to the insufficient adaptation of the criminal offenses created by the national law to how they are defined by the Statute and other international treaties, as is the case of torture that is not adequately covered in the Penal Code and in respect to which the inapplicability of any statute of limitations is not established.

Reference: BUSTOS RAMIREZ, J., El debate legislativo chileno en torno a la implementación del Estatuto de Roma, En: CORPORACIÓN HUMANAS, Corte Penal Internacional, Condiciones Políticas, Jurídicas y Ciudadanas para la Ratificación del Estatuto de Roma, Corporación Humanas, 2 vol., t. II., Santiago, 2008, pp. 159, 160.

  • Article 150 of the Penal Code (significantly modified in 1998)

Extract:

Article 150, section 1 of the Penal Code punishes with the penalty of imprisonment or confinement in the minor degree and corresponding accessories to the conduct of imposing the isolation of a person deprived of liberty or treating them with unnecessary severity. Section 2 of Article 151 establishes the same punishment for the act of provoking the unnecessary arrest or detention of a person in places other than those established by law.

Article 150 A states that a public official who exerts physical or mental torture or ill-treatment on a detainee, or orders or consents to its application, shall be punished with penalties of imprisonment or confinement in the minor degree to its medium to maximum extent and corresponding accessories.

The same penalties, diminished in one grade, are also be applied to the public official who, having knowledge of the conduct specified above, does not take measures to prevent it or stop it, if they have the capacity or authority to do so.

If, through any of the conduct described in this article, the public official forces the victim or a third party to make a confession or to give any statement or information, the penalty imposed is that of imprisonment or confinement in the minor degree to its minimum extent and corresponding accessories.

If the performance of the acts described in this article results in any of the injuries established in Article 397 or in the death of the person deprived of liberty, and the result is attributable to the negligence or recklessness of the public official, the penalty established is imprisonment or confinement in the higher degree to its minimal to medium extent and perpetual absolute disqualification.

According to Article 150 B, the person who, not having the status of a public official, takes part in the commission of the offenses punishable under the two preceding articles, the following penalties shall be imposed:

1º. Imprisonment or confinement in the minimum degree to the minimum to medium extent, in the cases of Articles 150 and 150 A, section 1;

2°. Imprisonment or confinement in the minimum degree to the medium to maximum extent, in the case of Article 150 A, section 2;

3º. Imprisonment or confinement in the minimum degree to the maximum extent to imprisonment or confinement in the maximum degree to its minimum extent, in the case of the last paragraph of Article 150 A. In all these cases, the corresponding accessories will also apply.

Commentary: Law 1874 is applied currently to punish those acts of torture committed during the dictatorship. To date, there have been five judgements by the Supreme Courts of the 148 ongoing proceedings for crimes perpetrated during this period.