9 September 1985
Original:  Spanish









1.          Chapter II presented the human rights recognized in the Chilean normative system, their guarantees and the limits imposed on their exercise in emergency situations.  The state of some of those rights was examined in succeeding chapters. It is now in order to refer to the decisions the Judiciary has taken in this respect through the processing of the petitions submitted to it.  The rights recognized and the remedies for protecting them are two fundamental elements of the rule of law.  The independence of the Judiciary is the third, since the specific protection of the rights protected depends on its actions.


2.          Consideration of the remedies in effect for the protection of individual rights and the independence of the Judiciary entails referring to the right to a fair trial and to due process, which will be the subject of this chapter.  The facts set forth in Chapter II and the conclusions reached in this chapter will make it possible to evaluate the validity of the effectiveness of the rule of law in Chile.


3.          The right to a fair trial is embodied in Article XVIII of the American Declaration of the Rights and Duties of Man as follows:


Every person may resort to the court to ensure respect for his legal rights.  There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.


4.          The right to due process, for its part, is recognized in Article XXVI of the above-mentioned international instrument, which stipulates:


Every accused person is presumed to be innocent until proved guilty.


Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.


5.          Although Chile is not a state party to the American Convention on Human Rights, the provisions of that Convention may be used to interpret the various aspects of the rights generically protected by the American Declaration.  With respect to the right to a fair trial and to due process, those rights are recognized by Article 8 of the American Convention on Human Rights.  [1]


6.          This article establishes the right of every person to his day in court, with the necessary procedural guarantees and within a reasonable time, by a competent “independent and impartial” tribunal.  With respect to the procedural guarantees, Article 8 sets forth the principle of innocence and the right of the accused to be assisted by a translator or interpreter, whenever necessary, to prior detailed notification of the charges against him; adequate time and means for the preparation of his defense, to defend himself personally or to appoint a defense counsel, in default of which the State must provide him with such counsel, and the accused must be allowed to communicate freely and privately with such counsel.  It also sets forth the right of the defense to examine witnesses and obtain the appearance of all persons who can throw light on the facts.  Article 8 also provides that the accused may not be compelled to be a witness against himself and that he has the right to appeal the judgment to a higher court.  It also stipulates that a confession by the accused is valid only if it is made without coercion of any kind and the accused may not be tried for a charge of which he has been acquitted.  It also stipulates the public nature of the proceedings except insofar as may be necessary to protect the interests of justice.


7.          On various occasions the Commission has referred to the independence of the Judiciary as a guarantee of the exercise of human rights, in general, and, in particular, of the right to a fair trial and to due process.  Thus, in one of its reports it stated:


It is the doctrine of the Commission that the effective observance of the guarantees set forth in the above‑cited articles is based on the independence of the Judiciary, which derives from the classic separation of the three branches of government.  This is the logical consequence of the very concept of human rights. In effect, to protect the rights of individuals against possible arbitrary actions of the State, it is essential that one of the branches have the independence that permits it to judge both the actions of the Executive Branch and the constitutionality of the laws enacted and even the judgments handed down by its own members.  Therefore, the Commission considers that the independence of the Judiciary is an essential requisite for the practical observance of human rights.  [2]


8.          A correct appraisal of the exercise of the right to a fair trial in Chile makes it necessary to consider various aspects relating to the independence of the Judiciary.  To that end, the following presentation will deal with the exercise of the powers characteristic of that branch, and the way in which they have been affected by the exercise of the constituent and legislative powers by the Government Junta.  It will also include a succinct analysis of the way in which the powers of the Judiciary are modified by the provisions of the 1980 Constitution.  The self-limitations the Judiciary has imposed upon itself will also be examined.


9.          With respect to the right to due process, the constitutional and legal rules relating to it and their effectiveness in practice, with special emphasis on the treatment given to the writs amparo or habeas corpus will be studied.


10.          A central element of the analysis contained in this chapter is the dichotomy resulting from the difference between military and civilian jurisdiction in the Chilean judicial system.  Therefore the following analysis will include the changes introduced into the military jurisdiction both to expand the scope of its jurisdiction and which affect the independence of the exercise of its functions.  The forms taken by some of the trials before them will be analyzed and some decisions of the military courts will be mentioned to exemplify the way in which they have solved some of the problems submitted to their jurisdiction.




11.          The Judiciary enjoyed independence in Chile in the period prior to September 11, 1973.  This stemmed both from a long-standing tradition and from a precise and dynamic interrelationship with the other institutions that made up the democratic way of life of Chilean society.


12.          The first instrument issued by the Government Junta on September 11, 1973, relates to the independence of the Chilean Judiciary.  In Decree Law No. 1 --which set up the Government Junta and declared that it had assumed supreme command of the Nation--the Commanders-in-Chief of the Armed Forces and the Director General of Carabineros:


Declare that the Junta, in the discharge of its mission, will guarantee the full effectiveness of the attributions of the Judiciary and will respect the Constitution and the laws of the Republic, insofar as the present situation of the country so permits for the better achievement of the goal it pursues.


13.          As may be seen, this first declarative provision already fixes the limits within which the independence of the Judiciary will be guaranteed by the Governing Junta; to the extent that “the situation of the country so permits” and will be subordinated to the achievement of the goals it proposes to attain.


14.          In the evolution that began with the military coup, the independence of the Judiciary is affected by two types of measures of the new authorities.  On the one hand, some of its jurisdiction is withdrawn and given to the military, a process that will be described later in this chapter.  On the other hand, its independence was affected by means of the exercise of the legislative and constituent powers that the Governing Junta took upon itself.  Both tendencies are formalized in the provisions of the 1980 Constitution.


15.          A third factor, arising from the Judiciary itself, also tends to affect its independence: its limiting itself to the mechanical and formal application of the provisions stemming from the political authorities and the excessive flexibility demonstrated in processing appeals submitted to it. [3] These aspects are the subject matter of the following section.


a.                 Exercise of the Constituent and Legislative Powers by the Government Junta and the Independence of the Judiciary

16.          The specific function of the Judiciary in Chile, as in all countries whose legal system derives from Roman law, has been the application of the law.  However, that application has not been mechanical; its interpretation, in accordance with the general principles of law, the writings of jurists, and case law, has required careful consideration of legal provisions when they have been applied to specific cases.  In addition, the Judiciary in Chile has had a power of singular importance; to review the conformity of legislation with the provisions of the Constitution, a power recognized in Article 86 (2) of the 1925 Constitution.


17.          This general framework which governed the Judiciary corresponded closely with the procedures established for the enactment of laws--Articles 45-55 of the 1925 Constitution--which guaranteed legal provisions for the participation of the principal sectors of Chilean society, which, for their part, were highly organized. Parliamentary discussion, in turn, received the publicity characteristic of societies, which enjoy complete freedom of expression.  It was, therefore, a system in which the various institutions interacted to eliminate undesirable laws, and the Judiciary was responsible for correcting, in specific cases, the defects that might have slipped by the procedure.


18.          This situation changed radically with the military coup of September 11, 1973.  The legislature began to be exercised, as already mentioned, by the Government Junta, which lacked any kind of social control over its exercise.  Mention was already made in Chapter II of Decree Law No. 228 of 1974, Article 2 of which declared all the measures adopted by the authorities in virtue of the state of siege to be “in accordance with law”, in the face of the open contradiction between those measures and the rules of the 1925 Constitution that were still in force at that date.  Other provisions issued by the Government Junta in the exercise of the legislative power also entailed irregularities from the legal and judicial point of view.


19.          Thus, in view of disputed interpretations of Article 6 of Decree Law No. 472 on incompatibility of indemnities for workers for years of service and in view of the fact that the Labor Courts had handed down decisions favorable to the compatibility of the indemnities, the Government Junta issued Decree Law No. 1,270 considering that “efforts had been made to give an interpretation different from the spirit of the legislator when issuing the rule in question,” and repealed the disputed legal provision (Article 58 of Law No. 7,225).


20.          The Government Junta of Chile also used the same procedure when approving Decree Law No. 1,387, published in the Official Gazette of March 31, 1976, which restrictively interpreted a complaint appeal about the attributions of the Military Chief of the Emergency Area, provided for in Article 34 of Law No. 12.927 on State security.


21.          Another example of speed in the exercise of the legislative power is Decree Law No. 2,882 of November 9, 1979, which provides that civilians working for the CNI “shall be considered members of the Armed Forces for all jurisdictional and disciplinary purposes”.  This Decree Law was issued shortly after the Appeals Court handed down a judgment in the case of the teacher Alvarez Santibañez--see chapters III, section D, (b) and IV Section C (e)--pointing to the participation in the events, as accessory after the fact, of the physician who, on that occasion, issued a certificate of good health in respect of the person affected when he left the premises of the CNI.  The physician in question, therefore, was covered by the jurisdiction of the military courts.


22.          With respect to the exercise of the constituent power by the Government Junta, it should be pointed out that, when the 1925 Constitution was still in effect, the Supreme Court of Chile was able to exercise the power conferred upon it by the above-mentioned Article 86 and to declare inapplicable because of their unconstitutionality decree laws contrary to the Constitution in the particular cases which it had cognizance of, or were submitted to it, on appeal.  In view of this fact, the Government Junta, through Decree Law No. 778, declared:


That decree laws issued to date by the Government Junta, insofar as they are in conflict with, or opposed to, or are different from, any provision of the Constitution, have had and have the quality of amendments, either express or tacit, partial or total, to the corresponding provision of that Constitution.


23.          This provision prevented the Supreme Court, in practice, from exercising its powers under Article 86 with respect to the 787 decrees and laws issued earlier.  Decree Law No. 788 stipulated that its provisions did not apply to the judicial sentences confirmed prior to its publication in the Official Gazette and, therefore, only affected the petitions of inapplicability pending at that date in the Supreme Court.


24.          The way in which the constituent and legislative power was exercised by the Government Junta is particularly demonstrative in the case of this Decree Law No. 788, since it was issued while a petition of inapplicability, (because of the unconstitutionality of Decree Law No. 81, which had ordered the expulsion from the country of the former Senator Renán Fuentealba), was pending before the Supreme Court.  The above-mentioned Decree Law No. 788 eliminated the incompatibility of Decree Law No. 81 with the 1925 Constitution.  The 1925 Constitution did not authorize the administrative branch to expel any one from the country. The appeal was rejected.


25.          Similar speed in the exercise of the constituent and legislative powers by the Government Junta was shown in the case of the closing down of Radio Balmaceda by Military Proclamation of the Emergency Area in January 1978.  When the person affected filed with the Appeals Court the recently established petition of protection and questioned the legitimacy of the measure, the Government Junta issued Decree Law No. 1,684, published on January 31, 1978, which provided in its sole article


Article 14 of Constitutional Act No. 4 of 1976 is repealed and replaced by the following; “The petition of protection established in Article 2 of Constitutional Acts No. 3 shall be invalid in emergency situations, whether those envisaged in Constitutional Act No. 4 of 1976 or in other constitutional or legal rules”.


26.          The petition of protection filed was rejected.


27.          The same way of exercising the constituent power was used by the Government Junta of Chile when it enacted Decree Law No. 1,283, published in the Official Gazette of December 16, 1975, on the grounds that “a great many interested individuals have tried to find a source of profit in the National Treasury through the present filing of judicial actions aimed at now obtaining huge sums of money as indemnities... basing themselves on the irregularities that they earlier accepted that the previous Government had committed”.  In the exercise of the Constituent Power the Government Junta, by Decree Law No. 1,283 mentioned above, established a tax in favor of the Treasury of 85% of what was obtained in the corresponding case and declared all future actions out of order.


28.          As pointed out in Chapter II of this Report, the provisions issued by the Government Junta on states of emergency--Decree Laws No. 527 and No. 640 of 1974 and Constitutional Act No. 4 of 1976--entailed profound changes in the 1925 Constitution as regards the characterization of the states of emergency envisaged, the individual rights restricted when these emergencies were in effect, and the powers the Executive could exercise both to declare them and to adopt various measures while they were in force.  The powers of the Judiciary relating to the protection of the rights of individuals were clearly diminished by the rules issued by the Government Junta in the exercise of the legislative and constituent powers.


29.          An instrument of particular importance because of its subsequent applications is Decree Law No. 2,191 of April 19, 1978, which granted a broad amnesty to persons who had committed offenses as perpetrators, accomplices or accessories after the fact, during the state of siege unless they were being tried or sentenced at the date of the promulgation of the provision.  The application of this amnesty to security personnel involved in various violations of human rights will be described later in this chapter, especially when the role of military courts is dealt with.  It should also be pointed out that this amnesty benefited persons sentenced by those courts, many of whom left the country.


b.          The Functions of the Judiciary in the 1980 Constitution


30.          The 1980 Constitution assigns to the Government Junta the power “to issue laws t o interpret the Constitution, whenever necessary” in transitory provision 18 (c).  Thus, the traditional interpretative power of the Judiciary has been substantially impaired because of the expeditious exercise of the legislative power that has characterized the Government Junta.


31.          The powers granted the President of the Republic by transitory provision 24 of the 1980 Constitution also demonstrate the serious impairment of the right to a fair trial.  As set forth in Chapter II of this report, this transitory provision creates a new type of state of emergency--whose implementation is the prerogative of the President--which makes it possible to severely restrict a group of individual rights.


32.          In many of the cases provided for in transitory provision 24, the measures adopted by the President constitute veritable penalties--especially in the case of forced relocations, expulsions from the country, and prohibitions on re-entry thereto--applied without process of any kind and in the face of which the Judiciary can only take a decision with respect to the merely formal aspects, as is shown in the decision of the Supreme Court in the case of Messrs Insunza and Rodriguez presented in Chapter VI, Section C (b).  As pointed out in Chapter II, the remedy provided for in this transitory provision becomes a mere request for grace to the President of the Republic, and, therefore the persons are handed over to the authority of the President without the Judiciary having any effective participation.


33.          This characteristic is also clear during the existence of the states of constitutional emergency when the petitions of amparo and protection do not apply during states of alert, and of siege, in accordance with Article 41 (3) of the 1980 Constitution.  That rule also provides that, at such time, “the courts of justice may not, whatever the circumstances, intervene to determine the factual grounds for the measures adopted by the authorities in the exercise of their powers”.  It is, therefore, a serious reduction of the prerogatives of the courts, which increases the lack of protection of the individual vis-á-vis the powers of the State.


34.          A similar limitation on the powers of the Judiciary arises from the provisions of Article 79 of the 1980 Constitution, which exclude military courts from Supreme Court supervision.  The 1925 Constitution did not make that distinction and, therefore, the military courts were subject to its supervision, as had been decided by the Supreme Court on the basis of case law, which, however, was amended in 1974, as will be pointed out below.


35.          The above-mentioned cases--which are only a few--clearly show that the exercise of the jurisdictional power has been radically and sometimes grossly reduced by the discretionary use by the Government Junta of the broad powers concentrated in it. However, this situation cannot be explained unless reference is made to certain patterns of behavior of the Judiciary that have facilitated the clear abuses of authority that have taken place.  This aspect is dealt with in the following section.


c.          The Self-Limitations of the Judiciary


36.          During the period covered by this Report the Judiciary in Chile has restricted its action in such a way that in many cases it has facilitated the transgressions of the Executive to the detriment of the rights of individuals.  The following exposition focuses on some aspects of this behavior:  the renunciation by the Supreme Court of the exercise of the power of supervision of all courts operating in the territory of Chile, the merely formal application of the provisions issued by the Government Junta and reluctance to carry out exhaustive investigations when what was involved was the verification of violations of human rights attributed to the security forces.


37.          A first fact that must be mentioned is the failure of the Supreme Court of Chile to take a decision on appeals against sentences of Courts Martial, which decision was adopted on August 21, 1974.  This situation warranted the following comments by a prestigious Chilean jurist:


Before November 13, 1973, the Supreme Court had not refused to exercise its jurisdiction and powers in accordance with Articles 80 and 86 of the Constitution and Article 108 of the Organic Law of the Courts and 540 of the Organic Code of the Courts.  Since then, there has prevailed an erroneous case law, which claims that in time of war.  The High Court lacks jurisdiction and powers over wartime military courts. [4]


38.          This serious self-limitation of the Supreme Court left persons who had been submitted to wartime military courts without recourse.  The military court proceedings were characterized by extremely serious violations of the guarantees of due process, as is shown by the presentation made below.  The position taken by the Supreme Court in this matter made it possible to exclude military courts from its jurisdiction in the above-mentioned Article 79 of the 1980 Constitution.


39.          Some cases will make it possible to evaluate the aspects relating to the mechanical and formal application of the provisions issued by the Government Junta in the exercise of the legislative power.  Thus, the remedy lodged on behalf of the former Senator Mireya Beltran Moreno, and Reinaldo Morales, who were prevented form returning to Chile, was rejected by the Supreme Court. It based itself on Decree Law No. 1,009, which declared Marxist political parties and movements illegal on the ground that the communist activisms of those two persons, in the light of that provision, “constitute activities contrary to the security of the State...”.


40.          In the case of the leader of the Christian Democratic Party, Mr. Andrés Zaldívar, the Appeals Court rejected the petition filed to enable the person affected to return to Chile on the grounds that the decrees that prevented him from doing so had been issued in accordance with the corresponding formalities since Mr. Zaldívar had not respected the political recess imposed by Decree Laws No. 77 of 1973 and No. 1,697 of 1977.


41.          Another clear example of the mechanical and formal application by the Judiciary of the provisions issued by the Government Junta is the judgment of the Supreme Court in the case of Messrs Insunza and Rodriguez, in which it held that the Judiciary is competent to hear petitions of amparo presented only as regard the formalities established in the provisions of the 1980 Constitution:  urban nature of the locality to which the persons concerned are sent into forced relocation or as regards the period of 90 days during which the forced relocation may be applied.


42.          That strict adherence to the letter of the law has also characterized the actions of the Judiciary as regards the transfer to military jurisdiction of offenses committed by personnel of the security forces or of military or police establishments.  Some of the results obtained in those cases have already been presented in this chapter.  The same did not occur when it was a matter of investigating, in many cases, serious violations of human rights, as follows from the following presentation.


d.          Investigations by the Judiciary of Reported Violations of Human Rights


43.          In general, and during the period covered by this Report, the Judiciary in Chile has exhibited two types of behavior as regards investigating complaints for human rights violations.  On the one hand, it has ignored facts when they have been brought to its knowledge during the trial of those cases; on the other hand, it has not used all the resources at its disposal to establish the nature of the facts complained of and to identify the persons responsible for committing them, before submitting the records to the military courts.  There have been, of course, noteworthy exceptions to this behavior.


44.          An example of the first type of attitude is the case of nine persons arrested in December 1981--including Pablo Fuenzalida and Germán Molina of the Chilean Human Rights Commission, Domingo Namuncurá and Jorge Osorio of the Servicio de Paz y Justicia and Eugenio Diaz of the Group of 24--accused of “unlawful association” under Decree No. 77 of 1973. The persons affected were kept incommunicado in secret detention centers of the National Intelligence Agency (CNI) where they made their initial declarations.  The Military Examining Magistrate declared himself incompetent and transferred the records to the ordinary courts, at the disposal of the Investigating Judge of the Appeals Court.


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[1]           Article 8 of the American Convention on Human Rights states:

1.          Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal or any other nature.

2.          Every person accused of a criminal offense has a right to be presumed innocent so long as his guilt has not been proven according to law.  During the proceedings, every person is entitled, with full quality, to the following minimum guarantees:

a.                  The right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;

b.                  Prior notification in detail to the accused of the charges against him;

c.                  Adequate time and means for the preparation of his defense;

d.                  The right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

e.                  The inalienable right to be assisted by counsel provided by the State, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

f.                   The right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts.

g.                  The right not to be compelled to be witness against himself or to plead guilty; and

h.                  The right to appeal the judgment to a higher court.


3.          A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.

4.          An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.


5.          Criminal proceedings shall be public, except insofar, as may be necessary to protect the interests of justice

[2]           Seventh Report on the State of Human Rights in Cuba, pp. 51 and 52.

[3]         With respect to the processing of the habeas corpus applications filed with the ordinary courts, see the section on the right to due process in this chapter.

[4]         Daniel Schweitzer, Revista de Derecho Procesal de la Universidad de Chile, No. 9-10, 1st and 2nd Semester, 1975.