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THE JUDICIARY UNDER THE DICTATORSHIP
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HABEAS CORPUS UNDER SEIGE
Chile's Penal Code and Articles 20 and 21 of the 1980 Constitution, provide for the "recurso de amparo," a legal instrument similar to habeas corpus. Habeas corpus is a legal injunction intended to protect the freedom and personal safety of individuals in custody as well as those who fear an arrest without cause or a threat to their physical well-being.
Habeas corpus is mandated by international treaties such as the Universal Declaration of Human Rights, the International Pact of Civil and Political Rights, and the American Convention on Human Rights.
For purposes of clarity, this page refers to the Chilean "recurso de amparo" as habeas corpus.
"...[the courts] have been inundated with a huge number of habeas corpus petitions filed under the pretext of arrests ordered by the Executive Branch. And I say pretext because most of the petitions are for persons, who, petitioners say are disappeared - understand, not arrested - and in truth, these are individuals who live clandestinely within the country or who left the country clandestinely." Supreme Court President Enrique Urrutia Manzano, March 1, 1975.
ARRESTS
Under the states of emergency decreed in the early years of the military regime, the vast number of arrests carried out were, technically, legal since normal procedures justifying arrests were suspended. In spite of these severe limitations, it became the practice of human rights groups to file habeas corpus petitions in all cases, arguing that the arrest and circumstances of the arrest were illegal. Their habeas corpus petitions challenged the courts to prove otherwise.
The authorities' justification for the majority of officially acknowledged arrests in the 1980's came in the form of Transitory Article 24 of the 1980 Constitution, which gave military authorities sweeping powers when the President declared "a state of danger to internal peace."
Under this article, no specific motive was required to carry out an arrest and individuals could be detained for up to five days, either in the person's "own home or in places that are not jails," without formal charges being laid. Rarely was a person ever placed under house arrest, but rather was commonly taken to "places that are not jails," primarily the secret CNI prisons. This initial arrest could be extended another 15 days in cases of "acts of terrorism of serious consequences," of which no proof was required, simply by administrative order and without any involvement from the courts.
Broad investigative authority - which neither specified suspicious individuals nor places - permitted police to conduct indiscriminate arrests and searches, which in 1984 prompted the Supreme Court to rule that military courts should not issue such orders.
HABEAS CORPUS - THEORY AND PRACTICE
The 1980 Constitution carries over from the 1925 Constitution what is known as the "recurso de amparo," (protective writ), so called because it is the right all citizens have to demand that courts protect them from an unfair arrest.
"If someone from the DINA secret police had a person in custody and knew that a habeas corpus had been filed for him, he would wait to see what happened with it..."
The habeas corpus in Chile allows any person believed to be illegally or unfairly arrested to ask the courts to review the legality of the arrest. The intent is not necessarily to obtain the person's release but rather to ascertain and assure the physical integrity of a person.
A "recurso de amparo preventivo" is another remedy which can be sought when a person is subjected to intimidation or surveillance and fears an arrest is imminent. An arrest without a court order is sufficient grounds in and of itself to justify conferring habeas corpus protection, and the law establishes sanctions for illegal arrests.
The petitioner begins the process by filing a writ in the Court of Appeals corresponding to the place of detention. The court must then obtain confirmation from the agency - the Interior Ministry - which authorized the arrest. Reflecting international jurisprudence, Chilean law requires the courts to act swiftly, investigate the circumstances of the arrest, and verify the prisoner's conditions.
However, the states of emergency and the Transitory Article 24 drastically restricted the habeas corpus. During state of emergency courts were prevented from reviewing the legal grounds for arrests ordered by the Junta (art. 41) and measures taken under Transitory Article 24 to the Constitution were off limits to any legal intervention. In addition to these severe restrictions, the courts' inaction or disregard for the principle of habeas corpus severely hindered the work of human rights attorneys.
Of the 5,400 habeas corpus writs sought between 1973 and 1983, only ten were conferred, according to the Inter American Human Rights Commission of the Organization of American States. The first time any person in custody gained freedom by way of habeas corpus was in May 1986, when the Court of Appeals ordered the release of Gonzalo Duran, a 15 year-old high school student.
Of the few writs that were accepted, most were ineffective because by the time the request was granted the persons for whom protection was sought had already been killed
Habeas corpus disregarded
A Vicaria of Solidarity Legal Department report ("El poder judicial y el recurso de amparo," 1977) states that had the courts made use of their habeas corpus powers, "in many cases they could have protected prisoners from physical mistreatment, placement in prolonged incommunicado, imprisonment in secret jails..., disappearances, prevented expulsion orders from being carried out..."
The Chilean judiciary's disregard of habeas corpus requirements is illustrated below.
Failure to verify existence of arrest warrant:
The first thing a court is obliged to do when considering a petition for habeas corpus is verify the existence of an arrest warrant. The vast majority of arrests carried out after the military coup were made under state of siege, without an order from police, other arresting agent, or the courts.
However, it was not the courts but the government itself which acknowledged the arbitrary nature of arresting procedures. In January 1974, it dictated Decree Law 228 (DL228) which, from that date on, required that arrests be authorized by the Interior Minister in name of the President of the Governing Junta. DL 228 was retroactive, stating that "measures adopted prior to this date shall be declared in keeping with law".
Thus the military government, unlike the courts, tacitly recognized that these arrests had been illegal. Notwithstanding DL228, arrests without a court order continued to be the norm. In the absence of an arrest order, it became common practice for the courts of appeals to postpone a decision on habeas corpus until the Interior Ministry produced an order, thus permitting the court to declare the arrest in conformance with the law.
Failure to investigate:
In their investigations, courts relied entirely on government-provided information about a person's status and refused to consider evidence that contradicted the official explanation.
Judges refused to receive proof of detention when authorities denied the person was in custody and even refused to admit testimony from witnesses to the arrest. They also refused to interrogate personnel identified as having made the arrest and only would accept the version offered by the arresting party. Such was the case with hundreds of persons arrested who later disappeared in custody.
Example: The case of Juan Antonio Aguirre Ballesteros, arrested September 4, 1984. Persons arrested with him lent their testimony and the two individuals who interrogated him were fully identified as police officers. The court, however, did not take the witnesses into account and failed to question the police or to delegate a representative to visit the place where Aguirre was detained. Not until Aguirre's mutilated body turned up nearly two months later, did the military courts begin investigating what had happened to him.
Failure to act forthwith:
The Constitution requires a speedy response to the request for habeas corpus, and the Code of Criminal Procedure specifies that this must take place within a period of 24 hours. However, in the majority of cases this was not so, and the Supreme Court commonly took days, weeks or even months to confirm, with few exceptions, its denial of habeas corpus protections.
In 1980 the Vicaria of Solidarity complained to the Supreme Court of the inordinate delays in determining whether or not to grant habeas corpus protection.
Example: Case of Luis Navarro, photographer and Vicaria staff member. Navarro was arrested March 11, 1981, after a liturgy at Santiago's Cathedral for the enactment of the 1980 Constitution. The habeas corpus filed on his behalf was the first under the new Constitution. Although he was released after five days of harsh physical and psychological torture in a CNI secret prison, the Supreme Court did not formally deny the habeas corpus petition until 100 days later.
The Interior Ministry's failure to respond to habeas corpus petitions was the major cause of the delays but the high court itself contributed to this prolongation. By failing to set or by postponing deadlines for the official response, judges fostered the government authorities' dilatory policies.
Example: Case of artist Hugo Eduardo Riveros Gomez. In 1980, Riveros was arrested and held in a secret CNI jail. A habeas corpus filed on his behalf had been under petition for 10 days with no response to the two requests sent to the Interior Ministry or to one sent to the CNI, when the court decided - on its own accord and with no legal grounds to do so - to extend the deadline five additional days. A year later, on July 8, 1981 Riveros was again arrested, this time by a paramilitary squad which killed him.
Refusal to verify prisoner conditions:
Courts have the power to order that the prisoner be brought before them or that a representative personally visit the place of custody to verify the conditions of detention. Yet the courts consistently refused to exercise this authority, fundamental to habeas corpus protection. The first time a judge chose to make use of this authority was in 1976, but the court's representative was not allowed to enter the premises where the prisoner was presumably held.
Example: On March 10, 1984, under a court order, Santiago judge Juan Gonzalez Zuñiga attempted to enter the CNI's Borgoño Street prison but was harassed and finally banned from entering the place. The official in charge of the jail said the court order was insufficient and only the CNI director could authorize the visit.
Example: In August 1984, when Concepcion Appeals Court judge Maria Cristina Aqueveque asked to visit prisoner Ignacio Vidaurrázaga, he was transferred to Santiago. There, a court demanded to see the prisoner and the Santiago judge was able to confirm the reason the man had been concealed: Vidaurrazaga could not walk unaided, and had wounds and bruises, clearly as a result of torture.
According to a 1986 Vicaria report, this was one of only ten cases - out of nearly 10,000 - in which the courts actually ordered the CNI to bring the arrested person before them.
No safeguards for physical safety:
Courts ignored statements of victims who said they had been tortured.
Example: The case of 23-year-old Marco Arevalo Estay, documented by Amnesty International (AI). Estay was one of several young people arrested in La Calera on February 5, 1986. He was tortured and accused of belonging to a guerrilla school. AI reports that he declared, "I denied all charges to the court clerk but he refused to note in the record that the statement was made under torture. I then showed him the marks left on my body by torture, and he still would not make a note of it."
REJECTION OF FIRST HABEAS CORPUS PETITION
On September 14, 1973 Christian Democrat leader and former government minister Bernardo Leighton sought a habeas corpus protection for Carlos Briones, Clodomiro Almeyda, Jorge Tapia, Claudio Jimeno, Oscar Waiss, Luis Armando Garfias and Alvaro Morel, all of whom were held in custody in a military regiment. Investigations police informed the Supreme Court that none of the persons in question were deprived of freedom in any of its premises and that it had no information from the Interior Ministry.
Solely on the basis of this statement, the high court rejected Leighton's petition, stating, "...the Military Junta declared a state of siege throughout the country, which permits arrests and holding of persons in places that are not prisons..."
Leighton's was the first petition filed under military rule and its rejection set the criteria that was to guide the judicial branch in habeas corpus petitions in years to come.
The decision regarding Leighton's petition is striking for various reasons cited by former Vicaria of Solidarity attorney and 1998 United Nations Human Rights Rapporteur Roberto Garreton:
* It tacitly recognizes the new regime that sprung up through force of arms, without stating reasons or grounds for doing so;
* The statement makes reference to state of siege when it was not even declared until September 18, five days after the writ was filed;
* But most serious of all, points out Garreton, is that the court did not know whether or not the people were in custody. The Investigations report it relied upon to reach the decision only clarifies that no arrest warrant was issued. The Court presumed that any arrests ordered by government forces were legal, arguing that the declaration of state of siege sufficed to permit any arrest, even without a warrant.
Several of the people Leighton sought to protect remain disappeared to this day.
continue:
Amnesty and Impunity
Bowing to Military Courts
Dissidence within the Judiciary
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