PART FOUR
Chapter Two

Prevention of Human Rights Violations

1. INTRODUCTION
   
   The human rights violations committed in recent years and the high level of tolerance shown toward such violations strongly suggest that during that period our country failed to have a sufficiently firm national conscience that respect for human rights must be absolute. We believe that education in our society was remiss in not incorporating those principles into our culture.
   
   A country lacking in a fully developed conscience on respect for, and the promotion and defense of, human rights will produce legislation incapable of protecting those rights. Such has been the case in Chile. If we examine the traditional Chilean legal system in the light of the standards contained in international treaties and in the light of the values and principles inspiring human rights doctrine, we are forced to conclude that even though that system formally enshrines the relevant basic principles, it suffers from significant flaws and shortcomings. That is not surprising since the system is made primarily of laws that were drawn up before the development of human rights doctrine. Our main legal codes went into effect at a time when there was no clear and well-developed conception of human rights either nationally or internationally.
   
   By way of example, we may mention three of the many flaws in our traditional system that made human rights violations possible. First, the Military Justice Code violated those rights in a number of its provisions, particularly with regard to due process and human rights even though human rights are enshrined in all codifications of international law. Second, the State Security Law did not define crimes with precision, and it made it possible to assign punishment for so-called "crimes of abstract danger," that is, crimes for which the only illegality of a particular conduct is that it may lead to a violation of another legally protected right. Third, the 1925 Constitution left much to be desired in the area of constitutional states of exception, since it granted too much authority to officials in the executive branch and did not provide for adequate control to be exercised by other government bodies.
   
   Until 1973 a whole series of functioning democratic institutions mitigated our legal system's inability to adequately protect human rights to the point where that inability was scarcely noticed. The most important of those Institutions were freedom of the press and the weight of public opinion. They prevented the human rights violations which were committed during that period from reaching such proportions that the flaws in the system would be noticed and arouse pressure for reform. When democracy was suddenly suspended in Chile, we had to confront the harsh reality of a legal system that was flawed and defective in the area of human rights and was now applied without the controls normally operative in a democracy.
   
   The protection provided by our traditional legal framework was weak, but it existed. After September 11, 1973, constitutional, legal, and even regulatory safeguards were lowered, repealed, or simply ignored. For example, Decree Law No. 5, published in the Diario Oficial on September 22, 1973, declared that the "state of siege due to internal disturbance" was to be understood as a "state or time of war" in matters of sentencing. That decree also declared that "when the security of those attacked so requires, the perpetrator or perpetrators may be killed on the spot." Decree Law No. 51, published in the Diario Oficial on October 2, 1973, besides conceding broad authorization for the delegation of the jurisdiction to military courts, repealed paragraph 2 of Article 75 of the Military Justice Code, which prohibited the commander-in-chief (in this case the military junta) from delegating the power to approve death sentences. Yet another example is Decree Law No. 13 (consisting in a single article), published in the Diario Oficial on September 20, 1973, which stated that wartime military tribunals were to try all military cases initiated since the appointment of the junta as commander-in-chief of the armed forces. By failing to safeguard the principle of the non-retroactive nature of criminal law enshrined in the Constitution, Decree 13 made it possible for war tribunals to hear cases on events that took place before September 11, 1973, and to apply sanctions established after the acts were allegedly perpetrated.
   
   The result was a legislation that was even further weakened in the area of protecting human rights. That situation is slowly being reversed with the constitutional changes approved by plebiscite in 1989 and the laws that the National Congress is currently studying at the initiative of the president. The institutional and legal reforms proposed below for the sake of strengthening the rule of law in Chile, are intended to move further along the same path.
   
   Such reforms, however, as necessary as they might be, will not by themselves serve to protect society from further human rights violations. As we said above, the true cause of human rights violations is an insufficient respect for those rights in a national culture. Hence we will have to include in our national culture the notion of unrestricted respect for, and adherence to, human rights and democratic rule, for democracy is the only political system that truly protects those rights. Therefore, we believe that the topic of human rights and of respect for each person's dignity must be incorporated into formal education, and that symbolic measures aimed at promoting these values must adopted. These essential steps must be taken without delay if we are to achieve our purpose. We will return to these important issues after we point to measures that this Commission would like to recommend in the institutional and legal realm.
   
   The grave human rights violations committed in recent years left a still festering sore in our national conscience. Divisions and conflicts are still at work in our society. Hence we cannot expect to fully achieve the intended aim of preventive measures unless at the same time we advance along the road of reconciliation, which by its nature constitutes the greatest safeguard against the repetition of what has taken place.
   
   
2. SUGGESTIONS IN THE INSTITUTIONAL AND LEGAL AREA TO ASSURE THAT HUMAN RIGHTS REMAIN IN FORCE
   
   Adequate respect for human rights demands that certain legal conditions, not satisfactorily met in our present framework, must be present together. The following are some of the main topics:
   
   
   • bringing our nation's legal framework into line with international human rights law in order that domestic juridical norms may truly respect and protect these rights;
     
     
   • a judicial branch that really plays its role of guaranteeing the essential rights of persons;
     
     
   • armed forces, security forces, and police committed to exercising their functions in complete accordance with the obligation to respect human rights;
     
     
   • the creation of an institution to protect human rights;
     
     
   • specific changes in the legal order in constitutional, criminal, and procedural matters in order to better protect human rights.
     
     
   We now propose a series of suggestions aimed at truly meeting these conditions in our country.
   
   
   1. BRINGING OUR NATION'S LEGAL FRAMEWORK INTO LINE WITH INTERNATIONAL HUMAN RIGHTS LAW
      
      In theory the Chilean state is already incorporated into the international system for protecting human rights. That is the case because Chilean law makes international customary law automatically normative for us, and furthermore, because Chile has ratified most international conventions in this area, thus making them part of the Chilean legal system.
      
      In practice, however, Chilean legislation is only partially in line with international law. If our country is to be, truly and not merely in theory, incorporated into the international system for promoting and protecting human rights, it will at least have to adopt the measures we now propose.
      
      
      1. Ratifying international human rights treaties
         
         This Commission first recommends that the Chilean government ratify all international agreements that may be adopted or have been adopted in the area of human rights and to which Chile is not yet a signatory. It is often argued that such treaties or conventions are repetitive and simply pile up, and that hence there is no need to ratify all of them. The Commission believes that even if such is the case, it would be a good idea to ratify treaties and conventions, since such a move would be a step toward strengthening international law. Such a strengthening is absolutely necessary for preventing human rights violations in Chile and around the world. In any case, before any proposed treaties were to be signed, it would have to be determined that they are in accord with the ethical principles that are part of our culture.
         
         Because it seems to be an extremely important measure, we urge the ratification and promulgation of the Optional Protocol to the International Covenant on Civil and Political Rights. It also seems necessary to carefully examine the reservations with which Chile has ratified or agreed to such international conventions so that our country may move toward being fully incorporated into the international system for promoting, respecting, and protecting human rights.
         
         
      2. Improving our national legislation so as to make it compatible with what is known as international human rights law
         
         Secondly, bringing our national legal order into line with international human rights law entails that Chile comply strictly with the obligations that flow from international agreements and from customary law in the area of human rights; it should not simply sign human rights treaties but respect the obligations flowing from them. Hence three things must be done: laws contrary to or incompatible with international law must be repealed; those not fully in line with international law must be modified; and those complementary laws required for making such rights a reality and for promoting them must be drafted. In doing so, the condition noted above in section a) is to be met.
         
         From a strictly logical standpoint, the provision in Article 5 of the reformed Constitution stating that "government agencies are bound to respect and promote such rights (the essential rights flowing from human nature) that are guaranteed by this Constitution, as well as by those international treaties that Chile has ratified and are currently in force" might render superfluous the repeals and changes, or the preparation of complementary legislation proposed in the previous paragraph. Indeed, the essential rights of the human person, being inherent and consubstantial with, that very condition, constitute a limitation on state sovereignty and are superior to all domestic legislation, including other provisions of the Constitution, since they all flow from that sovereignty.
         
         Such is the clear sense of the constitutional clause quoted above. Nevertheless, given the diversity of interpretations that have arisen over this issue, the Commission recommends that a law of constitutional interpretation be issued to confirm that duly ratified international human rights agreements have a higher authority than any norms of domestic law.
         
         While Article 5 of the Constitution clearly resolves any problem arising from a clash between domestic law-and international human rights treaties in favor of the latter, this Commission believes that it would be highly desirable to repeal or change existing law and draw up complementary legislation in order to truly bring our national legislation into line with international law. The judiciary would thereby be saved from the problems of interpretation it will often have to face as a result of contradictory legislation unless such measures are enacted. Our lack of a solid culture in the realm of human rights and the tendency of our judicial community to regard national legislation as outweighing international law are further powerful reasons for improving our domestic legislation.
         
         To that end we propose the following measures:
         
         
         • The issuance of a binding interpretative regulation of constitutional rank declaring both that every juridical norm should be understood in the way that best protects human rights and that a human right acknowledged by the existing order can be restricted only when another and higher ranking right is thereby better safeguarded, in accordance with Article 29 of the American Convention on Human Rights (the "San José Pact").
           
           
         • A reexamination not only of the Constitution but of all the national legislation that in one way or another affects human rights. It is very important that such a revision include examining whether the permanent constraints that the Constitution and laws set to human rights fulfill the international requirements that they be established by law, that they be necessary to a democratic society, and that they be adequate and effective for protecting the values denoted in international law. The Chilean Constitution is flawed in this respect.
           
           
         • Such an examination must also consider whether the temporary suspensions of human rights due to a constitutional state of exception are in line with the norms of international law. Articles 39-41 of our Constitution and the Organic Constitutional Law on States of Exception should be examined in order to determine whether they might not violate, for example, Article 27 of the American Convention. That article provides a complete list of the motives for which some rights may be suspended; it declares that the state may take only such measures as may be necessary for dealing with those reasons, but only insofar as they are necessary and for a time period strictly limited to that particular situation.
           
           
         • The issuance of domestic complementary laws to assure that the treaties are properly implemented. For example, the Convention on Genocide imposes on signatory governments the obligation to define and establish the crime of genocide and assign penalties in appropriate places in legislation. That step has not yet been taken in Chile.
           
           
      3. Establishing effective procedures for defending human rights
         
         Finally, bringing Chilean legislation into line with international law means that there must be effective national procedures for protecting human rights. Recent experience has proven that habeas corpus and the appeal for protection are not adequate for that purpose, and hence they must be improved. When we deal with the reforms needed in the judiciary we will indicate the measures the Commission believes must be adopted in this regard.
         
         
      4. Complementary measures
         
         It is also obviously very important that Chile participate in the system for promoting and protecting human rights and help extend it.1 In this regard we urge that the Chilean government adopt the following criteria for international activity in this field:
         
         
         • Increasing the trustworthiness of international agencies which oversee the human rights behavior of governments, by exercising vigilance over the composition of such agencies. It seems absolutely necessary that they be composed of independent experts who are respected for their moral and professional qualifications and are not involved in partisan politics.
           
           
         • Using the system. For example the Interamerican Human Rights Court has the power to issue advisory opinions in certain areas, and our country should keep in mind the possibility of using them should it be necessary. Another possibility is to use the advisory capacities of many international organizations, such as UNESCO, UNICEF, the ILO [International Labor Organization], and the OAS [Organization of American States], to help provide education in human rights, as the need arises.
           
           
         • Improving the system. Although the international system has been and still represents a major step forward in the development of human rights, it suffers from flaws that should be rectified. The system must be made accessible to individuals. It must furthermore respond to appeals over human rights violations effectively and in a timely manner. As increasing use of the system makes its limitations more obvious, it will no longer be regarded as trustworthy unless efforts are made to correct the flaws that slow the court processes and decisions on matters subjected to international supervision.
           
           
         If the system is to be improved it would also be a good idea to review the general and special treaties on human rights in order to make them more consistent with one another and to eliminate possible repetitions. Finally, such an effort entails developing new international treaties on human rights to take up aspects that do not yet fall under international law. One such example is the proposal to define the crime of forced disappearance as a crime against humanity.
         
         
   2. A JUDICIAL BRANCH THAT REALLY PLAYS ITS ROLE IN SAFEGUARDING THE ESSENTIAL RIGHTS OF PERSONS
      
      The historical experience of humankind demonstrates that life, liberty, and the other rights of persons can be safeguarded only when power is held accountable before the law. Merely acknowledging citizens' rights or delineating what the various branches of government or individuals may do will not bring that about. It is essential to establish procedures that can effectively protect such rights.
      
      Society assigns the exercise of that extremely important function to the judiciary, and entrusts to it the defense of the lives and liberty and the other rights of its members. Hence this branch of government requires the greatest vigilance.
      
      Those Chileans whose human rights were violated for political reasons in recent years did not encounter in the courts of justice the protection and support that their constitutional duties and their status as a branch of government required them to provide. The proof is that of the approximately 8,700 writs of habeas corpus presented by the Committee for Peace and the Vicariate of Solidarity from 1973-1988, no more than ten were accepted. During that period many of the people for whom they were being presented were being tortured, humiliated, executed, or subjected to forced disappearance on the property of those institutions named in the writs of habeas corpus and by members of those institutions.
      
      A reversal of this situation so that the judiciary will fulfill its fundamental duty to protect the essential rights of persons and thus safeguard unlimited respect for human rights in Chilean society will require a profound reflection that leads to specific measures to enable our judicial system to be renewed and strengthened. Among such measures the Commission suggests that the following be considered:
      
      
      1. Measures aimed at assuring an independent and impartial judiciary
         
         The essential aim of any organizational reforms in the judiciary must be to strengthen the independence of the judicial branch. Such independence should be understood to mean not only the power to resolve cases in accordance with the law and independently of other considerations, but also the commitment to resolve them in that fashion. Here lies the very heart of the issue of judicial protection of human rights-that judges have the will and moral force needed to prevent the violation of those rights, no matter who the violator may be. They should not simply hew to the letter of the law if the actual result is its violation.
         
         The judiciary should be organized in such a fashion that the only obligation a judge feels is to the law. In carrying out his or her responsibility a judge must be subject to only those influences that are part of his or her conscience in legal matters. The ultimate basis for the independence of the judiciary as an institution must be the independence of each judge.
         
         We now propose a number of recommendations aimed at accomplishing this objective. Some of them are already contained in legal initiatives currently being studied. The Commission nonetheless believes that it is worthwhile to present them in this report since they have a direct bearing on the question of human rights. Our recommendations are as follows:
         
         a.1) With regard to legal training
         

         We urge that the law departments in our country's various universities devote particular attention to the question of human rights so that future judges and lawyers will be well-trained in this area.
         
         Adequate training in human rights demands a knowledge that goes beyond current law, the institutions that express and serve it, and their interrelationships. Such a vision of the law is what we find in legal doctrine. Philosophical and sociological approaches to law must also be taken into account. Positive law teaches that first vision; the second and third enable us to subject positive law to criticism in the light of values and also by considering how effective it is and how adequate it is for society. Only by integrating these aspects will future judges and lawyers be able to have full knowledge and responsibility in the decisions they must make for the sake of society in the course of their professional lives. We therefore propose that law school curricula include all these perspectives in the study of the law in order to make the education they offer more comprehensive.
         
         We further recommend that in all law departments in the country there be a chair for the teaching of human rights and related topics. We suggest that such courses put special emphasis on the obligations that human rights impose on lawyers and judges, such as, for example, those arising from the presentation of writs of habeas corpus and appeals for protection.
         
         Experience in the area of human rights in recent years has shown that under the pretext of a supposed obligation to apply the law in a strictly literal manner, institutions for protecting human rights have been emptied of their true meaning. We therefore recommend that in teaching how the law is to be interpreted, law schools place the emphasis on the substantive aspect of the institution enshrined in legislation and that, if necessary, judges should be willing to set aside their role of simply applying the law mechanically, at least in matters connected to human rights.
         
         In the training of judges in law schools and in special programs for initial and advanced training that may be designed for them, there should be an emphasis on the commitment of judges to the purposes of the law, so that they may always direct their decisions to that end.
         
         If the judiciary is to be a powerful protector of human rights there must be judges and lawyers firmly committed to the rights of persons and to the permanent values underlying those rights, primarily the principles of the dignity of the human being and of the rule of law.
         

         a.2) With regard to judicial career practices
         

         We recommend that the present system of appointments and promotions in the judiciary be improved so as to make it a truly objective system and to provide safeguards for judicial careers.
         
         If we are to have judges who are, and who feel, sufficiently independent to restrain human rights abuses, there must be a judicial promotion system with clear lines that will enable these public servants to have periodic promotions based on merit and thus provide new members to serve on the highest tribunals in the republic.
         
         To that end we suggest setting in motion the constitutional reforms necessary to make it possible to replace the present system in which the president appoints Supreme Court judges and prosecutors from a list of five names drawn up by that court. In the new system such appointments would be the exclusive prerogative of a body composed of persons with a reputation for intellectual and moral integrity so as to assure the independence of their decisions. The Commission believes that there is a pressing need to adopt this measure or one whose effect would be similar.
         
         We also recommend consideration of the possibility of permitting respected lawyers who are not in the judiciary but who meet the requirements that may be established by law to be appointed as judges or prosecutors in the higher tribunals of the judiciary.
         

         a.3) With regard to the evaluations of judicial officials
         

         We urge the improvement of the system of determining the qualifications of public servants inside the judiciary so as to assure its objectivity.
         
         In order to assure that judges be independent we recommend that the law establish the obligation to provide reasons for evaluations of judges and to inform the judges of them. Such a procedure would offer judges the opportunity to correct and improve their performance when appropriate.
         
         We also propose that the judiciary personnel no longer be evaluated by secret vote, since such a procedure only encourages an irresponsible exercise of that delicate and important function. In this regard the president of the Supreme Court said in his speech last March 1, "I do not see why a magistrate of the republic should be denied the right to learn who has judged that his performance as a public official is unsatisfactory." We likewise recommend that any person who for any reason comes from outside the judiciary and is appointed to a higher tribunal be incorporated into the evaluation system.
         
         Finally we recommend that the boards of the National Association of Lawyers and the Corporation for Judicial Assistance be taken into account in the process of evaluating the members of the judiciary. The opinion these institutions may have of the behavior of the public officials who serve in the judiciary can be very enlightening, since it is they who use the system most immediately. We likewise recommend that the law establish the possibility that other bodies or persons might furnish their observations.
         

         a.4) With regard to responsibility for their actions
         

         We recommend that the judiciary be truly incorporated into the system of mutual supervision that the branches of government should exercise under the rule of law.
         
         In a government under the rule of law all institutions must be held accountable and supervised as they carry out their functions. According to Article 76 of the Constitution judges may be dismissed only if they fail to maintain good behavior. Such a broad formulation applies to the whole judiciary. Article 32, No. 14 of the Constitution obliges the president to supervise the conduct of judges in the court and hence he may order the Supreme Court or Public Ministry^e to impose disciplinary measures or set in motion the appropriate constitutional impeachment for removal from the bench. Finally, Article 48, No. 2c, of the Constitution makes judges of the higher tribunals subject to such constitutional impeachment.
         
         We suggest that whatever complementary legislation may be necessary to assure the full implementation of such a supervisory system be issued, especially with regard to the judicial behavior of the members of our highest court.
         

         a.5) With regard to the membership of the courts
         

         We recommend studying the possibility of replacing the current institution of "member lawyers" [lawyers authorized to serve ad hoc as judges in certain cases] by increasing the number of judges in the higher tribunals of the justice system.
         
         We believe that the fact that the president has the exclusive power to appoint lawyers to temporary terms on high courts, and that they are allowed to continue exercising their profession at the same time, can affect the independence and impartiality required for a mission as delicate and important as that of serving as a judge. We therefore urge that the continuance of this practice be scrutinized, particularly if the idea of increasing the number of judges proposed in the next section be accepted.
         

         a.6) With regard to the number of judges
         

         We urge an increase in the number of judges and prosecutors in the higher courts.
         
         The heavy workload in the higher courts makes it absolutely necessary to take steps to increase the number of judges and prosecutors in those tribunals. Such a measure would be conducive to taking up the above proposal since it would make it possible to replace "member lawyers" with permanent members who, we believe, would be better able to carry out their judicial functions.
         

      2. Procedural and institutional measures aimed at leading the judiciary to better fulfill its fundamental duty to defend the essential rights of persons
         
         b.1) Reforming the military judiciary so as to assure respect for the constitutional guarantee that persons will be tried by an independent tribunal
         

         The fact that magistrates and prosecutors in military tribunals are also members of the various branches of the armed services and hence are subject to their command structures seriously compromises the independence of these tribunals in carrying out their judicial responsibilities.
         
         We therefore suggest that the competence of military tribunals be restricted to strictly military crimes, that is, to crimes committed by armed forces and police personnel while on duty and against persons who are also members of these institutions. We also propose that all those who serve on such tribunals be lawyers, and that in all circumstances they remain under the supervision of the Supreme Court for purposes of correcting, providing direction, and supervising expenditures, and that the required constitutional or legal reforms be prepared to this end.
         

         b.2) Undertaking an examination of the procedural regulations in the Military Justice Code so as to assure respect for constitutional guarantees and due process
         

         We especially urge that the regulations on procedures during wartime be examined in order to propose that the legislative branch repeal the amendments introduced shortly after September 11, 1973, which sought to legitimize execution without trial and the delegation of authorization to issue death sentences, a power that had previously been the exclusive prerogative of the commander-in-chief.
         

         b.3) Assuring compliance with court orders
         

         The failure of the police and investigative police to truly collaborate with the work of the judiciary has tended to seriously impede a thorough administration of justice. This problem could be resolved by means of a special police whose sole responsibility would be to assure compliance with court decisions. Such a police force would answer to the judiciary branch rather than the executive branch, which often receives orders issued by the courts. We therefore recommend that the possibility and desirability of creating a judicial police be examined. Another way of solving the problem might be to have the judiciary participate in training the police staff responsible for assuring compliance with court decisions.
         

         b.4) Improving habeas corpus and the appeal for protection so as to enable these procedures to truly protect human rights
         

         To that end we propose setting in motion the following constitutional and legal reforms:
         
         b.4.1) Reforms requiring changes in the Constitution
         

         • A right not supported by effective protective mechanisms is not a guarantee but a mere formal proposal. We therefore recommend a study of the possibility of extending the scope of the rights protected by the "appeal for protection" to all or some of those constitutional rights that do not now enjoy such protection. Since we are aware of the potential problems in such an extension, we nevertheless recommend the enactment of those measures that might be feasible in our country for protecting those rights which for practical reasons it might be advisable not to include in coverage by the appeal for protection.
           
           
         • Repeal of the constitutional provision (Article 41, No. 3, part one) which prohibits the court that handles appeals for protection or habeas corpus from passing judgement on the factual bases or circumstances invoked by officials for the measures they adopt in exercising the exceptional powers granted them by the Constitution. Repealing it would also comply with Advisory Opinions Nos. 8 and 9 of the Interamerican Court of Justice.
           
           
         • Repeal of the constitutional provision (Article 41, No. 3, part two) which prohibits the suspension of the effects of the restrictive measures just mentioned while the appeals are in process. Such a repeal would allow the courts to use their discretionary power, for example, to order that the person be transferred to a different location.
           
           

         b.4.2) Reforms requiring changes in legislation
         
         

         • It should be made obligatory on the appeals court handling the appeal for protection to carry out one of the following measures: either to order that the person who is imprisoned and on whose behalf the appeal for protection has been submitted be brought before the court, or to commission one of its members to go to where the person is said to be in order to be informed why he or she has been jailed and whether the legal requirements for arrest have been met. Any person or authority who fails to comply with, or in practice impedes, such a measure should be punished for criminal behavior. In such cases officials should immediately be dismissed if there should be another attempt to carry out the measure and it is still ignored or disobeyed.
           
           
         • Those agencies against whom an appeal for protection is made should be legally obliged to make known to the court the names of the agents who carried out the detention. Thus there would be proof of which government employees were involved in possible crimes against that person on whose behalf the appeal was introduced while he or she was in detention. The recommendation made at the end of the first paragraph of b.4.2 would apply here as well.
           
           
         • It should be declared that the time limit for introducing the appeal for protection will not even begin to be counted as long as the constitutional right prompting the appeal is denied, disrupted, or threatened.
           
           
         • The courts in every regional department should be granted the competency to deal with such initial measures aimed at protecting or preserving the rights safeguarded by the appeal for protection as may be urgently needed, lest making the same kind of appeal to the proper appeals court be a useless exercise. The recommendation made in the first paragraph of b.4.2 would apply here as well.
           
           

         b.5) Reinstating the recurso de casación en el fondo^f as a way of consolidating an interpretation of the law respectful of human rights
         

         In the context of what was stated about interpreting the law so as to adequately respect human rights and to make the teaching about law incorporate this principle and bearing in mind the need to standardize criteria for interpreting the law, the Commission believes it would be desirable to once more facilitate the use of the recurso de casación en el fondo and make it truly feasible, for example, by making it impossible to rule out such appeals on merely formal grounds and by allowing the Supreme Court to rule on such cases in decisions that might be brief but would provide the reasons for the decision and without having to order an alternative sentence.
         

         b.6) Reforms in common criminal procedure with the aim of assuring the constitutional guarantee of due process and respect for human rights
         

         The aim of the suggestions that follow is to move forward in complying with existing international law in this area, including the 1966 International Covenant on Civil and Political Rights, ratified by Chile and published in the Diario Oficial on April 29, 1989, and the American Convention on Human Rights, which Chile has ratified.
         
         b.6.1) With regard to evidentiary weight
         

         Extrajudicial confession obtained after arrest by police or investigative police should be given no evidentiary weight if the person retracts in the presence of the judge. Allowing for such a retraction should be made an obligatory step in criminal proceedings.
         

         b.6.2) Substantial modification in the institution of solitary confinement
         

         Statistical data from international organizations proves that torture usually takes place during periods of solitary confinement. The aim of changes to be made in this institution is to assure that it serve the purpose for which it was created, namely to prevent suspects from engaging in collusion to impede investigation into the facts of the crime and whether and to what extent they may have been criminally involved in it. It is not intended to serve as a kind of torture.
         
         In order that it serve this purpose, we suggest that the judge who orders solitary confinement be obliged to provide at least a brief statement of the grounds for that decision. We also recommend that solitary confinement not prevent the prisoner from receiving care from an independent doctor. Greater control should be exercised over the maximum length of solitary confinement and whatever means may be necessary for assuring that the established maximum length be really observed should be implemented. Finally we urge that the physical and mental health of those who are held in solitary confinement be safeguarded and that whatever means are necessary for that purpose be made available.
         

         b.6.3) Abolishment of the secret nature of the initial summary investigation^g as a general rule in our ordinary criminal procedure
         

         Currently the secret character of the initial investigation in criminal procedures for felony or misdemeanor violates the human right to a hearing and leaves those being investigated practically defenseless as long as the initial investigation is being conducted. The rights at stake during a criminal investigation are so important that establishing the juridical conditions for their exercise should not be relegated to the end of this investigatory stage of the process.
         
         The only way to allow for the right of defense to be really exercised and to exercise control over the progress of judicial investigation is to allow the summary investigation to be made available. This is all the more clearly the case if we reflect that while the investigation is underway, the persons alleged to be involved in the event under investigation are most often deprived of some of their most important rights, such as personal liberty.
         
         It is certainly true that if the parties are aware that an investigation is underway, the success of that investigation may sometimes be jeopardized. Hence some formula for reconciling these two aspects should be sought.
         

         b.6.4) With regard to orders to investigate
         

         We urge complete compliance with the guidelines contained in Article 120, No. 2 of the Code of Criminal Procedure stating that judges not issue broad authorization to carry out investigations with the power to detain people and carry out raids and searches. The aim is to assure due respect for the constitutional guarantee for the inviolability of the home and for personal liberty.
         
         It should be specified that such powers can only come from a prior judicial decree which should provide authorization only to investigate particular people and places. Otherwise judicial functions are being placed in the hands of the police and subject only to review by the judge; such a procedure is unacceptable. The police have enough powers of their own when they catch people red-handed in criminal actions. In other cases they will describe the progress they are making and will ask the competent judge (or in urgent cases whichever judge is on duty) for the needed warrants.
         

         b.6.5) The establishment of the institution of the Public Ministry of first instance^h so as to separate the function of prosecution from those of investigation and sentencing
         

         Article 19, No. 3 of the Constitution states that "it is the task of the legislator to establish safeguards for a rational and just procedure." The Commission believes that the suggested reform will contribute significantly to accomplishing the aim by means of the law that has been recently enacted.
         

         b.6.6) The establishment of emergency tribunals in session outside of office hours (nights, Saturdays, Sundays, holidays)
         

         The aim of this measure is to assure that it be a judge who issues orders for urgent arrests and search operations, authorizes conditional release on bail during such periods, as well as the initial steps immediately required in the investigation. Nevertheless, the documentation is then to be sent to the proper court.
         

         b.6.7) With regard to the right to a defense
         

         We recommend fuller compliance with the obligation to provide legal aid and defense to those who do not have it, especially in the area of human rights, in keeping with Article 19, No. 3, paragraphs 2 and 3 of the Constitution.
         

         b.7) Developing measures so that the courts of justice may better comply with their obligations
         

         For a number of reasons including an excessive workload, the judiciary cannot fully comply with some of its obligations. Examples of these obligations include personally exercising their judicial functions rather than delegating them to subordinates, observing the rules for allowing prisoners to be released conditionally, the time periods for the initial investigation, the time periods for issuing the final sentence once the case reaches the phase for a decision, and so forth. The result is that important rights are often violated.
         
         To remedy this situation and thus assure that justice is administered rapidly and completely, a variety of measures must be implemented, such as increasing the number of courts, eliminating judicial red tape, and incorporating modem techniques into the judiciary, including the codification of procedures for disciplining judges.
         
         We therefore recommend the study and implementation of programs that by taking up these and other measures may enable the courts to fulfill all their legal obligations and make it feasible to require that they do so. Once such measures are in place, judges who fail to comply with their obligations should be sanctioned, and such a failure should be counted against them when they are evaluated.
         

         b.8) With regard to resources
         

         We recommend that funding for the judiciary be in keeping with the dignity and importance of their functions and that it be provided with the necessary independence in these matters.
         
         Many of the preceding suggestions will inevitably require increasing the budget for the judiciary. The appropriation of funds for the functioning of the judiciary and to assure the availability of suitable officials is ipso facto entailed in the implementation of such measures as may be approved.
         

   3. ARMED FORCES, SECURITY FORCES, AND POLICE COMMITTED TO EXERCISING THEIR FUNCTIONS IN A WAY THAT IS FULLY IN ACCORD WITH THE OBLIGATION TO RESPECT HUMAN RIGHTS
      
      Under the rule of law the armed forces, security forces, and police are permanent state institutions which are independent of particular interests and struggles. That is why the entire nation has entrusted to these institutions the exclusive use of legitimate force. It has done so precisely so that in addition to their proper role in defense, they may assure that the rule of law is maintained and that all its institutions continue to operate normally.
      
      The historic tradition of our armed institutions proves that in the past they were able to remain faithful to those principles. That fidelity combined with their honesty and high professional standards, which were acknowledged in other countries, earned them the well-deserved respect of our citizens, in whom they inspired a legitimate national pride. A telling example is the fact that very often the individuals who had served in the government overthrown in 1973 voluntarily turned themselves in, completely confident that their essential rights would be respected.
      
      The Commission's investigation into the grave human rights violations that have taken place in recent years has led to the conviction that members of the armed forces, security forces, and police were involved in them. Moreover, in the vast majority of cases investigated no blame has been assigned either by the courts or by those institutions. The picture we have described has led to profound disillusionment, hopelessness, and frustration in major sectors of Chilean society and has thereby undermined the feelings of affection and esteem enjoyed by the armed forces. It is therefore utterly necessary to take steps to reverse this situation; otherwise, it will be impossible to achieve that national reconciliation which itself will be the best guarantee of respect for human rights.
      
      In any case, this Commission believes that the successful implementation of such measures will basically depend on the degree to which they are accepted in the armed institutions themselves. We therefore regard it as an absolute necessity that they issue from a broad discussion that involves both the military and civilians. Hence the Commission offers the following suggestions simply in order to suggest criteria for the proposed debate.
      
      These suggestions fall into the two different but complementary areas of education and institutions.
      
      
      1. Recommendations in the area of education
         
         
         • A study should be conducted on how to incorporate, to the extent it has not been done already, courses or content on human rights and international humanitarian law into the curricula of the major military academies and in general into the schools for the initial and advanced training of the armed forces. The emphasis should be placed on the obligations that such rights place on those institutions. To that end it would be desirable to have available documents approved by international human rights agencies, such as the Code of Conduct for Law Enforcement Officials issued by the United Nations for what it says that is relevant to the police and investigative police. Each member of the armed forces and police must be clearly aware of being a person and that awareness itself must be extended. Each must feel that he or she has human rights and must respect those rights in others.
           
           
         • It would be well that those courses or contents were taught by specialists in the area, if that is not already the case.
           
           
         • Teaching on the topic of human rights should omit subjective political and historical assessments.
           
           
         • This suggested educational task could be strengthened by specific programs on these topics prepared by military vicariates. Such programs should be jointly planned by the top military command and leaders of the Catholic church as well as those of other religious denominations and secular moral institutions.
           
           
         • The armed forces, security forces, and police should be informed about human rights and ongoing developments in the field, especially in matters that could affect them.
           
           
         • It would be a good idea to intensify exchange between the armed institutions and civil society in the fields of education and professional training so as to create channels for dialogue and to generate trust between the various actors in society. To that end we propose that military figures be invited to participate in civilian activities. We suggest that the military be encouraged to participate in graduate programs in the universities. We likewise suggest that civilians be invited to study in military academic centers.
           
           
      2. Recommendations in the area of institutions
         
         
         • Study the concept of national security and its impact on respect for the essential rights of citizens, which official forces are called to protect, with the aim of bringing about the constitutional and legal reforms that such studies may show to be advisable.
           
           
         • Redefine precisely the functions of the intelligence services, limiting them to gathering information and establishing an adequate system for supervising them. A democratic government must have services for gathering information when it is requested by authorized officials; such services must be able to process that information and to communicate it to the officials who request it. However, the intelligences services of the armed forces and the police and the General Bureau of Investigation must limit their activity to the proper field of each institution. These services, moreover, should be in proportion to their own institution and to the tasks entrusted to them, and in compliance with the principles just enunciated. Bringing about such a redefinition will require studying the drafting of adequate legislation, which will have to include adequate procedures for supervision and control.
           
           
         • Define an anti-terrorism policy that reconciles effective elimination of terrorism with full respect for human rights. To that end it is necessary to adequately regulate the investigatory powers of the police that may be detrimental to citizens' rights, as is the case, for example, when the period for bringing a prisoner to court is extended to ten days.
           
           
         • Principle of due obedience. This Commission was able to observe how the indiscriminate application of the principle of due obedience was sometimes a major factor in human rights violations. We urge a careful study of both existing legislation regulating the principle of due obedience and the training which official forces should be given on this point. Thus, without ignoring the validity and importance of this principle in carrying out the functions of the armed institutions, there will also be assurances that its application will not serve as an excuse for violating human rights nor hinder respect for them.
           
           
         • With regard to obligatory military service, we recommend that respectful treatment of draftees be encouraged and that the remaining practices that may be degrading to the dignity of persons be eliminated. Such a step will instill an awareness that military discipline does not require such practices and in fact would gain from their elimination.
           
           
         • Place the Chilean Police and Investigative Police once more under the authority of the Interior Ministry. Placing the functions of these agencies, namely to safeguard public order and internal security and make the law prevail, under the authority of the Interior Ministry will make it easier for that ministry to supervise them and specifically to protect the human rights that may be affected by their activity.
           
           
         • Adopt measures to assure full compliance with the provisions of Article 90 of the Constitution, namely that the functions of safeguarding public order and security fall exclusively to the police and investigative police. Any other state agency that seeks to carry out such functions should be eliminated and none should be created for such a purpose in the future.
           
           
         • Issue a constitutional regulation to the effect that only the police and investigative police-and the judicial police, should it be created-may carry out arrests for crimes in which people are not caught in the act. They are to do so, obviously, only upon orders from competent authority.
           
           
         • Encourage members of the armed forces and police and their families to be more integrated into society, by attempting to incorporate them into common social and cultural activities, and insofar as possible not providing separate housing arrangements for them. Knowing one another is a first step on the way to reconciliation.
           
           
   4. CREATING AN INSTITUTION TO PROTECT HUMAN RIGHTS
      
      By virtue of the Universal Declaration of Human Rights adopted by the United Nations General Assembly December 10, 1948, and especially by virtue of the next to last consideration in its preamble, the Chilean state, like other member states has accepted the commitment to "achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms." As an expression of that commitment, many countries-more than sixty thus far-have created an institution usually known as a "defender of the people" or ombudsman, each with distinctive features according to the country's particular circumstances. In that context and in view of the urgent practical need to revitalize our legal system for protecting human rights, this Commission recommends studying the possibility of establishing in Chile an institution for the express purpose of protecting ordinary people from abuses of power and making such an institution a part of our legal system.
      
      Although it is not our role to say specifically how this should be done, we believe it is appropriate to point to some general principles for such an institution, should there be a decision to establish it:
      
      
      • Its main function ought to be to assure that every government official truly respects those human rights that are guaranteed by the Constitution and by the international treaties that Chile has ratified and are in effect. For that purpose this person could act on his or her own authority or take complaints from those affected by human rights violations; investigate those violations in the manner he or she judges most fitting, and accordingly be empowered to seek information from any government employee, who in turn would be obligated to provide it; and inform the proper officials of the human rights violations he or she might have corroborated, so as to correct them.
        
        
      • An adequate selection method is required so as to assure that the person or persons appointed to hold this responsibility be independent and of high moral character. Such persons should be exempt from prosecution, so that they will remain independent in exercising their functions.
        
        
      • This institution should have the necessary powers and resources to operate independently of any other authority. Care should be exercised, however, to assure that its functions not interfere with those of the courts and other government institutions.
        
        
      • The person or persons who assume this responsibility should exercise it for a limited time period.
        
        
   5. SPECIFIC CHANGES IN THE LEGAL ORDER IN CONSTITUTIONAL, CRIMINAL AND PROCEDURAL MATTERS IN ORDER TO BETTER PROTECT HUMAN RIGHTS
      
      Simply fulfilling the conditions indicated thus far will not by itself create in Chile a body of law respectful of human rights. Complementary measures must also be adopted in several other areas. We now indicate some of these measures.
      
      
      1. Assuring full respect for human rights during arrest and in confinement and imprisonment
         
         The aim of the suggestions made below is to make further progress in observing international law concerning the treatment of those arrested and imprisoned as found in the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) which was ratified by Chile and published in the Diario Oficial on November 26, 1988; the Interamerican Convention to Prevent and Punish Torture (1985) which was ratified by Chile and published in the Diario Oficial on November 26, 1988; and the United Nations Body of Principles for the Protection of All Persons Arrested or Imprisoned in Any Fashion, and the United Nations Code of Conduct for Law Enforcement Officials.
         
         a.1) Suggestions for laws governing the act of arrest
         
         
         • Study the desirability of reducing the indiscriminate authority that Articles 288 and 289 of the Code of Criminal Procedure grant police and investigative police to fire their weapons as a legitimate manner to control or subdue the person they are attempting to apprehend (either caught in the act or with a warrant) if he or she attempts to run away.
           
           
         • Abrogate Article 260, No. 4 of the Code of Criminal Procedure, which authorizes arrest on the basis of suspicion alone, or regulate it so as to assure that people may not be held under this provision for longer than a specific time period.
           
           
         • Work out such regulatory and educational measures that may be necessary in order to assure that the police and investigative police comply with their obligations concerning arrest and specifically:
           
           
           • with regard to the provisions of Article 175 of the Code of Criminal Procedure, inasmuch as these institutions do not have the authority to search the clothing or personal objects (purses, wallets, automobiles) of private citizens unless there is sufficient reason to arrest them;
             
             
           • with regard to Articles 156ff. of the Code of Criminal Procedure in connection with Article 288, which govern house searches insofar as that can never be done without a prior specific judicial authorization;
             
             
           • some of the measures proposed elsewhere in this chapter, such as involving the judiciary in training those charged with assuring compliance with its decisions or making the need to respect human rights part of the training of the members of the armed forces and police, would also contribute toward that same end.
             
             
         a.2) Suggestions regarding the treatment of people in prisons and jails
         
         
         • Any accusation of torture, abusive treatment, disappearance, or extrajudicial execution should be investigated immediately and carefully through administrative procedures. The obligation to do so ought to be clearly established through legislation. If such an investigation indicates that a government official or employee is involved, that person should be suspended while his or her guilt or innocence is being determined. Should the investigation show that the person is guilty, he or she should be dismissed. These measures are independent of any criminal responsibility of the person, which is to be determined by the courts.
           
           
         • All persons arrested by government officials ought to have a right to rapid access to their family members and to legal counsel and independent medical attention and should receive shelter, clothing, and food as well. To assure that people really have these rights in practice, the person making the arrest should be obliged to allow the detainee to use the telephone or similar means of communication.
           
           
         • A permanent data bank should be established and made available to all. It would list the names of all those who have been arrested by government officials, along with the jail or prison in which they are being held. This information ought to be available in all police stations and the offices of the investigative police and in those jails and prisons run by the National Prison Service. As a complement to this measure, every government official empowered to arrest should be obliged to register every arrest he or she makes, so that it may be listed in the data bank.
           
           
         • Measures should be implemented to assure that uniformed officers will always fulfill their obligation to visibly wear a badge with their number and that non-uniformed personnel will present their credentials; more generally, all such agents should be required to identify themselves as they are making the arrest.
           
           
         • All police stations and detention sites in the country should display, so that those arrested and their families can see, a catalogue of their rights when arrested as well as the duties of those making arrests and managing such sites.
           
           
         • End the custom of having prisoners being released sign a statement that they have not been mistreated or tortured while under arrest. In practice that procedure amounts to giving up under duress their right to bring criminal charges for abusive treatment or torture against officials who arrested them or were in charge of the prison facility where they were held.
           
           
         • Improve the manner in which the officials in charge handle visits to jails and prisons, in order to meet the standards in this area set by international law, such as the Standard Minimum Rules for the Treatment of Prisoners, prepared by the United Nations. In any case inspection visits should be without notice.
           
           
         • It should be made mandatory to submit anyone jailed or imprisoned to regular medical examinations made by professional people under the supervision of the Medical Association of Chile or some other independent institution to assure that the examination is objective. In addition, any person in jail or prison should have access, upon request, to medical attention within reason. They or their families may also request medical attention from a particular doctor, at their own expense.
           
           
         • It should be made mandatory on the state to provide medical care and emotional and mental rehabilitation for those who have suffered torture or abusive treatment from government authorities or officials and for the relatives of those who have died of human rights violations.
           
           
         • Those who have suffered torture or abusive treatment from government agents or officials and the relatives of those who have disappeared, have been tortured to death, or have been executed without due process by government officials should be enabled to receive compensation in accordance with international standards. Regulations regarding both substance and procedure should be established in a manner compatible with the practical feasibility of actually receiving this compensation, either from the state or from those government officials who were directly responsible.
           
           
      2. Other changes in the legal system
         
         In addition to the reforms in criminal legislation already mentioned in this report, certain further specific changes must be considered in order to develop a system of criminal law that will be truly respectful of human rights. We now list some of the reforms we suggest for that purpose.
         
         
         • Raise the punishment for coercion, which our Criminal Code currently treats as a mere misdemeanor (Article 494, No. 16), to the level of a felony. Defining coercion (that is, the punishable offense defined as using violence to impede another from doing what the law does not prohibit or compelling him or her to do something against his or her will without authorization) as a felony and not a simple misdemeanor, in conjunction with the other measures that this Commission suggests, is a legal measure appropriate for dissuading any individual, whether or not he or she works for the government, from violating the physical integrity of persons in those cases in which the violation does not in itself have the features that would constitute another more serious crime.
           
           
         • Bring the punishment for crimes committed by public officials against the rights guaranteed by the Constitution in line with the established punishments for analogous actions committed by private citizens. Our Criminal Code sets lower punishments for crimes against constitutional rights committed by public officials than it does for the corresponding common crimes. Such is the case with regard to illegal arrest in comparison to kidnapping, for example. We propose that the level of punishment be basically the same for crimes of an equal nature, whether they be committed by public officials or by private citizens. The punishment meted out to a public official should be more rigorous than that given for the corresponding common crime, for in committing such a crime, the public official is also violating his or her public trust.
           
           
         • Increase the punishment assigned for the crime of torture. Separating torture from the previous point is fully justified in view of the difference between the specific unlawfulness of torture and that of other crimes committed by public officials against constitutional rights. In the case of these latter crimes, the same action is legitimate when the public official is operating under the pertinent legal assumptions and conditions. In the case of torture, however, public authority can never be exercised mistakenly since it is prohibited under all circumstances. The crime of torture becomes all the more serious than the equivalent action committed by a private citizen, insofar as the one committing it is the very person to whom the state has entrusted vigilance over the juridical good being violated.
           
           
         • Bring up to date the criminal legislation for safeguarding the inviolability of the home and any kind of private correspondence guaranteed by the Constitution (Article 19, No. 5) by including in it all the new ways of violating those guarantees made possible by modern technology.
           
           
         • Thoroughly revise our criminal law on political matters leading to a combined text that would systematize and make coherent the whole body of laws, pertaining to both substance and procedure, which are currently scattered throughout a number of legal documents. Indeed the Criminal Code, the Military Justice Code, the Law of State Security, the Weapons Control Law, the Law on Terrorist Behavior, and others, all have such provisions. Each of these legal codes and laws deals with crimes whose definitions are often flawed. Another problem is the fact that punishments are often imposed cumulatively, thus causing numerous problems with the manner in which crimes are related to one another. Finally these laws differ in punishments and procedures. The result is a very complex situation which lends itself to arbitrary decisions. This situation ought to give way to one in which the right to a fair legal process is properly respected.
           
           
         • Make forced disappearance a distinct punishable offense as a crime against humanity. An agent who apprehends a person and does not provide a plausible explanation for the whereabouts of such a person could thus be accused of this crime.
           
           
         • Establish that the statutes of limitation for crimes against human rights are suspended during periods when the context prevents or hinders employing the relevant legal actions.
           
           
         • Draft laws to prevent crimes from being amnestied without a prior investigation of the actions themselves. Any amnesty issued should be applied to the person who is indicted for the particular crime.
           
           
         • Reexamine the requirements for declaring and renewing constitutional states of exception in order to assure that they adequately reconcile the protection of the different rights that are at stake.
           
           
         • Legally implement such procedures as may be regarded as useful for adequately supervising the ethical conduct of people exercising a profession, while making certain not to invade the realm of the legitimate exercise of the various professions. This task is particularly important when we take into account the vacuum that has existed in this respect since the moment when professional associations were prohibited from supervising the ethical conduct of their members.
           
           
         • Improve existing legislation and regulation on the burial and exhuming of corpses, and likewise the legislation governing the Medical Legal Institute and the Civil Registry. Legislation must be issued to ensure the right of relatives to identify and provide a proper burial for their loved ones and the corresponding duty of government officials who for any reason play any role in this area. Violation of this obligation ought to be defined as a failure to fulfill the duties of a public official; it could even constitute a crime if the circumstances were serious enough.
           
           
         • Moreover, the laws governing the Medical Legal Institute, the Civil Registry, and cemeteries must be revised in order to improve and assure proper procedures in burial, autopsies, the requisites for registering names, presentation of data, and issuing certificates, so that these procedures may truly serve the public trust and protect the rights of persons.
           
           

e)Public Ministry: Articles 350ff. of the Código Orgánico de Tribunales establish that the Supreme Court prosecutor (fiscal) is responsible for the functioning of the Public Ministry-whose role, in principle, is to serve the public interest. One function of the Public Ministry is to supervise judges and all employees of the Chilean judiciary so that they adhere to a certain criteria for conduct which is established in Article 76 of the Chilean Constitution. The Public Ministry must report violations to the corresponding higher court, which then proceeds by imposing disciplinary measures or, if the situation merits, by removing the violator from his/her duties (constitutional accusation or impeachment).

f)Recurso de casación en el fondo: Articles 764ff. of the Código de Procedimiento Civil-Libro III-Titulo XIX establish the recurso de casación. Article 767 defines the recurso de casación en el fondo, which permits the Supreme Court to invalidate a lower court's decision for reasons solely pertaining to the application of the law and not to the trial court's finding upon the facts or procedure (the recurso de casación en la forma addresses incorrect trial procedure). Both are a means to invalidate decisions where the law has been incorrectly interpreted or applied. Excessive formalities for presentation and processing of this recurso restrict possibilities for its use.

g)Initial summary investigation: The general Chilean criminal trial procedure calls for an "initial summary investigation" stage. This stage begins when a complaint or suit is initiated. The judge is then independently responsible for investigating the evidence and matters relating to the case. If, during the course of the investigation, the judge establishes or has reason to believe that a crime was committed, he/she may preliminarily indict the alleged perpetrator, accomplice, or accessory. From that moment on, the defendant may be released on bail unless the judge decides that his/her freedom poses a threat to the victim or society or jeopardizes the investigation-in which case he/she may be imprisoned as a preventive measure. The judge's investigation is very thorough, and in contrast to the common English understanding of the word "summary," it may be lengthy and quite detailed. In most instances it is conducted in camera. Upon completing the investigation the judge may decide to temporarily or definitively dismiss the case or proceed to the second "plenary" stage of the procedure during which the judge formally makes an accusation. Evidence is then presented by the plaintiff and/or defendant and their legal representatives. Finally a verdict is delivered and a sentence ordered by the same judge.

h)Public Ministry of first instance: Article 356 of the Código Orgánico de Tribunales dictates that one function of the Public Ministry would be to act as "principal party" to represent the interests of the state and Chilean society in criminal cases. This has never been organized in the courts of first instance, and no such function has been performed. The Public Ministry would play a role similar to that of a public prosecutor, and act totally independent of the trial court judge. The Commission is recommending that the institution of Public Ministry be established in the courts of first instance.

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Posted by USIP Library on: October 4 2002
Source: Report of the Chilean National Commission on Truth and Reconciliation
(Notre Dame, Indiana: University of Notre Dame Press, 1993), vol. II/II, Part Four, Chapter Two (A), 853-878.
Note: Digitized and posted by permission of the University of Notre Dame Press, February 22, 2000.