PART FOUR
Chapter Three

Further Recommendations

1. CREATION OF A PUBLIC LAW FOUNDATIONⁱ
   
   The Commission has also come to the conclusion that it should propose to the president the creation of an institution, which we believe should be a Public Law Foundation directly connected to the president in accordance with Law No. 18.575 (Law on the Foundations of the Administration). We suggest that the ultimate authority in the foundation be a board made up of highly respected people from diverse traditions and from across the political spectrum who hold a variety of views on our history. We further believe that this board should be motivated by a spirit that acknowledges the basic norms of democracy and of the rule of law, and that it should accept the fundamental principle that the human person is to be respected because he or she is a person and because the human person is protected by inalienable rights that must not under any circumstances be violated.
   
   This foundation should take on the functions to be indicated here. Some of them are tasks that remain to be done as we conclude our work, while others reflect needs that may arise in the future. We believe the foundation we propose should have the following functions and purposes.
   
   
   1. AID IN THE SEARCH FOR VICTIMS
      
      Article 1 of Supreme Decree No. 355, which created the National Commission on Truth and Reconciliation, stated that one of its purposes was to gather evidence that would make it possible to determine the fate or whereabouts of the victims, since there were so many instances of people who disappeared after arrest or whose remains have not been found even though their death has been registered. Despite the Commission's efforts, it proved impossible to achieve that objective, and the scope of the problem remains practically unchanged from what it was when the president issued the decree.
      
      We believe the state should not give up the task of trying to determine where the victims are, or of providing aid to families who are still searching. This was one of the most basic demands we encountered, and broad segments of any population share in that yearning. It will be very difficult to come to reconciliation and a shared common life in Chile as long as this problem remains unresolved.
      
      Hence one of the functions of the proposed foundation should be to keep searching. To that end it should be authorized to become a plaintiff in judicial investigations that may be carried out for that purpose, and it should have access to the initial summary investigation, and in general it should enjoy such faculties as may facilitate its work.
      
      
   2. GATHERING AND ASSESSMENT OF EVIDENCE
      
      Even as we finish our work we continue to receive items of evidence on human rights violations. Many of them have never been presented to the courts or to specialized agencies because the relatives live in remote parts of the country or because they have not overcome their fear. However, as the president will note when he examines this report, in a significant number of cases the Commission could not come to a conviction on whether the person whose death or disappearance was presented to us actually suffered a human rights violation. Hence work remains to be done, and there is a need for a government agency to continue that work so as to come to an assessment on the status of these persons after the presentation of the evidence not available thus far for lack of time. When a conviction is reached on those cases presented to the Commission, the relatives could have access to such reparation measures as the president may adopt.
      
      
   3. CENTRALIZATION OF THE INFORMATION GATHERED BY THE COMMISSION
      
      A third area is connected to the research that might be undertaken in the future by academics, university students, non-governmental organizations, Chilean and foreign scholars, or simply the general public interested in learning about or coming to a deeper understanding of matters related to human rights violations in Chile. There seems to be a need for an office to centralize the files and evidence on cases and to maintain a library devoted to this topic. People could have access to this office under conditions to be laid down by law. We believe that it would be reasonable for this task to be entrusted to such a foundation and that indeed such an office would enable the foundation to better carry out its other functions.
      
      
   4. ASSISTANCE FOR RELATIVES
      
      We also think it necessary that this foundation be a coordinating agency so as to make such measures of reparation as the president may adopt more efficient and prompt. Should the families so wish, it could centralize the bureaucratic procedures they might have to undertake in order to obtain those benefits. It would be preferable if the relatives of those who perished did not have to go around to numerous public offices to learn what they have to do and go through bureaucratic procedures in order to benefit from the reparation measures that might be approved. Instead they could go to a single office where they would be welcomed with dignity and respect and served efficiently.
      
      To that end such a foundation ought to be able to provide the relatives with the legal aid and social assistance they might need. It also ought to enable them to resolve the everyday needs and concerns they will certainly face in the future as well as make certain that the benefits that may be decided upon are actually disbursed.
      
      
   5. ELABORATION OF EDUCATIONAL PROPOSALS
      
      As was noted in the previous chapter, which dealt with "prevention," education policies must be formulated. Information and training on human rights must be presented through formal education as well as through non-formal and informal education. Given the moral authority of its board, such a foundation would be in a good position to propose programs and assure that they were carried out in coordination with the appropriate officials.
      
      
2. APPLYING SANCTIONS FOR CONCEALING INFORMATION ON ILLEGAL BURIALS AND COMPETENCE IN INVESTIGATING SUCH MATTERS
   
   As we have said, there is still no way to determine the whereabouts of almost all those who disappeared after arrest and of a large number of those who were executed and whose families did not receive their remains. Of course those involved in hiding the bodies know where they are, but our law has no provision obliging people to present such evidence to the courts.
   
   Only for reasons of conscience have some of those who have such information made it available, thus making it possible to locate the mortal remains of the victims and then turn them over to their families to receive a decent burial.
   
   Keeping in mind that this problem is a serious obstacle to Chilean reunification, we believe that hiding this kind of information should become criminal. It should be made a specifically defined crime so that those who do not provide it within a particular time period would be punished. In tandem with such legislation, the law should exempt from prosecution those who furnish such evidence. To provide incentives for their stepping forward, they should not be exposed to the risk of being punished.
   
   Such matters should always be handled in ordinary courts, at least until the bodies have been completely located, identified, and turned over to their families.
   
   

i)Public Law Foundation: Chilean Law No. 19.123 created the National Corporation for Reparation and Reconciliation, whose mandate it is to coordinate, execute, and promote the "actions necessary for complying with the recommendations contained in the Report of the National Commission on Truth and Reconciliation." The law was passed by the National Congress and signed by President Patricio Aylwin. It went into effect with its publication in the Diario Oficial on February 8, 1992.

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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 Three, 887-889.
Note: Digitized and posted by permission of the University of Notre Dame Press, February 22, 2000.