Karinna Fernandez (University of Essex) and Dr Par Engstrom (University College, London)
In Chile, torture constitutes one of the methods the state has used to address and manage political and social conflicts, especially when they involve challenges to the institutional order. As has been amply documented, during Chile’s military regime (1973-1990), severe torture practices were routinely and systematically used against regime opponents. Although the transition to democracy led to a notable decline in the incidence of torture, at the beginning of the democratic period, reports of torture were numerous, serious and frequent especially as torture was used against members of subversive groups, and to extract confessions from political prisoners. With the consolidation of Chile’s political democracy, the country experienced a reduction in torture complaints from prisons, but a continuation in the use of violence by the state in the Mapuche conflict in southern Chile, and in the repressive response of the police to social protest.
Torture prevention has never constituted a concerted policy of the Chilean state. Authorities have not prioritised the prosecution and punishment of torture practices. As a result, the Chilean criminal justice system notably lacks an adequate criminal category for torture offences. Allegations and investigations of torture incidents are classified as crimes such as torment, illegitimate punishment, mistreatment or unnecessary violence.
Nonetheless, reforms to the justice system over the last decade have had a significant impact on the legal protection afforded to detained individuals in particular. The various legal changes implemented by democratic governments (“Cumplido” Laws, Laws on the Rights of Detainees, Criminal Procedures Reform, among others) have improved legal guarantees of prisoners’ rights, especially with respect to the permitted period of detention in police centres before being brought before a judge (24 hours), though important restrictions on detainee rights persist through the Law on Drugs and the Anti-Terrorism Law. The existence of a reformed criminal justice system in Chile, which has since 2000 been characterised by its guarantees-based, oral nature, and which gave rise to new actors – prosecutors, public defenders and procedural guarantees judges – stands in stark contrast with a parallel system of military justice which is written and inquisitorial in nature. The military justice system retains the authority to investigate crimes committed by the armed forces and Carabineros against civilians.
Chile lacks adequate and autonomous mechanisms for torture reporting, as well as for monitoring detention centres and prisons. While the creation of the National Institute of Human Rights (NIHR) in 2010 has helped with the reporting and prosecution of torture incidents (and has even engaged in human rights training for police and Gendarmeries), this new institution does not fulfil the requirements set out in the Optional Protocol of the Convention against Torture regarding a National Preventive Mechanism for torture.
As a consequence of the inherent limitations of these reform processes, evidence strongly indicates that certain groups in Chilean society remain highly vulnerable to torture by state agents. This is the case for imprisoned and detained individuals, for members of some indigenous Mapuche communities involved in land conflicts, and for those who engage in social protests and who are confronted with violent police responses.
