GENEVA – United Nations Special Rapporteur Maina Kiai has published a legal analysis warning that pending changes to Chile’s criminal procedure code – which liberalize police powers to stop, search and identify people – may violate international law.
Chile’s draft bill number 9985-07, which is currently being considered by lawmakers, proposes two significant changes to the country’s Procedural Penal Code (Código Procesal Penal).
The bill would introduce a new provision in the law, article 12, giving police the general power to stop and check the identity of any person, without any indication or suspicion of a crime. A person failing or refusing to produce proof of identity could then be brought to the nearest police station, where they would face up to four hours of detention while additional identification procedures take place.
The bill would also amend article 85 of the law to allow broader use of identity checks and searches in the context of a crime or suspected crime.
“These provisions raise two significant questions under international law,” Kiai writes in the analysis. “First, since identity controls affect the human rights of the people concerned, when may they be used and how will authorities guard against abuses? Second, do the detention periods of eight (in the context of a crime) or four hours (without any suspicion of a crime), conform to international law, standards and principles?”
During the Special Rapporteur’s country visit to Chile in September 2015, he received information that police allegedly used pre-emptive detention and identity controls against demonstrators traveling to attend assemblies, under existing provisions in article 85. This already chilled – and possibly violated – the exercise of the right to freedom peaceful assembly, among other rights, he said.
“The new provision under article 12 exacerbates this risk, as no justification whatsoever is needed to halt people and ask for their identity,” Kiai writes in the analysis. “This increases the chilling effect identity controls may have on the exercise of the rights to freedom of peaceful assembly and of association, in particular for groups most at risk such as students, indigenous peoples, trade unionists and migrants.”
He notes that a person’s failure to prove their identity immediately could give rise to a detention of four hours, which could overlap with the duration of the assembly.
He further finds “very high risks of disproportionate application of the law – again, all the more so in a context without crime suspicion – given the possible length of detention and the fact that other less intrusive measures are usually available, and can be just as effective in achieving the State’s goal of security.”
The UN expert recommends that Chile’s legislature vote against enacting the proposed article 12, arguing that the detention provisions are “contrary to the principle of legality.”
Kiai also expressed apprehension over amendments to article 85, which concern police stop and search powers. Although these powers must take place in the context of a crime, the provision does not require a clear suspicion of the offence. Rather, it allows police to stop and search individuals when they have “any indication” of a potential crime.
“The proposed changes further lower the standards instead of confining the powers of police officers,” Kiai writes. “Under article 85, even witnesses to misdemeanors may be stopped and searched.”
The broad discretion given authorities to stop and identify and/or stop and search “creates virtually insurmountable risks of discrimination,” he notes, concluding that the breadth of discretion conferred upon police officers does not comply with international law, standards and principles.