SANTIAGO DE CHILE – I would like to thank the Government of the Republic of Chile for inviting me to undertake this official mission here, my first to the Americas. I view this as a positive sign of the Government’s willingness to engage in a constructive dialogue on the rights to freedom of peaceful assembly and of association, among other human rights. I am the fourth UN Special Rapporteur to visit Chile since July 2013, which I believe is an indication that the Government is serious about meeting its obligations under international human rights law.
I would also like to thank the Government for its exemplary cooperation in organizing the mission, particularly in light of the earthquake that struck Chile on 16 September. The resulting emergency situation could have led to the cancellation of this mission, but the Government pushed forward.
I have had fruitful exchanges with the members of the executive, legislative and judicial branches in Santiago, Valparaiso, Temuco and Copiapo. I also benefitted immensely from the assistance of Chile’s excellent national human rights institution, the National Institute for Human Rights (Instituto Nacional de Derechos Humanos – INDH). I am grateful for everyone’s tenacity in making sure this mission went through as scheduled.
In addition, I met with brave human rights activists, including members of civil society organizations, Mapuche leaders, student leaders, and members of trade unions who are engaged in critically important work to strengthen democracy and human rights in Chile. Their work and courage has contributed significantly to the progress that Chile has made to date. I also met with farmers and truck owners in Temuco.
Chile has made enormous strides since its return to democracy 25 years ago. It epitomizes the “Democracy Dividend:” The benefits and progress that can accrue when a country turns from dictatorship. Poverty has been drastically reduced, the economy diversified, and the country has found firm footing among the more developed countries in the world.
Most importantly, the country has made great progress in areas of democracy and human rights. The brutal atrocities of the dictatorship era are in the rearview mirror. Political change now happens peacefully, regularly and democratically. And human rights hold an important place on the Government’s agenda – evidenced, for example, by the fact that Chile co-sponsored the Human Rights Council resolution establishing my mandate in 2010 (and the subsequent ones), as well as the resolution on civil society space.
But it is not all perfect. From my meetings with Government and civil society, it is clear that the country faces deep and significant social challenges. There is the Mapuche land issue, a complex, emotional topic that stretches back more than 200 years; there are labor and union issues, with workers grappling over outsourcing issues and a changing economic environment; and there are the educational reform issues, symbolized by the student protest movement.
It is not my role in this mandate to pass judgment on the issues that underlie these conflicts, or on the merits of those on either side of the arguments. Rather, my mandate deals with assessing how Chile is doing in giving people the tools to address these conflicts peacefully and legitimately: namely, the rights to freedom of peaceful assembly and of association.
These rights are not, of course, the only tools to address social conflict, but I believe they are among the best we have. They allow underrepresented groups, such as the youth, the poor and indigenous peoples, to amplify their voice; they give dispossessed people a channel for engagement and a stake in society; and above all they allow us to thrash out our disagreements in a peaceful—even if messy—manner.
In the big picture, assembly and association rights are relatively healthy in Chile. However, there are areas for improvement, and it is important for Chile to address these – both for the consolidation of its own democracy, and in order to take its rightful place as a global leader in human rights.
Clearly, Chile’s most significant challenge is the fact that some vestiges of dictatorship remain, despite its advances over the past 25 years. The transition was not a clean break, but rather a gradual one, leaving remnants of yesteryear that have no place in the Chile of today. A central feature of the dictatorship era was the severe restriction of rights emanating from the securitization of the State. By contrast, a democratic dispensation elevates and preserves rights, making limitations the exceptions.
The ghost of this era looms particularly large over the security sector, chiefly the police—and specifically the Special Forces— and their function in policing social conflicts and assemblies. During my visit, I heard repeated examples of this – in multiple and varied contexts – relating to excessive use of force, the failure to weed out violent elements at gatherings while cracking down more brutally on peaceful protesters, the harassment of activists, impunity following these abuses, and more.
This situation represents a significant obstacle to the free exercise of assembly and association rights, and weakens their effectiveness as a tool to peacefully address social conflict, precisely at the moment that Chile needs them most. I understand that these rights can be messy and disruptive sometimes: protests can be inconvenient and rowdy. But they are better than the alternative, which is violence.
With this overview, I would like to address a few specific areas of concern.
Freedom of peaceful assembly
First, Chile’s legal framework governing the exercise of the right to freedom of peaceful assembly needs to be brought into full compliance with international human rights law. While the Chilean Constitution recognizes this right, its exercise is unduly restricted by Supreme Decree 1086 (1983), which allows local officials to prevent or dissolve assemblies that have not been previously authorized by authorities, and to deny permission for assemblies deemed to disrupt public transit, among other things. The fact that assemblies have been routinely authorized in the last few years does not prevent the use of this decree in later years.
Best practice dictates that States may, at most, require prior notification for peaceful assemblies, not authorization. Assemblies, by their nature, can cause a certain degree of disruption. The purpose of notification is to allow authorities to facilitate the exercise of the right to peaceful assembly, and to take measures to protect protesters, public safety, order and the rights and freedoms of others.
Requiring authorization turns the right to freedom of peaceful assembly into a privilege. Such a system is not compatible with international law and best practices; nor is it compatible with Chile’s own constitution.
Supreme Decree 1086 is a remnant of Chile’s past that has no place in the Chile of today, and I urge the authorities to repeal it as soon as possible.
Chile’s police protocols on the management of protests, which were only recently made public, contain some positive principles that seek to enable protests. But they should be improved. For instance, the protocols deem a protest violent if the instructions of the police are contravened. In addition, the protocols state that it is advisable to hold organizers accountable for acts committed by participants. Moreover, there seems to be a lack of practical guidance as to how to implement and monitor the implementation of these protocols.
Indeed my biggest concern during this visit relates to the practical management of protests, especially the role of the Special Forces. I make a distinction between ordinary police officers, who reportedly fulfill their functions adequately and who enjoy respect among the population, and the Special Forces who regularly use excessive force when managing protests.
Police brutality has occurred in the context of street protests by students demanding education reform, culminating in 2011. The Special Forces used rubber bullets, paintball guns, tear gas and water cannons, sometimes with dramatic consequences. In 2013, Enrique Eichin, while on his way home after taking part in a protest for better education in Santiago, was hit by a rubber bullet fired by a police officer, causing him to lose sight in his right eye. In May 2015, Rodrigo Avilez, who was participating in a student protest in Valparaiso, was knocked out for two months due to the inappropriate use of a water cannon.
The police have justified the dispersal of protests and the recourse to force by pointing to the presence of disruptive individuals in the margins of such protests. Let me be clear: the police have the duty to distinguish between peaceful demonstrators and agents provocateurs. The presence of a few people engaging in violence in and around a protest does not authorize police to brand the entire protest violent. It does not give the State carte blanche to use force against or arrest everyone indiscriminately.
Rather, the violent elements should be extracted from the protest and dealt with in accordance with the rule of law. In fact, the persistent failure in dealing with these few violent people raises questions about the reasons for inaction by the police as these violent protesters mar the image and effectiveness of public protests.
Extracting these violent few requires skill, training, and dedication on the part of the police. But after meeting with authorities around the country, I am confident that Chile’s police forces can handle this situation.
The police have also resorted over the years to excessive use of force in the context of protests by Mapuche who have called for the respect of their rights, especially land rights. Recently, the premises of the National Corporation for Indigenous Peoples’ Development (CONADI) in Temuco were peacefully occupied for several weeks by some members of a Mapuche community, including women and children. The Special Forces’ operation to clear the occupation was reportedly excessive and in complete disregard of the fact that there were children in the premises. They also breached the court order that required the presence of INDH in any action to evacuate the premises.
I am particularly disturbed by the killing in July 2015 in El Salvador of Nelson Quichillao, a contract copper mine worker who was shot dead by Special Forces who used live ammunition during a protest calling for better pay and benefits. Authorities claim that the protest was not entirely peaceful. However, the police response raises serious questions regarding proportionality of response. Individuals retain at all times their rights to life and physical integrity, even if they become violent during protests, and it is the State’s duty to safeguard these rights.
An investigation has been opened into the case, which I welcome, and I trust that it will be conducted in an impartial, transparent and thorough manner with a view to shedding full light on this tragedy, as the best way to ease the tensions among the copper workers community.
I was also alerted to a number of cases involving allegations of sexual harassment against female student and Mapuche demonstrators detained during protests. I find these claims deeply troubling. I note the authorities’ response to these claims by allowing the INDH to monitor detention facilities. I look forward to a similar positive response in holding the perpetrators accountable.
Taken together, I believe the issues highlighted indicate an urgent need for police to change their mindset in the context of assemblies and protests. Under international law, this role is clear: they are there first to facilitate and protect peaceful assemblies and protests.
I am pleased to let you know that in March 2016, I will present, together with my colleague Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions, a compilation of practical recommendations for the proper management of assemblies. A number of these recommendations will be of particular relevance to the situation in Chile, and I will share this compilation with the Director-General of the police and other authorities once it is available. I will also share it with civil society actors, including with INDH, student leaders, Mapuche leaders and trade union leaders.
I am also concerned by the use of preventive checks of demonstrators’ identification by the police. That is, stopping individuals at random – without specific evidence that they have committed or are about to commit a crime – asking for identification, and detaining them if identification cannot be produced. While authorities told me that such controls are not performed in the context of protests, I received testimonies that such controls have indeed taken place. I view the use of such identity checks as a type of profiling or surveillance that has the potential to chill the exercise of the right to freedom of peaceful assembly.
More worryingly, a bill enabling a wider use of preventive identity controls has been prepared and endorsed by the Chamber of Deputies. Authorities say that this law is necessary to stem a recent increase in criminal activity in Chile, but it is highly disturbing in two respects.
First, giving law enforcement enhanced power and discretion will create opportunities for repression and abuse of authority, with little or no checks and balances. Second, I am not convinced that the law will be effective in combatting crime. In fact, it may do the opposite: allowing police to randomly detain anyone they choose without any evidence or identifiable suspicion is a shortcut that fosters lazy, counterproductive policing. Effective police forces can do their jobs without interfering with fundamental rights. I am confident that Chile’s police force is effective, and that it does not need – and will not benefit from – such shortcuts.
I therefore welcome the recent report by the Supreme Court, which stated that the preventive identity checks, as envisaged in the Bill on combatting crime, is “difficult to accept in a democratic State”.
I am disturbed by the fact that human rights violations committed by law enforcement authorities can sometimes fall under military justice jurisdiction. This is highly problematic as military courts do not offer sufficient guarantees of independence and impartiality in such cases. Consider the following statistics from the INDH: between 1990 and 2011, 40,000 cases of police abuses were reported, but perpetrators were sanctioned in only 1.5% of these cases. This system – and the impunity it fosters – is among the most visible parts of the legacy of dictatorship.
I welcome the decision of the Supreme Court last February in the Eichin case, which ruled that proceedings involving the police should be conducted by a civilian court, following a similar decision by the Constitutional Court.
This is laudable, but a comprehensive reform of the military justice code to ensure that military courts no longer have jurisdiction in cases of violations committed by security forces is of utmost urgency. This move is long overdue, for it has been 10 years since the Inter-American Court for Human Rights, in the Palamara case, ordered Chile to limit penal military jurisdiction to matters of military nature only. The United Nations Human Rights Committee expressed a similar position last year.
I am pleased to learn that the Ministries of Defense, Justice, and Interior are currently working on a bill to rectify this situation and return the police forces to full civilian oversight in all ways, as happens in democratic societies. This would be a landmark achievement and a further nail in the coffin of the dictatorship.
Freedom of association
I am encouraged to note that the right to freedom of association is generally respected in Chile and I commend the State for the efforts made to ensure that individuals can organize themselves in order to achieve common purposes.
However, while registration of associations appears to be uncomplicated for the purpose of obtaining legal personality, there appears to be very few opportunities to obtain funding. I would encourage the Government of Chile to enhance its support and resources to the civil society sector and especially the critical accountability organizations.
The right to freedom of association is a necessary component through which individuals and communities participate in decisions that affect them. The Indigenous Peoples Act of 1993 favors forms of association for reclaiming of land that erode traditional structures or organizations of indigenous peoples.
The Government is currently engaged in labor reform through a bill that will address some pressing issues including guaranteeing the right to strike, and narrowing the limitations imposed on the right to those carrying out ‘minimum services’.
However, this bill does not address the right of public sector workers to form trade unions which is contrary to international law and standards. Moreover, it would broaden the category of workers prohibited from striking, banning such action by those performing “minimum services”. International standards state that only workers providing “essential services” may face restrictions of their right to strike.
It is also imperative that the Government ensures that all employers cease anti-union activities such as targeting and firing workers for exercising their right to strike, which demeans the right. I urge the Government to continue taking measures to bring its legislation into full compliance with ILO Conventions 87 and 98 as urged by ILO’s Committee on Experts on the Application of Conventions and Recommendations.
It is clear to me that the government values the contributions of the private sector to the economy and policy. But it is not so obvious that it values civil society associations, including trade unions, in a similar manner. In line with my report to be presented to the UN General Assembly in October this year, I urge the government to facilitate an enabling environment for civil society similar to that accorded to businesses, for example by considering their views and opinions in public policy of all sorts, as it does with businesses, academia and experts.
In conclusion, I would like to reiterate that Chile has made remarkable progress in the past 25 years. My observations and recommendations today are made with this fact in mind, and also with the knowledge that Chile has the capacity, political will and maturity to continue see this transition through.
I will present my full report to the Human Rights Council in June 2016.
This statement is also available in Spanish.
More on the Special Rapporteur’s visit to Chile: