In February 1991, the Chilean National Commission for Truth and Reconciliation released a report detailing human rights abuses resulting in deaths and disappearances during the years of military rule. According to the report, 2,296 people were murdered during the 17-year period. Subsequent estimates have put the number of missing as high as 3,400. Addressing the issue of the missing has been recognized as a key element in the process of social reconciliation following the return to democracy.
Chile has made significant progress in addressing past human rights abuses through several truth commissions, legal reforms, and bringing to justice those responsible for crimes committed.
International legal instruments
Chile has gone some way to develop a legal framework for addressing the MDP issue at the international level. Notably, Chile is a state party to the major international human rights instruments including ICCPR, CESCR, the Convention and also regional instruments, i.e. ACHR and the Inter-American Convention on Forced Disappearance of Persons. It also became a party to the Rome Statute in 2009. Chile became a signatory party to the Agreement on the Status and Functions of the International Commission on Missing Persons in 2015.
The current Constitution dates from 1980 during the Pinochet regime but it has been amended several times since Chile’s transition to democracy in 1990. It provides for human rights guarantees (Art. 19) including the right to life and physical and psychological integrity of the person, prohibition of ill-treatment, equality before the law, equal protection of the law, respect and protection of private life and family and prohibition of arbitral deprivation of liberty.
It also provides for the Public Ministry (the prosecution) as an autonomous organ to direct criminal investigations and to adopt measures for the protection of victims and witnesses.
In December 2000, Chile’s new CPC came into effect replacing the previous secretive inquisitional system with an adversarial one. The reform included the establishment of the Office of the Public Prosecutor (OPP) and the Office of the Criminal Public Defender among others. In addition, victims now have the right to file criminal complaints and to compel the OPP to conduct investigations, as well as to move a case to the trial phase even in the absence of the OPP.
One of the most important developments in the human rights field during the administration of Sebastian Pinera was the abolition of jurisdiction by military courts over civilians. It has been emphasized that military courts lack the necessary independence and impartiality to deal with human rights violations. Thus, Act No. 20.477 of 2010 amended the jurisdiction of military courts so that they no longer have jurisdiction over civilians. With military jurisdiction over civilians ended, any investigations of enforced disappearance are carried out by the OPP and trials previously held in military courts are deferred to civilian courts.
Article 6 of Act No 20.357 on crimes against humanity and genocide and war crimes classifies and punishes the offence of enforced disappearance of persons as part of a “widespread or systematic attack against any civilian population.” Therefore, enforced disappearance is not a criminal offence in Chile outside this context of crimes against humanity.
Several legal measures were adopted establishing different truth commissions at different times. In 1990, the National Commission on Truth and Reconciliation (also known as the “Rettig Commission”) was created. The mandate of the Retting Commission was to investigate the situation of persons who had disappeared or had been executed during the military dictatorship. The Commission concluded its work in February 1991.
Act No. 19.123 of 1992 established the National Reparation and Reconciliation Board, with a view to coordinating and implementing reparation measures proposed by the Rettig Commission, and recognizing the status of victims of human rights violations whose cases the Rettig Commission was unable to consider due to lack of evidence or because background information was not submitted. This Act also established benefits for relatives of victims recognized by the Rettig Commission and the National Reparation and Reconciliation Board. Among the benefits, the Act provides for a reparation pension for the immediate family which guarantees a minimum equal level for all victims, compensation payment for the immediate family, study grants for children, access to compensation and Comprehensive Health-Care and Human Rights Program. The Program also includes support for relatives concerning identification and return of remains of the victim, as well as the cost of the funeral ceremony.
In 1999, the Forum for Dialogue was established to involve the Armed Forces in the national dialogue on human rights violations under the military dictatorship, and to compile information on the fate of disappeared persons.
In August 2003, the National Commission on Political Prisoners and Torture (the “Valech Commission”) was established. Under its mandate the Commission took testimonies, compiled information and established a list of surviving victims who had been deprived of their liberty and tortured for political reasons – situations that were not covered individually by the Rettig Commission.
Subsequently, Act No. 20.405 of 10 December 2009 created the National Human Rights Institute and, under a transitional article, the Advisory Commission on the Classification of Disappeared Detainees, Victims of Political Executions and Victims of Political Imprisonment and Torture, known as “Valech II Commission”. The mandate of this Commission was to receive new information about possible cases of enforced disappearance, political execution, political imprisonment or torture that had not been recognized by the previous Commissions. The relatives of the victims recognized by the Valech II Commission have the same rights as those recognized under the Retting Commission and the National Reparation and Reconciliation Board.
On 15 May 2006, the Presidential Advisory Commission on Human Rights was established to improve the pace and efficiency of work on resolving missing persons cases from the 1973-90 period. The Commission formed a panel of experts to establish the basis for a system of locating and identifying the mortal remains of missing persons that would meet the standards expected by relatives, the scientific community and citizens as a whole.
In these efforts, the Forensic Medical Service, which operates under the Ministry of Justice, plays an essential role in identifying the missing and determining the possible cause of death. The Service receives technical support in the analysis of human remains from foreign institutions such as ICMP, which also participates in the Presidential Commission.
In June 2008, ICMP’s participation in the panel resulted in the signing of an agreement with the Government of Chile to provide technical assistance in identifying victims of enforced disappearance from the 1970s. The agreement with the Servicio Médico Legal was renewed in 2010 and again in 2013.
ICMP has assisted with DNA testing of 2,432 reference samples and 194 post-morten samples from missing persons, and has provided extensive assistance with DNA matching and consultation.
Other regulations and measures
Chile has established a national database containing DNA samples of relatives of victims recognized by the different Commissions to ensure that any newly discovered human remains can be correctly and rapidly identified. The database on disappeared persons is established as part of the Chilean System of National DNA Databases (Sistema Nacional de Registros de AND, “SNDD”) which is divided into five different databases, each containing genetic profiles from a different source. It also includes genetic profiles volunteered by persons who believe themselves to be related to the “disappeared.” These profiles are kept until they are identified.
The Chilean authorities maintain an outreach campaign for families of the disappeared, inviting relatives to provide blood samples for DNA identification. More details can be accessed (in Spanish) here.