Officials from JSCA, DPLF and Universidad de Chile’s Center for Human Rights and Legal Defense Institute will present the first of three reports on Friday, December 18 at 11 a.m. Santiago time.
This Friday, December 18, the Justice Studies Center of the Americas (JSCA) -an international entity headquartered in Santiago de Chile that is part of the Organization of American States (OAS)- will present the results of a research project on the Chilean justice system’s response to the human rights violations that took place during the social protests that began on October 18, 2019. The project was led by JSCA with the support of the Due Process of Law Foundation (DPLF) and Universidad de Chile’s Center for Human Rights and Legal Defense Institute.
The report will be presented at 11 a.m. local time by JSCA Executive Director Jaime Arellano, Due Process of Law Foundation Executive Director Katya Salazar; the Assistant Director of the Center for Human Rights at Universidad de Chile, Felipe Abbott; and JSCA Research and Projects Director Marco Fandiño.
The research was conducted over the course of six months and included studies of key cases, requests for statistical information from justice system institutions, interviews with judicial system operators and members of civil society and interviews and validation workshops with experts in the field.
The study covers three main areas. The first -which will be presented on Friday, December 18- evaluates the Chilean criminal justice system’s capacity to investigate the serious human rights violations that took place in the country in the context of the 2019 social protests based on international standards in this area.
The other two areas will be the subject of reports to be published in the coming year on the judicialization of cases derived from the social protests and judicial oversight of the use of force.
The first report
The analysis presented in the first part of the project is focused on the investigation of human rights violations 14 months after they began. Most of the study is centered on the Public Prosecutor’s Office as the agency responsible for criminal prosecution and auxiliary services such as the Chilean police, the investigative police and the Forensic Medical Service. The second report, which will be published in 2021, presents analyses related to the Executive Branch and the Judiciary.
Some of the main findings of the report to be presented on December 18 are outlined below:
In general, the report finds that there was an overall failure to follow the principles of officiousness, timeliness and exhaustiveness during investigations of serious human rights violations.
The failure to follow the principle of officiousness is evident, as it has been determined that only 178 of the 8,827 investigations in the area were initiated ex officio by the Public Prosecutor’s Office. The factors that have been key to ensuring that the Public Prosecutor’s Office will begin an investigation ex officio have included media pressure or pressure exerted by citizens on social media. Despite this, some best practices have been identified, such as the creation of extraordinary measures for receiving victims’ complaints and dialogue with civil society organizations through the Public Prosecutor’s Office Human Rights Unit.
Failure to observe the principle of timeliness is related to various elements. These can include failure to meet the duty to open an investigation immediately, taking special care to preserve the crime scene; failure to carry out the investigation within a reasonable timeframe (after 14 months, defendants have been processed in less than 1% of the cases); and failure to conduct the investigation in a proactive manner given that the cases in which the most progress has been made involve efforts made by the victims and complainants.
An analysis of various aspects revealed a failure to observe the principle of exhaustiveness. The Public Prosecutor’s Office played a weak role in efforts to ensure adequate collection of evidence from the crime scene. There was also a failure to analyze the context in which the violations occurred in order to identify systemic issues and patterns. There were difficulties ensuring the veracity of documentary evidence and the speed with which testimonial evidence was obtained and a failure to ensure that the investigation focuses on punishing those responsible. To date, the cases have centered nearly exclusively on the actual perpetrators, mainly lower ranking police officers.
One of the most critical elements of the operation of the criminal justice system is the role that the police have played. The great majority of the agents being investigated for serious human rights violations are members of this institution (92.8% of all of the complaints recorded by the Public Prosecutor’s Office). There have been delays with the provision of information requested by the Public Prosecutor’s Office, obstructions of investigations, and undue use of disciplinary proceedings with the purpose of delaying the process or intimidating witnesses, which undermines the effectiveness of the investigations directed by the Public Prosecutor’s Office.
A significant number of the problems identified in the research on serious human rights violations are related to the regulatory and institutional design of the Chilean Public Prosecutor’s Office. In contrast to the majority of Latin American countries, Chile does not have a prosecutor’s office that specializes in investigating serious human rights violations. Furthermore, there is no evidence that the entity’s prosecution policy has focused on human rights violations given that it has not assigned a significant number of resources to these cases and has not set performance indicators for them.
However, the report offers positive feedback on the openness and dialogue sustained between the National Public Prosecutor’s Office Special Unit on Human Rights, Gender Violence and Sex Crimes and social organizations.
On the other hand, the Forensic Medical Service, which is responsible for collecting forensic evidence in this type of case, presents serious problems related to institutional weakness, and its autonomy from the Executive Branch is not adequately protected.
In view of the generalized failure to meet international standards regarding the investigation of serious human rights violations, JSCA, the DPLF and Universidad de Chile’s Human Rights Center and Legal Defense Institute recommend, among other measures:
- The creation of an Interdisciplinary Group of Independent Experts (IGIE) by the Inter-American Court of Human Rights (IACHR) to support the investigation and criminal prosecution of human rights violations.
- The creation of a Specialized Human Rights Prosecutor’s Office with nationwide jurisdiction over crimes related to human rights violations. This must be conducted in the context of a broader restructuring of the Public Prosecutor’s Office.
- Acceleration of the reform or overhaul of the Chilean police and an urgent civil intervention in the institution designed to ensure that human rights violations will not occur again in the future.
- That the National Criminal Justice System Coordination Commission pay special attention to the streamlining of investigations and obstruction of investigations by the police so as to avoid impunity in cases of serious human rights violations.
- The implementation of a Comprehensive Reparations Program that serves all victims of human rights violations that occurred under democracy. This must be urgently addressed and must guarantee the right to comprehensive and effective reparations.