The Political Constitution of the Republic of Chile was established in 1980 during the Pinochet dictatorship, but has since been amended on several occasions. A major revision took place in 2005, during the democratic government of President Ricardo Lagos Escobar.
The Constitution recognises that the exercise of sovereignty is “limited by the respect of essential human rights that emanate from human nature”, and that the organs of the state are obligated to respect and promote those rights, “as guaranteed by the Constitution and by the international treaties that have been ratified by Chile and that are in force”.Art. 5, 1980 Constitution of Chile (as amended).The Constitutional Court has determined that this reinforces the principle of pacta sunt servanda with respect to international treaties, particularly those concerning human rights obligations.Constitutional Court, Judgment STC 2387.Article 19(1) of the Constitution recognises the right to life and to physical and psychological integrity of every person, expressly prohibiting the application of "illegitimate force" (apremio in Spanish). The Constitutional Court has recognised that torture is a clear example of such illegitimate force.
According to Article 19(13):
The right to assemble peacefully without prior permission and unarmed.
Meetings at squares, streets and other public places shall be governed by the general police regulations....
Law enforcement in Chile is primarily the responsibility of the Carabineros de Chile, which, along with the Policía de Investigaciones, are recognised under the Constitution as the Forces of Order and Public Security.Art. 101, 1980 Constitution of Chile (as amended).The same provision states that those institutions exist to “enforce the law, guarantee public order and internal public security, in the manner determined by their respective constitutional organic laws”, and that they fall under the ministry in charge of public security (currently, the Ministry of the Interior and Public Security).
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||Yes|
|CAT Optional Protocol 1||State Party|
|1998 Rome Statute of the International Criminal Court||State Party|
|1948 Charter of the Organization of American States||State Party|
|1969 Inter-American Convention on Human Rights||State Party|
|Competence of Inter-American Court on Human Rights||Yes|
Police Use of Force
A 1980 Law (18.961) is the Constitutional Organic Law of the Carabineros. This sets the framework for this form of military-style police force, but does not expressly regulate its use of force. This was initially effected in a 2013 Circular (No. 1756), issued by the Director General of the Carabineros. In March 2019, Circular No. 1832 was issued on the use of force, replacing the 2013 version. The 2019 Circular reiterates fundamental principles governing use of force in law enforcement: legality, necessity, proportionality, and accountability. A graduated continuum of force is also set out in the Circular.
In November 2018, Regulation 1364 established the framework for the use of potentially lethal force. The regulation provided that the police officers must “avoid the intentional use of lethal weapons, and must prefer using elements or adopting measures that are less damaging”. When it is necessary to use a firearm, the officer is obligated to clearly announce the intention to do so. The Regulation ordered the police to update their intervention protocols accordingly.
The 2019 Circular provides, with respect to firearms, that:
The firearm will only be used to stop a potentially lethal attack, that is to say, to stop an ongoing or imminent attack that affects life or seriously endangers the physical integrity of the police officer or a third party. In this way, the firearm should not be used as a show of force but only to neutralize a potentially aggressive attack lethal in the most immediate way possible.
The use of force during assemblies is regulated by a series of protocols annexed to the 2019 Circular. These protocols govern the use of chemical irritants, rubber bullets, and firearms during and in connection with assemblies. With respect to chemical irritants, warnings should be given before use wherever possible (such as through the use of loudspeakers). Tear gas will be used against protesters engaged in violence or serious breaches of public order. In the central area of cities, however, the use of hand-held tear gas devices and tear-gas cartridges is restricted to urgent situation once other means of dispersal have been tried and have failed. When they are used, special care must be taken especially in areas around hospitals, schools, kindergartens, and other similar institutions. When chemical irritants prove ineffective, it may be possible to use rubber bullets fired from shotguns.
Use of Force in Custodial Settings
A 1979 decree (Law No. 2859) is the Organic Law of the Gendarmería, which is responsible for safety and security in prisons. Article 13 of the 1979 decree stipulates that the officers will use weapons for the proper performance of their functions, in accordance with the law and regulations. Article 15 provides that officers must grant each person under their care a dignified treatment appropriate to their human condition, and that any humiliating treatment or abuse of authority will be duly sanctioned according to the laws and regulations in force.
1998 Decree No. 518, the Regulation of Penitentiary Establishments, demands respect for the Constitution and the law, along with the international treaties ratified by Chile.1998 Decree No. 518 on the Regulation of Penitentiary Establishments.Article 6 of the decree provides that no inmate may be subjected to torture or other cruel, inhuman or degrading treatment, either verbally or physically, or be subject to unnecessary harsheness in the application of the rules. Pursuant to Circular No. 52, the Gendarmería may use force when there is an imperative need to do so. Such use of force must be proportional.
The Carabineros and the Investigations Police of Chile both fall under the responsibility of the Ministry of the Interior and Public Security while the Gendarmería is under the Ministry of Justice and Human Rights. There is no Ombudsman's office in Chile with jurisdiction to hear alleged cases of excessive or indiscriminate police use of force.
Views and Concluding Observations of United Nations Treaty Bodies
In a report issued in late 2019, the Office of the High Commissioner for Human Rights (OHCHR) found that the actions of the police and the army had not adhered to international human rights norms and standards in their management of assemblies and with respect to the use of force during protests beginning in October. This included instances of apparent arbitrary deprivation of life by the security forces. On 19 November 2019, the Office of the Public Prosecutor of Chile indicated that there are 26 ongoing investigations related to “people who have died in the context of social protests”, from 18 October onwards. Information received by the OHCHR indicated that during a significant number of protests, the police used non-lethal force when the demonstration was peaceful, with the apparent aim of dispersing the demonstration or preventing participants from arriving at the assembly point. The OHCHR also observed that there was unnecessary and disproportionate use of less-lethal weapons, in particular anti-riot shotguns, during peaceful demonstrations.
In its 2018 Concluding Observations on Chile, the Committee against Torture expressed its concern
by the many cases of police brutality and excessive use of force by the security forces against demonstrators during the reporting period. It is also concerned about consistent reports of ill-treatment against detained demonstrators, of police brutality against members of the Mapuche people in the context of evictions and raids in their communities and of acts of sexual violence by the police against women and girls during student protests. According to data provided by the State party in its report, between 2010 and mid-2015, 732 alleged cases of excessive use of force by Carabineros (police) were investigated, of which 392 were referred to the courts and 137 led to disciplinary sanctions.
The Committee regretted that it had not received
information on the number of trials, the sentences or the criminal and/or disciplinary sanctions imposed in cases of excessive use of force during the reporting period. The Committee is further concerned that complaints of police brutality continue to be referred for preliminary investigation to units that are part of the same institution as the alleged perpetrators.
The Committee's concern as to sexual violence by the police against women and girls was also addressed by the CEDAW Committee in its 2018 Concluding Observations on Chile. The Committee on the Ellimination of Discrimination against Women recommended that the government:
Ensure that all forms of gender-based violence against Mapuche women committed, or resulting from actions or omissions, by State agents at all levels, including the police, are duly and systematically investigated, perpetrators effectively prosecuted and punished with adequate sentences and disciplinary measures and victims provided with reparation or compensation.
With respect to children, the Committee on the Rights of the Child's 2015 Concluding Observations on Chile noted the Committee's concern as to the “reticence of the police and the Prosecutor’s Office to promptly and thoroughly investigate and prosecute all cases of torture, cruel or degrading treatment against children that have been perpetrated by police officers.” The Committee recommended that Chile develop and monitor the implementation of police protocols and procedures on dealing with public protests that are compliant with human rights standards and the Convention in particular; and that it promptly investigate and prosecute all cases of violence against indigenous children perpetrated by police officers.
There are no relevant cases before the Inter-American Court of Human Rights that have dealt with violations by Chile of the right to life and freedom from torture as a result of the acts of its law enforcement agencies.
Despite the failure to provide the Committee against Torture with details of prosecutions for unlawful use of police force, it appears that many have occurred during recent years. While not per se legally binding the protocols and circulars adopted by the police are frequently used as the standard to adjudge their use of force. For instance, in a decision of 12 March 2015, the Court of Appeals of Valdivia (Case No. 14/2015) accepted a request of habeas corpus in a case concerning excessive use of force against an indigenous population. In its decision, the Court explicitly said that the proceeding of Carabineros “was not proportional, and the use of dissuasive tools was outside its own institutional protocols”. It referred to a specific breach of one of the protocols, which served to qualify the conduct of Carabineros as “illegal and arbitrary”.