Committee against Torture

Concluding observations on the sixth periodic report of Chile

Addendum

Information received from Chile on follow-up to the concluding observations *

[Date received: 14 August 2019]

Introduction

1.This report sets out the follow-up actions taken by Chile in compliance with the recommendations made by the Committee Against Torture in August 2019 as part of the constructive dialogue relating to the country’s sixth periodic report. These actions relate to the establishment or designation of a national torture prevention mechanism; deaths of minors [sic] and allegations of torture, ill-treatment and sexual abuse in residential centres managed by the National Service for Minors network; and ill-treatment of persons with disabilities and older persons. If the Committee deems it appropriate, the State of Chile is willing to provide more information about any matter addressed in the present report.

Follow-up information relating to paragraph 17 of the concluding observations (CAT/C/CHL/CO/6)

2.In accordance with the commitment made by Chile in 2008 when it ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, a bill designating the national human rights institution as the national mechanism for the prevention of torture and other cruel, inhuman or degrading treatment was passed with broad parliamentary support on 8 January 2019 and published in the Official Gazette on 25 April 2019 as Act No. 21.154.

3.From an organizational standpoint, the mechanism will consist of seven experts, who will make up the Committee on the Prevention of Torture, and support staff to assist the Committee in its work. This new institutional structure will be established gradually, under the direction of the national human rights institution.

4.As a first step, the Act will enter into force on 25 October 2019, six months after its publication in the Official Gazette, thus triggering the actual implementation process, which will begin with the appointment of the Committee experts.

5.Then, the first four experts will be appointed within six months of the entry into force of the Act, i.e. by 25 April 2020. Subsequently, within nine months of the entry into force of the Act, i.e. by 25 July 2020, the national human rights institution must modify its statutes and regulations so that a distinction is made between its functions and those of the national mechanism for the prevention of torture. Lastly, within 18 months of the entry into force of the Act, i.e. by 25 April 2021, another three experts will be appointed.

6.The Act provides for regulations to ensure that the funds allocated to the two bodies are clearly differentiated. During the first year, the budget allocated to the national human rights institution by the Budget Directorate will be adjusted so as to specify separately the amounts assigned to the national mechanism for the prevention of torture and those assigned to the national human rights institution. In subsequent years, the budget will be assigned in accordance with the general rules.

7.Act No. 21.154 contains provisions to safeguard the mechanism’s functional autonomy, impartiality and independence, in accordance with the Optional Protocol. Article 3 of the Act defines the remit of the Committee, which is different from that of the national human rights institution and is exercised separately. In accordance with articles 18 and 21 of the Optional Protocol, Act No. 21.154 guarantees independence, impartiality and functional autonomy in the following areas:

•Internal organization: the Committee will determine its internal organization in accordance with the provisions of the Act and the regulations it adopts to that end, in terms of both its operations and the delegation of functions and powers. The Committee will be responsible for recruiting its own staff, who may not perform duties that are specific to the national human rights institution.

•Prohibitions on the authorities of places of deprivation of liberty: no authority or official of a place of deprivation of liberty may prevent a visit by the Committee. In exceptional, compelling and urgent situations, it will be for the Committee’s experts to decide whether or not to go ahead with a visit.

•Prohibition of reprisals: no authority or official of a place of detention may order, apply, permit or tolerate reprisals against the experts in connection with the performance of their duties or against any person for having provided the members of the Committee with information on torture.

•Confidentiality: to protect the Committee in the exercise of its mandate, the information gathered during its visits and interviews will be confidential, including with respect to the national human rights institution.

•Exceptions to reporting: to safeguard the objectives of the Committee, experts and support staff will not be required to report serious or ordinary offences brought to their attention in the performance of their functions during preventive visits, unless such offences pose a vital threat to persons deprived of their liberty or concern cases of torture, in which case they must report the offences to the Public Prosecution Service.

•The duty of other bodies to cooperate: the relevant authorities must engage in dialogue with the Committee on measures to improve the treatment and conditions of persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment.

•Selection of experts: experts are to be appointed by open competition, with special attention being given to gender balance, a multidisciplinary approach and representation of the country’s indigenous peoples and ethnic and minority groups.

•Termination of office: strict legal provisions govern the valid grounds for the termination of the office of experts, which are resignation, unfitness or incompatibility, and removal.

•Ineligibility and disqualification: to ensure the Committee’s transparency and independence, persons who have held certain posts as authorities or officials in the previous two years are barred from appointment to the Committee. Membership of the Committee is also incompatible with any other professional, commercial or employment activity, except teaching.

Follow-up information relating to paragraph 37 (a) of the concluding observations (CAT/C/CHL/CO/6)

8.With regard to inter-agency policies, and in order to coordinate the State’s response to deaths occurring under its control, custody or care, an inter-agency agreement was signed in May 2019 making the intersectoral early warning protocol for deaths of persons placed under the control, custody or care of the State legally binding. Under the protocol, psychiatric hospital services, Carabineros (police), the investigative police, the national prison service, the forensic medicine service and the National Service for Minors are required to report all deaths, whether certified by a physician or not.

9.In addition, the Public Prosecution Service is required to investigate deaths to establish the facts surrounding the death, including whether it was caused deliberately or as a result of negligence by persons responsible for the control, care or custody of the deceased.

10.The first step towards reducing the number of deaths occurring in the custody of the State is to ensure that such deaths are reported and investigated promptly, with a unified national register being used to keep a record of their number.

11.In its official communication on institutional violence, the Public Prosecution Service has included a section on its investigative duties in respect of deaths of persons under the control, custody or care of the State. It has also produced informational material for distribution.

12.The Attorney General passed a resolution designating the regional prosecutor of Los Lagos to lead criminal investigations into the circumstances surrounding the deaths of children and adolescents at centres run by the National Service for Minors and partner agencies, provide protection for victims and witnesses and bring criminal proceedings, if appropriate. The National Service for Minors was therefore required to provide information on the number of deaths between January 2005 and June 2016. It reported that there had been 245 deaths of children and adolescents in residential homes or centres for young offenders run directly by the Service or an accredited partner agency. In total, 1,313 persons died in all the Service’s areas of activity over the same period of time, of whom 866 were children or adolescents (see table).

13.Regarding the deaths reported by National Service for Minors in Official Communication No. 297:

•Of the 245 reported cases of children and adolescents reported as having died in residential homes and centres for young offenders directly run by the Service:

•119 were cases in which the Public Prosecution Service had begun criminal investigations, of which:

•15 cases were still ongoing in July 2016

•104 cases had been concluded according to the Public Prosecutor Support System and had been reviewed by the Regional Prosecution Service of Los Lagos

•126 were cases in which a criminal investigation had been instituted but was not being led by the Public Prosecution Service.

14.In all the cases being investigated by the relevant authorities, copies of background information were requested and investigations continued, led either directly by the specialized team or by local prosecutors assisted by the team. In the cases that had been closed, the investigations made by the Public Prosecution Service, the police and support bodies have been reviewed – and continue to be reviewed – as investigations into a death under the care and protection of the State, thanks to which it will be possible to determine whether persons performing public duties (caring for children and adolescents) were involved.

15.Of the 245 cases involving children and adolescents in the context of National Service for Minors’ lines of action relating to protection and young offenders, whether in facilities run directly by the Service or by an accredited partner agency, the specially designated team was directly responsible for reviewing, investigating and concluding 116 cases nationwide, with support from the coordinating public prosecutor in each region.

16.Of the 129 ongoing cases, many of which are in the final stages of investigation, investigations have been formalized in 6 cases, and in 4 of these charges have been brought and the pretrial hearing is pending.

17.Of the 621 cases of children and adolescents reported as having died in the context of the Service’s other lines of action, whether in residential homes or detention centres:

•456 were cases in which criminal investigations had been opened by the Public Prosecution Service

•165 were cases in which a criminal investigation had been opened but was not being led by the Public Prosecution Service.

18.In all the cases investigated by the relevant authorities, copies of background information were requested and investigations continued, led either directly by the specialist team or by local prosecutors assisted by the team. In the cases that have been closed, the investigations carried out by the Public Prosecution Service, the police and support bodies have and continue to be reviewed.

19.Of the 621 cases of persons reported as having died in the context of the Service’s other lines of action relating to protection and young offenders, the specially designated team was directly responsible for reviewing, investigating and concluding 111 cases nationwide, with support from the coordinating public prosecutor in each region.

20.Of the 510 ongoing cases, many of which are in the final stages of investigation, investigations have been formalized in 2 cases, and in 1 of these criminal charges have been brought and the trial is pending.

Table

Summary of deaths in the National Service for Minors ’ network

21.In addition, the National Service for Minors implemented circular No. 3 of 19 January 2018 (attached), on the procedure to be followed in response to the death of a child or adolescent who was accommodated in a residential facility of the network or involved in one of its programmes. The circular also sets the time limits within which project directors, regional directorates and the technical departments of the national directorate must submit information to the Public Prosecution Service.

22.The National Service for Minors is currently amending circulars Nos. 2308 and 2309 on the procedures to be followed by accredited partner organizations and centres directly run by the Service respectively, in response to incidents that might constitute a criminal offence or physical or psychological abuse of a child or adolescent. The following modifications are to be included in new circulars to be finalized shortly:

•Act No. 20.968, Act No. 21.013 and Act No. 21.140 are to be incorporated into the circulars.

•Reporting possible crimes and abuse to the Public Prosecution Service in writing will become mandatory.

•The public role of partner organizations in caring for children, as established in Act No. 20.032, will be acknowledged.

•The role of National Service for Minors with regard to the persons it attends to will be specified in circular No. 2309, which will provide a breakdown of its role for each line of action covered by the regulations (Rights’ Protection and Juvenile Justice).

•A set of basic guidelines will define what ill-treatment is, but not in order to determine what constitutes an offence.

•Complaints against officials. The observations made by the National Association of Officials of the National Service for Minors suggested that the procedure should include informing such officials when they have been reported to the authorities for alleged acts constituting an offence.

•The Single Case Follow-up File is to be eliminated and a reportability module is to be added to the official National Service for Minors database.

23.Lastly, since records of the deaths of children and adolescents in State custody need to be improved to ensure that Chile complies with its obligation to investigate such deaths by reporting them promptly to the relevant authorities, an institutional target on child deaths in the National Service for Minors’ network was incorporated into the Service’s Collective Performance Agreement for 2018 and 2019 and tied to the quarterly report that the Ministry of Justice and Human Rights must submit to Congress concerning the deaths of children within the Service’s network, including information on the place of death, the cause of death and any complaints lodged. Implementation of this target has improved the Service’s performance and reaction in response to such regrettable and serious events as the death of a child or adolescent. Under this procedure, the Service sends an official note to inform the Ministry that a child or adolescent served by the network has died, and the Ministry uses that information when compiling its quarterly reports for Congress.

Follow-up information relating to paragraph 37 (b) of the concluding observations (CAT/C/CHL/CO/6)

24.In January 2019, the Attorney General issued General Instruction No. 37 of 15 January 2019 on the criteria for prosecutors to follow when investigating torture and other cruel, inhuman and degrading treatment or punishment, as well as other forms of institutional violence.

25.Attached to that general instruction was an annex containing information on cases investigated by the regional public prosecution service for the Western Metropolitan Region. The regional service was operating nationwide as the specialist team for cases involving the commercial sexual exploitation of children and adolescents who are, or who have been, in the care or custody of the National Service for Minors in one of its residential centres run directly by the Service or by a partner organization, as well as for all cases of sexual crimes affecting children and adolescents committed at directly administered specialized remedial centres or centres run by partner organizations by officials employed by those centres.

26.When cases of torture, ill-treatment and sexual abuse in the National Service for Minors’ network are reported, the procedures contained in Circulars Nos. 2308 and 2309 apply.

27.Regarding the administrative investigation of such cases, the National Service for Minors created, in 2014, the Internal Prosecution Unit, which the Budget Act, 2019 strengthened. Under our legal system, administrative liability is restricted to public officials, and does not include staff at partner organizations in the private sector, notwithstanding indicated measures that such organizations must adopt.

28.According to the National Service for Minors’ institutional database, 534 preliminary proceedings for “ill-treatment/aggression” were instituted between 1 January 2014 and 30 April 2019. This category refers to all forms of physical or mental violence, injury, neglect or negligent treatment, ill-treatment or exploitation, including sexual abuse, affecting a child or adolescent, regardless of who is responsible for the ill-treatment or aggression. Of these, 312 are still being processed and 222 have been completed, with disciplinary measures implemented in 43 of these cases.

29.Another notable development, undertaken as part of the reorganization of the residential homes run directly by the National Service for Minors, has been the permanent closure of the directly administered specialized remedial centre in Playa Ancha on 13 March 2019; the children and adolescents concerned were rehoused in four newly opened family residences.

Follow-up information relating to paragraph 39 of the concluding observations (CAT/C/CHL/CO/6)

30.The National Service for Older Persons has long-stay establishments for older persons. A total of 14 such establishments are currently open,, with a further 8 being built or implemented. Through its regional coordination bodies, the Service monitors the centres monthly and provides ongoing support and technical assistance. It also maintains infrastructure and facilities to ensure the quality of the care provided to and the welfare of the older persons living there.

31.Currently, the regional ministerial offices of the Ministry of Health are responsible for overseeing long-stay establishments for older persons and reporting health violations.

32.As part of the protocols for long-stay establishments for older persons (2016), the National Service for Older Persons drew up a protocol on preventing and dealing with agitation in older persons, which aims to “provide guidance on preventing and dealing with agitation among older people based on a non-restraint approach, taking into account the right to life without violence”. The establishments record any use of physical or pharmacological restraint using a form; further details are contained in an annex. Training has been provided on the protocol as part of the long-stay establishment programme (100 caregivers in June and July 2019) and the home-care programme (50 caregivers in July 2019).

33.With respect to deaths at long-stay establishments for older persons, since death can occur naturally and suddenly with advancing age, under the intersectoral early warning protocol for deaths of persons placed under the control, custody or care of the State, a death is treated as suspicious if it occurs as a result of an action or omission by a person who has a duty of care for the older person and to whom fault or negligence may be attributed. A death not certified by a doctor would also be treated as suspicious. In 2019, there have been no such reports of suspicious deaths and/or no formal complaints have been lodged regarding the deaths of persons under the care of the National Service for Older Persons.

34.Sixteen complaints of ill-treatment or sexual abuse within long-stay establishments for older persons were recorded between the start of 2017 and June 2019 (see annex VIII). Appropriate action was taken in all cases.

35.In terms of challenges related to care for older persons, the National Service for Older Persons recognizes the need to improve how it collects and follows up on information on applying the aforementioned protocols, to request a report from its Human Rights and Good Treatment Unit every six months, and to continue to provide training on Protocol No. 17, on complex care, and more specifically on the protocol on preventing and dealing with agitation in older persons.

36.With regard to persons with disabilities, the National Service for Persons with Disabilities created the Autonomy and Dependency Department (in April 2019) to design, implement, coordinate and supervise the technical and administrative work required to create the Care Homes Programme to support persons with disabilities aged over 18 who were previously accommodated by the National Service for Minors’ network. This measure was in line with the National Service for Minors’ action plan, in which a number of lines of action were agreed, including the transfer of adults aged 18 to 59 with disabilities to the care of National Service for Persons with Disabilities. The transfer of these persons began in earnest in August 2019. Once the Care Homes Programme is in place, it will be possible for the National Service for Persons with Disabilities to have direct knowledge of any acts constituting abuse and/or a criminal offence committed against persons with disabilities in care homes. Currently, because it does not have supervisory powers, the National Service for Persons with Disabilities is only made aware of such acts when they are reported by third parties.

37.Pursuant to Act No. 20.422 and in response to the need to provide free legal advice and assistance when rights have been violated and persons have been discriminated against because of their disabilities, which requires specialist knowledge in the field, the National Service for Persons with Disabilities has entered into agreements with the four legal assistance agencies in Chile to run the Access to Justice Programme for persons with disabilities., In May 2019, work began to make the National Service for Persons with Disabilities a permanent member of the Victim Support Network.

38.As noted in the previous point, the complaints procedure for the National Service for Minors and internal investigations are covered by the information relating to paragraph 37 (a) and (b), with no distinction made between children with and without disabilities who die or are victims of ill-treatment.

Final note

39.Lastly, there is the challenge of compiling unified statistics on cases of torture and other cruel, inhuman and degrading treatment or punishment. Doing so will make available enough statistical data to monitor such cases.