Committee on Enforced Disappearances

Information received from Chile on follow-up to the concluding observations on its initial report submitted under article 29 (1) of the Convention *

[Date received: 29 April 2020]

Introduction

1.This report sets out the follow-up measures taken by the State of Chile pursuant to the recommendations made by the Committee on Enforced Disappearances, in April 2019, in paragraph 35 of its concluding observations on the report submitted by Chile under article 29 (1) of the International Convention for the Protection of All Persons from Enforced Disappearance. 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 9 of the concluding observations (CED/C/CHL/CO/1)

2.As indicated in the initial report, the State of Chile has taken a series of measures to allow for the gradual adoption of legislation relating to the offence of enforced disappearance. By article 6 of Act No. 20.357 of 2009 defining crimes against humanity, genocide and war crimes, Chile defined the offence of enforced disappearance as a crime against humanity.

3.The process of defining enforced disappearance as an offence under ordinary law began with the submission of a bill that was introduced by parliamentary motion to the Committee on Human Rights and Indigenous Peoples of the Chamber of Deputies on 17 December 2014. The bill is currently undergoing a second constitutional hearing in the Senate Committee on the Constitution, Legislation, Justice and Regulations (Bulletin No. 9818-17).

4.In February 2019, the Office of the Undersecretary for Human Rights began a study of the content of the bill. It found that some technical improvements were needed, requiring the drafting of proposed amendments. The Office of the Undersecretary for Human Rights prepared draft amendments that were sent to the Legal Division of the Office of the Undersecretary for Justice on 21 June 2019. At the end of June 2019, the draft amendments were submitted to the Office of the Minister and Secretary General of the Presidency.

5.On 27 July 2019, the Office of the Minister and Secretary General of the Presidency and the Ministry of the Interior and Public Security submitted comments on the draft document. On 7 January 2020, the Office of the Minister and Secretary General of the Presidency, the Ministry of Justice and Human Rights and the Ministry of the Interior and Public Security consolidated the amendments into a single text. Steps are currently being taken to expedite the legislative processing of the bill in the Senate.

Follow-up information relating to paragraphs 17 and 27 of the concluding observations

6.Particularly since 2019, the State of Chile has been working to systematize the activities of the public departments involved in investigations into offences of enforced disappearance committed between 1973 and 1990 and in the search for disappeared persons.

7.Given the connection between these two topics, the follow-up information below relates to the recommendations made in both paragraph 17 and paragraph 27 of the concluding observations.

8.Mention should be made of the work of the Intersectoral Committee of Public Institutions that Support the Judicial Authorities in the Search for Victims of Human Rights Violations Committed between 11 September 1973 and 10 March 1990, which brings together representatives of the judicial authorities, the Public Prosecution Service, the Carabineros (uniformed police), the Investigative Police, the Forensic Medical Service, the Civil Registry and Identity Service, and the Human Rights Programme Unit of the Office of the Undersecretary for Human Rights. This initiative addresses the recommendations made by the Committee in paragraph 17 (a), (b), (c) and (e) and paragraph 27 of its concluding observations.

9.In December 2018, the Office of the Undersecretary for Human Rights assumed responsibility for coordinating the activities of the Intersectoral Committee; these activities resulted in the drafting of a procedural protocol for public institutions that provide support to the judicial authorities in the search for victims of human rights violations committed between 11 September 1973 and 10 March 1990 (hereinafter “the protocol”). The purpose of the protocol is to establish minimum procedural rules for institutions involved in the investigation of cases of enforced disappearance and the search for and identification of disappeared persons.

10.On 6 May 2019, the Office of the Undersecretary for Human Rights submitted a draft version of the protocol to the senior authorities of the institutions participating in the Intersectoral Committee. The draft includes the following proposals:

In the event of a report or complaint of enforced disappearance, blood samples should be taken at the DNA bank of the Forensic Medical Service

In the event of the discovery of skeletal remains, the Public Prosecution Service is responsible for dating the remains and determining their origin, and for safeguarding the discovery site, inter alia

An intersectoral committee should be in regular operation to assist the judicial authorities in the search for victims of human rights violations; the purpose of this committee is to advise the judicial authorities on the technical aspects of cases of enforced disappearance and to foster coordination between all institutions involved in such cases, to avoid any duplication of functions in the search for victims of enforced disappearance and to improve the efficiency of investigations

In the event that test results determine that skeletal remains date back to the period 1973–1990, the Public Prosecution Service must inform the special inspecting judge of the appropriate appeals court; the Human Rights Unit of the Forensic Medical Service is responsible for the custody of skeletal remains

11.The recommendations contained in paragraph 27 (a) of the Committee’s concluding observations have been reflected in the draft protocol, in order to ensure coordination, cooperation and cross-referencing of data between the agencies responsible for investigating enforced disappearances and searching for missing persons. Cooperation between the various institutions facilitates access to each agency’s technical and professional resources, in line with the Committee’s recommendations.

12.On 19 June 2019, a further meeting of the Intersectoral Committee was convened in order to review comments submitted by the judicial authorities with regard to the draft protocol. The meeting was chaired by Judge Marianela Cifuentes Alarcón of the court of appeals of San Miguel. The comments were incorporated into a new draft, which was circulated on 20 June 2019 to the representatives of the institutions participating in the Intersectoral Committee.

13.The latest amendments to the protocol propose that the Human Rights Programme Unit of the Office of the Undersecretary for Human Rights keep an up-to-date digital database of cases of enforced disappearance to which the protocol applies, which would incorporate records of all steps taken, in accordance with the protocol, upon the discovery of skeletal remains. To ensure greater transparency vis-à-vis the State’s activities, the minutes of the meetings of the Intersectoral Committee would also be incorporated into this database, to facilitate access by investigating judges and the relatives of victims.

14.To ensure that the system is kept up to date, the protocol proposes that records of new events should be entered into the computer system of the Human Rights Programme Unit no later than ten days after the date on which the event occurred. It is hoped that the Committee will find these measures to be in line with its recommendations in paragraphs 17 (b) and 27 (c) of the concluding observations.

15.Members of institutions that adhere to the protocol would be able to access the records kept in the database to retrieve information that may be useful to their investigations by submitting a request to the Office of the Undersecretary for Human Rights.

16.A meeting of the representatives of the institutions concerned had been scheduled for March 2020 in order to review an amendment proposed by the full bench of the Supreme Court and the implementation of the database proposed by the Office of the Undersecretary for Human Rights. Unfortunately, because of the health crisis presented by the coronavirus disease (COVID-19) pandemic, this meeting has been postponed.

Follow-up information relating to paragraph 17 (a) of the concluding observations

17.The State of Chile has been coordinating the activities of the departments involved in the judicial investigation of cases of enforced disappearance and the provision of assistance to victims and their families.

18.The Human Rights Programme Unit launched Project 355 to address the 355 cases involving recognized victims in which legal proceedings had not yet been initiated. This project has involved an exhaustive review of every case, with elements of transitional justice having being incorporated at each stage. The preliminary and first stages of the project have already been completed. A second stage is planned for the first half of 2020, as indicated below.

	Starting month	Month of completion
Preliminary stage	December 2018	February 2019
First stage	June 2019	November 2019
Second stage	March 2020	June 2020

19.During the preliminary stage of the project, which took place between December 2018 and February 2019, the cases involving recognized victims in which legal proceedings had not yet been initiated were reviewed. Subsequently, a list of 355 victims, mentioned in the Committee’s concluding observations, was prepared.

20.In the period from June to November 2019, the records corresponding to each of the recognized victims on the initial list prepared in the preliminary stage were reviewed. As a result of the analysis carried out, the number of recognized victims in whose cases legal proceedings had not yet been initiated decreased from 355 to 282.

21.This reduction resulted from the fact that, between February and May 2019, new information on relevant legal proceedings was incorporated into the database of human rights cases managed by the Human Rights Programme Unit. This information was used to update the files of 73 victims.

22.During the first stage, a final report was drawn up concerning the feasibility of legal action in the 282 cases mentioned. This review took into account various elements relating to transitional justice processes and benefited from the input of a number of human rights lawyers.

23.It was concluded that there were 190 cases in which prosecution was not feasible. There were, however, 92 cases in which it would be possible to file a complaint.

Cases in which legal action is considered feasible	Cases in which legal action is not considered feasible	Total number of recognized victims in whose cases legal action has not been initiated
92	190	282

24.It is important to clarify the scope of the term “recognized victim”. The term refers both to disappeared prisoners and to victims of political executions; this group can, in turn, be subdivided into victims whose remains have been returned to their families and those whose remains have not. The category “victim of enforced disappearance committed between 1973 and 1990” includes only disappeared prisoners and victims of political executions whose remains have still not been returned to their families.

25.Of the 282 victims whose cases were reviewed in the first stage of Project 355, 13 were disappeared prisoners and 269 were victims of political executions. In this second group, however, there were only 15 cases in which the remains of the victim had not been returned to the family; in 254 cases, the remains of the victim had been returned to the family. Thus, only 28 of the 282 cases involving recognized victims in which legal proceedings had not yet been initiated can be classified as cases of enforced disappearance.

Total number of recognized victims in whose cases legal action has not been initiated	282
Disappeared prisoners	Victims of political executions
Remains not returned	Remains returned
13	15	254
28
Victims of enforced disappearance

26.Of the 92 cases in which legal action was deemed feasible upon the conclusion of the first stage of Project 355, 7 involve disappeared prisoners and 85 involve victims of political executions, including 6 cases in which the remains of the victim have not been returned to the family. There are 13 cases of enforced disappearance in which legal action is considered feasible.

Total number of cases in which legal action is considered feasible	92
Disappeared prisoners	Victims of political executions
Remains not returned	Remains returned
7	6	79
28
Victims of enforced disappearance

27.Of the remaining 190 cases, with regard to which legal action is not considered feasible, 6 involve disappeared prisoners and 184 involve victims of political executions. In this group, there are 175 cases in which the remains of the victims have been returned to their families. There are therefore 9 cases involving victims of political executions which, together with the 6 cases involving disappeared prisoners, add up to 15 cases involving recognized victims of enforced disappearance with regard to which criminal prosecution is not considered feasible.

Total number of cases in which legal action is not considered feasible	190
Disappeared prisoners	Victims of political executions
Remains not returned	Remains returned
6	9	175
15
Victims of enforced disappearance

28.The second stage of Project 355 is due to take place from March to June 2020. This second stage will involve a further review of the 92 cases in which legal action is considered feasible.

29.Investigations into cases of enforced disappearance have been bolstered by improvements to the working methods of the judiciary. Pursuant to a decision of the full bench of the Supreme Court of 4 May 2018, Judge Ricardo Blanco Herrera was appointed national coordinator for cases involving human rights violations that occurred between 1973 and 1990. Judge Blanco requested the Directorate of Research of the Supreme Court to prepare a plan to strengthen the capacity of the Office for the Coordination of Human Rights Cases of the Supreme Court. The plan was adopted on 27 November 2018.

30.Professionals from the Directorate of Research were reassigned to the Office for the Coordination of Human Rights Cases to strengthen its institutional capacity. A lawyer from the Directorate of Research was appointed as head of the legal department, and various other professionals were reassigned from that Directorate to the Office. The two staff members who had been working at the Office prior to this reassignment continue to work there.

31.Moreover, the Administrative Department of the Judiciary has been requested to appoint an expert human rights lawyer. Since 14 December 2019, the Office for the Coordination of Human Rights Cases has been based on the premises of the Directorate of Research.

32.On 25 October 2018, Judge Marianela Cifuentes was appointed as the representative of the judicial authorities on the Intersectoral Committee. On 22 August 2019, the full bench of the Supreme Court endorsed the draft procedural protocol described above but requested that the final text incorporate procedures and designate persons responsible for the recording of cases of enforced disappearance to which the protocol applies.

33.As part of their investigation into proceedings relating to the dictatorship, the judicial authorities ordered the preparation of an analytical study of the backlog of cases. The study began in 2019, with the support of the Directorate of Research, whose task in this project is to provide a clear definition of the term “backlogged case”. For the purposes of the study, a methodology was established to determine processing times and the reasons for any delays. The final version of this study is due in the first quarter of 2020.

34.To expedite the processing of human rights cases before the appeals courts and the Supreme Court, on 28 May 2019, the Office for the Coordination of Human Rights Cases requested that all appeals courts report on the progress that they had made in processing appeals related to cases involving serious human rights violations. With this information, the Office prepared a report in which it provides an analysis of variables such as the number of days since the initiation of proceedings, the first procedure ordered, the subject matter and the date on which proceedings ended, inter alia. On the basis of this report, it was found that there was a backlog in processing; this was brought to the attention of the Supreme Court, which decided to adopt measures to expedite the processing of the cases in question. Compliance with these measures is overseen by the coordinating judge, to whom weekly reports on the processing of cases of human rights violations are sent. Any difficulties encountered are reported to the Supreme Court.

35.One key measure, on which work has been under way since 2019, is the improvement of the design of the computer system used to track the progress of human rights cases. To this end, the High Council of the Administrative Department of the Judiciary has made funds available for the design and implementation of a processing system through which the measures taken by clerks of the court and judges during investigations are registered and made available for consultation by officials of the appeals courts and the Supreme Court.

36.Currently in its first phase, a beta version of the system was introduced in the San Miguel Court of Appeals in March 2020. All basic functions should be operational by the end of the first half of 2020.

Screenshot of the first entry in the new human rights case processing system .

37.This improved computer system will make it possible to generate reports from case-file data without the need to review the files physically.

38.According to information provided by the Investigative Police, the Human Rights Offences Squad, a specialized unit that investigates cases of enforced disappearance, has to date received 465 orders to investigate offences involving kidnapping or aggravated kidnapping. Forty-five of those orders are still in effect.

39.Another public institution that participated in the Intersectoral Committee is the Forensic Medical Service. This Service actively contributed to the elaboration of the protocol, particularly with regard to the definition of each institution’s responsibilities, obligations and procedures in relation to reports of the discovery of skeletal remains. While the protocol is still in its final phase of development, the institutions that participated in its drafting are already acting in accordance with the guidelines it sets out; this is especially true of the Human Rights Unit of the Forensic Medical Service.

Follow-up information relating to paragraph 17 (c) of the concluding observations

40.With a view to sharing information and gathering best practices, the judge in charge of coordinating human rights cases called a meeting on 20 June 2019 with all special inspecting judges involved in human rights cases, associations of victims and other stakeholders. Further such meetings will be held throughout 2020.

41.The Office for the Coordination of Human Rights Cases has developed an alert system through which special inspecting judges are informed if one of their cases is linked to another, in that they involve the same accused persons or defendants. The system works by way of a tool that automatically reviews databases and detects overlapping investigations. Where such overlaps have been detected, the judges concerned have decided to centre their investigations on one of the cases only.

Follow-up information relating to paragraph 17 (d) of the concluding observations

42.With regard to the recommendation made in paragraph 17 (d) of the concluding observations, Decree-Law No. 2.191 has not been applied by the courts since 1998. A change in case law in this regard is highly unlikely, since the judicial authorities are strongly committed to the State’s efforts to shed light on cases of human rights violations.

Follow-up information relating to paragraph 17 (e) of the concluding observations

43.Every year, the judicial authorities appoint judges who deal exclusively with cases involving serious human rights violations. On 26 December 2019, the Supreme Court decided to assign five judges exclusively to such cases for a period of one year beginning on 2 January 2020. Most of the ongoing proceedings in this category are being dealt with by these judges.

44.The Human Rights Unit of the Forensic Medical Service is staffed by a multidisciplinary team of experts who are competent and trained in handling complex cases of enforced disappearance, including search and recovery, identification of victims and determination of the cause and manner of death.

45.This team has prioritized the resolution of cases of human rights violations that occurred between 1973 and 1990. Although it is located in Santiago, it operates nationwide.

46.The Forensic Medical Service assures the stability of the Human Rights Unit by providing permanent staffing and funding for its expert activities, which include complex laboratory analyses performed both in Chile and abroad in accordance with international standards. This has helped to build relationships of trust with the relatives, other indirect victims and the courts, and to foster confidence in the legitimacy of the results delivered.

47.The National Office on Offences against Human Rights and Persons, which is part of the Investigative Police, has an extensive archive of records and reports of investigative officials relating to emblematic cases of human rights violations. This archive was declared a historic monument in April 2018.

48.Pursuant to General Order No. 2555 of 18 July 2019, the Investigative Police established the Criminal Analysis Department under the National Office on Offences against Human Rights. The Department provides expert analysis of information relating to human rights cases.

49.Through Decision No. 2.078 of 31 October 2017 of the Attorney General, the Public Prosecution Service modified the mandate of the former Special Unit on Sexual Offences and Domestic Violence to include issues relating to human rights and gender-based violence. The Unit provides support for the work of prosecutors in the investigation of crimes that may constitute human rights violations. To this end, the Attorney General’s Office, in conjunction with the Special Unit on Human Rights, Gender-based Violence and Sexual Offences, has appointed human rights officers to serve as specialized advisers to the offices of regional attorneys general and to support regional and deputy attorneys general in the criminal investigation of human rights violations.

50.On 15 January 2019, the Public Prosecution Service issued General Instruction No. 37, which provides guidelines on the conduct of investigations into cases of torture or other cruel, inhuman or degrading treatment, deaths of persons held in the custody of public entities (or private entities that perform a public function) and enforced disappearances.

51.In 2019, the Special Unit on Human Rights, Gender-based Violence and Sexual Offences organized training on the content of Official Letter No. 037/2019. To date, training courses have been conducted in seven regions of the country and attended by approximately 150 officials. The Public Prosecution Service had committed to organizing such training under the first National Human Rights Plan.

52.On 21 January 2020, the head of the Special Unit on Human Rights, Gender-based Violence and Sexual Offences, Ms. Ymay Ortiz Pulgar, the legal adviser Ms. María Angélica San Martín Ponce and the special prosecutor for complex cases at the Office of the Attorney General for the Central Northern Metropolitan Region, Ms. Tania Sironvalle, led a training workshop on the application of Official Letter No. 037/2019 for officials of the Forensic Medical Service. A plan is being developed to organize training for officials in all regions of the country throughout 2020.

Follow-up information relating to paragraph 27 (b) of the concluding observations

53.The Human Rights Unit of the Forensic Medical Service is staffed by a multidisciplinary team of experts who are competent and trained in the search for disappeared persons. The Forensic Medical Service is committed to meeting high standards in its work and providing access to high-quality laboratory tests, performed internally or in external laboratories. The Service also maintains a database of genetic information on victims and their families, which meets standards that guarantee reliable results.

Follow-up information relating to paragraph 27 (c) of the concluding observations

54.With the authorization of the judicial authorities, the Forensic Medical Service communicates with the families of victims about its activities in the field and transmits information regarding: (i) case management strategies; (ii) results obtained; and (iii) in the event that a victim is identified, the dignified, considerate and respectful return of his or her remains to the family.

55.Pursuant to the National Human Rights Plan, on 24 May 2019, the Human Rights Programme Unit of the Office of the Undersecretary for Human Rights began work on a joint project with the Human Rights Unit of the Forensic Medical Service to locate family members who had not provided blood samples to the Forensic Medical Service, in order to determine the identities of victims whose skeletal remains are the Service’s custody. To this end, the head of the Human Rights Unit of the Forensic Medical Service submitted to the Human Rights Programme Unit a list of 288 recognized victims of enforced disappearance whose direct relatives it wished to locate and request to provide blood samples.

56.In August 2019, the Human Rights Programme Unit cross-checked its database of victims and their relatives against the information kept on record by the Civil Registry and Identity Service, and was thus able to determine family ties and identify various means of contact. On 13 September 2019, by way of Official Letter No. 810 of the Civil Registry and Identity Service, information regarding the families of 195 of the 288 victims was received or updated.

57.To date, the Department of Social Affairs of the Human Rights Programme Unit has sent 187 registered letters to the relatives of victims, and it has contacted other relatives by telephone. The Forensic Medical Service reports that this measure seems to have been effective, since some of the relatives concerned have already contacted the Service.

Follow-up information relating to paragraph 27 (d) of the concluding observations

58.The Forensic Medical Service’s expert team has developed and maintains a documentary archive that contains records of the locations where searches have been undertaken and discoveries have been made. The Service is currently georeferencing these search and discovery sites, which include places where prisoners are known to have been detained, abducted or held, in order to cross-reference relevant information during judicial proceedings. In 2020, the archaeology team intends to produce a digital document, using computer software, that pinpoints the exact location of all sites located by the Human Rights Unit of the Forensic Medical Service between 2012 and 2020.

59.In 2019, the Special Unit for Juvenile Crime, Violent Crime and Criminal Responsibility of Medical Professionals, which is part of the Attorney General’s Office within the Public Prosecution Service, developed a procedural protocol for cases of presumed misadventure to overcome difficulties encountered during proceedings for presumed misadventure and to strengthen the inter-institutional coordination necessary for the proper conduct of investigations. The protocol regulates the main aspects of investigative procedures, with an emphasis on particularly vulnerable groups, the timely provision of information to the complainant or relatives of the person concerned, and communications between the police, the Forensic Medical Service and the Public Prosecution Service.

Final note

60.The State of Chile has prepared the present report in keeping with its firm commitment to the protection of human rights for all and to the universal system for the protection of those rights. It recognizes that there are a number of challenges. It is committed, however, to working to overcome these challenges, in particular by strengthening coordination between and improving the technical capacity of public institutions involved in the investigation of offences of enforced disappearance and the search for victims, in line with the recommendations made by the Committee in its concluding observations (CED/C/CHL/CO/1).