CAT/OP/CHL/1
20.
The Subcommittee urges the State party to comply swiftly with its international
obligation to establish a national preventive mechanism, along with the specific
guarantees such national mechanisms should have.4 In particular, it is important for
the State party to make provision for the funding required for that purpose in the
2017 financial year. The Subcommittee reiterates its readiness to cooperate with the
State party and to provide any guidance and support required in respect of the
commitment made by the Government during the Subcommittee’s visit to submit a
bill for the establishment of a national preventive mechanism.
III. Legal and institutional framework for the prevention of
torture and ill-treatment
A.
Definition of torture as a specific criminal offence
21.
The Subcommittee has learned that the bill on the classification of torture as a
separate offence in the Criminal Code was approved by the Chamber of Deputies and is
now before the Senate. The Subcommittee commends the State party on its commitment to
fulfilling its international obligations and recognizes that the aforementioned bill
establishes the non-applicability of the statute of limitations to the offence of torture and
substantially increases the penalties for that crime.
22.
The Subcommittee notes with concern, however, that, although the bill introduces a
new criminal offence, it preserves the existing provisions regarding this matter, namely
articles 150A and 150B of the Criminal Code, which make reference to “unlawful
coercion”, and article 19 of the Organic Act on the Investigative Police (Decree-Law No.
2460), which refers to “any act of violence committed with the intent of obtaining
information from the detainee”. The Subcommittee is concerned that, in its current form,
the bill could give rise to issues of interpretation and to a lack of legal certainty that could,
in turn, result in situations in which acts amounting to torture would go unpunished.
23.
The Subcommittee also notes with concern that the penalties for the offence of
torture currently set forth in the bill do not apply to cruel, inhuman or degrading treatment.
24.
The Subcommittee reiterates the recommendations made by the Committee
against Torture in 2009 and those made in the second universal periodic review of
Chile in 2014 and urges the State party to bring the definition of the offence of torture
fully into line with international law and, in particular, with article 1 of the
Convention against Torture. The Subcommittee calls on the State party to harmonize
its legislation and, in particular, to repeal articles 150A and 150B of the Criminal
Code, as well as article 19 of Decree-Law No. 2460. Lastly, the Subcommittee
recommends that penalties for other cruel, inhuman or degrading treatment not
constituting torture should be incorporated into the law.
B.
Administration of justice
25.
The Subcommittee notes that, under the Code of Military Justice, any ordinary
crimes committed by military personnel in the course of duty are to be investigated and
prosecuted by military tribunals rather than by the ordinary courts. The Subcommittee notes
that cases in which one of the parties is a civilian, or that involve a civilian and a member
of the military, should be submitted for prosecution in the ordinary courts, in line with
regional and international doctrine and jurisprudence. The Subcommittee has received
information to the effect that, in many cases, offenders were not convicted or the sentences
imposed were reduced by the appeals courts, suggesting, in practice, that there is a lack of
access to justice and effective remedies for victims or their family members.
26.
The Subcommittee urges the State party to amend its legal order to ensure that
military jurisdiction is restrictive and is applied only to members of the armed forces
4
GE.17-07771
Optional Protocol, arts. 18-23; Guidelines on national preventive mechanisms (CAT/OP/12/5).
5