32/36/Add.1 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association on his mission to Chile
Document Type: Final Report
Date: 2016 Oct
Session: 32nd Regular Session (2016 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.16-18420(E)
Human Rights Council Thirty-second session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association on his mission to Chile*
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the rights to freedom of peaceful assembly and of association,
Maina Kiai, on his visit to Chile from 21 to 30 September 2015, at the invitation of the
Government. The main objective of the visit was to assess the situation relating to the rights
of freedom of peaceful assembly and of association in the country. In this report, the
Special Rapporteur presents a series of good practices and discusses the remaining
challenges relating to the enjoyment of the rights to freedom of peaceful assembly and of
association. Finally, the Special Rapporteur formulates recommendations aimed at
overcoming the challenges identified.
* The present report was submitted after the deadline in order to reflect the most recent developments.
United Nations A/HRC/32/36/Add.1
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Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association on his mission to Chile**
Contents
Page
I. Introduction ................................................................................................................................... 3
A. Historical and political background ...................................................................................... 3
B. International and regional legal framework .......................................................................... 4
II. Right to freedom of peaceful assembly ......................................................................................... 5
A. General legal framework ...................................................................................................... 5
B. Management of protests ........................................................................................................ 6
III. Freedom of association.................................................................................................................. 17
A. Associations .......................................................................................................................... 17
B. Trade unions ......................................................................................................................... 18
IV. Conclusion and recommendations ................................................................................................. 19
A. Conclusion ............................................................................................................................ 19
B. Recommendations ................................................................................................................. 20
** Circulated in the language of submission and in Spanish only.
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I. Introduction
1. Pursuant to Human Rights Council resolution 24/5, the Special Rapporteur on the
rights to freedom of peaceful assembly and of association, Maina Kiai, conducted an
official visit to Chile from 21 to 30 September 2015, at the invitation of the Government.
The purpose of the visit was to carry out an in-depth assessment of the situation relating to
the freedoms of peaceful assembly and of association in the country.
2. The Special Rapporteur would like to thank the Government of Chile for its
exemplary cooperation in organizing this visit — his first to the Americas — particularly in
the light of the earthquake that struck Chile on 16 September 2015. This demonstrates the
Government’s willingness to engage in a constructive dialogue on issues pertaining to the
mandate. He also commends the Government for extending a standing invitation to all
special procedures mandate holders and for having accommodated the visits of four special
procedures mandate holders since July 2013.
3. During his visit, the Special Rapporteur travelled to Santiago, Valparaiso, Temuco
and Copiapo. He had fruitful exchanges with the President of Chile, the Minister of Justice,
the Minister of Defence, the Minister Secretary-General of the Presidency, representatives
of the Ministries of Foreign Affairs, the Interior and Public Security, Education, and Labour
and Social Security, as well as with the Public Prosecutor, the General Director of the
Carabineros de Chile (the national police), the General Director of the Investigations Police
of Chile, the President of the Supreme Court, the Vice-President and representatives of the
Senate, representatives of the Chamber of Deputies, and the Chairs and representatives of
the Commission for the Constitution, Legislation and Justice, and the Commission for
Human Rights and Indigenous peoples of the Senate and the Chamber of Deputies
respectively. He had similar exchanges with local authorities in Temuco and Copiapo.
4. The Special Rapporteur also met with the Director of the National Institute for
Human Rights (Instituto Nacional de Derechos Humanos) (INDH) and her team, whose
assistance in the framework of this visit and expertise on issues pertaining to the mandate
was greatly appreciated.
5. In addition, the Special Rapporteur met with brave and committed human rights
activists, including members of civil society organizations, Mapuche leaders, student
leaders and members of trade unions who are engaged in critically important work to
strengthen democracy and human rights in Chile. He also met with farmers and truck
owners in Temuco.
6. Finally, the Special Rapporteur met with representatives of the diplomatic
community and the United Nations country team.
A. Historical and political background
7. From 1973 to 1990, Chile was ruled by the military dictatorship of Augusto
Pinochet — an era marked by brutal State-sponsored atrocities. During that period, over
30,000 individuals were killed, forcibly disappeared, imprisoned and/or tortured. The
Special Rapporteur pays tribute to all the victims and their loved ones who lived through
this ordeal. During his trip, he visited the Museum of Memory and Human Rights and was
deeply moved and humbled by the heroism of the people of Chile during this dark chapter
of the country’s history.
8. The Special Rapporteur commends Chile for the enormous strides it has made since
its return to democracy 25 years ago. The country epitomizes the “democracy dividend” —
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the benefits and progress that can accrue when a country turns from dictatorship to
democratic rule. Poverty has drastically reduced, the economy has diversified and the
country has found firm footing among the more developed countries in the world.
9. Equally important, the country has made great progress in areas of democracy and
human rights. Political change now happens peacefully, regularly and democratically. In
addition, human rights hold an important place on the Government’s agenda. For example,
Chile co-sponsored Human Rights Council resolution 15/21 that established the Special
Rapporteur’s mandate in 2010 (and resolutions 24/5 and 32/32 that extended it); resolution
27/31 on civil society space; and resolution 17/19 on human rights, sexual orientation and
gender identity.
10. On 16 December 2015, the President of Chile enacted Act No. 20885 establishing
the Under-Secretariat for Human Rights. This body has been vested with a broad mandate,
which the Special Rapporteur welcomes.1 He calls on the Government to allocate adequate
human, material and financial resources to this institution so that it may fulfil its important
mandate.
11. Lastly, the Special Rapporteur salutes the work and courage of civil society actors in
the country, who have contributed enormously to the progress that Chile has made to date.
B. International and regional legal framework
12. Chile has ratified the main international human rights instruments, many of which
contain norms and standards pertaining to the freedoms of peaceful assembly and of
association, including the International Convention on the Elimination of All Forms of
Racial Discrimination, in 1971; the International Covenant on Civil and Political Rights, in
1972; the International Covenant on Economic, Social and Cultural Rights, in 1972; the
Convention on the Elimination of All Forms of Discrimination against Women, in 1989;
the Convention on the Rights of the Child, in 1990; the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, in 1998; the International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families, in 2005; the Convention on the Rights of Persons with Disabilities, in 2008; and
the Convention for the Protection of All Persons from Enforced Disappearance, in 2009.
13. Chile has also ratified several International Labour Organization (ILO) conventions,
including the Freedom of Association and Protection of the Right to Organise Convention
(No. 87), the Right to Organise and Collective Bargaining Convention (No. 98) and the
Workers’ Representatives Convention (No. 135), in 1999, and the Indigenous and Tribal
Peoples Convention (No. 169), in 2008.
14. In addition, Chile has ratified several regional instruments that are relevant to the
promotion and protection of the freedoms of peaceful assembly and of association, in
particular the American Convention on Human Rights, in 1990, and the Inter-American
Convention to Prevent and Punish Torture, in 1988.
1 The mandate of the Under-Secretariat for Human Rights includes, inter alia, putting forward
proposals to the Ministry of Justice and Human Rights to design and elaborate policies, plans,
programmes and studies related to the promotion and protection of human rights (art. 8 (a));
elaborating the National Human Rights Action Plan (art. 8 (c)); and generating and coordinating
opportunities for the participation of civil society in relation to the adoption of such policies, plans
and programmes (art. 8 (h)).
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II. Right to freedom of peaceful assembly
A. General legal framework
15. The Constitution of Chile guarantees the “right to assemble peacefully without prior
permission and unarmed” and provides that “meetings in squares, streets and other public
places shall be governed by general police regulations”.2
16. Supreme Decree No. 1086, adopted in 1983, regulates the exercise of this right.
Under this decree, the organizers of any meeting or demonstration must notify either the
regional intendant (Intendente) or the provincial governor (Gobernador) at least two days
in advance. If organizers fail to do so, law enforcement officers may prevent or dissolve the
planned meeting or demonstration (art. 2). Furthermore, the regional intendant or provincial
governor has large discretion whether or not to authorize meetings or processions in high-
density roads or streets where they may disrupt public transit, or in squares and leisure
roads during recreational or rest hours, and in parks, squares, gardens and green avenues
(art. 2).
17. The Special Rapporteur considers this regulatory framework to be a de facto
authorization regime, which not only contradicts the Constitution of Chile, but is also
incompatible with international law and best practices governing freedom of peaceful
assembly. Fundamentally, requiring authorization — even when couched as notification —
turns the exercise of the right to freedom of peaceful assembly into a privilege.
18. Best practice dictates that States may, at most, require prior notification for peaceful
assemblies, but not authorization.3 The purpose of prior notification is to allow authorities
to facilitate the exercise of the right to freedom of peaceful assembly and to take measures
to protect protesters, public safety, order and the rights and freedoms of others. The Special
Rapporteur acknowledges that assemblies, by their nature, can cause a certain degree of
disruption to the normal routine of daily life. However, these constitute only a temporary
interference with the rights and activities of others and therefore should be tolerated.
19. In this regard, the Inter-American Commission on Human Rights has stressed that,
“such disruptions are part of the mechanics of a pluralistic society in which diverse and
sometimes conflicting interests coexist and find the forums and channels in which to
express themselves”.4 It also stressed that “the competent institutions of the State have a
duty to design operating plans and procedures that will facilitate the exercise of the right of
assembly, [including] rerouting pedestrian and vehicular traffic in a certain area”.5
20. Furthermore, under the current regulatory regime, spontaneous assemblies are de
facto prohibited. Spontaneous assemblies, where prior notice is impracticable or where no
identifiable organizer exists, should be exempt from notification requirements.
21. In general, failure to notify the authorities of an assembly does not render an
assembly unlawful, and consequently should not be used as a basis for dispersing the
assembly. Where there has been a failure to properly notify the authorities, organizers,
2 See the Constitution of Chile, art. 19 (13) (emphasis added).
3 See A/HRC/20/27, para. 28.
4 See Organization of American States, Inter-American Commission on Human Rights, “Report on
citizen security and human rights”, 31 December 2009 (OEA/Ser.L/V/II), para. 198. Available from
www.cidh.oas.org/countryrep/Seguridad.eng/CitizenSecurity.Toc.htm.
5 Ibid., para. 193.
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community or political leaders should not be subject to criminal or administrative sanctions
resulting in fines or imprisonment.6
22. The Special Rapporteur welcomes the fact that Chilean law does not impose
responsibility upon assembly organizers for the violent behaviour of others, in accordance
with international human rights norms and standards. There was an attempt under the
previous Government administration to introduce such responsibility in the domestic legal
framework, but it was defeated in Congress.
23. In general, the Special Rapporteur notes, from his meetings with national and local
authorities, that assemblies have reportedly been routinely permitted in the last few years.
However, he cautions that there is no guarantee of that in the future, as the decree gives the
authorities the power to curtail peaceful assemblies, which could be used by future, less
human rights-friendly regimes. Therefore, he urgently calls upon the Government of Chile
to repeal Supreme Decree No. 1086 so as to bring its legal framework governing the
exercise of the right to freedom of peaceful assembly in full compliance with international
human rights norms and standards. The Special Rapporteur firmly believes that the decree
is a remnant of Chile’s past that has no place in the Chile of today. He hopes that the
necessary political support will be marshalled to repeal this decree, which can be done by
an executive order. Any legislation to replace Supreme Decree No. 1086 should be in line
with international human rights norms and standards. The Special Rapporteur is available to
provide technical assistance in this regard.
B. Management of protests
1. Police protocols
24. The practical management of protests is governed by a series of police protocols
aimed at maintaining public order, which, thanks to public pressure — notably from INDH
—, were made public in August 2014.7 According to the police, these protocols mainly
guide the work of police special forces that are usually deployed during assemblies. They
contain a series of positive principles that seek to facilitate and protect protests, but also
present a number of problematic points that need to be addressed.
Definitions
25. The protocols differentiate between lawful and unlawful assemblies. They deem an
assembly lawful if: (i) an authorization was previously granted or if it occurs on a
spontaneous basis; and (ii) if it unfolds quietly, securely and with respect for the police
authority. The Special Rapporteur again stresses that an authorization regime should not
govern the exercise of the right to freedom of peaceful assembly, but he welcomes the
recognition of spontaneous assemblies in the protocols. He is concerned, however, that it is
the head of police operations who is responsible for identifying the legality or illegality of a
demonstration based on the degree of peace and respect displayed and also decides on the
degree of force required to preserve public order.8 The Special Rapporteur considers that
such a broad definition leaves room for arbitrary interpretations.
6 See A/HRC/23/39, para. 51; also A/HRC/31/66, para. 23.
7 See Carabineros de Chile, Protocolos para el mantenimiento del orden público (Police protocols for
maintaining public order), March 2013. Available in Spanish only at www.indh.cl/wp-
content/uploads/2014/08/PROTOCOLO-PARA-EL-MANTENIMIENTO-DEL-ORDEN-
PUBLICO.pdf.
8 Ibid., protocol 1.1.
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26. Importantly, the lawfulness of a demonstration should be assessed first and foremost
in terms of its peaceful nature. In this regard, the Special Rapporteur underscores that the
peaceful intentions of organizers and participants should be presumed, and warns that
sporadic acts of violence by a few individuals does not automatically mean that the
assembly as a whole is not peaceful. He welcomes the principle in the protocols that law
enforcement officers must distinguish during a protest between peaceful protestors and
those breaking the law.
27. The protocols also define unlawful assemblies as those which are either violent or
aggressive. 9 The protocols define assemblies as “violent” when police instructions are
contravened and “aggressive” when damage is caused or when people or police authorities
are intentionally attacked. The Special Rapporteur is of the opinion that these definitions
are far too broad and likely to lead to arbitrary interpretations. They unduly curtail the right
to freedom of peaceful assembly as they do not meet the legality criteria for restrictions.
Furthermore, the criteria of violence should be applied to individuals, not to assemblies as a
whole, given that the right to peaceful assembly is the individual right of all persons.
28. The Special Rapporteur welcomes the emphasis laid on the importance of dialogue
between law enforcement authorities and assembly organizers and participants, but stresses
that the authorities should not formally or informally impose on organizers the expectation
to negotiate the time, place or manner of the assembly with the authorities.10
Use of force
29. The police protocols allow for the gradual and discriminate use of force in the
context of protests. They condition the use of force on the respect of three principles:
legality; necessity; and proportionality. The Special Rapporteur welcomes this sound
approach. However, he points out that the protocols define the principle of legality as
“previously authorized by police,” instead of “as prescribed by law,” which falls short of
international human rights norms and standards. The principle of necessity refers to the use
of force as a measure of last resort when faced with an act of resistance or a threat. The
principle of proportionality is defined as a balance to be struck between the level of
resistance or aggression faced by the police and the intensity of the use of force to compel
the person to abide. These two latter principles are crafted in a satisfactory manner.
30. The protocols provide for the gradual resort to different means of intervention,
including batons, water cannons, tear gas, paintballs and rubber bullets. The Special
Rapporteur was informed by the police that they no longer use paintballs, following a
serious incident in which a protestor lost an eye (see para. 42 below). This is a positive
development. Nevertheless, according to the protocols, their use is still technically
permissible.11 In addition, as flagged by INDH, the protocols fail to specify the composition
of the water or the gas to be used in order to ensure the safety of the demonstrators and the
population at large.12 The Special Rapporteur notes the statement made by the police that
they always check if a new weapon complies with the protocols prior to using it. However,
he stresses that the use of gas and water cannons present significant risks of harm,
especially since their use does not discriminate between demonstrators and bystanders,
healthy people and people with health conditions.
9 Ibid.
10 See A/HRC/23/39, para. 56.
11 See Carabineros de Chile, Protocolos para el mantenimiento del orden público (Police protocols for
maintaining public order), March 2013, protocol 2.15.
12 See INDH, Situación de los Derechos Humanos en Chile, Informe anual 2014, p. 51.
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31. Protocol 2.17 appropriately governs the use of firearms and considers it an extreme
measure. Firearms are permitted only under exceptional circumstances, when there is an
immediate threat to the life of or grave bodily injuries to a police officer or another person
(self-defence). Other less serious means must be exhausted before opening fire and a
balance between the means employed and the protection of a legitimate aim must be
achieved.
32. The protocols contain a number of references to the training of law enforcement
officers, but not in a consistent and detailed manner. A section should be specifically
devoted to this critical aspect, with emphasis on the need to provide periodic training to law
enforcement officers on the lawful use of force, in general, and on the weapons authorized,
in particular. Law enforcement officers should be tested regularly on such use and on their
psychological ability for this purpose. Officials who fail the tests should not be deployed to
protest sites.
33. Finally, the Special Rapporteur notes with concern the statement made by the
General Director of the Carabineros during their meeting that the lives of police officers
were the most important element to consider during operations when preserving public
order. The Special Rapporteur stresses that the physical and psychological integrity of
demonstrators, human rights monitors and bystanders is equally important and every effort
must be made to guarantee such integrity.
Monitoring
34. With regard to the monitoring of assemblies, the Special Rapporteur welcomes the
fact that the police protocols recognize the important role of INDH in this regard.13 He
considers it good practice that INDH representatives are permitted inside police vehicles to
monitor the detention of individuals. The protocols, however, do not foresee a role for
independent civil society organizations engaged in monitoring activities complementary to
those of INDH. He calls upon the authorities to grant more importance in the protocols to
the crucial work of independent civil society actors in that respect, while preserving the
current important role of INDH.
35. Another issue of concern relates to the requirement for media workers to hold a
journalist licence or to be employed by a media company in order to be allowed to cover
assemblies.14 The Special Rapporteur finds this requirement unduly restrictive as freelance
journalists, community radio journalists, bloggers and citizen journalists — basically
anyone using a smartphone — should not be prevented from monitoring assemblies. Social
media are a crucial tool in democratic societies for upholding good governance and holding
officials accountable.
36. Furthermore, the protocols require that those monitoring assemblies remain at a
distance from the police operations area.15 Failure to respect such distance will lead to the
detention of the monitors. The Special Rapporteur deems this provision vague, which may
restrain or prevent monitors from undertaking their important work.
Lack of practical guidance
37. More importantly, the Special Rapporteur expresses general concern about the lack
of practical guidance on how to implement the police protocols and monitor their
13 See Carabineros de Chile, Protocolos para el mantenimiento del orden público (Police protocols for
maintaining public order), March 2013, protocol 5.1.
14 Ibid., protocol 5.2.
15 Ibid., protocol 5.3.
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implementation. Police abuses committed in the context of protests, as reported in the next
section of this report, provide apt examples.
38. In conclusion, the Special Rapporteur calls upon the authorities, in particular the
human rights unit within the police, to genuinely and thoroughly review the police
protocols and ensure that they comply with international human rights norms and standards.
He especially recommends that the authorities take into account as a useful guidance tool
on the matter the joint compilation of practical recommendations for the proper
management of assemblies16 that he and the Special Rapporteur on extrajudicial, summary
or arbitrary executions presented to the Human Rights Council in March 2016, as well as
the present report. Furthermore, it is essential that INDH and other relevant experts from
civil society be consulted in this review process in a meaningful manner. The Special
Rapporteur is available to provide technical assistance in this regard as deemed necessary.
2. Management of protests in practice
Overview
39. In recent years, Chileans have taken to the streets to demand reforms in relation to
education, social inclusion and decentralization, with the number and intensity of protests
peaking in 2011. With some notable exceptions, the majority of these protests took place in
a peaceful manner. However, during his visit, the Special Rapporteur heard several reports,
including directly from victims, of excessive use of force and sexual harassment of
protesters by the police special forces.
40. Such reports are in line with the concern expressed by the Human Rights Committee
during its consideration of the sixth periodic report of Chile, in 2014, when it was
“particularly concerned by cases involving the excessive use of force during public protests
and the infliction of torture during the transfer and detention of persons, as well as by
allegations about the police committing acts of sexual violence against girls and women
during student protests”.17
41. The Special Rapporteur makes a distinction between ordinary police officers, who
reportedly fulfil their functions adequately and who enjoy respect among the population,
and the police special forces, who allegedly regularly use excessive force when managing
protests. He notes the statement by the Ministry of the Interior that police special forces are
elite forces who receive special training. However, in the light of the several concerns
expressed about their interventions in the context of protests, the Special Rapporteur
questions the effectiveness and appropriateness of such training.
42. The police special forces have reportedly used rubber bullets, paintball guns, tear
gas and water cannons when policing protests, sometimes with tragic consequences. In
2011, Manuel Gutierrez Reinoso, aged 16, was shot dead by a police officer during a
protest in Santiago. In 2013, Enrique Eichin, while on his way home after taking part in a
protest for better education, in Santiago, was hit by a paintball bullet fired by a police
officer, which caused him to lose the sight in his right eye. Similarly, in 2008, Victor Salas,
a photojournalist, lost the sight in his right eye after being beaten by a police officer in
Valparaiso. In May 2015, Rodrigo Avilez, who was participating in a student protest in
Valparaiso, was unconscious for two months owing to the inappropriate use of a water
cannon. In 2011, a 16-year-old boy had his jaw broken by a police officer during a protest.
16 A/HRC/31/66.
17 See CCPR/C/CHL/CO/6, para. 19.
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43. The police have justified the dispersal of protests and recourse to force by the
presence of disruptive individuals — including possible agents provocateurs — in the
margins of such protests. However, the Special Rapporteur is not persuaded by this
argument. In his view, it is the duty of the police to distinguish between peaceful
demonstrators and disruptive individuals during their intervention. The presence of a few
people engaging in violence in and around a protest does not authorize police to brand the
entire protest as non-peaceful, nor does it not give the State carte blanche to use force
against protesters or carry out indiscriminate arrests. More importantly, the Special
Rapporteur emphasizes that, even when some protesters engage in violence during an
assembly, thus losing the protection of the right to peaceful assembly, they still retain all
other rights, including the right to life and right to bodily integrity.18
44. Therefore, violent elements should be extracted from the protest and dealt with in
accordance with the rule of law. The persistent failure in dealing appropriately with these
few violent individuals raises serious questions as to why an effective and well-trained
police force seems unable to handle a few violent people during protests. It is clear that
persistent violence by a few individuals is marring the image and effectiveness of public
protests. Extracting these violent individuals requires skill, training and dedication on the
part of the police. After meeting with authorities across the country, the Special Rapporteur
is confident that Chile’s police forces have the ability to better handle this situation.
45. The Public Prosecutor stated that it was very difficult to investigate disruptive
individuals and hold them accountable. There are reportedly hundreds of cases of such
individuals brought to his attention. However, the ability of his office to handle these cases
is often hampered owing to insufficient evidence provided by the police. He believes that
police reluctance to gather evidence is linked to the fact that violent protesters typically
face only minor charges, punishable by community service and verbal apologies. The
Special Rapporteur stresses that it is of utmost importance that agents provocateurs are
arrested, prosecuted and tried in accordance with the principles of due process.
46. The Special Rapporteur received testimonies from students, including minors,
detained during demonstrations in 2011. Most of them were released a couple of hours
later, but the detention prevented them from joining the assembly. INDH noted that the
majority of the detainees were not subsequently prosecuted, which demonstrated that the
police resorted to arbitrary arrests to illegally curb protests.19
47. Finally, the Special Rapporteur is concerned that officers have, at times, shown
hostility with regard to the work of INDH. For example, in 2013, INDH released a report
that was critical of police action during the 2011 protests. In response, the head of police
harshly criticized INDH and, in 2015, a parliamentary procedure was subsequently initiated
aimed at demoting the Director of INDH. The move was unsuccessful, but INDH continues
to be the subject of repeated public criticisms from the police and some members of
Parliament, who question the body’s impartiality.
48. The Special Rapporteur reiterates his full support for INDH and its staff, who
undertake important and independent work as human rights watchdogs, in compliance with
its parliamentary mandate.
18 See A/HRC/31/66, paras. 8-9.
19 See INDH, Situación de los Derechos Humanos en Chile, Informe anual 2011, p. 77. Available at
www.indh.cl/wp-content/uploads/2011/12/27555-Informe-Anual-2011-BAJA1.pdf.
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Cases of sexual harassment
49. During his visit, the Special Rapporteur was alerted to a number of cases involving
allegations of sexual harassment against female students and Mapuche demonstrators
detained during protests.
50. In a number of instances, women apprehended by the police in the context of
protests were beaten on their private parts or ordered while in detention to strip naked and
perform degrading physical exercises in front of officers. For instance, a 22-year-old female
Mapuche demonstrator was arrested during a protest in front of the Governor’s building in
Temuco and taken to a police station where she was beaten and forced to undress in front of
officers. Some victims filed complaints and the cases were brought before the military
court; however, they were dismissed as the perpetrators could not be identified. In other
cases, the Public Prosecutor allegedly did not have enough evidence to initiate court
proceedings.
51. The Special Rapporteur was also informed by civil society that a number of cases of
sexual harassment are not reported because the victims feel ashamed, because impunity for
the perpetrators prevails, or simply because women are unaware that abusive body
searches, derogatory comments or threats of sexual violence constitute sexual harassment.
It is also likely that the culture of impunity regarding sexual harassment leads some women
to accept that such acts constitute a natural consequence of their participation in protests.
52. The Special Rapporteur finds these claims deeply troubling. He raised these
concerns with the General Director of the Carabineros, who, at the time of the visit, was
only aware of one case of sexual harassment in which a police officer was subsequently
sanctioned. The General Director also mentioned that female police officers have been
trained to deal with female protestors on the front line. The Special Rapporteur notes that,
in response to the claims of sexual harassment and abuse, the Chilean authorities allow
INDH representatives to monitor detention facilities. He looks forward to resolute action to
hold all perpetrators accountable.
53. Regrettably, the Special Rapporteur received disconcerting allegations of sexual
harassment after his visit. On 11 March 2016, a group of peaceful protestors demonstrating
in the vicinity of the presidential palace against recent instances of femicide in the country
was dispersed by the police who reportedly used excessive force. Female protestors were
beaten and insulted by police officers and nine of them were taken to a police station. It is
reported that police officers sexually assaulted some of the detainees and touched their
private parts. INDH wrote to the General Director of the Carabineros with regard to this
case.
54. The Special Rapporteur is appalled by these latest allegations. He urges the police to
shed light on this case and to investigate and prosecute the alleged perpetrators, and, more
generally, to combat all acts of sexual harassment against female protestors and sanction
perpetrators appropriately.
Situation of indigenous peoples
55. The Special Rapporteur travelled to Temuco, in the Araucanía Region, to look into
the particular challenges faced by the indigenous Mapuche community in exercising their
right to freedom of peaceful assembly. He met with Mapuche representatives from different
communities, farmers and local authorities. Assembly rights are mainly exercised by the
Mapuche in the context of land disputes with farmers. These demonstrations take place in a
very tense and volatile environment, as the issue of indigenous land rights is a complex,
emotional topic that stretches back more than 200 years.
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56. For the general human rights situation of indigenous peoples in Chile, the Special
Rapporteur referred to the reports of the Special Rapporteur on the rights of indigenous
peoples20 and the Special Rapporteur on the promotion and protection of human rights
while countering terrorism and fundamental freedoms21 on their visits to Chile in 2009 and
2013, respectively.
57. The Special Rapporteur was informed by the authorities of Araucanía that peaceful
cohabitation with the Mapuche is a priority for the region and that the Government values
and fosters diversity. The Ministry of Justice reportedly has six specialized units, all of
which have special subunits dealing with Mapuche issues. The Ministry also has inter-
cultural facilitators and Mapuche staff to interact with the Mapuche community. According
to the head of police in Temuco, since he took up his functions in December 2013, the city
has not witnessed any incident relating to Mapuche protests. The police have specific
protocols to ensure that they respect Mapuche culture and do not breach community rights.
Mapuche detainees are allegedly allowed to practice their culture.
58. However, the Special Rapporteur received several reports that, over the past years,
the police have resorted to excessive use of force in the context of protests by indigenous
peoples calling for the respect of their rights, especially land rights.
59. The majority of protests by Mapuche take place in rural areas, on the lands that they
consider as theirs ancestrally and which are, today, owned by non-indigenous farmers.
Many of the protests are occupation-style demonstrations. They are typically peaceful,
although there have been instances of violence against farmers’ properties. In such cases,
police special forces are called in to disperse the occupation, often using excessive force
and apprehending the demonstrators.
60. The most emblematic cases of excessive use of force by the police against Mapuche
have occurred in the context of land occupation. In 2002, Alex Lemún, a 17-year-old
Mapuche, was shot dead by the police in Ercilla. The perpetrator received a one-day
suspension as a disciplinary measure and was acquitted by a military court. In 2008, Matias
Catrileo, a 22-year-old Mapuche student from the Requem Pillan community, was killed by
a police officer during a protest on the Santa Margarita farm in Vilcún. The internal police
investigation cleared the officer, however, a military court sentenced him to three years and
one day on probation. The police force maintained the police officer in his functions until
January 2013 when he was dismissed following repeated criticism from civil society. In
2009, Jaime Mendoza Collio, a 24-year-old Mapuche, was shot in the back by a police
officer while occupying the San Sebastian farm. An internal police investigation cleared the
alleged perpetrator but, in 2011, a military court sentenced him to five years and one day in
jail. However, the sentence was overturned a year later by a court martial which upheld the
thesis that the police officer had acted in self-defence. In 2013, the Supreme Court quashed
this decision, ruling that the conditions justifying self-defence had not been met, and
sentenced him to three years’ probation.
61. Mapuche demonstrators have reportedly been detained and mistreated in other
instances as well. In July 2012, a group of Mapuche belonging to the Temucuicui
community peacefully occupied La Romana farm in Ercilla. The police forcibly evacuated
the demonstrators, including children, and detained them. Similarly, on 1 October 2014,
members of the Mapuche Huilliche Marriao Collihuinca community proceeded to
peacefully occupy land in Lumaco Bajo. The demonstration was immediately dispersed by
a large police force. Two children, aged 10 and 12, started recording the eviction and were
aggressively ordered to stop (one police officer reportedly pointed his gun at one of the
20 A/HRC/12/34/Add.6.
21 A/HRC/25/59/Add.2.
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13
children). They were then handcuffed and taken in a police van to the police station in Río
Bueno, where the 12-year-old boy presented minor injuries.
62. The Special Rapporteur acknowledges that farmers involved in land disputes have
on some occasions been the victims of threats and acts of violence by Mapuche individuals.
However, in a meeting, the farmers themselves recognized that these violent Mapuche
individuals only represented a very small portion of the entire Mapuche community.
Furthermore, farmers have assaulted Mapuche and have reportedly not been prosecuted.
63. The Special Rapporteur was also informed that, in rural areas, there is a constant
police presence in Mapuche communities, which fuels tension and frustration within these
communities. Between 2009 and 2013, there were reportedly 70 police raids on Mapuche
communities, most carried out without a search warrant. In this context, six decisions
handed down by a court in Temuco ordered the police to refrain from violence and to
consider the safety of children during their operations. The police stated that, since
December 2013, all police interventions have been carried out on the basis of a court order.
64. In one distressing case, a female Mapuche religious leader (Machi) was put under
house arrest for eight months after the police allegedly discovered an illegal gun in her
house. The Machi denied that she had hidden the weapon and claimed that it had been
planted in her house. She had previously filed a complaint against a farmer for land
restitution, reportedly the first claim of its kind. The Machi was prosecuted and found
guilty of hiding a weapon, but later acquitted by the Supreme Court. While in police
custody, she was forced to remove her traditional outfit and necklaces, which she
considered deeply humiliating. She was later granted compensation by a civil court in
Temuco because the police officers failed to respect her ancestral authority as a Mapuche
Machi (although the court ruled that her detention and the raid at her place had been carried
out in accordance with the law).
65. Mapuche demonstrations in urban areas are reportedly regularly authorized, but the
massive presence of the police — seen as a form of intimidation — hinders participation.
According to testimonies, if the organizers seek permission to demonstrate from the
authorities, the police will unilaterally determine the route of the protest. In this regard, the
Special Rapporteur clarifies that the choice of location and route of an assembly principally
belongs to the organizers of the assembly.
66. The Special Rapporteur was informed that, when a protest takes place
spontaneously, for instance, in reaction to the sentencing of a Mapuche leader, it will be
dispersed immediately, usually by the police firing tear gas and rubber bullets or beating
protestors. In 2014, the leader of a Mapuche movement against land grabbing was
reportedly apprehended during a protest in front of a court, forced into a car and beaten
inside the vehicle.
67. From 17 August to 7 September 2015, a group of Mapuche, including several
women and children, belonging to 11 communities in the Malleco Region peacefully
occupied the premises of the Corporation for the Development of Indigenous Peoples
(CONADI) in Temuco. They were demanding that their ancestral land be respected and that
security forces present in the communities of Bajo Malleco be withdrawn. The police
special forces eventually intervened to clear the occupation in a reportedly excessively
forceful manner and with complete disregard for the fact that there were children on the
premises. Several Mapuche were injured during the operation. The police operation also
breached a court order that required the presence of an INDH representative during any
action to evacuate premises. The police told the Special Rapporteur that they had tried to
reach the local INDH representative ahead of the operation, but to no avail. However, the
INDH representative told the Special Rapporteur that he only had one missed call from the
police late at night, a few hours before starting the intervention.
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14
68. The Special Rapporteur calls upon the authorities to ensure a safe and conducive
environment for Mapuche exercising their right to freedom of peaceful assembly.
Fundamentally, a lasting solution to land dispute issues must be achieved and to this end
the Special Rapporteur once again refers to the reports of his peers and other human rights
mechanisms that have made concrete recommendations in this regard.
Case of Nelson Quichillao
69. The Special Rapporteur is similarly disturbed by the killing on 24 July 2015 in El
Salvador, Atacama Region, of Nelson Quichillao, a contract copper mine worker who was
shot dead by police special forces during a protest. The protestors, all subcontractors
working for CODELCO, the State-owned copper mining company, were blockading the
road to the mine, calling for better pay and benefits. Police used live ammunition to clear
the demonstration.
70. The Special Rapporteur travelled to El Salvador, including to the site where the
tragedy occurred, and met with Mr. Quichillao’s colleagues at the Confederation of Copper
Workers (CTC). He also met with local authorities, including the police, in Copiapo, and
representatives of the Federation of Copper Workers (FTC) — the union that represents
permanent employees —, who have dissociated themselves from the Confederation’s
action, to discuss this case.
71. The authorities claim that the protest was not entirely peaceful, and that they were
acting in self-defence when they fired live ammunition. In fact, Mr. Quichillao was inside a
mechanical shovel when he was shot by the police special forces, who claimed that he was
using the vehicle to advance on them. Some witnesses stated, however, that the vehicle was
moving away from the police forces when they opened fire. Regardless of the veracity of
the claims, the Special Rapporteur believes that the police response raises serious questions
regarding proportionality. He stresses again that individuals retain at all times their rights to
life and physical integrity, even if they become violent during protests, and it is the State’s
duty to safeguard those rights.
72. The Special Rapporteur welcomes the investigation that has been opened into the
case, which was still ongoing at the time of the drafting of this report. He trusts that it will
be conducted in an impartial, transparent and thorough manner, with a view to shedding full
light on this tragedy as the best way to ease the tensions among the copper workers
community.
3. Preventive identity controls
73. Another issue of concern that was brought to the attention of the Special Rapporteur
during his visit was preventive controls of demonstrators’ identification by the police.
74. Article 85 of the Code of Criminal Procedure allows authorities to undertake identity
controls in the context of a crime committed or suspected of being committed. A person
failing or refusing to identify himself or herself can be taken to the nearest police station,
where further efforts of identification may take place. The individual may be held for up to
eight hours, after which he or she must be released.
75. The Special Rapporteur received reports that the authorities have performed
preventive identity controls in the context of protests, stopping individuals at random —
with no specific evidence that they had committed or were about to commit a crime —,
requesting identification and detaining them if identification cannot be produced. The
authorities have denied any such practice. The Special Rapporteur believes that the use of
such identity controls amounts to a type of profiling and surveillance that has the potential
to chill the exercise of the right to freedom of peaceful assembly.
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76. The Special Rapporteur finds it worrying that a bill enabling wider use of preventive
identity controls is pending in Parliament and had been endorsed by the Chamber of
Deputies at the time of his visit.22 Article 12 of bill No. 9985-07 introduces a new general
power for the police to stop and check the identity of anybody, without any indication or
context of a crime. This provision greatly exacerbates the risk of chilling the exercise of the
right to freedom of peaceful assembly and other rights and possibly violating such rights, as
no justification whatsoever will be needed to stop people and request identification.
77. The Special Rapporteur fears that the bill will disproportionately affect groups at
risk, such as youth (students), indigenous peoples, trade unionists and migrants. Giving law
enforcement authorities enhanced power and discretion could create opportunities for
repression and abuse of authority, with little or no checks and balances. He is also worried
that there is not sufficient independent oversight of the data collected during the preventive
identity controls. Overall, the Special Rapporteur echoes the statement made by the
Supreme Court in its report of September 2015 that the preventive identity checks, as
envisaged in the bill on combating crime, is “difficult to accept in a democratic State”.23
78. During his visit, the Special Rapporteur was told by Government officials that the
bill is necessary to stem a recent increase in criminal activity in Chile. He is, however, not
convinced that the law will be effective in combating crime. In fact, it may do the opposite;
allowing the police to randomly detain anyone they choose without any evidence or
identifiable suspicion is a shortcut that fosters counterproductive policing. Effective police
forces can do their jobs without interfering with fundamental rights. The Special
Rapporteur is confident that Chile’s police force is effective and that it does not need — nor
will it benefit from — such shortcuts.
79. On 17 November 2015, the Special Rapporteur issued a comprehensive analysis of
the bill, which was shared with key members of the Chilean executive, legislative and
judiciary.24 He urges all stakeholders involved in the legislative process to take into account
the concerns detailed in that document with a view to ensuring that Chile complies with its
obligations under international human rights law and to further strengthening democracy
and the rule of law in the country.
4. Military jurisdiction
80. Also of great concern to the Special Rapporteur is the fact that human rights
violations committed by law enforcement authorities can fall under the jurisdiction of
military justice. This is highly problematic. First of all, military jurisdictions ought to be
limited to matters of a military nature only; second, military courts do not offer sufficient
guarantees of independence and impartiality in such cases. According to INDH, between
1990 and 2011, 40,000 cases of police abuses were reported, but perpetrators were
22 Since the Special Rapporteur’s visit, bill No. 9985-07 has been examined by the Senate Commission
for Constitution, Legislation and Justice and a few modifications have been made, which, however,
did not alter the purpose of the bill.
23 See Radio U Chile, “Informe de Corte Suprema califica de ‘ineficaz’ proyecto de ley
antidelincuencia”, 22 September 2015, available at http://radio.uchile.cl/2015/09/22/informe-de-corte-
suprema-califica-de-ineficaz-proyecto-de-ley-antidelincuencia.
24 See Office of the United Nations High Commissioner for Human Rights, Information note, “Analysis
of the proposed regime of identity control, draft bill number 9985-07 of Chile” by the Special
Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, 18
November 2015. Available at www.ohchr.org/Documents/Issues/FAssociation/2015-11-
18_Information_note_Chile_ENG.pdf.
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sanctioned in only 1.5 per cent of these cases.25 The majority of the cases were reportedly
brought before military courts. The Investigations Police of Chile corroborated the figures,
but stated that, most often, there was not enough evidence for sanctions to be applied. The
police disagreed with the figures cited by INDH, stating that out of 1,000 demonstrations
held each year, the police had been found responsible for violations in the context of only
three demonstrations.
81. The international community has, time and again, expressed serious concern over
this situation for many years. In 2005, the Inter-American Court for Human Rights, in the
case of Palamara-Iribarne v. Chile, ordered Chile to limit penal military jurisdiction to
matters of a military nature only. 26 The Human Rights Committee and the Committee
against Torture expressed similar positions in 2007 (reiterated in 2014) and 2009,
respectively.27 In 2014, the Special Rapporteur on the promotion and protection of human
rights while countering terrorism added his voice on the matter.28
82. In 2010, a law was passed to remove civilian perpetrators of violence against the
police from the jurisdiction of the military courts. However, this reform failed to address
violations committed against civilians by members of the police and the military, who
remain under the jurisdiction of these courts.
83. In 2014, the Public Prosecutor ordered prosecutors to transmit cases involving the
security forces to the ordinary courts, which the Special Rapporteur welcomes. He further
welcomes the February 2015 decision of the Supreme Court in the Enrique Eichin case,
which ruled that proceedings involving violence by the police against civilians should be
conducted by a civilian court, following a similar decision by the Constitutional Court.
84. This is most laudable, but the Government must go a step further and undertake a
comprehensive reform of the Code of Military Justice to ensure that military courts no
longer have jurisdiction, in cases of violations committed by security forces against
civilians. The Special Rapporteur discussed this issue at length with representatives of the
Ministries of Defence, Justice and the Interior, which all stated that such reform was a
priority for the Government. He was informed that the three ministries were working on a
bill aimed at rectifying the situation and returning the police forces to full civilian
oversight, as should be the case in democratic societies. However, at the time of the
drafting of this report, that is, some seven months after the visit, the bill had not yet been
presented to the Parliament. The Special Rapporteur finds this disappointing. He urges the
Government to tackle this matter as one of utmost urgency.
85. In the Special Rapporteur’s opinion, the current system — and the impunity it
fosters — is among the most visible parts of the legacy of dictatorship in Chile. A
comprehensive legislative reform in compliance with international human rights standards
would be a landmark achievement and another nail in the coffin of the dictatorship.
25 See INDH, Estudio exploratorio, “Estado de Chile y pueblo Mapuche – Análisis de tendencias en
materia de violencia estatal en la Región de La Araucanía”, February 2014, chap. 3.
26 See Inter-American Court of Human Rights, Palamara-Iribarne v. Chile, judgment of 22 November
2005 (merits, reparations and costs), available at www.corteidh.or.cr/docs/casos/articulos/
seriec_135_ing.pdf.
27 See CCPR/C/CHL/CO/5, para. 12; CCPR/C/CHL/CO/6, para. 22; and CAT/C/CHL/CO/5, para. 14.
28 See A/HRC/25/59/Add.2, paras. 75 and 96.
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III. Freedom of association
A. Associations
86. The Constitution of Chile guarantees the right to associate without authorization (art.
19 (15)). Act No. 20500 on Associations and Citizen Participation in Public Administration
further guarantees the right of everyone to associate freely, under the condition that the
association does not pursue an aim that is contrary to morals, public order or national
security (art. 1). To acquire legal personality, an association must register at the
municipality level and provide general information, such as the name and address of the
association, its purpose and its statutes. Associations can, however, operate without legal
personality.29
87. Prior to the adoption of Act No. 20500, the registration of associations was a
prerogative of the Ministry of Justice and the procedure was deemed burdensome. The
Special Rapporteur notes with satisfaction that the current procedure is uncomplicated and
free of charge. However, it may take up to two months for an association to be registered,
depending on the municipality in which the application is made, whereas the procedure to
create a business company is reportedly lighter and faster. In January 2016, the President of
Chile announced that Act No. 20500 would be amended with a view to strengthening it and
making it effective at the local level.30 The Special Rapporteur hopes that this reform will
be an opportunity to provide guidance to authorities at the local level in charge of
registering associations with a view to expediting the process.
88. The Special Rapporteur also notes with satisfaction that there are no legal barriers
for associations to receive domestic or foreign funding. However, many civil society
interlocutors complained that there are very few opportunities to obtain funding. The
Special Rapporteur encourages the Government to enhance its support and resources to
civil society, especially critical accountability organizations.
89. It is clear that the Government places a high value on the contributions of the private
sector to the economy and public policy. However, it is not so obvious that it values that of
civil society associations, including trade unions, to a similar extent. The Special
Rapporteur calls upon the Government to facilitate an enabling environment for civil
society similar to that accorded to businesses, for example by considering their views and
opinions on public policy, as it does when it comes to the views of businesses and experts.
In this regard, the Special Rapporteur is encouraged by the establishment of the National
Council on Citizen Participation and Strengthening of Civil Society, which seeks to
“effectively include citizens and the enormous diversity of citizen organizations in public
life”.31
90. Another issue of concern to the Special Rapporteur is the fact that under Act No.
19253 on the Protection, Promotion and Development of Indigenous Peoples and its
regulation, land restitution claims by indigenous peoples are restricted to indigenous
communities or to indigenous individuals. However, indigenous leaders expressed
concerns, which the Special Rapporteur shares, that this legal requisite favours forms of
associations for reclaiming land that erode their traditional structures and organizations,
which are generally based on larger territories than those of communities or family
relations.
29 See Civil Code of Chile, title 33, arts. 545-548.
30 See Government of Chile press release, available at www.gob.cl/2016/01/14/president-presents-
national-council-on-citizen-participation-and-strengthening-of-civil-society/.
31 Ibid.
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91. Article 20 of Act No. 19253 establishes an indigenous land and water fund,
administered by CONADI, which is tasked with considering land claims by indigenous
individuals or indigenous communities. In order to make a claim, an indigenous community
must be recognized as a legal entity, as provided for under article 10 of Act No. 19523.
Consequently, indigenous people’s traditional institutions, such as the Lof or Aillu in the
case of the Mapuche and the Aymara, respectively, cannot submit claims to CONADI as
they were not created in accordance with Act No. 19523 nor are they registered as legal
entities pursuant to the Act.
92. The Special Rapporteur calls upon the Government to rectify this situation without
delay. This situation is all the more troubling as the ILO Indigenous and Tribal Peoples
Convention (No. 169), which Chile ratified, acknowledges the existence of indigenous
traditional institutions and requires that States parties to the Convention recognize them.
B. Trade unions
93. Chile’s labour legislation is another remnant of the dictatorship era and has, on
several occasions, been criticized by ILO.32
94. Of particular concern is the fact that the Constitution does not recognize the right to
strike for State and municipal employees nor for workers in private-sector enterprises that
provide public utility services or other services, the interruption of which would seriously
endanger health, supplies to the population, the national economy or national security (art.
19 (16)). This is reaffirmed in article 384 of the Labour Code. Moreover, if a strike is
deemed to cause a serious risk to health, the supply of goods or services to the population,
the national economy or national security, owing to its nature, timing or duration, the
President of the Republic may order the resumption of work (art. 385). The Labour Code
also requires an absolute majority of workers in a company to decide to go on strike (arts.
372-373). In addition, while containing a general ban on the replacement of striking
workers, article 381 of the Labour Code provides for exceptions to the rule under certain
conditions. The Constitution also denies the right to collective bargaining for public-sector
workers (art. 16) and prohibits trade union officials from becoming active members in a
political party (art. 23).
95. The Special Rapporteur welcomes the fact that, since 2015, the Government of Chile
has embarked on a process to reform its labour legislation, in consultation with social
partners, including the Chilean Trade Union Federation (CUT). A bill was drafted that
addresses some of the most pressing issues, including effectively guaranteeing the rights to
strike and collective bargaining, banning the replacement of striking workers and
introducing a gender clause that makes the presence of at least of one woman on the union
negotiating team compulsory.
96. While noting these improvements with satisfaction, the Special Rapporteur regrets
that the bill fails to address the right of public-sector workers to form trade unions.
Moreover, it broadens the category of workers prohibited from striking, banning strike
action by those performing “minimum services”. International standards state that only
workers providing “essential services” may face restrictions to their right to strike.
According to ILO, “essential services” are those “the interruption of which would endanger
32 See ILO Committee of Experts on the Application of Conventions and Recommendations,
Observation concerning the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) in respect of Chile (2010). Available at www.ilo.org/dyn/normlex/en/
f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2314910.
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the life, personal safety or health of the whole or part of the population”.33 Furthermore,
CUT considers that the bill is conceptually flawed as it does not recognize trade unions as
key players for democracy. It is hoped that the bill will foster a better union culture with
bigger and stronger unions as, currently, trade unions in Chile are largely fragmented into
small weaker unions. According to CUT, the overall unionization rate is 14.6 per cent,
while collective bargaining coverage is only 8 per cent.
97. At the time of the drafting of this report, the bill had not yet been adopted. The
Special Rapporteur urges the Government to address these remaining issues of concern
without delay, prior to adoption. He also urges the Government to continue to take
measures to bring its legislation into full compliance with ILO Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87) and Right to Organise and
Collective Bargaining Convention, 1949 (No. 98), as requested by the ILO Committee of
Experts on the Application of Conventions and Recommendations.
98. It is also important that the Government ensure that all employers cease anti-union
activities such as targeting, blacklisting or firing workers for exercising their right to strike,
which demeans the right. The Special Rapporteur reminds Chile of its obligation under
international human rights law to ensure the right to strike.34
99. The Special Rapporteur believes it is equally important for the Government to
remain sensitive to the increasing use of contract employees on the part of businesses —
particularly State enterprises — and how this impacts workers’ right to association. While
the use of contract employees, in and of itself, is not a violation of the right to freedom of
association, widespread use of the practice can create a feeling of precariousness that would
degrade the right. Employers may also abuse outsourcing as a divide-and-conquer tactic to
keep workers in check, as in the case of the Federation of Copper Workers (FTC) and the
Confederation of Copper Workers (CTC) in El Salvador, which are openly at odds with
each other. This antagonism clearly stems, in part, from large imbalances in pay, benefits
and job security between the two groups.
100. Furthermore, the Special Rapporteur heard claims that 250 demonstrators who took
part in the road blockade in El Salvador and gave testimonies during the initial
investigation were subsequently fired by their outsourcing companies as a means of
retaliation. He conveyed these serious allegations to the Public Prosecutor, who said that his
office would investigate them. The Special Rapporteur calls upon all stakeholders involved
in the labour dispute that triggered this tragedy, including the Ministry of Labour, to engage
in a genuine dialogue to seek a sustainable solution.
IV. Conclusion and recommendations
A. Conclusion
101. Chile has made remarkable progress in the last 25 years and will no doubt
continue to do so. It has made a most painful journey towards democracy, one that is
an inspiration for all peoples striving for democracy around the world. Chileans have
set a high standard for what they want to achieve in terms of human rights and, in
turn, the international community has high expectations for Chile in this regard.
33 Ibid.
34 See International Covenant on Economic, Social and Cultural Rights, art. 8.
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102. The rights to freedom of peaceful assembly and of association are generally
protected in Chile. Chileans exercise these rights routinely and vibrantly. However,
there are areas for improvement, as in any country. It is important for Chile to
address the remaining challenges, both for the consolidation of its own democracy and
in order to take its rightful place as a global leader in human rights.
103. Chile’s most significant challenge lies in the fact that some vestiges of
dictatorship remain. The transition has been gradual and not a radical break with the
past, leaving remnants of yesteryear that have no place in the Chile of today. A central
feature of the dictatorship era was the severe restriction of rights emanating from the
securitization of the State. As a consequence, there is an urgent need for today’s police
to change their mindset with regard to assemblies and protests. Under international
law, this role is clear: they are there to facilitate and protect peaceful assemblies and
protests.
104. This situation represents a significant — yet certainly surmountable — obstacle
to the unhindered exercise of the rights to freedom of peaceful assembly and of
association and weakens their effectiveness as a tool to peacefully address social
conflict, precisely at a time when Chile needs them most. A democratic dispensation
elevates and preserves rights and makes limitations the exception. It also fully
embraces and encourages a plurality of voices from civil society whose contribution to
the consolidation of democracy cannot be stressed enough.
105. The following recommendations are made bearing in mind where Chile has
come from, but also where it is capable of going. The Special Rapporteur is confident
that the country has the capacity, political will and maturity to see this transition
through. In this regard, the Special Rapporteur stands ready to provide any technical
assistance to the Government when deemed necessary.
B. Recommendations
106. The Special Rapporteur calls on the competent authorities to:
(a) Repeal Supreme Decree No. 1086;
(b) Adopt new legislation that facilitates and protects the exercise of the
right to freedom of peaceful assembly and that requires, at most, prior notification of
peaceful assemblies, with the exception of spontaneous assemblies;
(c) Amend the police protocols with a view to ensuring their compatibility
with international human rights norms and standards, including the joint report of
the Special Rapporteur and the Special Rapporteur on extrajudicial, summary or
arbitrary executions on the proper management of assemblies (A/HRC/31/66);
(d) Provide clear practical guidance to police officers on how to implement
the revised police protocols and monitor their implementation;
(e) Ensure that police officers apply non-violent means before resorting to
force and, when force is unavoidable, they should exercise restraint in proportion to
the seriousness of the offence and to objectives pursued with due respect to human
lives;
(f) Also ensure that police officers distinguish at all times between peaceful
and non-peaceful protesters, extract the non-peaceful protesters from the protests and
prosecute them in conformity with the rule of law;
(g) Further ensure that all allegations of excessive use of force and sexual
harassment against female and male protestors by security forces are promptly,
A/HRC/32/36/Add.1
21
thoroughly and independently investigated, and that the alleged perpetrators are
prosecuted;
(h) Train and test police officers effectively and regularly on human rights,
in general, and on the management of assemblies and protests, in particular, with
focus on the appropriate use of force under international law;
(i) Train police officers on the rights and culture of the indigenous peoples
of Chile and ensure that they effectively respect those rights and culture;
(j) Ensure that the victims of violations and abuses of the rights to freedom
of peaceful assembly and of association can access civilian courts and obtain
appropriate reparation, including adequate compensation, and health and
rehabilitation services;
(k) Ensure that law enforcement authorities do not perform preventive
identity controls in the context of protests and improve independent oversight
mechanisms to this end;
(l) Review bill No. 998507, which introduces changes to the current identity
control regime, to ensure that it complies with international human rights norms and
standards;
(m) Adopt a law that guarantees that all violations committed by security
forces against civilians fall within the jurisdiction of civilian courts;
(n) Ensure that the registration process for associations to obtain legal
personality is completed in a speedy manner in all municipalities and provide
guidance and support to municipal officials to enable them to fulfil their task
effectively;
(o) Enhance support and resources to civil society actors, especially
accountability organizations, and ensure an enabling environment that is as conducive
to success as the one accorded to the business sector;
(p) Amend Act No. 19253 with a view to allowing indigenous traditional
institutions to claim land restitution, while implementing International Labour
Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), which
acknowledges the legitimacy of such institutions;
(q) Adopt labour legislation that recognizes trade unions as key players for
democracy and addresses all concerns raised by ILO regarding current labour
legislation;
(r) Ensure that all employers cease anti-union activities;
(s) Allocate adequate human, material and financial resources to the Under-
Secretariat for Human Rights;
(t) Take fully into account the observations and recommendations made by
the National Institute for Human Rights (Instituto Nacional de Derechos Humanos)
(INDH) in relation to respect for human rights;
(u) Engage in meaningful consultations with civil society actors, including
INDH, in decision-making processes, in particular when adopting and amending the
above-mentioned legislation;
(v) Continue their laudable efforts to promote and protect the rights to
freedom of peaceful assembly and of association at the international level.
A/HRC/32/36/Add.1
22
107. The Special Rapporteur calls upon the National Institute for Human Rights
(Instituto Nacional de Derechos Humanos) (INDH) to:
(a) Continue its excellent work in monitoring and reporting on human
rights violations and abuses, and in promoting and protecting human rights, in
general;
(b) Follow up and monitor the implementation of the recommendations
contained in this report.
108. The Special Rapporteur calls upon civil society actors to:
(a) Continue their advocacy and monitoring work in relation to the
enjoyment of the rights to freedom of peaceful assembly and of association;
(b) Use every opportunity to participate in decision-making processes,
including in relation to the elaboration of the above-mentioned draft laws;
(c) Follow up and monitor the implementation of the recommendations
contained in this report.
109. The Special Rapporteur calls on the United Nations, including the Office of the
United Nations High Commissioner for Human Rights, to:
(a) Continue its advocacy work with relevant authorities concerning respect
for the rights to freedom of peaceful assembly and of association;
(b) Further support capacity-building of the relevant authorities, INDH and
civil society organizations;
(c) Follow up and monitor the implementation of the recommendations
contained in this report.