UNITED NATIONS Distr. ECO GENERAL te/ , , E/GN.4/1207 AND ' © i ••..••'••S>;Í /ff 16 February 1976 ENGLISH SOCIAL (3l»:iL Original ! ENGLISH/SPAITISH*

COmiSSION ON HUÎ-IAN itIGHTS Thirty-second session Agenda item 5

STUDY' OF REPORTED VIOLATIONS OF HUMAN RIGHTS IN CHILE, WITH PARTICULAR REFERENCE TO TORTURE AND OTHER CRUEL, INHU^IAN OR DEGRADING TREATMENT OR PUNISHMENT

Note by the Secretariat

By letter dated 16 February 1976, addressed to the Director of the Division of Human Rights, the Permanent Representative of Chile to the united Nations Office at Geneva has requested the distribution of the attached material as a document of the Commission.

English and Spanish texts provided by the Government of Chile.

GE.76-2472 E/CN.4/1207 page 2

OBSERVATIONS OP THE DELEGATION OP CHILE ON THE REPORT OP THE AD HOC WORKDIG GROUP (DOCUMENT E/CN.4/1I88)

I. Introduction

Examples of the Report's lack of objectivity

(a) Misleading information

(b) Omi ssions in the Report

II. Analysis of some aspects of the Report

(a) Relations between the Catholic Church and the Government of Chile

(b) Considerations related to the state of siege

(c) The media

(d) Unconstitutionality of the Decree Laws adopted by the Junta

(e) Independence of the Judiciary in Chile

(f) Freedom from arbitrary arrest or imprisonment; the right to a fair trial, and the presumption of innocence.

(g) Missing persons

(h) Torture and other cruel, inhuman and degrading treatment

(i) The situation of women, children, young people and the family

(j) Freedom of association and Trade Union Rights

III. Observations on the annexes to the Report

(a) Observations on the case of Sheila Cassidy

(b) Information pertaining to Bishop Helmut Frenz

(c) Observations on the sta-tements made by Mr. Kirberg

IV. Pinal remarks E/CÏÏ.4/1207 page 3

. OBSERVATIONS OP THE DELEGATION OP CHILE ON THE REPORT OP THE AD HOC ¥ОЖШС GROUP (DOCUMENT E/CN,4/1188)

I. Introduction

Having considered the Report presented to the United Nations Commission of Human Rights by the Ad Hoc V/orking Group to Inquire into the Present Situation of Human Rights in Chile, the Government of Chile must place on record its most formal and vigoi'ous protest at the terms of that Report, which shov/ that the Group's analysis of the situation is neither objective nor serious.

The method of inquiry used in the Report, and its conclusions, are incompatible with the terms of reference of the Ad Hoc Working Group; this deplorable fact cannot fail to diminish the prestige of the United Nations as an organ for the advancement of human rights.

Having already raised serious objections to the progress report of the Ad Hoc Working Group, which was presented to the thirtieth session of the General Assembly, the Chilean Government had hoped that, for the sake of greater objectivity, the final report would be the result of a responsible and broad investigation based on a thorough examination of all available information.

A cursory reading of the Report shows that the flaws of the progress report, far from disappearing, have now become much worse.

Of course, the Report continues to omit practically all the background information presented by the Government of Chile, while deliberately and arbitrarily rejecting those items of such information that it does contain.

Like the progress report, this document is based almost exclusively on the statements of witnesses, sworn enemies of, the Government of Chile, v;hile no proof is offered of the truth of,their assertions. Anything likely to discredit the Government of Chile is noted down, even though many of these accounts are implausible and fanciful.

In fact, this Report draws a highly defamatory picture of Chile, depicting its people as brutal and uncivilized, and capable of committing horrors which belong exclusively in the minds of certain witnesses who, in their determination to discredit the Government of Chile, and replace it by another kind of government, have given no thought to the enormous harm they are doing to their country.

An oral statement will be made in the Commission, giving the Chilean Government's reply to this Report; however, the Chilean Delegation feels obliged to further illustrate its position in writing.

Examples of the Report's lack of objectivity

(a) Misleading informa.tion

1. Paragraph 145 of the Report states that the attempted murder of Bernardo Leighton and his wife in Rome had been analyzed and that the "information would seem to indicate that ... it was inspired by sources which may have roots in Chile". E/OT.4/1207 pa^e 4

The inclusion of such an affirmation, even in this qualified form, is inadmissible; it is a serious error vrhich calls into question the seriousness and impartiality which one would have hoped to find in this kind of Eeport. The Government of Chile emphatically rejects this assumption which lays.the whole- document open to challenge and protests at its inclusion.

It is plainly not possible to include in a. Report an event which happened outside Chile and which is being investigated by the competent Italian judicial authorities. Besides constituting interference in matters beyond the competence of those making the assertion, it prejudges a conclusion which is entirely unfoimded, and the possibility of which has never been raised, or even implied, by those judicial authorities.

The fact that the Working Group bases its insinuations on "a number of press clippings and other information" leaves little room for doubt as to the Group's intention to harm Chile by placing on it indirect blame for an act which the Government of Chile \ias the first to officially deplore.

2. Paragraph 138 of the document includes a list of the names of 77 alleged tortured.

The Government of Chile protests against this assertion. It is all too easy for the enemies of Chile to list names, which, through some curious coincidence, happen to be precisely those to be heard every day in the broadcasts of Radio Moscow. It is quite clear that little thought can have gone into the preparation of this list, as some of the persons it names are no longer alive, while others are Generals of the. Republic and public figures v/ho hold important diplomatic posts abroad, some of them since before the establishment of the Working Group.

Moreover, such a procedure contrasts sharply with the zeal displayed when the iden.tity of those giving evidence against the Government of Chile is to be protected, since, in this case, no account has been taken of the obvious consequences, for the good name, the honour and the family of those named, of their inclusion in this list.

3. We take formal exception to the fact that the opinion of the President of the Republic has :een quoted from the wor^s of a witness, and not from official dociments in the possession of the Secretary General of the United Nations,

The Delegation of Chile wishes it to be known in this Commission that the Press Secretary of the President of the Republic has categorically denied that His Excellency held such a conversation with the person claiming-to have witnessed his words. The same is true of the statement allegedly made by the President of the Supreme Court of Justice.

It should be noted that the Report omits the long and important. âtatem;en.t . made by the fomer President of the Supreme Court of Justice, Enrique Urrutia, while, at the same time, mentioning the opinion of-that. Court through malicious, false arid tendentious statements on the part of witnesses. E/CU.4/1207 page 5

(b) Omissions in the Report

What the Report omits is quite as important as the faults we have just described.

1. ITotwithstanding the abundant documentation presented to the General Assembly at its thirtieth session (the situation of human rights in Chile, October 1975> Vol. II, p. 56 and 37) about the existence of peimanent daily radio broadcasts containing programmes which call for subversion and the overthrow of the present Government, the formation of terrorist groups and the use of violence, the Report is silent on this matter.

2. ' Uor does the Report mention the numerous types of publications which circulate abundantly in foreign countries, and, in some cases, clandestinely within Chile, expressing the ideas and pursuing the aims outlined in the preceding paragraph''(dp'.cit. 5 pp. 14O-I5I, and 277-291).

3. The Report is likewise silent on the indisputable evidence presented by the Government of Chile concerning weapons which have been illegally brought into the country, and which continue even now to be brought in, and whose origin has btften made abundantly clear (op.cit., pp. 30б~3б1 and Vol. I. pp. 44-46)'.

4. The Report says nothing about the whole series of acts of violence committed in Chile, vhile the progress report was being prepared, a detailed account of which has been sent to the General Assembly (op.cit., Vol. I, pages 46-5I; Acts of violence against Chile in foreign côimtries, op.cit.. Vol. II, page 215; internal acts of violence, op.cit.. Vol. II, pages 154-186).

Despite all these things, the Report states that the Group cannot be sure of the existence of events and situations which could justify the maintenance of the state of siege. Apart from the fact that, by making such a statement,, the Group has encroached on the jurisdiction of a sovereign State, it also seems to have deliberately ignored authentic information which was in its possession. Furthermore, the Report is inconsistent, in that, despite the assumption referred to above, it concludes, in paragraph 76, that the present, situation in Chile does not endanger the life' of the nation, vrhile, in the following paragraph it goes on to say that "it is impossible to conclude that such far-ranging and pervasive restrictions on human rights are required by the exigencies of the situation". E/^^N. 4/1207 page б

II, Analysis of some aspects of the Report

(a) Relations between the Catholic Church and the Government of Chile

Although this is an item v/hich would seem to have nothing to do with human rights,, the Report frequently refers to the opinion of the Catholic Church, and its disagreements with the Government. In this respect, the following can be stated quite emphatically;

(i) The Church in Chile has'absolute freedom to perform all of its apostolic fiHictions.

(ii) Chileans are proud of their Church, because it has performed its role and fulfilled its mission in the national life, in keeping with what Christ requires of it.

(iii) The problems caused by the action of some of its members in hiding extremist elements, in the words of the Episcopate, involved cases which would have to be tried before Chilean courts, and did not,concern the Church as such, since the Church condemns 'all forms of violence.

(iv) All priests or nuns involved in such matters are free, either in Chile br in their country of origin, by virtue of sovereign acts of the Government of Chile-, which granted'"them'safe'c'onduct's or amnesty. • .

(v) In order to replace the work done by the .Peace Committee (Comité Pro Paz) which has now been dissolved at the request of the President, but with the free consent of the Cardinal, whose independence is vrell known, the Church established the Vicaria de Solidaridad which will work through the parishes. It is presided over by Fr, Christian Pretch, former Secretary General of the Comité Pro-Paz, who is now the Vicar General for Solidarity.

(vi) On,21 January I976 a meeting took place between the President of the Republic and the President of the Bishops' Conference, vrhich consists of the Archbishops and Bishops of Chile, after which the Episcopal Commission issued the follovring statement; ''The purpose of the meeting was to hold official talks with the. President of the Republic, on behalf of all the Bishops of Chile, about matters of general interest affecting the well-being of all Chileans and concerning ..ways of improving Ghile's image abroad".

The statement continued; ''There ^ÍSÍS a discussion of Decree-Lav/ 1281, the situation in the camps, university problems and procedures concerning detained persons. The meeting -took place in э. cordial and frank atmosphere. The President appreciates the concern of the Bishops and indicated certain measures which were to be subsequently announced by him and which represented a major step towards a normalization of the situation.''

The human rights measures which were later announced, and of which the Bishops had prior knowledge, appeared in Decree 187, which the Chilean delegation has included as an annex to document E/cN.4/1197.

) Considerations related to the State of Siege

After a description and comparison of the consequences of the State of Siege at the levels of internal defence and internal security, the Report analyses certain provisions of the Law on the Security of the State whereby the offences described therein must be dealt with, exceptionally, by military courts, and in accordance with wartime procedures. E/CN. 4/1207 page 7

For the authors of the Report, the only thing that matters seems to have been the fact that there might be a situation requiring the convening of a Council of War. The other differences between the various levels of the state of siege were quite irrelevant to them, apparently.

It clearly mattered little, in their eyes, that penalties for:offences were more severe because of the element of the time of war, and that this situation now no longer applies.

The fact that the Councils of War. now no longer hear cases involving threats to the security of the State (including violations of the arms control law) also counted for nothing, in their view.

Normal military jurisdiction is that which now applies,- it is administered by fully qualified legal personnel; their rulings are subject to review by superior courts,, consisting of several judges, including, in the last resort, the Supreme Court. Yet this, too, was felt not to be worth a mention in the Report.

The Report fails to point out that even cases such as that of Dr. Cassidy, who had been involved in helping and hiding extremist fugitives from justice then being sought in connexion with armed clashes with the police, are heard by military courts in accordance'With this regular peace-time procedure.

ñrevipusly, there used to te complaints about the Councils of War. Now, when such Councils may be formed only in the most exceptional cases, the chorus of protest seems to continue unabated.

Although these,cases involved attempts to overthrow the Government or violent or extremist acts, which deserve the severest penalties and which,are heavily punishable in every legal system in the world, all the Report chose to say was that the war-time procedure continued to apply.

It is indeed regrettable that the Report does not even mention what the Government of Chile, acting in good faith, has sought to do. In response to the recommendations of the international organizations, it is trying to bring about a return to normal, but is doing so with prudence in order to ensure that internal and external security can be made perfectly compatible with human rights. It is important to remember that hasty decisions in such matters could well lead to the return of former situations which have fortunately been brought to an end.

Moreover, the Report attempts to show that these exceptional penal powers have been drafted in such a general way that they enable the authority responsible for applying them to interpret them very widely (page 11, para, 30), Besides being regrettable, this is quite misleading, as almost all the legal provisions mentioned in the Report are couched in the same language as that used in Law 12,927, dated 1958, in which, by virtue of the very nature of the regulatory material involved, the legal description was necessarily general,

(c) The media

A special paragraph of the Report is devoted to the implications for the press, radio and television, of Decree Law IOO9, and the recent Decree Law 1281,

It merely points out, in this respect, that, under the first of these laws, the period during which publications or broadcasts of some of these media may be suspended has been raised from б to 10 days. As for the second law, it merely reproduces,part of the opinion of the. Broadcasters' Association of Chile, whiffhis opposed to this law. ,E/C1Í.4/12Ú7 page 8

The Report fails to point out that, in respect of Decree Law 1281;

(i) The Chilean Government itself asked the organs which would be affected by these regulations to give their opinion.

(ii) The Government asked for these opinions to be publicized through the media.

(iii) After hearing the opinion of the Broadcasters' Association of Chile, the College of Journalists and the National Eress Association, the Government offered to regulate the application of this Decree Law. (A separate annex gives some of: the, publications which appeared and which describe the debate which took place on Decree Law 1281).

No mention at all is made of the fact that, in a country with almost a hundred radio stations, in only one case were the provisions of the emergency zone applied, . when some of the programmes broadcast by Radio Balmaceda were suspended. Moreover, after the indefinite suspension of its broadcasts had been ordered, and although the Broadcasters'' Association held Decree Law 1281 to be unconstitutional, the radio station-appealed against the decision'to the Military Appeals Court (Cdirte Marcial) , and'did so on the basis of that Decree Law. The Military Appeals Court ruled in the station's favour, and ordered- the lifting of the suspension; the Chief of the Santiago Emergency Zone complied immediately. (Relevant information is given in a separate annex).•

PaxagT'aph 36 of the Report contains a charge which cannot go unanswered. It refers, tp the power of the military commander of a zone under a state of emergency to seize the issue of a publication that has the purpose of replacing pne already suspended5 yet the Report presents it in such a way as to sujggest that.it is the extension of a measure of réstriction on^freedom of expression. Its purpose, however, is different. The practice in Chile was that, when the Government applied a suspension, the tabloids and magazines affected by it would simply reappear the next day, only under a new name, even though they were really the same. ' The law in question was adopted precisely to'stop up this loophole in the law, and not for some other purposej as the Report suggests.

(d) Unconstitutionality of the Decree Laws adopted by the Junta

Throughout' the Report, but more speciiically in paragraphs 39» 40, 41 and 42, it is claimed that various decrees or ac.tions of the Junta or the President of the Republic are unconstitutional.

The following remarks are prompted by these allegations;

(i) Шо empowered the authors of the Report to pass judgement on the constitutionality, legality, unconstitutionality or illegality pf the acts pf the Government of Chile? The mere fact that they have sought to go into these matters at all is propf pf their ignorance of the internal affairs of Chile, which exceed the terms of reference of the Wprking Grpup.

• (ii) If the authprs had been familiar with the elementary prpvisipns pf the Chilean Pplitical Ccnstitutipn, they vrould have discpvered that it is based on a whole system, which has been put to the test now for nearly a century, and which is designed to ensure that legislative acts shall be subordinate to the Constitution, and the acts of the Administration to the rule of law. Only the authorities mentioned in^ our legal system, in the cases determined by that system, are empowered to prónoúñce on this problem. E/CN.4/1207 page 9

(iii) This point is clearly borne out by recent cases in which the Supreme Court and other Chilean courts have declared certain decree laws to be inapplicable or have blocked the implementation of certain acts of the Executive Branch. (For example, the case successfully brought by Mr. Carlos Briones, former Minister of the Interior under Allende, in respect of the social security rights of certain public officials, in which the Supreme Court ruled a decree law was unconstitutional and therefore inapplicable5 also,- the verdict of the Military Appeals Court v/hich reversed the decision to close Radio Balmaceda, in February of this year)..

(e) Independence of the Judiciary in Chile

In paragraphs 44-50, which give a superficial analysis of a number of legal, norms now in force in Chile, the Working Group seeks to show that "a serious, and' deliberate attack has thus been launched against the irremovability and independence of the judiciary".

The Chilean judiciary, as can be clearly seen from the report of the Government of Chile, has always enjoyed a high degree of independence, and economic and administrative autonomy. It is sufficient to note, in this regard, that no magistrate has been removed by the Government authorities. Everyone who has spoken on the subject, whether Chilean or foreign, both individuals and organs, has recognized that it has a long tradition of defence of fundamental freedoms and human rights. ("Present Situation of Human Rights in Chile", Vol. I, October 1975, page 59).

This is precisely the view taken by the present Government; accordingly, the document entitled "Fundamental aims and objectives for the new Political Constitution of the Republic", adopted on 26 November 1973, by the Commission for Constitutional Reforms, states;

"In order to protect freedoms and effectively consolidate the rule of law, the -Constitution shall embody the principles of the independence of the judiciary and the immovability of judges, according all due emphasis to the technical and professional nature of the judiciary", (op. cit. Vol, II, page 89).

It is within this context, particularly from the point of view of the technical and professional nature of the magistrature that Decree Laws I69 and I70 of I973, should be considered.

Decree Law I69, for the benefit of the judiciary, introduces reforms to the C6digo Orgánico de Tribunales concerning the annual evaluation of the qualifications of the personnel, in order to modernize the system and bring it into line with the general norms whioh apply in this ^here, that is. Decree with Force of Law 338, of i960, on Administrative Statutes.

A reading of this legal text will suffice to show the spirit in which it was drafted, as it entrusts to the Supreme Court, in accordance vjith the Political Constitution, the responsibility for the entire process.

The reference to impeccable morality relates necessarily to the-technical and professional .fulfilment of the functions of judicial office, and, together with efficiency, thoroughness and diligence in the performance of such tasks, is'one of the elements which constitute the good behaviour required by the law. Consequently, this element cannot be taken out of context and used as a basis for allegations of political dependence, which are, of course, wholly false. E/CN. 4/1207 page 10

Decree Law 170 merely .gives constitutional status to the evaluation of the qualifications of judicial personnel, for their own benefit. The fact that these norms have been made a part of the Constitution is further proof of the spirit in - which the Government of Chile has acted in this matter.

The Report capriciously divides the application of Decree Law I69 during 1973 into two periods, before and after 11 September, though this inf-erence hs.s no basis in the legal text.

The reference to Decree Law 527, of 1974, is most bizarre. - Decree--Law 527 approved the Statute of the Government Junta and conferred upon the President of the Junta, in vxhom executive power was vested, exactly the same powers as Article 72, No. 4 of the Political Constitution of the State had conferred upon the President of the Republic since I925.

It is clear from the foregoing that the interpretation placed on these texts by the Working Group is heavily biased. However, in order that the position ,of the Government of Chile should be fully understood., we wish to point out that, on 30 June 1975, the President of the Supreme Court addressed the Andrés Bello Diplomatic Academy of Chile on the subject of "The Supreme Court in the Juridical Order of the Nation'' (''Situation of Human Rights in Chile' , Vol. II, page 580)5 in the course of his address, he pointed out that, in order for the rule of law to exist, it was essential that courts, in general, and the Supreme Court, in particular, should have the power to judge, and to do so quite independently of any other authority; that judges should be immovable, and that the courts should be able to enforce their decisions. He went on to say;

"Many of you will ask yourselves: do these conditions now exist in Chile? I can reply emphatically that they do exist, because both the Supreme Court and the other courts of the country,, down to the loxs'est levels, have the power to judge, and are quite independent of any other authority; judges are immovable for as long as their good behaviour lasts, this question being decided solely by the Supreme Court; and the judges' decisions are carried out by the authorities appointed for this purpose. In response to this same question, I may add that the Executive Branch has not disregarded nor encroached upon any of the powers or attributes of the Judiciary in general, or of the Supreme Court in particular. Therefore, although execi.itive, legislative and constitutive power is novi vested in the President of the Republic and the Military Government Junta, judicial authority resides solely in the courts established by the Constitution and the LaM."

Lastly, it should be noted that all the documents referred to above were known to the Working Group; for this reason, the interpretation of these texts given in the Eeport is not only false, but blatantly biased, since its authors failed to take account of all the material available to them. This fact makes it clear that this is not a responsible report.

(f) Freedom from arbitrary arrest or imprisonment; the right to a fair trial and. the, presumption of innocence

(i) The Report again asserts that, in Chile, the right to personal freedom is not guaranteed, on accowni of the declaration of the state of siege. It should be noted that, if it occurs in contravention of the applicable legal norms, an arrest may, as in the past, be qualified as "arbitrary" in Chile. E/CN.4/1207 page 11

On this matter, however, the Report merely observes that the remedy against arbitrary arrest and detention - the recourse of amparo - does not exist in the country; the basis for this assertion is a statement by the Minister of Foreign Affairs, made on 10 January 1974, three months after the Military Pronunciamiento (page 21, para. 64, with a reference to para. 99 of the progress report).

Nothing is said, on the other hand, about the position taken by the Chilean Government in the. General Assembly, or about the supporting documents (A/C.3/639, Part II, Chapter 2, para. l).

(ii) On the subject of the right to a fair trial, the Report maintains that the criminal JTirisdiction of the ordinary civil courts has been excluded by means of the transfer of jurisdiction over certain crimes and also by the creation of new offences which will always come under military jurisdiction.

A serious case of legal confusion arises at this point in the Report, since it quotes, as a basis for its assertion, article 26 of the Lav/ on the Security of the State, and articles 2, 3 and 4 of Decree Law IOO9 (paragraphs 67 and 68).

1. Article 26 of the Law on the Security of the State gives the war-time military courts jurisdiction over some offences, only when the state of siege has been declared on account of a situation of internal or external war, which, as has been repeatedly stated, is hot the case now.

2. The same is true of Decree Law IOO9, article 4 of which stipulates that , the offences described in articles 2 and 3 of that law shall be dealt with by military courts; it adds, however, that these courts shall exercise their, jurisdiction in accordance with articles 26 and 30 of the Law on the Security of the State, which contains a procedure similar to that of the military tribunals in time of peace, and which has been'in force in Chile since I958.

3. A distinction should therefore be drawn between the notions of military courts, the procedures, provided for by the Law on the Security of the State, aлd procedures for military courts in time of war'.

4. On the basis of a confused presentation, the Report then concludes that from 11 September 1973 to 11 September 1975 "the procedure applied by the military authorities in the exercise of their jurisdiction was that of v/ar-time. Since 11 September 1975 the procedure has continued to be applied to many broadly defined crimes against State security'', (para. 69).

5. Such an affirmation must be categorically rejected. The Report cannot quote one single case, throughout the whole of Chile, in which a Council of War has been held since the date referred to above. f ' 6. Lastly, the Report makes two claims which are utterly unfovmded; 1. "In the absence of adequate military procedures, it is difficult to determine whether the peace-time military procedures ... constitute normal basic guarantees as regards criminal procedure, in particular as applicable to civilians", (para. 70). 2. "Little information has been received indicating whether, in fact, since 11 September 1975 peace-time military procedures are applied and with what results'', (para. 70).

As for the first of these assertions :

(a) The authors claim to have lacked information on the guarantees provided by the peace-time procedures. The fact is that this procedure is described in the É/CÏI. 4/1207 page 12

Code of Military Justice, which datos from .1925, -and vrhich the authors should surely have had before them. Moreover,, the members of the .Working Group were given-all inf-oHnation of this matter, . irtien. they began their work in May 1975 and also in oral statements raid written information presented to the General Assembljr at its 50th session. .

(b) It is important to remember that one of the essential features of this procedure is that the investigation is carried out by ftilly quaJ.ified personnel| appea,ls against its important, decisions may be lodged with a liilitary Appoa,ls Court. Vffien indicated, the stispoct may intervene in many, formalities involved in the proceedings; when charges, are brought., he take с part in thé trial;, and, most, important of all, the Supreme Coujrt has correctional and even disciplinary jurisdiction over Military iuppeals Couj?ts, and can certainlj'- review the decisions of such courts. It shouJ.d be remembered that the guarantees which vrers domaiided by all the international organs for the vrar-iime procedures uas precisely the poirers of review that the Supreme Court exercises ovex the verdicts of Councils of -./ar.

'ilie second of these claims is manifestly absurd. At many points, the Report is based on the evidence of Dr. Cassidy. However, her testJ-mony is not invoked as one of the cases in which. - э„о IID.S already boen said - despite the gravity of the ae-ts involved, the a-ccused. was tried, by г. military court in accordance with peace-time procedures. Tlio Report also fails to point Out that thc.t court acquitted her, against the wishes of the Govcmnient, and that a Militar^'- Appeals Court confirmed, the decision of the Pi seal.

Another case in which the participation of a liilitary Appeals Couxt appears relevaiat in this respect, and which the Commission on Human Rights cannot overlook, is the previously mentioned, case of Rsxlio Balmacédá; in the light of a judicial ruling contra.ry to its viishos, the Government had to cancel a suspensicn order issued by the milita.ry commander.of the Sa,ntiago emergency zone.

Tlie situation of Mr. Corvalan, which has been of such concern to world public opinion, is now being dealt with by a military court pursuant to the peace-time procedure, since the mili tars'- ju-dge, in the light of the change in the degree of the state of siege, ruled tha/fc this triaJ_ should be conducted by the Naval Fiscal and not by one appointed ad hoc.

'fhe Government of Chile therefore hopes that the Commission on Human Rights will take due note of the fact that gus,rantees of defendant's rights e::ist in the penal process, that this procedure is applied, and applied effectively, for the accused; and that, in particiilar, in the case of Ilr. Corvalaii, the concern conveyed to the Government at the possibility that ho might be tried by a. Council of l/ar, is now without foun.da

(iii) Lastly,, paragraph 73 of the Report, referring to the enjoyment of other human rights in Chile, clairis that "Chilean criminal law has been am;;^ided in stich a way as to endanger the right of a person to be presumed innocent".

'iMs affirmation is based on an eJtample dravm from article 5 of Decree. Law IOO9, which is concerned with presujned incitement to commit crimes a,gainst the security of the State. Е/СН.4/1207 page 13

However, the presmption in question here does not constitute ал. .ajoiendment to Chile^ legislation. In Chile, since 1874? article 1 of the репз2 code has stated the following: "Actions or omissions irhich are punishable by the lavr shall alv/ays be deemed to be voluntary, unless specified otherwise". Article 454 of that same Penal Code says; "A person who has a given object in his possession shall be presumed to have stolen it unless he can demonstrate that he acquired it legally". This also applied to those foimd in possession of the instruments with which a robbery could be committed (art. 445) o^" with bombs or incendiary devices (art. 4Sl)> in which causes the same presumption of authorship is made. These examples are drav/n from the Penal Code, and do not take into account other statutes where, similar cases are stipulated.

In Chile, the presuEiption of innocence remains valid, as it must be applied in the ruling of the judge, whether it be an acquittal or a conviction, in either case being based on proper lejal evidence (art. 456 of the Code of Penal 'Proceà.vre, liThich is also applicable to the pea,ce-time militaay procedures, as laid do\m in article 158 of the Code of îlilitarj'- Justice. It is therefore yrrong to say. - snch a lack of legal knowledge being understandable in this Report - that our legislation has been amended in such a way as to endanger the presumption of innocence. Presumption of participation is here confused, unforttinately, with presumption of guilt, which is quite a different notion in penal 1эл/.

(g) Ilissing persons

The Report states that "the doc^nents subm.itted to the General Assembly by the Government of Chile, which have been examined by the Group, minimize the overall problem of arrested persons and ignores the problem of those who, have disappeared."

Later on, it adds that "According to estimates from other sources, the number of persons in the couлtry who have been arrested and have disappeared exceeds 1,000 and may even be close to 2,000". .

'ihe Chilean Government deplores the irresponsibility of the statement tha.t it has ignored the problem of missing persons. It is sxorprising that it has not' been noticed that the question is dealt- with in a docuriient submitted by Chile at . the Thirtieth .session of the General Assembly under the title "Presufliptive missing persons" (A/C.3/639), pp. 52-56, and in volume II of the annexes, pp. 375-423.

The representative of Chile also referred to this question in a statement made to the Third Cpmmittec.

As both, docuraents are before the,members of the Commission on Human Rights, we shall leave the matter in their hands in the hope that they will judge for themselves whether or not Chile has really ignored the question of missing persons. E/CIÍ.4/1207 page Í4

¥ith regard to tlie total manber of missing persons, and in viev/ of the fact that the Report states without any foundation whatsoever that they may be as many as 1,000 or even 2,000,, the Government of Chile would be glad if the names of the persons in question could, once and for all, be supplied to it.

The Chilean Government repeats this request becaxise, as was explained in.the document submitted to the United iîa.tions, a review of the names of persons presmed to have disappeared yielded the surprising resulte which the members of the Commission on Human Riglits can see for themselves in tha.t document.

In a serious inq'uLrj/- into such s, delicate matter as that of the disappearance of persons, figures cannot be quoted at random v/ithout any firm evidence to support them.

Unfortiumtely, the Report has made this mistalce again.

(h) . Tprttge. and.other, cruel, iiThman_an^ degrading' trea,tment

Since the Milita.rj'' Juntp. ca¿ne to power in Chile, the issue which has jDeen made most lise of by its detractors is the claim that an institutionalized system of torture exists in the coxmtry.

It is stated that not only are there special tortujre centres but that, in addition to the coercion and ill-trea'fcment of detained persons, they з,ге subjected to torture of a degree of refinement and ima.gination ranging from the methods of the Middle Ages to the most advanced teciiniques such as the use of driigs and psychologica.1 tortur'e.

Not one person v/ho has been detained in Chile and subsequently released to go abroad ever fa.ils to state that he or she tras tortujred or witnessed the ггзе of torti^re on others. It is as if the word has been passed to give the impression that torture is an intrinsic part of the Chilean institutional system.

The credibility of this argument is stretched to the extreme when descriptions of horrible and physically impi-obable. tortures are accepted as the ti-uth. Host of them ha,ve the obvious sexusJ, overtones which a.re to be expected nowada^ys, and certain sectors of the press naturally dwoll on these types of torture with delight in order to seize the attention of their readers.

VJha,t is behind this question of torture?

The physical coercion of prisoners is undoubtedly and qtiite rigiitly one of the practices v/hich most arouses pu.blic sympathy. Consequently, it is easy to discredit a Government by claiming that it resorts to torture and above all, that it does so indiscriminately.

How easy it is, xaoreover, to accuse the Govemraent of this opprobrious practice by an orchestrated carapaign when, unless the physical treatment has left its mark, it is impossible to prove that it v/as ever applied. E/CN.4/1207 page 15

The Report regrettably associatcSs itself vd.tli this campaign and without making any serious investigation arrives at the rash conclusion that "torture and cruel, inhman or degrad,ing treatment contùmes in Chile on a large scale".

• The Government of Chile strongly protests against this imfovuided statement and rejects the procedure a.dopted by the l/orking Group to malee the relevant inquiries as biased and irresponsible.

'The following considerations will demonstrate the tenuous natuxe of the evidence set doirn in the Report and the uirfair ba-sis of the inquiry made into the matter.

(i•) Reliability of the sta-temants and infomation on which the Report is based. The question of th^ evidence; in claiming that torture and cruel, iiimman and degrading treatment are applied extensively in Chile, the Report bases itself on x/hat are regarded as reliable statements and docvunents made available to the Group.

As far as the supposedly reliable. documents are concerned, i:b _^is impo,s_s_ible. for the Chilean Government to prove that the evidence has_ _np_ fp_ijn.da,tipn since the contents are not transcribed, identified or rûentiohed in ._any part of the Report.

Moreover, it is absured to try to demonstrate or prove the existence of torture through the*medium of documents.

In actual fact, the only means of proof provided in the Report in the testimony consisting of various numbered statements which, according to the R(5port, are the most representative of all those sent in to the authors, lliey relate to 27 ca,ses, of which I7 are personal statements and the other 10 consist of hearsay evidence, i.e., they relate to situa,tioñs described to the Group by persons who did not witness the facts themselves.

The Government of Chile feels compelled to emphasize the following aspects of the statements embodied in the Reports

(1) In 25 of the 27 cases, no mention is made of the identity of the persons •presumed to have been tortured 1

(2) In many of them, there is no indication of the d.ate or approximate period when the faots reported are stated to ha,ve occurred..

As viill be readily tinderstood, it is iitterly impos.jible for the Government to dispute the charges made by the i^rèsujnfed xjitnesses. Even if their accounts are true, can the Chilean Government bo blamed for not having taken steps to sanction those responsible? '

Because of the nature of the testimony given in case No. 25, although the supposed victim is not identified, the Chilean Government is able to dedu.ce from the details that the person concerned wa,s Lumy Videla who was killed, in a foreign Embassy where she had sought asylujii.

The Chilean Government finds it more tlian strange that the Group should concern itself with this ease a.t all and, what is more, should conceal the identity of the victim. E/CN. 4/1207 page Í6

The facts reported occurred during the second half of 1974, long before the Working Group was set up, and were brought to the attention of the Commission on Human Rights during its thirty-first session.

As the Group, and hence the Commission, has been informed, the Government of Chile ordered ra:audiGial inquiry to be made and appointed a Minister'of the Santiago Court of Appeals to take charge of the proceedings.

If this is a typical case, as the Report would have us believe, it may well be wondered whether the other cases that cannot be identified from the information given axe not:of the same kind.

It is curious that, of the first-hand evidence given, 11 statements were made by women and 6 by men, although the numbers of either sex detained were completely disproportionate since the vast majority were men.

• It would appear that those directing the anti-Chilean campaign planned' that women would give evidence in the hope of creating a greater impression on the Working (iroup and through.it on the United Nations organizations.

However, these are by no means the only inconsistencies, contradictions and nonsensical statements in the evidence set out. In testimony No. 17, for instance, (p. 50), it is stated textually; "A young woman stated that and ends by saying that she "was finally transferred to Tres Alamos, where she remains. Recurso de amparo was refused".

As has been seen above, in No. 25, the case of Lumy Videla was quoted as representative and recent, whereas the case of a person who is still being held in custody is presented in this case as first-hand evidence.

The apparent ability of the detainee making the statement to be everywhere at once is merely one more instance of the superficiality of the Report.

(ii) Types of torture. In its Report, the Working Group gives a detailed description of the methods of torture it affects to believe are being applied in Chile. ,

Tl).e Government and indeed anyone who reads the Report will be astounded by the morbid imagination displayed by the witnesses in describing the ill-treatment inflicted on the detainees.

It is surprising that the Working Group would have allowed such fantastic and absurd charges to be made in its Report,

Quite apart from the refinement of these cases of torture, it must be asked whether the testimony given bears any semblance of plausibility.

Is it not true, for instance, that case No. 2 reads more like a novel than a statement of fact? Could any human being endure so many tortures? What would be the object of subjecting anyone to such a variety of tortures including taking them up an incline in order to roll them downhill in an empty barrel only to end up running naked through the streets pursued by a soldier with a fix:ed bayonet, and .all this so that the witness could then leave the country in order to join the campaign against Chile and make statements in international forums? E/CK.4/1207 page 17

This treatment is in complete contradiction with the case referred to Ъу Dr. Cassidy of a woman who had been so ill-treated that she was not allowed to leave the country.

It is possible to go on indefinitely finding inconsistencies, but the most incredible extremes are reached in the part relating to sexual tortures and particularly aberrations in which animals participate.

The Report states that the Group "received fresh information confirming the use of animals in the tortirre of women" adding that "this refers, in particular, to the practice of introducing mice into the vagina and the use of dogs in molesting and sexual abuse".

Sometime ago a charge was made to the Government that the practice of introducing live mice into women's vaginas had been followed in the case of Nieves Ayress Moreno.

When the Ad Hoc Working Group referred in its provisional report to this case, the Chilean Government made a public report on Nieves Ayress, demonstrating with medical records, reports and X-ray photographs, etc., which are now in the hands of the United Nations Secretary-General, that the origin of the disorders from which she suffered was an ovarian pregnancy followed by an abortion, and that Miss Ayress is now in Cuba where she is suffering from mental disturbance due no doubt to carelessness during her post-operative treatment. A report was also attached from several specialists of repute which stated that she is in normal health at the present time.

Although this is the only case of an accusation of this nature, which was duly refuted by the Chilean Government, it is strange that the Report makes no mention of either the name or details of the Ayress case, but still alleges that the practice of introducing mice into the vagina exists.

To conclude this aspect, it must be pointed out that not one of the persons who gave first-hand evidence, as embodied in the Report, states that she was raped by a dog and that only one of the witnesses declares that she was subjected to abusive acts of a repugnant and aberrant nature. In this particular case, the Government of Chile requests the Working Group to name the witness and to ask for her permission to quote the details that would make it possible to punish the acts in question if they did take place. The Group can assure her that the case will be handled with due circumspection and regard for privacy.

(iii) The difficulties experienced by Chile in defending itself. The Chilean Government has already'on several occasions pointed out the need to establish some procedure for investigating the truth' of the facts brought to its attention that would not involve the identification of the persons making the accusations. It has stated in this respect that the mere fact of stating that something occurred without indicating either the date or the person concerned not only rules out all possibility of indemnity should the charge be true, but also prevents it from punishing the persons responsible or from defending itself, should the accusation be false.

As will have been observed, all the accusations contained in the Report are anonymous, and no details or data are given that would enable the Chilean Government to inquire into the facts.

This deprives the Government of Chile of all possibility of defending itself and, what is even more serious, militates against the primary objective of the B/CH.4/l¿ú7 page 18 united Nations in this field, namely, to pycrnote respect for human rii^ts and, to this end, to co-operat : witn the Govexttgèntg с ncerned to put nn зпа to situations that are prejudicial to fundamental human rights and freedocas.

(i) The situation of wogien, children, young people and the family

(a) Situation of women

Referring to the situation of women, the Report of the Ad Hoc Working (iroup states that the infbirmation gathered since August 1975 "does not contain elementa v;hich would substantially modify the interia findings of the Group regarding thie aspcêtof the situation of hujaen rigtit'S in Chile",

In this connexion it may be recalled that the ProgreSvS Report endeavoured to give the impression that Chilean Governsent policy tended to emphasize the dependency of womon and to relegate thsio to traditional functions.and posts in society.

The representative of Chile on the Third Coiamittee 'of the >!Ж1;Н General Assembly drew attention to a number of facts calculated to discredit that assertion; the Final Report confines itself to taking note of those facts, without according them any consideration. The Report likewise took note of the existence of a National Secretariat for V/oraen's Affairs without, however, seeking, to our knowledge, any background inforination or making any inquiries about that institution it contented itself with reporting that it had not received information enabling it to assess the actual iapact of the projects and activities of that Secretariat. ,

Thus, the fact that a special inetitution exists to concern itself with woiaen'e ixrobleffis, that Chilean women occupy proainent-positions: in national activities and that they are playing an ever greater part in the, various spheres of national life would seem to be facts devoid of any significance.

The saune report naturally ignores the fact that the International Women's Year was celebrated in (Siile.with various cultural, artistic and folklore events and mass meetmgs and activities,. Ror, of course, is arjything said about the fact that last year the Government took steps to pass Decree-Laws Nos. 871 and 872 ratifying the Inter-American Conventions on the Granting of Political arid Civil Rights to Women, signed at Bogotá on 2 March 1946, which, despite the passage of manj' years, had not so far bean ratified.

Jn other words, when the Group Has at its disposal or within its reach information which gives «he lie to a false judgement, it brushes it aside, no doubt deliberately, in order not to contradic-t the statements made in its ïirogress Report.

The same thing occure, for example, when it is faced with conflicting information regaurding an alleged increase in prostitution in Chile (para, 159). Without any kind of basis and on the pretext of a supposed deterioration in the economic situation, the Report endorses the rash assertion that there is a progressive increase in prostitution in Chile and, what is more serious, bases this conclusion on "a report dated September 1975" without indicating its source or even analysing its reliability.

Further on, the Report asserts in general terms and without going into detail that the number of women still detained amount to several hundreds. In support of this it refers to a report published by the International Council of Sooial Democratic Women, with no indication of its date or how up to date it was. On the E/CN.4/1207 page 19

other hand, it says nothing about the fact that under the amnesty decreed by the President of the Republic on the eve of the end-of-year festivities a large niimber of women was released and that the present number detained now totals 90, a figure widely different from that given in the Report.

As tathe tortures said to be inflicted on women, a reply to the fantastic charges made on this subject is given in a separate chapter.

(b) Situation of children

On the question of the situation of children the Group reaches a conclusion similar to that expressed in the case of women, namely, that "the special hardship conditions", as described in the Progress Report, "have not disappeared".

To arrive at this fanciful conclusion it has to resort to a series of fallacious foundations which do not stand up to the slightest analysis. Thus,, it has to maintain, for example, that the Church has had to take the initiative of establishing children's dining rooms or canteens, as if this were some sort of innovation, whereas it is a normal activity of churches in all the developing countries of the world.. Nor can we pass over in silence the conclusion drawn from the fact that five such canteens were closed down because of defective operating conditions, the conclusion being that "the aim of the authorities was to reduce contact between the churches and the people and to take over the control of these and similar institutions". Nothing, cwld be further from the mind of the Government than an act of this kind. Moreover, the Church, in its various public statements on the course of national affairs, has never levelled an accusation of this kind - which would be a particularly grave one.

It seems incredible that the conclusion on the situation of children in Chile could be advanced on the basis of the examples given in paragraph I70 of the Report, It is true that part of the child population of Chile suffers from malnutrition, but this is not the doing of the present Government but the consequence of underdevelopment and an evil which, unfortimately, afflicts all the countries of the Third World in varying degrees. It is lamentable that the Working Group should make a thoroughly superficial appraisal in its Report of the information provided by Chile, which has launched an ambitious nutrition programme that is winning wide support among international organizations.

The charges levelled in paragraph I7I to the effect that hundreds of children have been detained, some of whom have been tortured or sexually abused, charges to which we have previously referred, show the malicious intent and irresponsibility of the Report. It talks, without the slightest proof, of hundreds of children detained and cites cases which cannot be identii'ied or investigated because no names are given,. To talk of sexual abuses perpetrated on minors by common criminals is an aberration and we protest against its inclusion in the Report and energetically reject such allegations.

The statement in paragraph 172 that Chile is violating the international principles concerning the treatment of juvenile offenders stems from complete ignorance of the relevant Chilean legislation. The.Chilean Gendarmerie, which is only the new name for the old Prison Service, continues to be an armed corps assisting the Justice Administration coming under the Ministry of Justice. Its new organic structure simply institutionalizes a de facto situation that existed already vfith the old Prison Service.

The roundabout way in which the insinuation that the Government of Chile is planning to re-educate 600,000 children is again slipped into the Report is a clear case of bad faith. E/CN.4/1207 pàée 20:

As a matter of fact the author of this irresponsible allegation has already retracted it, .Furthermore, to continue to maintain it, the Report bases itself on the existence of a camp of 96 children. To begin with, there is a slight difference between 96 children and six hundred thousand. Again, nothing is said about the sort of camp it is. The camp in question is a place for taking care of children in an irregular situation; it is strange that such an example should be resorted to, since it relates ,to what is a normal.institution in Chile and all countries in the world.

It may be added that we have already remarked, in another chapter of this memoranduAi, on the absurdity of linking this charge with the fact that the Government is trying to win the support of youth for its policy.

Once again we are faced with a ridiculous charge for which no grounds or proofs are adduced and which has already been refuted, but which, despite everything, is reiterated with a view to sowing doubt in the mind of the reader.

(j) Freedom of association and trade union rights

Despite the mass, of evidence laid before the Working Group that there are no restrictions imposed in Chile on freedom of association, provided that the association in question is not one which, during the political recess, relates to the political parties alone, the Report states that this right has been severely curtailed in Chile.

Fbccept in a few cases in which the Government was compelled to dissolve and annul the legal personality of certain associations.whose occupational activities had assumed political overtones, freedom of association not only continues to exist in Chile but has become even stronger.

As set forth in documentary form in the last General Assembly (see А/С,3/б39), between the period when the Governmeht came to power and August 1975, 452 labour organizations have been given legal personality. This was later conferred upon 5I other trade unions as well. During that same period, six labour confederations and federations were also set up.

, The.allegation that only unions that are pro-Government can be established is unfounded. It illustrates the biased nature of the Report which, as it cannot deny the irrefutable fact that unions continue to be set up without restriction in Chile, attempts to discredit this fact on the groimds quoted above. The new unions that have been created number over 20,000 workers, in addition to those who belong to the confederations, and cover a wide variety of national economic activities.

The gratuitous accusation that certain labour leaders have been imprisoned because of their union activities is again categorically denied. There is no labour leader in Chile who has been detained because of his position. ,

The claim that workers engaging in trade union activities do so under the threat of Government reprisals is refuted equally energetically. Labour leaders hold a frank and open dialogue with the Government, attend international meetings and have played an active part in preparing the basic reforms which the Government has undertaken in the labour sector. .

For instance, 178 labour organizations submitted comments on the Social Statute for Enterprises and the^Statutes-for the Vocational Training Of Workers.

Furthermore, 373 labour organizations gave their views on the preliminary draft of the Labour Code, which is now being revised by Tripartite Commissions on which the workers, employers and the Government are represented. E/CN.4/1207 page 21

With regard to the temporary suspension of certain trade union rights, it cannot validly be claimed that these rights have been completely rescinded. Collective bargaining has, of course, had to be suspended because of the serious economic situation of the coun.try, but it must be borne in mind that a number of palliatives have been introduced to prevent the workers from suffering a deterioration in their economic situation (extension of the effects and application of the acts of agreement, collective agreements, arbitral awards and decisions of the Tripartite Commissions and establishment of.Tripartite Advisory Committees). The latter are actually a medium for collective bargaining and once they have been extended to all areas of the economy, collective bargaining will have been restored in practice.

In so far as the suspension of trade union elections are concerned, the Report should not overlook the fact that the sole purpose of this step was to re-establish the tmity and harmony of the labour sector. This is demonstrated by the fact that the mandates of the labour leadership in office on 11 September 1973 were extended, so that Tiore than 75 per cent of the trade unions officials now in office were actually elected prior to that date. Moreover, under the systems of replacement that has been set up, the number of years of service in the enterprise and the trade union activities of the new appointees tend to be taken into account in filling the posts.. Е/СН.4/1207 page 22

III. Observation on the annexes to the Report

A. OBSERVATIONS ON THE SHEILA CASSIDY CASE

1• What.has been said about the."Cassidy Affair".

. After Dr. Cassidy had been detained by,security agents she was tortured, by electric shocks on three separate occasions. Furthermore she supposedly was maltreated during the timü that she was detained; both the medical attention and the food given to detainees is deficient.

She denies militancy or political participation but says she acted only out of Christian charity. She added in her statements, admitting that it was hearsay evidence, that many women detainees had told her about tortures that they supposedly .had undergone. This has not yet been endorsed by the British Government.

2. What really happened

Dr..Cassidy was being looked for as her participation in extremist activities was known. When the police arrived at a convent ; where it:.was • thought that a terrorist was hiding, they were shot at and became involved in the firing. Upon entering the building, they found Dr. Cassidy hiding. As soon as she was discovered she immediately said that she was a British citizen.

Having been detained, that same night she wrote in her own hand a statement containing questions and answers in which she related everything that she knew about the fugitive extremists. She wrote that a group of nuns and priests had given them refuge, hidden them and even arranged diplomatic asylum.

5* Reality of the torture

Therefore the point that has caused all the discussion is whether or not, as she said, Dr. Cassidy was tortured, or whether what the Government of Chile states is true.

The Govern-:.3nt of Chile is of the '^"oinion that there is a series of facts and records that unequivocally show that Dr. Cassidy's testimony does not completely reflect what happened and that the point concerning the torture that she underwent is only a product of her imagination. These ares

. (a) It does not seem reasonable to think that if it were true that Dr. Cassidy hadi'been tortured, she would have been freed just days before the Working Group completed its report, knováng that they were running the risk of her appearing "as a witness before it.

(b) Dr, Cassidy never stated in Chile that she had been tortured.

In her statement to the Working Group she maintains that "On Monday, 10 November, I was taken for the first time before the Fiscal. He asked me whether or not I had been mistreated and again I told him 'no' because I feared reprisals". E/CN.4/1207 page 23

In spite of this, in the very next line she states "My treatment in the Military Court WAS DIGNIFIED AND WITHOUT ANY KIND OF MENTAL OR PHYSICAL DURESS" (Report, Annex V, page 7).

. It should he pointed out that this same Military Court cleared Dr. Cassidy of any responsibility in the death of the maid which occurred the day of her detention. Furthermore, when this decision was appealed by the Government before the Military Appeals Court this Court confirmed the decision of the Fiscal.

How then can Dr. Cassidy's fear of, reprisals be explained? Her treatment by the Fiscal's office was dignified| she was subjected to no kind of duress; she- was acqx4tted. This was confirmed by a Court of Appeals. Yet following all these demonstrations, she did not dare, to report that she had been mistreated because of fear of reprisals?

(c) Nor did the British Embassy report these facts to the Government, in spite of the fact that it had been in permanent contact with the Chilean chancery.

(d) Nor did the lawyer named by Dr. Cassidy report to the Court either during her detention or after her freeing the fact that his client had been tort-ured, although torture is considered a crime. He can still do it now.

(e) There is a statement.in Dr. Cassidy's own handwriting which indicates that it was made under no duress.

Furthermore, to guard against being confronted with this document, she admits it. She says that in Chile she wrote a statement which is true in its entirety except for the part that states that it was not done under duress.

However, when she tried to reproduce its opening line she forgot the wording and did not say that she began this statement with; "In Santiago on this second day of November, as an Apostolic Roman Catholic and under no duress I swear before God that what I state below is true ..."

This is not the form for legal statements in Chile. Furthermore, no statements by the accused may be taken under oath, except, as laid down by the law, under a promise to tell the truth (Art. 320 of the Penal Code).

(f) A careful analysis of the testimony given before the Working Group shows that it contains many details which are not true and others which are completely improbable. Therefore it can he concluded that the assertion that she was.- tortured may also be put in doubt.

(i) She asserts in her statement before the Working Group that the day that she was detained, there had been no firing.

However the opposite can be deduced from the followingi first, she states that at first she thought the bullets came from one direction and then they seemed to come from a completely different one; secondly, she says that the first comment that the person who entered the place made was "Who fired upon my men?" (Report, Annex V, page З). Thirdly, on the day of these events one of the security agents who had taken part was shot in the arm. E/CN.4/1207 page 24

(ii) She says she heard how her captors, when she gave her name, commented among themselves "she is the one we are looking for", and in spite of this, she., managed "to call to Pather Hallidan to inform the British Consul" and says in, addition "I went upstairs and hid in the bathroom". (Report, Annex V, jage 3).

It does not seem logical nor possible to think that if she were a person that they were looking for, she could have done what she says she did.

(iii) -Whereas she states that once they had got her into a car, they ]^ut a blindfold upon her eyes and that it was already dark, she adds textually that "I managed to lift the blindfold over my left eye without my guard realizing". Further on she says about the place to which she had been taken; "We stopped outside a house and I clearly saw that this was a dark red colonial building on the left hand side of the road". "(Report, Annex V, page З).

First of all, the blindfold over the eyes is not the type which can easily be lifted. This is all the more difficult to do v/ithout the person watching her realizing it. In addition, when someone is detained and transported in a car, he is placed between two people and not left by the door and window to prevent fleeing. Secondly, it is paradoxical that a blindfolded person at night can, in spite of this, CLEARLY SEE the characteristics of the place to which he is taken.. Otherwise we may wonder why the blindfolds then?

(iv) She states that upon reaching the house to which she had been taken, they immediately began to interrogate her and that the interrogator supposedly told her to remove her clothing, which she declined to do, at which she says he "began to tear my shirt off". (Report, Annex V, page 3). She furthermore asserts that once she was undressed they gave her electric shocks while interrogating her.'

In this situation - undressed and subjected to electric shocks - so as not to implicate the Church she says textually; "I invented a long and detailed story of how I had treated Gutierrez ... It was not particularly difficult to invent this story ... as I just fabricated answers to each of the questions". (Report, Annex V, page 3)• '

Any normal person confronted with similar circumstances would not have taken the " heroic" stand that Dr. Cassidy invented.

(v) The very story that she says she invented to divert the police is also full of contradictions;

She says that in an area that she had never visited before she invented the name of a street "Bishop something or other ("Obispo no sé cuanto") and also invented the description of a house. Then she states "They had by some curious coincidence found a street called 'Obispo Subercaseaux'" and further on she says "again by curious coincidence we found a house which fitted very closely the description that I had given". (Report, Annex V, page 4).

She went on to say that vihen they were going to go in,, she had considerable moral qualms as to what would happen to the people in that house, but she says; "I thought that this would be a house with rich people and that they,would be able to explain to the police very rapidly that they had no connexions with the ЖР". (Report, Annex V, page 4). E/CN.4/1207 page 25

All this is nothing but the frxiit of Dr. Cassidy's activated imagination since none of this happened. And the way of relating it shows this; there are many coincidences; she^states that.this is an area of rich people, which is not truen­ en the contrary, it is a rather poor area; and ЖЕ connexions are not overlooked because people are rich.

Furthermore, as vrell as her above invention, she again falls into the absurd in her statement where she says textually; "On one occasion I tried to escape, in that three young m.en passed by and I grabbed hold of the jacket of one of them and said Ч am a prisonea;- of the DIM, please help me'". (Report, Annex V, page 5).

To believe that the security agents go around in the streets with detainees ;^th their eyes blindfolded is inconceivable, especially if we are to trust other statements by detainees who say that such searches are done at night and during the curfew. Dr. Cassidy is again, then, the exception and plays the protagonist's role in ^which now "without fear of reprisals" she tries to escape in the middle of the street. . •

(vi) She says that on 7 November (five days after her detention) she received a visit from, the British Consul and that while the Commander who guarded her was on the telephone she tried to tell the Consul through the code word ''mains" that they had tortured her. (Report,. Annex V, page 7).

She also states that up until then she had not been able to change her clothes; when describing them she only says that they were stained with blood from the maid who had died.

In other words when the Commander of the Camp was away, she did not have time to say that they had tortured her - which certainly does not take long - and in any case does not require code vrords but only the word "torture". It is also c\irious that when she describes the state of her clothes she does not say that they were torn as she. had previously said. In this regard the British Consul has never said that the blouse that he saw Dr. Cassidy wearing the first time had been ripped.

4. Other elements of reason that lead to the conclusion that Dr. Cassidy invented the story of her torture

Dr. Cassidy has put on a front for the world of a vroman with absolutely no political connexions and inspired by Christian charity, whose desire it is to be able in the future to become г. nun.

However, the information that the Chilean- Government has is different and shows that she is linked with the extreme left movement (ЖН). Her religious vocation became apparent only after her expulsion from Chile, as a way of• reinforcing her testimony.

(a) Her statement begins by saying that she had been told "that there was a wounded leftist revolutionary who had two bullet wounds in the leg and who needed medical treatment". . She adds that in agreeing to assist him "I was fully cognizant E/CN.4/12Q7 page 2б

of the risk of heing detected, detained, interrogated and expelled from the country" and ends the paragraph by saying "the torture methods of the Chilean Secret Police are such that an important revolutionary person would-be very severely tortured and probably killed. This information is well documented in Chile by the Committee for Peace, which is an entirely non-political organization .... " (Report, Annex V, page l). - . • •

She always stated to the Fiscal and police officials •'"hat she was unaware of the fact that she had given-medical attention-to a leftist revolutionary. As for the non-political character of the Committee for Peace, Bishop don Carlos Camus, Secretary of the Chilean Episcopal Conference, said in a press conference on 30 September 19752 "There are many officials of the Conmiittee for Peace who have Marxist ideas because this is logical.• At first when it was newly founded no one wanted--to run risks. Thus many had marxist ideas from the start."

(b) In an annex to this report there are documents which prove that Mrs. Vivian Porter - a citizen of English origin at present residing in England - knew Dr. Cassidy and affirms that she had marxist idea,s. This, along with her friendship with Dr. Consuelo Silva, also a marxist, and the victory of Allende, enco-uraged her to move to Chile.

(c) The Government of Chile has-been informed by the resident British Colony that the Presidents of the British Corniaonwealth Society, the British Chamber of Commerce, the Anglo-Chilean Society and the Prince of Wa,les Country Club sent a letter to Mr. Calla^han last January in which they pointed out that from the time Dr. Cassidy arrived in Chile "she was known to be closely associated with extremist groups of the far left".

5. If it is true that Dr. Cassidy was not tortured, why would she have invented such a story?

The first thing that can be said in this regard is that in spite of her •religious vocation she stated herself that she invented a story while they were torturing her and also that she invented a false name to get into the Nunciatura, so that a.jthird invention has no,, reason to, appear,improbable..

In an expla::ation of the very basis of the problem, h'^wever, it is conceivable to think that faced with the transcendance of her statement and with the need to justify the betrayal of confidence that had been placed in her, the logical and understandable way v/as to argue th3,t her denunciation had been obtained only after intense tort-ure. It suffices to recall that she herself recognized that the network of help for the extremists was safe given the investit-ure of the participants when she says the police "were obviously very angry at the association of the nuns and priests, because they felt unable to touch them." (Report, Annex V, page 5)'

The tenor of her statement describes wha,t Dr. Cassidy surely would have liked to be without achieving its. a heroic woman, capable of resisting suffering, imaginative superior. The record that the Government of Chile has, however, shows that she is far from the image that the vrorld ingenuously has of her. It can thus be concluded in all seriousness that Dr. Ca^ssidy was not tortixrcd in Chile but only held; this facilitated the discovery of a very suxe network of help for extremists; and she was expelled from the country because of the request by the British Government to this effect. E/CN.4/1207 page 27

Б. IKFORMTIOH PERTAINING TO BISHOP ШШОТ FEBNZ

1. In 1970, Helmut Prenz was elected bishop by the Synod after three ballots and by a casting vote..

2. Soon aJ'ter, in 1971, he travelled to Prague to take part in the Conference entitled "Christian for Peace" - the characteristics of vihich are well known (see the Review "Christian Peace Conference", No. 54, April 1971). Prom Prague he went on to Moscow on mission to the Russian Orthodox Church.

5. In various public statements he has shown his predilection for, and leaning towards, the Socialist system (Churches in Chile, El Mercurio, 24 June 1975, page 2| see also his last statement to the German news agency, P.P.A. of 10 November 1975)-

4. The more political, than pastoral activity which he carried on in-Chile (on 30 November 1973 he delivered a sermon openly against the'Government ; he devoted himself to finding asylum in the Federal German Embassy for left extremists who arrived in that country under false names - see "Unter Falschem Namen" in the "Welt am Sonntag" of 17 March 1975, page 5), through his participation as representative of Chile to the World Council of Churches where he did not contradict an obviously exaggerated statement condemning Chile; and his distortion of reality as fa,r as that country is concerned (in No. 13 of the magazine, "Per Spiegel" of 1974 he says tha^t he alone recovered more than 70 corpses from the River Mapocho;- in a press conference on I5 October 1974 he disputed the information of the Chilean Government on the number of political prisoners, quoting a considerably higher figure; during February and March 1975 he systematically devoted his efforts to attacking Chile both in the United States of America and in Europe - see "Servicio de Información y Documentación" of the Evangelical Lutheran Church in Chile, of 15 February 1975)? all this incensed the Chilean Evangelical Lutheran Community, a denomination counting approximately 28,000 souls. The great majority (25,000 persons) no longer recognizes the authority of Bishop Prenz and has decided to form the "Lutheran Chiirch in Chile" (see the statement of Bishop Prenz himself to the D.P.A. on 10 November and publications and advertisements in the daily, "El Mercurio" of June 1975)'

5. In view of this and other informatio:-: received by the ("overnment of Chile, Mr. Prenz's permanent resident visa was cancelled in October 1975 in accorda,nce with the relevant legal provisions and he is forbidden to enter the country.

6. In view of the above, it cannot be concluded, as the Report claims, tha,t the case of Bishop Frenz is a representative exajaple of violation of human rights, especially regarding the right of an alien to re-enter the country, as in this case. E/CN.4/1207 page 28

С. 0В5ЕтТ1(Ж-Ш''ТЖ"5татШЕМЗТШ¥'БУ Ш^^^^ KIBBEBG

In response to the statement sent to the Working Group,, from New York, by- Mr. Kirberg, and which is reproduced as an annex to the Report, the Delegation of Chile wishes to inform the Commission of Human Rights tha,t this statement was not made, until after Mr. Kirberg had been released by the Government of Chile in response to a request from the United Nations.

His submission contains an account of a series of events which, according to the witness, took place some days after his arrestj most of them took place before the establishment of the Working Group. Nowhere is it pointed out. that Dawson'Island has not Ьеет a place of detention since 1974'

Mr. Kirberg even claims that the Technical University was a purely academic institution, unconnected with politics. Mr. Kirberg fails to reveal that educational authorities other than Marxists were refused entry to the University, and he denies that there were weapons there. One can disprove this assertion merely by seeing the film "Rain over Santiago" (Llueve sobre Santiago) - produced and directed by Helvio Soto,,_ a Chilean _producer,, and, like Mr. Kirberg, a Comm-unist| in this film, the university is depicted as an armed fortress - a Communist version of university life qiiite different from that offered by . Mr. Kirberg.

Lastly, in respect of the tax evasion trial, which the statement represents as a judical farce, an authorized copy of the verdicts in this/case, at the first and second levels, w:ill be found in an annex to this: report; the reader can judge for himself whether or not the rights of the defendant are properly guaranteed and whether the evidence justified his conviction for tax evasion. E/CN.4/1207 page 29

IV. FINAL REMARKS

The Government of Chile, contrary to -what was asserted in the Report of the Working Group, is engaged in a process of gradual restoration of the rights and guarantees that had to be temporarily restricted on 11 September 1973 because of circ\imstances.

This is evidenced in the internal measures adopted by the Government of Chile, the freeing of detainees, the commuting of penalties, the reply to inquiries that the respective bodies of the United Nations and the OAS have made concerning presumed violations of human rights, documents circulated by us, statements made before the Commission on Human Rights itself in its XXXI session and in the XXX General Assembly of the United Nations, among others, the faithful and unrestricted carrying out of the obligations based on the Right to Asylum, etc.

Moreover, the Government of Chile has closely collaborated with the United Nations in sending, in the proper time and place, all the records requested on different cases. In fact it has gone farther than any other State in this area. It has presented its case in the Commission on Human Rights and the General Assembly; it has handed over complete documentation and received a visit from high dignataries of the World Organization. Therefore, Chile believes it has replied fully and with documentary evidence to the accusations made against it. Furthermore it is prepared to maintain this stance.

We rely then on those documents (Present Situation of Human Rights in Chile - A/C.3/639 -, Comment by the Ambassador, the Representative of Chile to the United Nations, on 6 February 1975 - A/IO295 -, Statement by the Representative of Chile to the Third Commission of the XXX Session of the General Assembly of the united Nations, Memorandum by the Ambassador, the Permanent Representative of Chile to the United Nations Office in Geneva, on 3 February 1976 - E/CN.4/1197), which are in the possession of Mr. Delegates, so that they may judge the Report given on the situation of Human Rights in Chile.

But this is not all. In spite of serious and well-founded charges against the Movimiento de Izquierda Revolucionaria extremists, Mr. Pascal and Mr. Gutierrez, who have committed common law crimes and been given asylum in the Costa Rican Embassy and the Holy See respectively, the Government of Chile granted them the necessary safe conduct so that they could leave the country. It should be pointed out that the Holy See has not signed the Conventions on Diplomatic Asylum.

In the area of internal legislation Supreme Decree 187 which regulates the standards that govern the protection of persons held under the State of Siege is of noteworthy importance; it is a very decided step in the direction mentioned above, i.e. towards a complete normalization of the country. We therefore felt it required a special explanatory Memorandum which has been distributed to Mr. Delegates.

The amnesty granted by the President of the Republic on Christmas Eve and New Year's Eve to 210 detainees under the provisions of the State of Siege must be considered in this same context.

Likewise the Government maintains an open dialogue with all international organizations and the most representative bodies in the country, including, among others, the ICRC and the Episcopal Conference. Recently (January 1976) the Ё/СЖ4/12'07 page 30

President of the Republic had an interview with the President of the Episcopal Conference, Mir. Francisco Ftesno, to discuss, according the the prelate's statements, "officially, in the name of all the bishops of Chile, subjects of general interest which influence the well-being of all Chileans and help improve the image of our country abroad". This also gives the lie to those who maintain that the Church-State relations are not excellent.

All this effort has been brushed aside* The Working Group has presented a Progress Report to the General Assembly and now a definitive one which does not consider these facts. What was stated in the Commission on Human Rights last year and what was said in the Third Commission of the General Assertbly meant absolutely nothing. The new Report says basically the same thing as the progress report.

Lastly the Government of Chile cannot help expressing its discouragement, rejection, and concern stemming from this Report. As we have shown, it contains unconfirmed assertions, obvious contradictions, flagrant exaggerations and an assessiiient of records which is to say the least partial, if not to say •tendentious. Chile therefore reiterates its formal and energetic protest.