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I Didn't Know There Were Two Types of Justice

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I Didn't Know There Were Two Types of Justice 'I DIDN'T KNOW THERE WERE TWO KINDS OF JUSTICE' MILITARY JURISDICTION AND POLICE BRUTALITY IN CHILE Amnesty International is a global movement of more than 7 million people who campaign for a world where human rights are enjoyed by all. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. Amnesty International Publications First published in 2016 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org © Amnesty International Publications 2016 Index: AMR 22/3209/2016 Original language: Spanish © Amnesty International 2015 Except where otherwise noted, content in this document is licensed under a Creative Commons (attribution, non-commercial, no derivatives, international 4.0) licence. https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode For more information please visit the permissions page on our website: www.amnesty.org Where material is attributed to a copyright owner other than Amnesty International this material is not subject to the Creative Commons licence. Cover photo: Police fire water cannon at Chilean students during clashes with protesters demanding that President Sebastián Piñera's government improve the quality of education, Santiago, 13 June 2013. © MARTIN BERNETTI/AFP/Getty Images. The title of the report, which refers to the existence of the military and ordinary justice systems, is taken from the testimony of Gerson Gutiérrez. His brother, Manuel Gutiérrez, was shot dead by a former police officer in 2011. See page 26. amnesty.org CONTENTS 1. EXECUTIVE SUMMARY ............................................................................................. 1 Methodology .................................................................................................... 4 2. POLICE BRUTALITY .................................................................................................. 5 A. Police brutality in the context of public demonstrations ......................................... 9 B. Police violence against the Mapuche .................................................................. 13 C. Regulations governing the use of police force during public demonstrations .......... 15 3. MILITARY JURISDICTION: ACCESS TO JUSTICE? ........................................................ 20 A. The competent court ........................................................................................ 25 B. Independent and impartial tribunals .................................................................. 29 C. Obstacles to justice and comprehensive reparation .............................................. 38 D. Transferring cases to the ordinary civilian courts ................................................... 42 E. Challenges in the ordinary courts ....................................................................... 48 4. CONCLUSIONS AND RECOMMENDATIONS .............................................................. 49 ’I didn’t know there were two kinds of justice’: Military jurisdiction and police brutality in Chile. 1 1. EXECUTIVE SUMMARY ‘[T]aking into account the nature of the crime and the legal rights infringed, the military justice system is not the competent jurisdiction to investigate and, where appropriate, prosecute and punish the perpetrators of human rights violations. The prosecution of those responsible must always fall to the ordinary civilian justice system’ Inter-American Court of Human Rights, Radilla Pacheco vs Mexico, Judgment of 23 November 2009, para 273. Under the Chilean Code of Military Justice, common crimes committed by members of the military – including the Carabineros de Chile (National Police) – in the exercise of their duties or in connection with them, must be investigated and tried by military courts. This means that crimes, including excessive use of force by police and other possible human rights violations, committed by members of the security forces while carrying out their duties are dealt with by the military courts rather than the ordinary courts. International human rights law states that military jurisdiction should be limited to offences directly related to military discipline committed by military personel and should not extend to common crimes, human rights violations or crimes under international law, among others, because military courts lack the required independence and impartiality. Officials without legal training and members of the same institution to which the alleged perpetrator belongs serve in Chilean military courts. In addition, most trial proceedings are held in secret. The composition and secrecy of the military courts are at odds with the impartiality and independence that should characterize all courts and violate the right to justice and due process. Reform of military jurisdiction in Chile is crucial in order to ensure that victims of human rights violations or crimes under international law have access to an effective remedy and reparation under the ordinary justice system. More than 10 years ago, in November 2005, the Inter-American Court of Human Rights criticized the Chilean government for prosecuting a former officer in a military court. It called on Chile to reform its domestic justice systems to ensure that military justice is only applicable to crimes committed by military officers on active service and that under no circumstances should the jurisdiction of military criminal courts extend to investigating and punishing human rights violations or crimes under international law. More recently, several UN bodies – the Human Rights Committee, the Committee against Torture and the Special Rapporteur on the right to freedom of peaceful assembly and of association – made similar recommendations to Chile. Excessive use of force by police breaches human rights principles and constitutes a violation of the rights to humane treatment or to life. In addition, if the state does not respond by investigating and punishing these violations adequately through competent, independent and impartial courts but rather leaves the investigation and punishment to the military courts, this also leads to violations of the right to justice and comprehensive reparation. Índice: AMR 22/3209/2016 Amnesty International April 2016 2 ’I didn’t know there were two kinds of justice’: Military jurisdiction and police brutality in Chile. Limiting military jurisdiction to crimes of a military nature, and therefore excluding cases of police violence, will not by itself stop excessive use of force by law enforcement officials. However, the state would be giving a clear signal that violations of human rights committed by the security forces will not be covered up or tolerated. It would send a message that these violations will be responded to through a system of justice that complies with the rule of law that respects international human rights standards, including due process and the independence and impartiality of the courts. In recent years, Amnesty International has documented cases of excessive use of force by police in the context of public demonstrations in support of various social demands throughout the country. In the emblematic cases documented in this report where police actions have resulted in deaths or serious injury, not all of those responsible have been identified. Victims and their relatives have been denied access to justice, to an effective remedy or due process. In most cases, those in the military responsible for abuses are not held to account. Amnesty International has analysed the records of cases passed to the Santiago Second Military Court. This Court covers the central part of the country where the highest number of public demonstrations in the last decade have taken place. Amnesty International looked at the total number of cases submitted to the Court in 2005, 2008, 2011 and 2014 for “unnecessary violence” (the charge under which most cases of excessive use of force by police is pursued) and found that only 0.3% were resolved (that is, only 14 out of 4,551 cases). The overwhelming majority (96.5%) were closed (permanently or temporarily dismissed) without those responsible being brought to justice and without providing redress to the victims. A similar trend is found in other military courts in the country. In 2010, Chile agreed a number of amendments to the military justice system. As a result of this reform, allegations of crimes committed by civilians against carabineros were passed to the jurisdiction of the ordinary courts. Also, minors under the age of 18, whether they were the alleged victims or perpetrators of crimes involving the carabineros, would also no longer be dealt with by the military justice system. Although this was a step in the right direction, the reform still left the investigation and prosecution of alleged crimes committed by the police and military against civilians under the jurisdiction of the military justice system. President Michelle Bachelet has pledged in her government’s programme for the current term of office (March 2014 to March 2018) to include reform of the military justice system in order to bring it into line with international standards. However, two years after taking office, her government has yet to fulfil this commitment; to date Congress has
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