Chile

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ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

The Republic of Chile was established in 1810 and its capitol is located in Santiago. [1] Before the Spanish conquest in 1610, present day Chile was largely under the control of the expansive Incan Empire (World Factbook). After achieving independence in 1810, Chile won key territories from Peru and Bolivia in the War of the Pacific between 1879 and 1883 (World Factbook). By this time in Chilean history, the indigenous Mapuche Indians had been completely repressed and were effectively forced off of their ancestral lands (World Factbook). In 1973, Augusto Pinochet came to power in a military coup and ruled the country in an oppressive dictatorship until 1990 (World Factbook). In the last two decades, Chile has successfully halved poverty rates, achieved tremendous economic growth, and maintained political stability (World Factbook). Today, Chile is a democratic republic in which 95.4% of the population is of white and white-Amerindian heritage and 4.6% is indigenous.[2]

Type of System

The Chilean legal system is influenced by the Napoleonic Code and is governed by the Constitution of 1980 and its subsequent amendments. The Constitution guarantees rights and provides protections for individuals. Legislation passed creates a hierarchical system of importance with institutional acts at the top, followed by special and order acts (encompassing both decree and ordinary law).

Sources of Defendants' Rights

Defendants' rights are supported by the Constitution of 1980.

Defendants' Rights

Following a major reform of the criminal justice system, a number of rights are now guaranteed to individuals during the trial process. Previously, proceedings could take a number of years, this has now been reduced to a few months. There is a presumption of innocence and individuals brought before the court must be charged under a law already officially enacted. The actions of the individual must correspond to the elements of the crime charged, as highlighted under article 19 of the Constitution which states “The law cannot presume de jure criminal liability”. Under Article 19 of the Constitution, every individual has a right to be represented by a legal defense team to ensure “equality before the law”. If an individual is unable to provide for their own defense, the Criminal Public Defender will ensure the defendant is provided with free legal defense. A principle similar to habeas corpus applies under Article 20 of the Constitution. There is a right to an impartial judge but no right to a trial by jury.

Pre-trial

The police force within Chile is known as the ‘Carabineros de Chile’. Under article 19 of the Constitution, an arrest must be “served in a manner prescribed in law”, which gives the police very broad authority. The police fall within the scope of responsibility of the prosecutor and have the authority to arrest those with outstanding warrants, collect evidence, identify witnesses and perform “identity checks” under article 81 of the Code. The Office of the Public Prosecutor investigates crimes and at its option can choose to close a case or suggest alternatives to court proceedings.

Following arrest, an individual must be brought before a judge within 24 hours. At this time, the judge can decide to extend the detention up to 5 days. A record of the individual detained must be made in the public register. Bail should be ordered unless detention is necessary for the protection of the investigation, victims or society in general.

Under article 229 of the Criminal Procedures Code, the defendant is required to attend an initial complaint hearing which is regarded as the “formalization of investigation”. A charging instrument must be created and include details of the defendant, case, a possible sentence and witnesses.

Trial

Chile has a reformed accusatory system. The procedures of the Chilean judiciary are governed by Chapter Six of the Constitution of 1980. Article 73 ensures the President is not involved in the exercise of judicial duties and the appointment of judges is covered by Article 75. Under Article 76, judges are liable if they avoid a substantive area of law. While the judiciary is intended to be independent, there are concerns as to the extent this is true.

Criminal proceedings are brought by the Public Prosecutor and trials are held publicly with oral proceedings and evidence presented by both parties. Cases begin before Guarantee Courts which grant the power to investigate the case and hear simple cases (like those involving a guilty plea). There is a hierarchical system with Supreme Courts at the top, Court of Appeals in the middle, and tribunals of first instance at the bottom. There are no special commissions.

Trials are heard by 3 judges who have no previous knowledge of the facts of the case. The defendant must testify during the trial. Evidence which is transparent can be presented. To ensure the quality of evidence, the state provides protection to victims and witnesses participating in trial proceedings under article 83 of the Constitution.

The clerk begins the trial by calling the court to order. Administration procedures follow. Then opening remarks are given and witnesses are cross-examined. The trial concludes with final remarks. The judges hear the proceedings and then make their decision. The entire case will be heard in one hearing which also includes the verdict. However, if the case has taken a long time to present, the verdict may be delayed by up to 24 hours. If guilty, the defendant will be detained and sentenced in separate proceedings.

During sentencing proceedings, a summary of the case and decision will be heard. The Civil Administration courts cannot order sentences that deprive individuals of their liberty. Sentencing procedure involves mandatory sentences which are influenced by aggravating and mitigating circumstances surrounding the defendant. Article 19 of the Constitution states that “the death penalty may only be instituted for a crime considered in a law approved by a qualified quorum”.

Post-Conviction

Cases are reviewed by the Courts of Appeal and can progress to the Supreme Court, the highest court in the hierarchal system, if the court decides that the decision of a lower court has been “unjustifiably erroneous or arbitrary” under Article 373 of the Code of Criminal Procedure or if there has been a “serious procedural breach” (under Article 374). Article 21 of the Constitution also ensures individual rights are protected through the reinstating of the rights which are violated by an unlawful act, for example in the arrest procedure. Such an appeal must be before a competent judge and these legal faults should be corrected. There is no appeal available for decisions made by the Supreme Court but they can correct errors made.

Prisons in Chile

The conditions in Chilean prisons are very poor. They lack clean, safe water and food providing sufficient nutrition. There is poor sanitation which has led to poor prisoner health and the spread of numerous diseases. These problems are exacerbated by a lack of medical care. Chile has a very high number of individuals incarcerated in its numerous prisons. Some prisons house far more prisoners than they were originally designed for, with devastating consequences like the riot in the San Miguel prison which led to the death of 81 prisoners. Supreme Court prosecutor, Monica Maldonado admitted that prisoners are treated in an “inhuman, degrading and cruel” manner.

References

  1. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  2. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook

See Criminal Justice Systems Around the World

QUICK FACTS

  • 2010: 52,127 prisoners
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