Chile

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ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

A small island nation in the Caribbean, the Republic of Cuba has been ruled by Fidel Castro since the Cuban Revolution of 1953-1959. With a population of over 11 million people, Cuba is the largest island nation in the Caribbean.

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. This Constitution guarantees rights and provides protection for individuals. Legislation passed creates a hierarchy system of importance with institutional acts, being 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.

Trial

Cases begin before Guarantee Courts where the power to investigate the case is granted, or where simple cases are heard (those involving a guilty plead for example). There are tribunals of first instance and Courts of Appeals with the Supreme Courts being at the top of this hierarchy system (there are no special commissions). The trial will involve a hearing by 3 judges who have no previous knowledge of the particular facts of the case. The defendant is obliged to testify during the case. Evidence which is transparent can be presented, and to ensure the quality of evidence, the state ensures to provide protection to the victims and witnesses participating in the trial proceedings under article 83 of the Constitution. This reformed accusatory system still receives criticism.

There will be an initial complaint hearing under Article 229 of the Criminal Procedures Code and the defendant is required to attend this hearing which is regarded as the “formalisation of investigation”. A charging instrument must be created and this will include details of the defendant, case, sentencing and witnesses.

During the trial, the clerk will begin by calling the court to order, the administration procedures will follow with the opening remarks followed by witnesses being cross-examined. The trial will conclude with final remarks. The judges will hear the proceedings and then make their decision, the whole case will be heard in one hearing include the verdict, unless the case has taken a long time and therefore the verdict may be delayed by up to 24 hours. If guilty, the defendant will be detained and sentenced in separate proceedings. During these proceedings, a summary of the case and decision will be heard.

Post-Conviction

The Civil Administration courts cannot order sentences which deprive individuals of their liberty. The 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”.

Criminal proceedings are brought by the Public Prosecutor and the trial will be held in public, involving oral proceedings and evidence from both parties. 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 judiciary duties and the appointment of judges is covered by Article 75. Under Article 76, judges will be liable if they avoid a substantive area of law. Whilst the judiciary are meant to be independent, there are concerns as to the extent of whether or not this is true.

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 the prisons in Chile are very poor. There is a lack of clean, safe water and food providing sufficient nutrition. There is a poor sanitation which has led to poor health and numerous diseases. This problem is further worsened by a lack of medical care. Chile has a very high number of individuals incarcerated in its numerous prisons, and some prisons house far more prisoner than originally designed for, this had devastating consequences, such as the riot in the San Miguel prison which led to the death of 81 prisoners. Supreme Court prosecutor, Monica Maldonado has said the prisoners are treated in an “inhuman, degrading and cruel” manner.


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QUICK FACTS

  • 2010: 52,127 prisoners
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