Chile: Information on the penalty for "offense and aggression" against a Carabinero (policeman) and on how such a case is tried (possibility of defendant's representation by legal counsel, trial by a civil or military tribunal, other details)

Please find attached two documents that provide information on the requested subject.

One of the documents, provided by the Embassy of Chile in Ottawa, states that a person who offends or assaults a Carabinero (policeman) will be tried by a military court (29 Mar. 1994). The source adds that "the accused will always be represented by a lawyer" and that "the sentence will be in accordance to the offense or crime (Military code)" (ibid.).

The second document is a report on the judiciary in Chile published by the International Commission of Jurists and the Centre for the Independence of Judges and Lawyers in 1993 (please note that the report was completed in October 1991, with an update covering the first half of 1992). The report discusses the jurisdiction and proceedings of civilian and military courts, mentioning recent modifications to legal proceedings. These modifications include the transfer from military to civilian courts of trials for "insults" (injurias in Spanish) against members of the armed forces and the police, and the reduction from five years to three in the maximum sentence for this offence (ICJ/CIJL 1993, 168-69). The report also states that "under Chilean law, civilian courts are not allowed to carry out investigations on military or police premises, such investigations must be carried out by military prosecutors" (ibid., 259).

A third document on the subject, written in Spanish, was prepared for the DIRB by the Comisión Chilena de Derechos Humanos (Chilean Human Rights Commission) in Santiago (29 Apr. 1994). What follows is an unofficial translation provided by the DIRB for your reference. The English terms used in the translation does not necessarily equate the Chilean legal terms with those used in the Canadian legal system, and are used only to facilitate understanding of the original text. A copy of the Spanish-language document is available at the DIRB upon request.

Information on the judicial process of persons accused of "offense and aggression against a policeman" (ofensa y agresión a carabineros):

1. Whether the accused would be tried under civilian or military jurisdiction:

If the crime constitutes an "offense against policemen" (ofensa a carabineros), Chilean military legislation states under article 5, clause 1, No. 1, that those offenses committed by civilians as provided in articles 284 and 417 of the code of military justice will be exempted from military jurisdiction, and will in any case fall under the jurisdiction of ordinary (civilian) justice.

Article 417: He who threatens under the terms of article 296 of the penal code, offends or insults with words, in writing or through any other means, the Carabineros or any of its members, with knowledge that the latter belongs to the Carabineros institution, units or detachments, will be penalized with minor imprisonment (presidio menor) in its minimum or mean degree (grado mínimo a medio) (from 61 days up to three years).

On the other hand, if the offense falls under the category of "aggression or mistreatment in deed by civilians against policemen" (agresión o maltrato de obra a carabineros por civiles), this criminal category (figura delictual) will fall under military penal jurisdiction, despite its non-military nature (given that it involves civilians).

If both criminal categories occur together, the case will fall under the jurisdiction of military justice.

2. Whether the accused is represented by a lawyer:

Every accused, every person, has the right to a judicial defense, in the form determined by law, and no authority or individual will prevent, restrict or disturb the participation of the lawyer if this has been requested (Political Constitution of 1980, article 19, No. 3, 2nd clause). The third clause of the same article and number states that "the law shall establish the means to provide counsel and judicial defense to those who cannot provide for these themselves."

3. The established punishment for the offense will be:

Article 416 of the code of military justice,

"He who acts violently against (violentase), or mistreats in deed (de obra, in opposition to de palabra or in words), a policeman exercising his duties of protecting order and public security, will be punished:

1st- With major imprisonment (presidio mayor) in its mean degree or higher, including death, if it causes the death of the policeman (10 years plus a day up to 15 years, or death).

2nd- With minor imprisonment (presidio menor) in its maximum degree or major imprisonment in its mean degree if serious injury is caused (from three years plus a day up to 15 years).

3rd- With minor imprisonment in its minimum or mean degree, if less serious injury is caused (from 61 days up to 3 years).

4th- With minor imprisonment in its minimum degree or a fine equivalent to 11 to 20 minimum salaries if no serious injury is caused, or if injury is slight (from 61 up to 540 days).

Additional information on judicial proceedings in Chile can be found in the yearly United States Department of State Country Reports and its corresponding Critique, available at your Regional Documentation Centre.

This response was prepared after researching publicly accessible information currently available to the DIRB within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References

Comisión Chilena de Derechos Humanos, Santiago. 29 April 1994. Fax received by DIRB.

Embassy of Chile, Ottawa. 29 March 1994. Fax received by DIRB.

International Commission of Jurists (ICJ)/Centre for the Independence of Judges and Lawyers (CIJL). 1993. Chile: A Time of Reckoning: Human Rights and the Judiciary. Geneva: ICJ/CIJL.

Attachments

Embassy of Chile, Ottawa. 29 March 1994. Fax received by DIRB.

International Commission of Jurists (ICJ)/Centre for the Independence of Judges and Lawyers (CIJL). 1993. Chile: A Time of Reckoning: Human Rights and the Judiciary. Geneva: ICJ/CIJL, pp. 166-173, 193, 238-241.