Costa Rica ratified the CAT on 11 November 1993 and the OPCAT in November 2005. The Foreign Ministry proposed to the Defensoría that it become the NPM and in February 2007 the office was designated by executive decree.  The Costa Rican Defensoría de los Habitanteswas the first NHRI in Latin America to be designated the NPM under the OPCAT.

Personnel have reflected on the significance of designation:

“According to the Protocol the important thing is that the [candidate institution] have a trajectory, an experience in dealing with the issue of torture, and credibility…As such, it was gratifying as it was a species of recognition of the work we have been developing and now it is formalised with OPCAT…”[1]

The Defensoría has engaged in inspecting detention facilities since its creation in 1993, highlighting in particular immigration detention centres and police holding facilities. Structurally, it is one of the least robust NHRIs in Latin American. However, it is compliant with the UN Paris Principles.  For instance, the Costa Rican office stands alone in the region as the only NHRI not to have been granted constitutional status.  It also lacks immunity from prosecution.

However, the Costa Rican model’s is comparatively unconstrained in terms of mandate and powers, including unrestrictive inspection of public facilities, access to documents except state secrets, and the enforceable summoning, by police escort if necessary, of public officials. The NPM directive mandates the Defensoría to conduct regular inspections, without prior notice, of detention facilities under the jurisdiction of the Ministries of Justice and Public Security. In turn, Article 3 obliges these Ministries to cooperate with the Defensoría.

One obstacle that the Defensoría has confronted is securing the resources necessary to fulfilling this additional role. A request in 2008 was rejected by Congress.  A lack of funds has delayed the formation of the NPM unit until 2009 and the work of the unit continues to be affected by a lack of logistical and economic resources.

The Defensoría has subsequently sought to codify its NPM function in law in accordance with Article 18 of the OPCAT and the Paris Principles.  To this end, a law project was submitted to Congress in October 2011, but is yet to be approved.  In the interim, the Defensoría has issued its own directive detailing the role and responsibilities arising from this additional responsibility. The executive decree does not explicitly grant the Defensoría the authority to inspect other public and private detention locations such as juvenile centres and psychiatric institutions. However, in practice, the office has interpreted its jurisdiction expansively while calling on the government to fully comply with its obligations under the OPCAT.

The directive creates a dedicated NPM unit within the Defensoría of three individuals (a political scientist and two lawyers). It also often includes a trained physician seconded from within the organisation. Furthermore, the directive issues instruction to all areas within the Defensoría to coordinate activities with the NPM. For instance the Unit for International Cooperation is to collaborate on a national education campaign on torture prevention. Generally, the NPM is to serves as an “informational hub” to strengthen the Defensoría’s work on torture prevention across all areas of protection and promotion.

The NPM Unit has a mandate to monitor legislation, executive decrees, and other standards to ensure compliance with torture prevention norms. It may also submit amparo and habeas corpus actions on behalf of persons detained illegally or where the conditions of detention do not meet minimum domestic or international standards. However, this power has been used very sparingly.

According to the annual reports, the Defensoría/NPM Unit conducted 20 visits of places of deprivation of liberty in 2007, climbing to 67 in 2009,  65 in 2010 and 41 in 2011. These include prisons, police and judicial holding cells, maximum security units, psychiatric facilities, immigration detention centres, and hospitals. The NPM has compiled a database of all places of deprivation of liberty, detention and custody as well as a chronogram of visitations. In turn, the NPM Unit can refer any matters for follow-up to the Defensoría’s Area of Defence which is, in turn, obliged to inform them of the results of any investigation.

The NPM Unit has also since 2010 issued detailed annual reports spotlighting a host of issues of concern including detention regimes in maximum security facilities, overpopulation within the prison system, denial of the right to health, vulnerable groups, especially women, the elderly, disabled and young people, inadequate food and nutrition, and a crumbling infrastructure. The Unit also details individual cases, making recommendations to the relevant authorities and specifying steps for follow-up.

The Unit has a dedicated website and has effectively deployed a publicity strategy alongside the Defensoría press office. This has resulted in media exposure of cases concerning the alleged torture of immigrants, prison detainees, as well as overpopulation in the country’s prisons.

In terms of inspections, the NPM Unit has devised a three-fold protocol for visitations including (1) exhaustive visits of more than one day in situ, (2) ad hoc visits to follow-up on recommendations, and (3) thematic visits dedicated to investigating a specific issue. Following a visit, the NPM Unit issues a report to the relevant authority detailing their findings, highlighting issues of concern, and requesting confirmation on measures taken to rectify the situation. The official is requested to acknowledge the report within 10 days of receipt.

The inspection reports make detailed reference to domestic and international standards. For instance, the Defensoría has emphasised that according to the Costa Rican Constitutional Court handcuffs may only be used in exceptional circumstances.  Detention authorities have also been directed to the UN CESCR and minimum regulations in the treatment of inmates as well as rulings by the IACHR.

These visits have uncovered violations of personal integrity and torture in maximum security installations. Visits may also respond to urgent situations, for instance in 2009 the Unit undertook an extensive investigation into the outbreak of the flu virus H1N1 in the prison population. In 2011, the Unit intervened following a deadly confrontation between inmates and prison staff. The Defensoría also has offices throughout the national territory which are directed to coordinate activities with the NPM Unit.

The NPM Unit reports that in general public authorities has been cooperative, notably the Minister of Justice has facilitated a high-level commission to monitor NPM follow-up activities.  Although DHR does not have formal authority to inspect detention facilities of the judiciary, an inter-institutional agreement has been reached. The NPM Unit may conduct inspections alongside local authority health officials who then issue their own technical reports. It has also conducted training with, among others, immigrant detention centre personnel, directors of the Penitentiary system, police officers, and public attorneys.

At the international level, the NPM Unit directive establishes that contact should be maintained with the UN Sub-Committee on Torture. In 2010, the NPM Unit work alongside the UNHCR on the issue of detention of migrants, including joint visitations and meetings with relevant authorities.

The innovation of an NPM may owe as much to Costa Rica’s regional standing as a human rights referent point as to domestic demand for such an entity. Costa Rica presents a relatively rights-respecting context in regional perspective. However, its regional “exceptionalism” should not be exaggerated (Lehoucq 2005).

A relatively stable and rights-protective setting does not diminish the importance of a functioning NPM.  The work of the Costa Rican Defensoría prior to and following designation reinforces this conclusion, highlighting compliance gaps between formal protections and actual practice, with particular attention on the protection of vulnerable groups, such as immigrants, prisoners in remand custody, the young, infirmed, elderly and women.

Notwithstanding resource constraints, the NPM Unit continues to develop and refine its operational mandate in light of best practice and lesson learnt. Indeed, its annual reports end with an reflexive overview of “lessons learnt,” including the advantage of unannounced visitations at night and weekends, the challenge of effective follow-up with authorities, the need for more logistical support, and sustaining cooperation with the Ministry of Government, Police and Public Security and the Judiciary.

Resistance from various quarters has repeatedly conspired to undermine legislative attempts to create a robust Chilean National Human Rights Institution (NHRI).  After a protracted process dating back to the 1980s, at the close of 2009 the Chilean Senate approved the creation of a National Institute for Human Rights (INDH).  Debate around implementation of the Optional Protocol to the Convention Against Torture (OPCAT) in Chile has explicitly referred to the INDH as the designated National Preventive Mechanism (NPM). Chile ratified the Convention Against Torture in September 1988 while still under the authoritarian control of General Augusto Pinochet (1973-1990).  The OPCAT was ratified 20 years later in September 2008. Nevertheless, the resulting legislation makes no reference to OPCAT and falls short of the obligations contained therein.

The INDH was created under the Socialist government of Michele Bachelet which communicated to the UN that the NPM function would be incorporated into the new institution. However, up to this point, no NPM has been designated.  The Conservative government of Sebastián Piñera (2010- ) has not put the issue on its legislative agenda. Although the legislative project has been approved in Congress, it has been fiercely resisted in the Senate. The task of NPM has been delegated informally to the INDH. However, as the APT makes clear “its legislative mandate, budget and personnel do not meet the requirements of the role.”[1]

The INDH falls substantially short of the robust design common to Latin American national institutions and is formally ill-equipped to take on the role of NPM.  Civil society actors have voiced scepticism to the idea that the INDH is in compliance with the Paris Principles, the minimum UN-endorsed guidelines governing NHRI structures, let alone the OPCAT.

The resulting structural form of the INDH consigns the model to the outer fringes of global NHRI structures, bearing a resemblance to the Danish or German research institute variants.  In terms of autonomy, the Institute is not constitutionally entrenched, comprising seven Councillors, including two appointed by the President (Article 6).  The powers of the office are also circumscribed, with no provision to receive complaints, no inspection powers and ambiguity surrounding the office’s legal competencies (Article 3(5)).

The INDH itself has advocated for the creation of a “Defensor del Pueblo” or “Ombudsman” to strengthen the judicial protection of fundamental rights. It has also collaborated with the OHCHR regional office to organise events on implementation of the NPM in Chile. However, if the INDH is structurally inadequate to perform the role of NPM, it is worth exploring whether the institution would be suited to becoming a component within a multi-institutional NPM framework.  Its actions in defence of human rights in its brief lifespan thus far suggest that there is a strong case for incorporating the INDH within the NPM. Even if it is not formally designated, the INDH has already become a key referent point for torture prevention in Chile.

The INDH has assumed a robust position in defence of human rights on a number of high profile issues of national consequence, including nation-wide social protests, police violence, conflict between the State and the Mapuche people, and controversies surrounding the slow progress of reconstruction following the earthquake of February 2010.  In turn, the institution has been severely criticised among certain quarters of the media and the political elite.  NGOs dedicated to the prevention of torture have denounced such attacks as “revealing the partial and ideological vision of its accusers.”

The INDH has used its legislative advisory mandate to highlight inadequacies in existing torture prevention legal frameworks. Although torture is prohibited under the 1874 Chilean Penal code, the definition of torture does not comply with international standards.  In turn, the INDH has spotlighted that the military still retain jurisdiction over its personnel in cases of alleged illegal detention, murder and torture and cruel, inhuman and degrading treatment essentially nullifying protections afforded under the 1874 penal code.

The INDH does enjoy one quasi-judicial function which it has exercised sparingly, the power to submit amparos to the courts (emergency writs for the protection of constitutional rights). In August 2012, the INDH issued an amparo on behalf of a victim of alleged police brutality and, in another case, on behalf of Recaredo Galvez, the Secretary General of the Chilean Federation of Students for alleged torture by police officials.  The INDH has also, on its own initiative, sought to monitor the rights situation of those held in prison or police custody as well act as official observers in nation-wide social protests.  The importance of this work has been acknowledged by civil society actors in a context of impunity (at page 163):

“With the exception of the Director of the National Institute for Human Rights who has used her powers to inspect prisons and commissaries in response to alleged violations of torture, there still exists no entity in Chile since the ratification of the [OPCAT] mandated to monitor the police facilities where people involved in the social protests are being detained.  At the same time, society is witness to the shameless and excessive actions of the police against protestors, with cruel and inhuman treatment justified in the name of order and social peace.”

The INDH is broadly mandated to raise awareness of and respect for human rights through, among other activities, investigations, studies and publications. One line of investigation pursued by the INDH has been the prevalence of alleged crimes of torture and other violent acts by state officials.  In its 2010 Annual Report, the INDH has reported that between 2006 and 2010, the Secretary General of the National Police Force or “Carabineros” received 2,634 complaints of unnecessary violence, and 116 complaints for illegal detention.  Highlighting the issue of impunity, the INDH pointedly notes that only 29 police officials had been successfully prosecuted. In a statement widely publicised in the media in November 2011 following publication of the report “Monitoring and Registration of Police Abuses,” the INDH Director stated: “There is a lack of confidence [in the police] due to indiscriminate repression, there has been torture and detentions that do not comply with legal process, and this has diminished confidence.”

Chile displays some of the highest political, institutional and social indicators in the region and is widely viewed as an economic success story.  However, the country only emerged from a protracted period of authoritarian government and systematic human rights violations in 1990.  The legacy of this experience still hangs heavy over Chilean politics and society and human rights remains a highly politicised topic.  Human rights defenders point to a lack of progress in enhancing access to justice, especially for economic, social and cultural rights claims, and the continued exclusion of traditionally marginalised groups within Chilean society, such as indigenous communities and detainees. Chile also displays one of the highest levels of incarceration in Latin America.

In sum, there is a clear case to be made for an NPM in the Chilean context.  The INDH has surprised many observers in its robust advocacy on human rights. However, as it acknowledges, it is not equipped with adequate powers to take on the role of NPM.  It may, however, continue to serve a valuable corollary function within or outside the designated NPM apparatus. International pressure on Chile to fulfil its commitments under OPCAT is likely to grow in light of its upcoming review by the UN Committee against Torture in 2013. At its last appearance before the Committee in 2009, Chile was directed to “fully implement the Optional Protocol.”