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.”
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.”
 APT, “Ya es tiempo de establecer un órgano de monitoreo en Chile para prevenir la tortura y otros malos tratos,” 12 December 2011.