By Andrés Mahnke M., Public Criminal Defender’s Office, Chilean Public Defender's Office
The so-called “social outburst” that began in Chile on 18 October 2019 transformed the country’s agenda, both due to the demands coming from citizens, and because it revealed the actions of public institutions that, as never before, had to face unknown scenarios caused by the effects of the demonstrations.
The Chilean social outburst drew international attention, as it resulted in lives being lost and in hundreds of people suffering serious damage to their eyes, complaints of multiple serious human rights violations and the destruction of public and private infrastructure, among other consequences, including visits to the country by different international human rights organisations, such as the United Nations High Commissioner for Human Rights; the Inter-American Commission on Human Rights; Amnesty International and Human Rights Watch.
In all these areas, the Chilean justice system and its actors had to act, monitored by the justice system itself and under the careful scrutiny of an empowered citizenry and the international community. In this context, a series of adjustments were made and lessons learnt, which became apparent during the first quarter of 2020 and, in March of this year, they were really put to the test.
However, the main actor in this story was unforeseen and came to the fore in all scenarios, changing as it did all agendas: SARS-CoV2 Coronavirus, which generates the disease we know as Covid-19. A few weeks after its appearance in Chile, it produced a change in the electoral calendar regarding the start of the constitutive process and generated what until a few weeks ago was unthinkable: the cessation of mass social protest in public spaces. People returned to their houses and the streets emptied, just like all over the world.
But the thinking behind the adjustments to the justice system and the lessons learnt from the ‘outburst’ must not stop. Moreover, they acquire a new relevance, in order to resume the fluidity of public activity when the health emergency ends. And the outburst does not seem to have disappeared, rather it has been suspended with some outbursts occurring due to the lack of food during the quarantine. Everything indicates that the social and economic impact of the pandemic will exacerbate existing inequalities. Therefore, in some way, this period becomes an opportunity to integrate the lessons learnt and anticipate future scenarios.
In the scenario of social protest, an indirect effect was linked to the work of the different actors in the penal system that have faced an unprecedented challenge concerning coverage and operational capacity, based on a notorious increase in the number of people detained and processed.
Only between 18 October and 13 November 2019, the Public Criminal Defender’s Office – a public institution that guarantees the right to advocacy and comprises 722 officials and 524 external providers – catered for 20,645 people subject to detention control, with a 25.4 percent increase compared to the same period the previous year.
These increases, however, were even greater in the early days of the crisis. Only between 20 and 28 October, a period in which a large part of Chile was under a constitutional state of exception, the institution registered 10,712 defendants who were processed and had a detention control hearing, which represented a 70 percent increase compared to the same period in 2018. In addition, if on average there are between 600 and 650 daily detention controls in the country, during that stage they increased to 1,100 daily hearings, reaching a peak of 2,500 detention controls on 21 October.
Beyond this effort, a first conclusion showed that an undetermined number of detainees were not attended to by public defenders, either because the Public Prosecutor’s Office (Ministerio Público – the prosecuting authority in Chile) decided not to pass them on to detention control, or because their detention was not notified by the police, so that there was no judicial control of these actions or any remaining record thereof.
The foregoing activated a contingency plan in Public Defence (public advocacy) to attend to people detained in police units, since by institutional design defenders have first contact with detainees/the accused moments before the detention control hearing before the judge responsible for procedural safeguards. Although public defenders informally organised to bring about a shift system regarding assistance in police stations and other police detention facilities, this represented direct coverage in only 105 of the 900 existing barracks throughout the country.
This represents an urgent gap in need of resolution, since it implies a dark figure of people who may have had their rights violated, as the reports from the different human rights organisations that visited the country warned.
Institutionally, the Public Criminal Defender’s Office activated different measures, such as strengthening the dissemination of rights, coordinating with the rest of the actors in the system, and opening collaboration channels with the police, among other things.
However, the main initiative that followed this period of social crisis in Chile originated from the support of EUROsociAL+, a programme financed by the European Commission and implemented by the FIIAPP, whose experts are today collaborating with the Public Defender’s Office in drawing up a ‘ Criminal defence during the first hours of detention’ model.
Its main objective is to generate a coverage method that guarantees the right of detained persons to a defence lawyer in the shortest possible time, thus protecting their right to procedural representation. In addition, as the international organisations in charge of the promotion and protection of human rights have revealed, the presence of a defence lawyer constitutes a safeguard in the protection of other rights of detained persons, especially with respect to the prevention of torture.
These actions enable a complete and effective execution of the institutional mission of guaranteeing the right to defence of any accused person at all stages of the criminal process, preventing possible rights violations and strengthening the jurisdictional control of such detention, providing the public defender with greater tools to dispute the punitive power of the State on equal terms before the courts of justice.
Now, we are in the second scenario, with a state of disaster and a night-time curfew. There are no longer any mass protests, although in recent days there have been some isolated ones, and the ‘Institutional Safeguard Plan’ activated by the Defender’s Office, is considering continuing to fulfil our mission, safeguarding the health and integrity of our users and officials.
The objective is always the same: to reinforce the institutional commitment to the rule of law, social peace and democracy in Chile, an effort in which we appreciate being able to always count on the determined and permanent support of European cooperation.
*Regarding the work together with Chile’s Public Criminal Defender’s Office, the EUROsociAL+ Programme has just published a diagnosis on the criminal defence of people in the first hours of detention in the Latin American country.
