Analysis of the shift of the Federal Police of Chile from the military legal system to the civilian legal system

2. Appendix II: Organizational Chart of the Undersecretary of the Carabineros de Chile,

3. Appendix III: Organizational Structure of the Carabineros de Chile, &

5. The Ministry of National Defense (MND) is composed of the five armed forces, the Ejercito (Army), the Armada (Navy), the Fuerza Aerea (Air Force), the Carabineros de Chile and the Policia de Investigaciones (Investigative Police). Additionally, the MND also has a governmental sector, the Subsecretaria de Guerra (Undersecretary of the Army), Subsecretaria de Marina (Undersecretary of the Navy), Subsecretaria de Aviacion (Undersecretary of the Air Force), Subsecretaria de Carabineros de Chile (Undersecretary of the Carabineros) and the Subsecretaria de Investigaciones (Undersecretary of Investigations). The MND also maintains other departments and divisions that assist with its overall mission of national defense and security.

7. The MND has eight missions:

8. It is charged with preserving the independence and sovereignty of the Republic of Chile and maintaining the territorial integrity of the country,

9. Promotes and maintains internal peace and security,

10. Seeks to influence conditions involving external security in order to achieve the common safety and security of Chile,

11. Charged with the preservation of the democratic institutions of Chile and its commitment to the rule of law,

12. Contributes to the State’s activities to strengthen the citizen’s engagement with the defense of Chile,

13. Safeguards Chilean historical and cultural identity, however the MND respects the right of the populace to continually enrich its traditions and assimilate new cultures into its own, &

14. Contributes to national development, while maintaining social stability, which is achieved through national growth and enterprise.

15. In General, the vision of the MND is to protect the population, preserving the national territory and safeguarding the Republic's capacity to exercise its sovereignty against external threats and support the achievement of national goals. The national defense must be accepted as a public good that integrates all the citizens within a democratic society. It also assists the State to maintain a monopoly of force and it properly equips itself and meets the objectives assigned by the State, whether in peacetime or war. The MND includes all activities of all the national organizations needed by the national defense because the operations of the MND are bigger than the limits of the strictly military agency. Lastly, the MND cannot violate the rights of any individual.

17. The Undersecretary of the Carabineros (USCAR) is a civilian department within the MND who works with the Carabineros in carrying out their function of internal national security. USCAR was created by Decreed Law Number 444 dated 27 April 1974.

18. The missions of USCAR is:

19. Exerts an official civilian influence over the Carabineros with the exclusive confidence of the President of Chile and who works directly with the Minister of National Defense,

20. Advises the MND in all matters pertaining to the Carabineros,

21. Drafts the budget for the Carabineros, as well as gives approval for promotions and retirements of police officers,

22. Conducts programs aimed at strengthening the relationship between the Carabineros and the community they serve,

23. Administers the Program for International Cooperation for Foreign Uniformed Police (CECIPU). CECIPU provides scholarships to foreign police officers to engage in training courses that upgrades skills or provides specialized training in the Carabineros training academy, &

24. Is an integral component of the International Committee for Public Security.

26. The Carabineros are the national police force of Chile. They fulfill the Constitutional mandate to provide security to the communities throughout the Republic of Chile. The Carabineros have six key roles:

27. Preventive: Corresponds to all work being done by the institution through its presence within the community

28. Maintenance of the Public Order: includes the activities carried out by police in order to maintain public order

29. Education: inform the public of their rights and duties under the Constitution and enacted laws, especially focusing on informing minors of the dangers of alcohol and drugs

30. Public Convenience: includes providing directions to lost people, helping them in dangerous situations, etc

31. Social Solidarity: engage in activities for the benefit of the community, which usually occur in emergencies, such as fires, floods and theft

33. a civilian attacks or attempts to attack military property, or

34. a civilian who attempts to interfere with the military duty, such as bribing Carabineros not to perform properly or attempting to persuading military members to fail to perform a required duty.

35. The provisions that place civilians into the military system are very controversial. However, the strict and harsh penalties of the military system are the only protections the Carabineros receive while in the performance of their duties. Presently, there is a perception within the Carabineros that they are losing protections, partly created by the repealing of the law forbidding the insulting of the Carabineros.

36. The CMJ is based on the inquisitorial model, where all proceedings are conducted in the written form. The accused is considered guilty until proven innocent, which allows for his immediate detention until he has served his sentence or is found to be not guilty. There is no restitution for those who are wrongly detained or found innocent for the time incarcerated. The state has the burden of proving with “absolute consensus,” or beyond a reasonable doubt, that the accused is guilty. This system affords the prosecutors wide latitude in the development of the case.

37. The inquisitorial system codifies protections for the accused; however, the rights, also known as guarantees, of the accused are limited. When the suspect is accused of a crime, he is immediately incarcerated. The time served before final adjudication is applied to the time needed to be served if the accused is found guilty and sentenced to imprisonment. Incarceration before final adjudication is not required, but is dependent on the decision of the “Corte Marcial” (Martial Court), whose decides on all liberty issues. Cases in this system can take from one to ten years to resolve, although the average length of time is three years.

38. Charges against the accused are brought before the prosecutor, who can arrest and then detain for up to five days. The accused is notified of the charges that are being pressed against him. Further, he has the right to talk to a lawyer, family, judge and the prosecutor. The accused also has the right to hire a private attorney or have one appoint by the “Corpacion of Asistensia Judicial” (Corporation for Judicial Assistance (CAJ))), if he is unable to afford an attorney on his own. If the accused is a Carabinero, he may receive Judicial Defense of Carabineros assistance if it is compatible with national interests. He also has the right to appeal for liberty.

39. The victim of the crime also plays a role within the CMJ, albeit a diminished role. The victim can hire a private attorney, or if unable to afford one, the CAJ with provide one to ensure their rights are looked after, that the process operates properly, and assist in seeking a civil remedy. After the CMJ completely adjudicates a case, the court documents become a part of the public record; however, prior to that, it remains confidential.

40. The CMJ consists of a multilevel court system. The entry point for criminal charges begins with the Fiscalia Militar (Fiscalia). The Fiscalia is a specialized court, one for the Army and Carabineros, and then one each for the Navy and the Air Force, which is due to their specialization. It consists of “letrados,” who are both lawyers and officers in the military of the various branches. Complaints are brought in by the victim, military members/institution or the police and presented to the fiscal (prosecutor). The prosecutor investigates the complaint through the Carabineros and Investigative Police. The prosecutor has the ability to file charges, arrest and detain the accused for up to five days. He also issues the pretrial sentence, over which the accused has an appeals right directly to the Corte Marcial. The prosecutor also recommends a sentence to the next court level, the Tribunal Militar (Tribunal). It is at this level within the CMJ that the active participation of the victim and accused ends. Additionally, if the accused is a Carabinero, the Prosecutor can direct the Carabineros to conduct an internal investigation and report their findings to him. The reasoning behind allowing the Carabineros to conduct their own investigations is because the justice of the CMJ is severe, which acts as a deterrent to any covering up for the accused.

41. The Tribunal is the next level within the CMJ. Presiding over the court is a judge, the Juez Militar. He is a high ranking officer, General or higher and is not a lawyer. He is advised by an auditor, who is a military officer of higher rank (Major, Colonel, etc). All staff members are military personnel. The Tribunals are located in Antofagasta, Santiago, Concepcion, Valparaiso (Navy only), Puerto Montt and Punta Arenas. The Tribunal has at least three Fiscalias under it, one for each of the branches.

42. The Tribunal sentences the accused. He may or may not consider the recommendation of the Prosecutor. The Tribunal has the option to pass an alternative sentence. If the penalty is less than three years, the convict can sign in at the jail once a month and then leave. If the sentence is greater than five years, the convict can seek parole.

43. The Corte Marcial (Court) is the highest military court and is located in Santiago. It consists of five justices, two from the Chilean Supreme Court and one from each of the following, the Army, Air Force and Carabineros. The two justices from the Supreme Court are the only civilians acting within the CMJ. The Court handles appeals and all issues related to an individual’s liberty, in which the prosecutor from the Fiscalia will notify the Tribunal but will bring the issue directly before the Court. The Court confirms, revokes or modifies the sentences passed by the Tribunal. Additionally, justices consult in the event of an investigation of serious crimes.

44. The Navy operates its own parallel system, through the Tribunal Militar and up to its higher court, and Corte Marcial Naval. The Chilean Supreme Court can also hear appeals from both military justice systems. This is the only civilian check over the CMJ.

45. Under the CMJ, the judges occupy an important position. They are the ones who investigate the cases before it. They decide on all issues of the law. They also determine the guilt or innocence of the accused and pass sentence on them. Another party to the system is the Realator. He has the duty of keeping and maintaining the casebooks, as well as reads from them during the trial.

46. Because of the interview with General (J) Verdugo, we can see several concerns that need reflection and reevaluation to improve the military justice system, which include:

47. Judges and prosecutors having too much independence,

48. Denial of liberty for long periods and without compensation in case of wrongful detention,

49. All persons in charge of the process are in the military, &

50. Judges are not appointed for life.

52. Detention based on a flagrant violation of law.

53. Protection of a crime scene, protect evidence, keeping evidence under seal and within the chain of custody,

54. Indentify witnesses and collect statements from those willing to give them,

55. Receive complaints from the public, &

57. The police may register the clothing, luggage or vehicle of the person who is detained,

59. Right to be assisted by his attorney,

60. Right to information held by the prosecutor that undermines the State’s case (i.e. Discovery),

61. Right to a hearing to determine whether the facts of the case warrant detention,

62. Right to know the contents of an active investigation against him, and in the case of a secret investigation, it can remain secret only for the time outlined by law,

63. Right to file for a dismissal of the case and a right to appeal refusing said dismissal,

64. Right to either remain silent or to testify under oath,

66. Be informed of his rights by the functionary in charge of the detention,

67. Be brought before the court ordering his arrest,

68. Request the court for freedom,

69. The functionary to inform the detainee’s family or person of his choosing that he is a prisoner, the reason for the imprisonment and where he is imprisoned,

70. Meet privately with a lawyer,

71. Amenities that comply with the detainment centers security program, at a cost to the detainee, &

73. Completing a crime, &

75. Reasonable suspicion that the accused had participated in the crime, &

77. Probation,

78. Obligation to report to the court during proscribe time intervals,

79. Ban on leaving the country or locality,

80. Ban on visiting certain places,

81. Ban on communicating with certain people, &

83. Absence of any person whose presence is required under Articles 284 and 286,

84. The defendant has been prevented from exercising the rights guaranteed to him,

85. When the trial has violated the provisions concerning publicity and the continuation of the trial,

86. Any omissions of the requirements provided under Articles 342 (c), (d) or (e);

87. Breach of the requirements of Article 341, or

89. Appendix II

90. Appendix III

91. Appendix IV