E/CN.4/1996/35/Add.2
page 12
investigation is made into any reported abuse, and if any evidence, including
criminal evidence, is found, the Code of Penal Procedure or the Code of
Military Justice is applied. They also said that a record was kept of the
time and place of any police proceedings, and that such information had to
be provided to a judge on request.
III.
PROTECTION OF THE RIGHT NOT TO BE TORTURED
A.
Legislation and procedural rules
43.
Under the Government of President Aylwin a number of legislative measures
were taken for the purposes of preventing and punishing torture. The
reservations to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and to the Inter-American Convention to
Prevent and Punish Torture were withdrawn. In terms of domestic legislation,
Act No. 19.047 of 14 February 1991 amended several articles of the Code of
Penal Procedure in order better to safeguard the rights of persons, in
particular by improving protection for the integrity of detainees and by
reducing the periods of incommunicado detention allowed under the earlier
system. As torture occurs mainly during the period of police detention,
frequently for the purpose of extracting a confession, it is worth examining
the legal regime instituted by the Code in this respect.
44.
Where periods of detention are concerned, under normal conditions all
detainees must be brought before a judge within 24 hours of their capture in
cases of flagrante delicto or 48 hours in other cases (arts. 270 bis of the
Code and 19.7 of the Constitution). The period of detention may in no
circumstances exceed five days from the date on which the person arrested is
brought before the court (art. 272). However, provision is made for
exceptional periods of detention. Thus article 272 bis stipulates that a
judge may, in a substantiated decision, extend the period of detention
of 48 hours ordered or instituted by any other authority to a period of five
days. When acts which the law classifies as terrorist are being investigated,
the judge may extend the period of 48 hours to 10 days.
45.
In the decision prolonging the period of detention in the cases referred
to above, the court is required to order the detainee to be examined by a
physician designated by the judge, who has to carry out the examination and
report to the court on the same day as the decision. Under no circumstances
may an official of the police unit which made the arrest or by whom the
detainee is held be appointed for this purpose. Once the judge’s
authorization has expired, the detainee must in all cases be brought
immediately before the judge and placed at his disposal. Gross negligence on
the part of the judge in providing proper protection for a detainee will be
considered a breach of duty. Non-governmental sources nevertheless criticized
the fact that the obligation to carry out a medical examination only applied
when the period of detention was prolonged, while with respect to the
initial 48-hour period, a crucial one in respect of potential abuses, the
regulations appeared somewhat ambiguous. In addition, officials from the
Forensic Medicine Department said that on account of their limited resources
they were not always able to comply with a request from a judge for an
immediate examination of a detainee, and that several days might go by before
the examination took place.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents