E/CN.4/1996/35/Add.2
page 13
46.
The Special Rapporteur believes that Chilean legislation should comply
with the following provisions of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment:
"Principle 24. A proper medical examination shall be offered to a
detained or imprisoned person as promptly as possible after his admission
to the place of detention or imprisonment, and thereafter medical care
and treatment shall be provided whenever necessary. This care and
treatment shall be provided free of charge.
Principle 25. A detained or imprisoned person or his counsel shall,
subject only to reasonable conditions to ensure security and good order
in the place of detention or imprisonment, have the right to request or
petition a judicial or other authority for a second medical examination
or opinion.
Principle 27. Non-compliance with these principles in obtaining evidence
shall be taken into account in determining the admissibility of such
evidence against a detained or imprisoned person."
47.
Incommunicado detention 8/ may be ordered by the judge for the duration
of the detention, and if the detention is transformed into pre-trial
detention, it may be prolonged for the full 10-day period (art. 299), with the
possibility of a further extension of a maximum of five days to gather
additional evidence for the case (art. 300). The person held incommunicado
may confer with his lawyer in the presence of a judge, albeit solely for the
purpose of securing measures to end the incommunicado detention. Police
Department officials told the Special Rapporteur that it was less and less
necessary to hold people incommunicado for such long periods, since detainees’
statements no longer constituted the most important evidence in the trial; in
addition, the need to guard the detainee entailed additional responsibility
which the Police Department preferred not to assume.
48.
Where assistance from a lawyer is concerned, article 293 stipulates that
detainees or prisoners, including prisoners held incommunicado, have the right
to have their family, lawyer or a person of their choice informed of the fact
by the police or court at whose disposal they have been placed. The official
in charge of the police or prison establishment in which the detainee is held
before being brought before the court may not deny him the right to confer
with his lawyer, in the presence of the official, for up to 30 minutes each
day, though only about the treatment he has received, his conditions of
detention and the rights to which he is entitled. If a person is held
incommunicado, article 303 stipulates that he may confer with his lawyer in
the presence of the judge, albeit solely with a view to ending the
incommunicado detention.
49.
These provisions, which were introduced by Act No. 19.047, imply a
considerable improvement in the protection of the rights of detainees,
particularly as regards protection against torture or ill-treatment, in
comparison with the previous situation in which detainees had no right at all
to confer with their lawyer during the periods in question. Non-governmental
sources nevertheless informed the Special Rapporteur that the provisions were
inadequate on several counts. First of all, lawyers’ visits to detainees
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