6 January, 2020 Codepu Team CODEPU, news, PUBLICATIONS 

One of the consequences of the chain of events that have taken place since October 18th is the significant number of people who have been arrested and prosecuted for their participation in the social protests. The Prosecutor’s Offices have charged them with a series of crimes and they have also had to face different issues that have arisen when they are before the judges.

A debate has arisen on whether or not people should be classified as political prisoners when they are held in preventive detention.

A second point of debate is concerning the status of the principles of due process, rational and fair trial and the respect for procedural guarantees.

A third relevant issue, which has not been sufficiently discussed, is the social context of legality and social conflict.

To define a political crime there are two classifications. The objective view, asks whether the nature of the rights affected is political. If so, it classifies the crime as a political crime. However, it creates a second category, common crime linked to political crimes or political events. It partially links this last category to the first one and subjects it to it.  It sees in the purpose of the action, in its motives, the reason to call an infraction of the law a «political crime».

Under both criteria, it is possible to qualify as «political» or «common crime related to a political crime» at least, the crimes committed in the framework of social protests.

With this clarification, and before anything else, we must bear in mind three main elements.

First, the concept that a violation of the law committed for political reasons, in general, with two exceptions, is a conduct that deserves less criminal punishment than the crime committed, as was said in the nineteenth century, if the crime was commited for low and selfish motives. Liberal criminal law has always stated that a person who commits a crime motivated by ideals and to bring about political change deserves more lenient treatment than one who does so out of greed, selfishness or lust. This is found in the texts of the great classic authors of criminal law from the 19th century onwards. The two exceptions to this are terrorism and the violation of human rights, where privileged treatment is replaced by harsher treatment in law, an aggravated offence.

The first hard fact. In the social protests there has been no terrorism, except state terrorism. Even the acts of looting are crimes that are connected to politicians who have, in the strictest sense of the word, privileged treatment. Thus, for example, common crimes related to political crimes, do not accept extradition, because it is understood that they are «touched» by this benign view that the criminal law has of these issues. And this is not disputed by any half-serious author who knows anything about the history of criminal law.

Unfortunately, here in Chile, on the contrary, attempts have been made to stigmatize conduct involving public disorder, disturbance and protest behaviour and even some common crimes associated with situations of theft by trying to pass them off as terrorism. Terrorism is the use of acts of atrocious violence with the aim of intimidating the population. And here, the ase has not been one of intimidating the population, but of injecting a spirit of agitation, of resistance, which one may or may not agree with. We understand that someone who is extremely conservative might be upset, but we must know and recognize that in criminal law this is not the subject of greater recrimination, but of less.

In particular, we are concerned with  the Public Prosecutor’s Offices approach. Because in general, the Prosecutor’s Offices have treated the demonstrators more harshly than the acts of of violence committed by the state, which are indeed more reprehensible. Members of the repressive police forces have been sanctioned for serious crimes. However, when it comes to charging demonstrators, the police has been given full faith. This is so in some impossible situations. it is enough to recall when we witnessed videos of different situations that showed the total opposite of what the police claimed. We recall that in one of our complaints, the police claimed to have suffered injuries but what actually happened was that the police injured his hand by hitting a minor.

The prosecutors should be consistent and conclude that if the police lie and repress, we cannot use those lies to accuse and as a base to charge individuals who are in custody. They must raise the regulatory standards to prove the facts when preventive detention is ordered. Secondly, those who are prosecuted must be treated more leniently. We are concerned about the large number of pretrial imprisonments. We are concerned that people are held in pretrial detention for participating in public disorder while others, public officials who repress such disorder and who seriously injure people, are left with less intensive preventive measures. This is a problem of different measures that are difficult to explain.

It is also difficult to explain, and we say this responsibly, that there are weeks in which all the accused are left with minor measures and other times in preventive detention. This means that there are prosecutors who are tougher than others in dealing with these events, motivated by political prejudice. There are also judges who are tougher than others. It would seem that what would be required is the appointment of prosecutors who are in charge and who ensure the application of similar criteria so that there is equality before the law. This is because there is no equality before the law if the detainee depends on the prosecutor or judge on duty. Because there are crimes that are similar and sometimes much less serious than others and these end in preventive custody, which has led to quite a serious problem. For example, in Copiapó, there are more than 100 people imprisoned for acts of social protest, and it is the prison with the highest number of prisoners in relation to the population of the city where it is located. This according to data from the police station itself.

We are concerned that the accusation of serious crimes is used to hide serious abuses that the detainees have suffered. Many of the detainees, after being severely beaten and tortured, are then charged to hide the crime of human rights violations and some are prosecuted under the State Security Law, which by definition is a political crime.

In this regard, we believe that it is necessary to establish a discussion on what political imprisonment implies, how it is treated and in the social context in which it occurs. The judiciary must continue to take a consistent line and require that the police act appropriately and in accordance with the law. In our opinion, the majority of demonstrators who are arrested must be released because they exercised their right to demonstrate and in the cases where crimes were committed, the special circumstances must be considered, as these are politically motivated crimes. They are political crimes and must be treated as such.

Legal Team