Friday 18 October 2019 is a day that will long be remembered in Chile. Following weeks of unrest over rising costs and corruption, high school students jumped the turnstiles in the metro as part of a coordinated fare evasion campaign. It sparked a wave of protests that culminated in more than a million people gathering in Plaza Baquedado in the heart of the capital, Santiago. I was one of those in ‘Plaza Dignidad’, as we renamed it, calling for social justice, fairness and an end to the neoliberalism that had hurt so many individuals, families and communities.
While the vast majority of people were peaceful, some of the protests resulted in damage to private property and public infrastructure. There were thousands of arrests. On the night of 18 October, the President decreed a State of Constitutional Emergency and the military was instructed to restore public order. The last time the military had been on the streets for such reasons was during Pinochet's dictatorship. The memories this invoked were deeply painful for many.
Over the weekend that followed, 19-20 October, there was looting, property damage and clashes between demonstrators and police. The military, trained for war, joined those clashes, which included a memorable exchange with the then president-elect in the middle of ‘Plaza Dignidad’.
On Saturday 19 October, I went to the Santiago Justice Centre, where the courts in charge of first hearings are concentrated. I was accompanied by the Head of the Public Criminal Defense Office. Our journey ended at 6pm, just as the curfew began. Three military patrols stopped me to check why I was out after curfew. Those who could not give a satisfactory explanation were detained.
The following day there was a record number of detention control hearings. Never in the history of the new Chilean criminal process system had so many people been arrested on a single day. Defenders had to redouble their efforts and even lawyers like me from the Public Criminal Defense Office, not involved in day-to-day litigation, had to support the hearings. One hearing involved around 50 detainees. All charged with looting. People of different ages, primarily men. Almost all had no previous criminal record. Many complained of ill-treatment at the time of arrest by the military and later by the police. At that hearing, I denounced the treatment of the detainees by state agents. The Public Prosecutor took notes and the judge ordered the case be referred to the National Institute of Human Rights.
The situation set off alarm bells for many of us in the legal community. Public defenders were deployed on a voluntary - but organised - basis to visit nominated police stations. We went on morning rounds to check on people detained for curfew violations, and on afternoon rounds, we visited those who had been detained following mass protests, clashes with police or for looting or property damage. Given the escalating number of allegations of ill-treatment in detention by the military and police, we extended the monitoring programme of defenders and, in a joint effort with the Public Prosecutor's Office, I sent complaint forms to all public defenders in the country to better record acts of violence that occurred at the time of arrest and during the first hours of detention.
This is what we recorded. Between 20 and 28 October 2019, when most of the country was under a State of Constitutional Emergency, 10,712 defendants were presented before detention control hearings, an increase of more than 70% compared to the same period in 2018. During that period, a daily average of 1,100 detention control hearings were held, with 2,508 detention control hearings registered on 21 October - almost four times the daily average. However, we know many more people were detained - and then released - without their detention being recorded or being presented for a detention control hearing. Also of note was that in eight per cent of cases (compared to an average 2.2%), the judge presiding over the detention control hearings found the person’s detention was unlawful, due to a lack of legal grounds for the detention or because of the violence that occurred afterwards.
This all confirmed for me the vital importance of public defenders visiting police stations so they can have timely contact with detainees. I also drew inspiration from the APT’s work in this area, specifically their efforts in México to strengthen safeguards to prevent torture in the first hours of detention, as well as reviewing their documents that they shared with me on the “Serie sobre Salvaguardias para Prevenir la Tortura en la Custodia Policial en América Latina” that I reviewed in 2018.
At the time, it was not a part of the protocols of the Public Criminal Defense Office, as it was considered sufficient for the defender to confer with the detainee immediately prior to the detention control hearing. That is, in the court itself or the court's cells. However, the presence of public defenders in police stations is a practical way to ensure the right of the detained person to have prompt access to a lawyer, regardless of whether they are subsequently presented for a detention control hearing. It also helps safeguard several other fundamental rights, including the prevention of torture and ill-treatment.
What began as a response to exceptional circumstances highlighted a clear gap in Chile’s criminal justice system that needed to be addressed. I developed a request for technical assistance to design a defence model in police stations and, in 2020, the Public Criminal Defence Office began a partnership with the Eurosocial+ Programme from the European Union.
From March to June 2021, we convened roundtable discussions with a broad range of stakeholders to design this new model, which we trialled in police stations across six regions starting in July and August.
By the end of December 2021, more than 3,000 people had been interviewed by public defenders in police stations. This work has been accompanied by training for police officers and inter-institutional work between the Public Criminal Defense Office and Carabineros de Chile, Chile’s main police body. Currently, through an action protocol, we are establishing mechanisms to better coordinate the work of public defenders in police headquarters.
We also revised the form used in the first interview with the detainee to record information on their state of health, physical integrity, medical examination and the possibility of early release. Our experience has shown that public defenders have played a key role in communicating with the families of detainees, many of whom wait outside the police station. During the second anniversary of the demonstrations, I visited one of the police stations where so many people had been detained. On that occasion, relatives waiting outside asked me for information on the condition of their loved ones and I was able to reassure them and inform them of the procedural situation. I was also able to take in warm clothes and food for those detained.
It was an unexpected journey: from a social uprising to strengthening safeguards in the criminal justice system. This new approach makes a difference by bringing forward contact with a detainee and reduces the risks they can face in those critical first hours of detention. It is also a concrete way that Chile can deliver on its international human rights obligations. We know that there will be challenges as we seek to extend this approach to police stations across the country. However, I am confident that, based on the lessons learned over these past two years and the decision to support the trial throughout 2022, the work of public defenders to meet with detainees during the first hours of custody is here to stay.
Tomás Pascual, Criminal Justice Fellow at APT and Head of Human Rights Unit at Public Criminal Defenders Office in Chile
This blog belongs to a series celebrating APT's 45th anniversary and showcasing the impact of prevention in the past decades.