WIDESPREAD VIOLATION OF RIGHT TO PHYSICAL INTEGRITY

The American Convention on Human Rights²¹⁶ and the International Covenant on Civil and Political Rights,²¹⁷ among other binding instruments to which Chile is a party protect the right to physical integrity.

Likewise, the Inter-American Convention to Prevent and Punish Torture²¹⁸ defines torture as any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.²¹⁹

The Inter-American Court of Human Rights considers “torture” to be any act of ill-treatment that is intentional, causes severe physical or mental suffering and is committed for any purpose or objective by a public official.²²⁰

In the case of Norín Catrimán et al. v. Chile, the Court established that “the violation of the right to physical and mental integrity of the individual has different levels and encompasses torture and other types of abuse or cruel, inhuman or degrading treatment, the physical and mental aftereffects of which vary in intensity according to endogenous and exogenous factors that must be demonstrated in each specific situation.”²²¹

The former refer to the characteristics of the treatment, such as the duration, method used or the way in which the suffering was inflicted, as well as the physical and mental effects that these may cause. The latter refer to the conditions of the individual who endures his suffering, including age, sex, health, and any other personal circumstance.²²²

That is why in its judgment in Quispialaya Vilcapoma v. Peru, the Inter-American Court determined that the right to physical integrity of a soldier had been violated when he was hit in the right eye with the butt of his superior’s weapon. As a result of the attack, Mr Quispialaya suffered from constant headaches and fever and eventually lost the sight in his eye.²²³ Although the state argued that it was an accident during the application of a disciplinary measure, the Court established that the suffering both physical and moral inflicted on the victim was not justified.²²⁴

Similarly, the European Court of Human Rights held that there was a violation of the prohibition on torture and inhuman or degrading punishment or treatment in the Muradova case, where the plaintiff lost the sight of one eye due to excessive use of force by Azerbaijani police. In this case, the Court relied on the harm and consequences to physical integrity, the trauma and the long-term medical treatment that caused the victim considerable mental suffering.²²⁵

In another case against Turkey, the European Court condemned the state for the death of a person as a result of the impact of a gas canister. This Court noted that when fired with grenade launchers, these canisters have the potential to injure or even kill and therefore must be explicitly distinguished from other uses of tear gas. In this case, the Court accepted that the gas canister had been fired directly and horizontally at the plaintiff, and not in an arc as it should have been, given the injury caused and the fact that the Turkish state had not investigated the incident sufficiently to prove otherwise.²²⁶

216 Signed at the Inter-American Specialized Conference on Human Rights (B-32) of the Organization of American States in San José, Costa Rica, from 7 to 22 November 1969, ratified by the State of Chile on 10 August 1990.

217 Adopted by United Nations General Assembly by Resolution No. 2200, 16 December 1966. Ratified by the State of Chile on 10 February 1972.

218 Adopted at the OAS General Assembly, 12 September 1985 and ratified by the State of Chile on 15 September 1988.

219 OAS, Inter-American Convention to Prevent and Punish Torture, Art. 2.

220 Inter-American Court, Case of Bámaca Velásquez v. Guatemala, Merits, Judgment of 25 November 2003, para. 157. Case of Rosendo Cantú et al. v.

Mexico, Preliminary Objection, Merits, Reparations and Costs, Judgment of 31 August 2010, para. 110.

221 Inter-American Court, Case of Norín Catrimán et al. (leaders, members and activist of the Mapuche Indigenous People) v. Chile, Judgment of 29 May 2014.

222 Inter-American Court, Case of Norín Catrimán et al. (leaders, members and activist of the Mapuche Indigenous People) v. Chile, Merits, Reparations and Costs, Judgment of 29 May 2014, para. 388.

223 Inter-American Court, Case of Quispialaya Vilcapoma v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment of 23 November 2015, para. 114.

224 Inter-American Court, Case of Quispialaya Vilcapoma v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment of 23 November 2015, para. 128.

225 European Court of Human Rights, Case of Muradova v. Azerbaijan, no. 22684/05 of 2 July 2009.

226 European Court of Human Rights, Case of Ataykaya v. Turkey, no. 50275/08, 22 October 2014.

Furthermore, the Inter-American Court has established that rape is torture and that “rape must also be understood as act of vaginal or anal penetration, without the victim’s consent, through the use of other parts of the aggressor’s body or objects, as well as oral penetration with the virile member.”²²⁷

The Court has also stated that rape may constitute torture even when it is based in a single incident and takes place outside state facilities. This is because the objective and subjective elements that classify an act as torture do not refer either to the accumulation of incidents or to the place where the act is carried out, but to the intention, the severity of the suffering and the purpose of the act.¹²⁸

In this section Amnesty International sets out the reasons that lead it to conclude that the Carabineros repeatedly used force in an unlawful, unnecessary and disproportionate manner in the context of the crisis, injuring thousands of protesters and inflicting serious injuries on many of them. In many cases this constituted a violation of the right to physical integrity.

In addition, the acts of torture and other cruel, inhuman or degrading treatment were not committed in isolation. Injuries such as eye injuries or physical abuse, were widespread (that is, they were not isolated events) according to official figures from the Ministry of Health, the Attorney General’s Office and the INDH.

Amnesty International has identified numerous occasions on which members of the National Police deliberately used physical force – beating people with batons, punching and kicking them – when there was no actual and genuine need to do so. They did so disproportionately, without any relation to the nature of any potential threat, or once the people were already in state custody. In addition, several hit-and-run incidents were recorded, which were far from being accidental, and where protesters were deliberately targeted. In one case, the injuries caused by these blows resulted in loss of life and in another, the violence constituted sexual torture. In relation to cases of injuries caused by potentially lethal weapons, the multiple kinetic impact ammunition used caused a high level of harm because the pellets penetrated the skin and dispersed on being fired. This ammunition should not have been used because it does not comply with standards on the use of force with less lethal weapons.

Despite this, this ammunition was fired in a practically uncontrolled and indiscriminate manner, especially during October 2019. Although in November there was a substantial reduction in the amount of ammunition used, its effectiveness in causing harm increased, as explained above. In addition, in numerous interventions, riot-control shotguns loaded with this ammunition were used as a tactical tool to control demonstrations.²²⁹

These weapons were used on many occasions against protesters who did not present a risk to the life of the agents or third parties, or who posed a threat considerably less than that caused by said ammunition. The fact that hundreds of people sustained eye injuries shows that the already indiscriminate firing was on numerous occasions aimed at at parts of the body where there was a high risk impact could prove fatal, such as the head and chest, as shown by the evidence presented.

Officers were also identified firing indiscriminately or at random, without any specific target.

The gas was also used disproportionately as a dispersion tool. It was also fired with grenade launchers and, on multiple occasions, the canisters hit people’s bodies in order to cause harm rather than to disperse them.

227 Inter-American Court, Case of the Miguel Castro Castro Prison v. Peru, Merits, Reparations and Costs, Judgment of 25 November 2006, para. 310.

228 Inter-American Court, Case of Fernández Ortega et al. v. Mexico, Judgment of 30 August 2010, para. 128.

229 According to the Department of Weapons and Ammunition, by 2019, at the national level, there were a total of 2,494 operational 12-gauge Hatsan Escort-type shotguns, of which 985 were distributed to Special Forces, 205 to GOPE, and 1,304 to others. At least 258 officials were authorized to use the shotguns loaded with rubberized buckshot. According to the ammunition purchase information, between 2015 and 2017 the Carabineros bought a total of 486,717 TEC Harseim cartridges and between 2015 and 2019, 17,226 “non-lethal impact, 12 calibre”, possibly of the super-shock type. More than 250,000 TEC Harseim cartridges, were purchased in 2017 as well as 12,226 of the super shock type in 2019.

52

EYES ON CHILE: POLICE VIOLENCE AND COMMAND

The cases in this chapter show that, for a month and a half and in a continuous and widespread manner, state officials inflicted deliberate pain and suffering, with the intention of causing suffering or knowing that the probable result of their actions was to cause suffering. This suffering or harm was inflicted by threats and beatings, as well as by serious injuries to numerous protesters, many with physical and psychological consequences. On the other hand, the lack of traceability of the ammunition used (unlike lethal ammunition, these weapons do not leave a specific marking)²³⁰ encouraged a sense of impunity.

Although it is true that numerous cases of damage to property were reported, as well as injuries to National Police personnel, the disproportion in the number of those injured, as well as case studies and visual evidence regarding the repeated unnecessary and disproportionate use of force, give reason to believe that this was National Police policy and not isolated cases where officials acted on their own initiative. Underpinning this policy was an assumption that harming people’s physical integrity was a necessary evil in order to re-establish “public order”. The intention of the actions that resulted in these violations was to intimidate and punish protesters and to stop the protests whenever they took place. Command responsibility for this is discussed below.

230 When a bullet is fired from a pistol or rifle, there are marks and grooves cut into the bullet that coincide with the rotation of the pistol or rifle, so that it is possible to identify which weapon fired a given bullet. This is not the case with a shotgun or grenade launcher.