The International Human Rights Framework on the Right of Peaceful Assembly
Chile is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Chile is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Chile is a state party to the 1969 Inter-American Convention on Human Rights (ACHR). Article 15 governs the right of assembly:
The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
Chile has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of Argentina that their rights under the 1969 Inter-American Convention on Human Rights have been violated.
On 26 March 2020, Chile informed the Organization of American States that it was limiting the right of assembly under Article 15 ACHR. It has continued to derogate subsequently.
The Domestic Legal Framework on the Right of Peaceful Assembly
The Political Constitution of the Republic of Chile was established in 1980 during the Pinochet dictatorship, but has since been amended on several occasions. A major revision took place in 2005. Article 19(13) of the Constitution protects the right "to assemble peacefully without prior permission and unarmed". It is further provided that: "Meetings at squares, streets and other public places shall be governed by general police regulations".
On 25 October 2020, an overwhelming majority of people in Chile voted in support of rewriting the country’s Constitution, paving the way for a new Constitutional Convention
Decree No. 1086 of 1983 regulates the right of peaceful assembly. This decree was promulgated by General Pinochet.
Under Decree 1086, the organisers of any assembly must notify either the regional intendant (Intendente) or the provincial governor (Gobernador) at least two days in advance. If they fail to do so, law enforcement officials may prevent or dissolve the planned meeting or demonstration.Art. 2, Decree No. 1.086 of 1983.The authorities have broad discretion whether to authorise or prohibit meetings or marches on high-density roads or streets where they may disrupt public transport, or in squares and leisure roads during recreational or rest hours, and in parks, squares, gardens and green avenues. The Decree establishes procedures that in practice function as a system of prior authorisation.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The use of force during assemblies is regulated by a series of protocols annexed to a 2019 Circular. These protocols govern the use of chemical irritants, rubber bullets, and firearms during and in connection with assemblies. With respect to chemical irritants, warnings should be given before use wherever possible (such as through the use of loudspeakers). Tear gas will be used against protesters engaged in violence or serious breaches of public order. In the central area of cities, however, the use of hand-held tear gas devices and tear-gas cartridges is restricted to urgent situation once other means of dispersal have been tried and have failed. When they are used, special care must be taken especially in areas around hospitals, schools, kindergartens, and other similar institutions. When chemical irritants prove ineffective, it may be possible to use rubber bullets fired from shotguns.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
The 2019 Circular provides, with respect to firearms, that:
The firearm will only be used to stop a potentially lethal attack, that is to say, to stop an ongoing or imminent attack that affects life or seriously endangers the physical integrity of the police officer or a third party. In this way, the firearm should not be used as a show of force but only to neutralise a potentially aggressive attack lethal in the most immediate way possible.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In a report issued in late 2019, the Office of the High Commissioner for Human Rights (OHCHR) found that the actions of the police and the army had not adhered to international human rights norms and standards in their management of assemblies and with respect to the use of force during protests beginning in October. This included instances of apparent arbitrary deprivation of life by the security forces. On 19 November 2019, the Office of the Public Prosecutor of Chile indicated that there are 26 ongoing investigations related to “people who have died in the context of social protests”, from 18 October onwards. Information received by the OHCHR indicated that during a significant number of protests, the police used non-lethal force when the demonstration was peaceful, with the apparent aim of dispersing the demonstration or preventing participants from arriving at the assembly point. The OHCHR also observed that there was unnecessary and disproportionate use of less-lethal weapons, in particular anti-riot shotguns, during peaceful demonstrations.
In its 2018 Concluding Observations on Chile, the Committee against Torture expressed its concern
by the many cases of police brutality and excessive use of force by the security forces against demonstrators during the reporting period. It is also concerned about consistent reports of ill-treatment against detained demonstrators.
In its 2014 Concluding Observations on Chile, the Human Rights Committee did not address the right of peaceful assembly.
In 2016, however, the UN Special Rapporteur on the right to freedom of peaceful assembly and of association noted several reports of excessive use of force by the police in the context of protests by indigenous peoples calling for the respect of their rights, especially land rights. The Special Rapporteur considered the framework regulating the right to peaceful assembly in Chile to be a de facto authorisation regime. He recommended that Chile adopt new legislation that required, at most, prior notification of peaceful assemblies, with the exception of spontaneous assemblies, which should be exempt from notification requirements.
Chile did not address the issue of peaceful assembly in its 2019 Universal Periodic Review under the Human Rights Council.
There has been no case involving the right of peaceful assembly in Chile in recent years.
Views of Civil Society
More than 400 people have suffered serious eye injuries after being struck by projectiles fired by police during protests in the last two years. This suggests that tear gas and rubber-coated bullets are being negligently or wilfully misused.
In its report on Chile covering 2018, Freedom House stated that:
The right to assemble peacefully is widely respected, though protests are sometimes marred by violence. In July 2018, an altercation erupted between demonstrators marching in support of free and safe abortion, and counterprotesters. Three women suffered stab injuries, and several people were arrested. Separately, protests against police brutality gained momentum throughout the country following the police shooting of a young Mapuche man in November.