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A million Chileans
dispersed through five continents, seeking refuge from the
violence unleashed by the Military Junta after the coup. Of
those who were forced to leave, an estimated 6,000 persons
were specifically prohibited from entering the country, with
no idea when, if ever, they would be allowed to return. In
some cases, people expelled in 1973 or 1974 had to wait 15
years before the dictatorship allowed them to return.
Between October
and November 2000, attorneys Adil Brkovic and Fabiola Letelier
filed the first of 16 civil suits, on behalf of some 200 persons,
against the State of Chile for damages inflicted against Chilean
citizens by prohibiting them from entering the country.
The lawsuits
ask the State 1) to recognize the condition of victims of
human rights violations of Chilean exiles, and 2) to repair
the damage caused in these people. The legal action does not
seek reparation for material damage caused for loss of jobs
or status; rather, it seeks compensation for moral damage
inflicted.
Collective
Lawsuits
Sixteen lawsuits
have been filed, representing groups of five categories of
exiles: people who were expelled, who were granted political
asylum, former political prisoners whose sentences were commuted
to exile, and children exiled along with their parents. Considering
the reluctance of Chilean courts to accept group lawsuits,
the acceptance of the legal action by the Twelfth Civil Court
of Santiago is an important procedural victory.
A civil suit
on behalf of a group must ask for the same remedy and be founded
on the same set of facts. The concept is similar to the class
action suit known in the United States in that it brings together
groups of individuals who share a situation in common. However,
as opposed to a class action suit which benefits persons not
party to the legal action, the collective lawsuit in Chile
may only benefit the limited class comprised by the plaintiffs
named in the complaint.
The attorneys
believe that the Chilean exile has the characteristics of
a crime described in the Convention against Genocide, namely,
mass deportation. The exile from Chile, they contend, was
a "mass violation of human rights that comprised an international
crime or crime against humanity."
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The
Damages Inflicted
Exile carries with
it a loss of identity and represents a psychological rupture
of personal history, values and culture.
Difficulty in setting new life
plans due to cultural barriers and psychological resistance
to adapt to a situation neither sought nor desired affected
many exiles.
Unlike persons who emigrate
in search of better professional opportunities, exiles did
not live outside their country as a matter of personal choice.
It meant for them a sense of uprootedness, economic and
emotional instability, disintegration of the family, loss
of loved ones, isolation and incapacity to make short or
long-term plans.
Feelings of guilt, anxiety,
fear and personal breakdown are psychological conditions
that affect exiles.
(See "Flight
from Chile: Voices of Exile" by Thomas Wright and
Rody Oñate)
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Legal
Foundations for Exile as a Violation of Human Rights
The Constitution
of 1925, in effect at the date Chileans were exiled, granted
all Chileans the right to freely remain, enter and leave the
country. Article 10, on the Right to Personal Freedom, stated:
"Not even under conditions of constitutional exception
may a Chilean national be expelled or prohibited from entering
the country."
American Declaration
of the Rights of Man: In response to hundreds of denunciations
filed by persons forced into exile prompted the Inter American
Human Rights Commission to declare to declare that the government
of Chile violated Art. VIII, which refers to the Right to
Residence and Transit.
The
civil suit filed November 20, 2000 was on behalf of Leopoldo
Letelier Linque and 12 other Chileans who were forced by situations
of violence to seek diplomatic protection in various embassies,
between 1973 and 1974. It states:
"We were compelled to seek
political asylum as the only means to avoid the certain
threat against our lives and physical safety by agents of
the State, who committed serious abuse of power and human
rights violations against supporters or employees of the
overthrown government. "
... Ignoring our constitutional
rights and granting itself judicial authority that properly
belongs to the judiciary, the Junta prohibited us
from entering national territory for an indefinite period
of time, under threat of death if we attempted to return
to our country."
"... Even though over
a decade has passed since the exile was lifted, and we now
live in our own country, the years of exile continue to
cause emotional damage. The sole fact of having been at
one time political exiles has made us objects of all kinds
of discrimination. The reasons for this stigmatization are
to be found in a campaign to discredit us that suggests
that we were exiled because we are lawbreakers. For many
years, this idea was reinforced by military government propaganda
accusing us of serious crimes, none of which were ever proven."
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The
State Defense Council Answers the Civil Suit:
(May 29, 2001)
Regarding
the legality of the act of exile:
"The prohibition to re-enter
the country was a decision by competent authority, in exercise
of authority conferred by the norms of the time and supported
by Decreed Laws that were dictated during the years the
events took place. That is, administrative authority was
in conformance with the legal order in existence at the
time the action charged here was taken.
"...Through Article 3 of Decree
Law N. 81, published in the Diario Oficial on November 6,
1973 the prohibition to re-enter was imposed as an administrative
sanction on those who left the country, outside bounds of
established law, but with authorization from the Interior
Ministry... Consequently, the action of exile unquestionably
conformed to the legal norms in effect at the time."
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Plaintiffs
Reply: (July 25, 2001)
"The defendant forgets
that the "legal norms in effect at the time" —
decree laws — were issued by a Military Junta, an entity
not contemplated by the Constitution of 1925, generating
an illegitimacy of origin of all its actions... In strict
interpretation of law, the illegitimate status of the entity
that legislates should be sufficient grounds for declaring
null and void all its actions, both administrative... and
judicial."
Plaintiff
attorney Adil Brkovic Comments
"It is completely incongruous
that the State Defense Council, which is headed by a person
who was exiled, should state that exile was legal because
it was founded in a decree. It was a decree of the dictatorship!
If that were the case, the firing squad executions are also
legal and every action of the dictatorship is legal because
they wrote it down on paper. Does writing it down on paper
make it legal? What, then, is the difference between a democratic
state and a dictatorship?"
(See Rejoinder
)
For more information on this
legal action, contact [email protected]
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