A Comparative Analysis of the Reformed Code of Criminal Procedure with the

Code of Military Justice

Presented to:

Javiera Blanco SuárezUndersecretary of the Carabineros de Chile

Submitted by:

Keith A. Adams

29 July 2008

Abstract:

This paper begins this discussion by identifying the main agencies involved with internal security and law enforcement, the Ministry of National Defense, the Undersecretary of the Carabineros de Chile and the Carabineros de Chile, itself. Next, the two main justice systems within the Republic of Chile are explored, the Code of Military Justice and the Reformed Code of Criminal Procedure. Lastly, the issue of protections needed by the security forces is analyzed.

In 2005, the Republic of Chile completed its transition in shifting its criminal code from an inquisitorial model to an adversarial model. This transition, however, did not address the military justice system, one of the consequences of this is that the Carabineros de Chile stayed within the military system, resulting in civilians continuing to be charged under the military system, defeating the purpose of the transition in the first place. While much attention has been paid to issues regarding civilians being tried under the inquisitorial system, scant attention has been paid to issues resulting from bringing the Carabineros de Chile out of the military model and into the Reformed Code of Criminal Procedure. This paper identifies two issues, maintaining the high standards of the Carabineros de Chile and the ability of the Carabineros de Chile to carry out their functions free from the threat of violence and interference. This paper explores the latter issue.

Disclaimer:

The documents used in this report were translated through free internet services, namely Google.com and Wordreference.com, unless otherwise noted. As such, some of the translations of the Codigo Procesal Penal (Code of Criminal Procedure) may have been improperly translated, missing the specific linguistic nuances that the original author(s) had intended to insert in the written works. Any mistranslation is unintended and citations should be referenced to ensure a proper and thorough understanding of the law.

Post-Submission Amendment for the Report to the Undersecretary of the Carabineros de Chile

This report was originally submitted as an electronic report with power point slides imbedded within the text of the report. All slides originally imbedded within the report have been attached as Appendixes. They are arranged in sequential order as the power point presentations appear within the report:

Appendix I: Structure of the Ministry of National Defense,Appendix II: Organizational Chart of the Undersecretary of the Carabineros de Chile,Appendix III: Organizational Structure of the Carabineros de Chile, &

Appendix IV: Codigo de Justicia Militar.

Introduction

Chile is a republic consisting of three branches of government, the executive, a bi-cameral legislature and judicial branch. Their duties are codified in a Constitution that went into effect on 11 March 1981 and most recently amended in 20051. The main functions of the government of the Republic of Chile consists of internal governance, maintaining relations with foreign governments and entities, the administration of justice, obtaining and distributing financial resources and defense/national security2.

In June 2005, Chile completed the legal reform process of the criminal justice system, switching from a Spanish influenced inquisitorial system to an adversarial system similar to the United States and Great Britain3. However, excluded from this transition was the military justice system, which still adheres to the inquisitorial system4. Further, the national police force of Chile, the Carabineros de Chile (Carabineros), are part of the security and order maintenance divisions of the Ministry of National Defense (MND), bringing them under the rule of military justice. The Carabineros being under the military justice system has had another effect; it places civilians under the jurisdiction of the military justice system for certain crimes. This final issue is the most controversial, as it results in the military justice system circumventing the reform process.

The Ministry of National Defense

The Ministry of National Defense (MND) is composed of the five armed forces, the Ejercito (Army), the Armada (Navy), the Fuerza Aerea (Air Force), the Carabineros de Chile and the Policia de Investigaciones (Investigative

1 https://www.cia.gov/library/publications/the-world-factbook/geos/ci.html#Govt2 http://www.defensa.cl/estado_y_defensa.php3 https://www.cia.gov/library/publications/the-world-factbook/geos/ci.html#Govt4 https://www.cia.gov/library/publications/the-world-factbook/geos/ci.html#Govt

Police). Additionally, the MND also has a governmental sector, the Subsecretaria de Guerra (Undersecretary of the Army), Subsecretaria de Marina (Undersecretary of the Navy), Subsecretaria de Aviacion (Undersecretary of the Air Force), Subsecretaria de Carabineros de Chile (Undersecretary of the Carabineros) and the Subsecretaria de Investigaciones (Undersecretary of Investigations). The MND also maintains other departments and divisions that assist with its overall mission of national defense and security1. The MND has eight missions:

a) It is charged with preserving the independence and sovereignty of the Republic of Chile and maintaining the territorial integrity of the country,

b) Promotes and maintains internal peace and security,c) Seeks to influence conditions involving external security in order to

achieve the common safety and security of Chile,d) Charged with the preservation of the democratic institutions of Chile

and its commitment to the rule of law,e) Contributes to the State’s activities to strengthen the citizen’s

engagement with the defense of Chile,f) Safeguards Chilean historical and cultural identity, however the MND

respects the right of the populace to continually enrich its traditions and assimilate new cultures into its own, &

g) Contributes to national development, while maintaining social stability, which is achieved through national growth and enterprise2.

In General, the vision of the MND is to protect the population, preserving the national territory and safeguarding the Republic's capacity to exercise its sovereignty against external threats and support the achievement of national goals. The national defense must be accepted as a public good that integrates all the citizens within a democratic society. It also assists the State to maintain a monopoly of force and it properly equips itself and meets the objectives assigned by the State, whether in peacetime or war. The MND includes all activities of all the national organizations needed by the national defense because the operations of the MND are bigger than the limits of the strictly military agency. Lastly, the MND cannot violate the rights of any individual3.

1 http://www.defensa.cl/2 http://www.defensa.cl/obj_dn.php3 http://www.defensa.cl/estado_y_defensa.php

Click to View Slide Show Containing Departments

Undersecretary of the Carabineros de Chile

The Undersecretary of the Carabineros (USCAR) is a civilian department within the MND who works with the Carabineros in carrying out their function of internal national security. USCAR was created by Decreed Law Number 444 dated 27 April 19741.

The missions of USCAR is:a) Exerts an official civilian influence over the Carabineros with the exclusive

confidence of the President of Chile and who works directly with the Minister of National Defense,

b) Advises the MND in all matters pertaining to the Carabineros,c) Drafts the budget for the Carabineros, as well as gives approval for

promotions and retirements of police officers,d) Conducts programs aimed at strengthening the relationship between the

Carabineros and the community they serve,

1 http://www.subsecar.cl/institucional/mision.php

e) Administers the Program for International Cooperation for Foreign Uniformed Police (CECIPU). CECIPU provides scholarships to foreign police officers to engage in training courses that upgrades skills or provides specialized training in the Carabineros training academy, &

f) Is an integral component of the International Committee for Public Security1.

The vision of USCAR mimics its mission, as it seeks to exert a civilian influence on the operations and functions of the Carabineros and USCAR seeks to improve relations with the community.

Click to View Slide Show Containing Departments

Carabineros de Chile

The Carabineros are the national police force of Chile. They fulfill the Constitutional mandate to provide security to the communities throughout the Republic of Chile. The Carabineros have six key roles:

a. Preventive: Corresponds to all work being done by the institution through its presence within the community

b. Maintenance of the Public Order: includes the activities carried out by police in order to maintain public order

c. Education: inform the public of their rights and duties under the Constitution and enacted laws, especially

1 http://www.subsecar.cl/institucional/mision.php

focusing on informing minors of the dangers of alcohol and drugs

d. Public Convenience: includes providing directions to lost people, helping them in dangerous situations, etc

e. Social Solidarity: engage in activities for the benefit of the community, which usually occur in emergencies, such as fires, floods and theft

f. National Integration: protecting the national sovereignty through positive control of Chile’s national borders1.

The vision of the Carabineros is to maintain the highest professional standards, both nationally and internationally, with the creed of “vocation of service, discipline, honesty, loyalty, courage, tolerance and fairness.” They also seek to respect the citizens they serve and engage in the ideals of Community Orientated Policing. Further, the Carabineros employ the most up to date technology in the accomplishment of their mission.

2

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The Carabineros are widely respected and maintain high standards within their organization. Within the ranks of the Carabineros, “corruption is equal to expulsion”3. Citizens making complaints against the Carabineros can 1 http://www.carabineros.cl/sitioweb/web/verSeccion.do?cod=2472 http://www.carabineros.cl/sitioweb/htm/organigrama/index.htm3 General (J) Ismael Verdugo Bravo, the Director of Justice for the Carabineros de Chile, provided all the information presented concerning the overlay of the Military Justice System

lodge them to any person, to any unit or to the prosecutor. The Institution also maintains control over their personnel through yearly reports generated by the Direccion Nacional de Intelligence (National Directorate of Intelligence) and Direccion Nacional de Personal (National Directorate of Personnel) on individual officers and personnel. Officers and personnel with deficient histories can have repercussions in their careers, such as difficulty in receiving promotions. Further, a Carabineros officer’s history is checked every time he comes up for a promotion or is subject to a transfer.1

Codigo de Justicia Militar/Code of Military Justice

The Code of Military Justice (CMJ) was created in the 1950s. The CMJ incorporates the Army, Navy, Air Force and the Carabineros, although the Navy and the Air Force utilize their own “fiscalias” (courts) due to their specialized missions. The Code is a group of laws that were combined to form the CMJ and is authorized under the Constitution.

The CMJ can hear military crimes and common offenses committed by military members. Military crimes are crimes committed by a military member and that are of a military issue, such as desertion or abandonment of duty. Common offensives incorporate crimes that are not particular to the military, but are crimes that can be committed by anyone, such a theft, assaults, etc. Common offences come under the jurisdiction of the CMJ if they are committed on a military installation or while committed by military/Carabinero personal while on duty. Excessive force used by a military member would fall into the latter category. Civilians can come under the CMJ instead of the reformed Code of Criminal Procedure if:

a. a civilian attacks a military member or Carabineros while on duty, which is considered a “mistreatment of work,”

b. a civilian attacks or attempts to attack military property, orc. a civilian who attempts to interfere with the military duty, such

as bribing Carabineros not to perform properly or attempting to persuading military members to fail to perform a required duty.

The provisions that place civilians into the military system are very controversial. However, the strict and harsh penalties of the military system are the only protections the Carabineros2 receive while in the performance of

during an interview that occurred on July 3, 2008. 1 General (J) Verdugo Interview 2 Although the Carabineros and military members have same rights and protections under the military system, I will focus solely on the Carabineros in their law enforcement and security duties.

their duties3. Presently, there is a perception within the Carabineros that they are losing protections, partly created by the repealing of the law forbidding the insulting of the Carabineros.2

The CMJ is based on the inquisitorial model, where all proceedings are conducted in the written form. The accused is considered guilty until proven innocent, which allows for his immediate detention until he has served his sentence or is found to be not guilty. There is no restitution for those who are wrongly detained or found innocent for the time incarcerated. The state has the burden of proving with “absolute consensus,” or beyond a reasonable doubt, that the accused is guilty. This system affords the prosecutors wide latitude in the development of the case.

The inquisitorial system codifies protections for the accused; however, the rights, also known as guarantees, of the accused are limited. When the suspect is accused of a crime, he is immediately incarcerated. The time served before final adjudication is applied to the time needed to be served if the accused is found guilty and sentenced to imprisonment. Incarceration before final adjudication is not required, but is dependent on the decision of the “Corte Marcial” (Martial Court), whose decides on all liberty issues. Cases in this system can take from one to ten years to resolve, although the average length of time is three years3.

Charges against the accused are brought before the prosecutor, who can arrest and then detain for up to five days. The accused is notified of the charges that are being pressed against him. Further, he has the right to talk to a lawyer, family, judge and the prosecutor. The accused also has the right to hire a private attorney or have one appoint by the “Corpacion of Asistensia Judicial” (Corporation for Judicial Assistance (CAJ))), if he is unable to afford an attorney on his own. If the accused is a Carabinero, he may receive Judicial Defense of Carabineros assistance if it is compatible with national interests. He also has the right to appeal for liberty.

The victim of the crime also plays a role within the CMJ, albeit a diminished role. The victim can hire a private attorney, or if unable to afford one, the CAJ with provide one to ensure their rights are looked after, that the process operates properly, and assist in seeking a civil remedy. After the CMJ completely adjudicates a case, the court documents become a part of the public record; however, prior to that, it remains confidential.

1 General (J) Verdugo interview2 General (J) Verdugo interview3 General (J) Verdugo interview

The CMJ consists of a multilevel court system. The entry point for criminal charges begins with the Fiscalia Militar (Fiscalia). The Fiscalia is a specialized court, one for the Army and Carabineros, and then one each for the Navy and the Air Force, which is due to their specialization. It consists of “letrados,” who are both lawyers and officers in the military of the various branches. Complaints are brought in by the victim, military members/institution or the police and presented to the fiscal (prosecutor). The prosecutor investigates the complaint through the Carabineros and Investigative Police. The prosecutor has the ability to file charges, arrest and detain the accused for up to five days. He also issues the pretrial sentence, over which the accused has an appeals right directly to the Corte Marcial. The prosecutor also recommends a sentence to the next court level, the Tribunal Militar (Tribunal). It is at this level within the CMJ that the active participation of the victim and accused ends. Additionally, if the accused is a Carabinero, the Prosecutor can direct the Carabineros to conduct an internal investigation and report their findings to him. The reasoning behind allowing the Carabineros to conduct their own investigations is because the justice of the CMJ is severe, which acts as a deterrent to any covering up for the accused1.

The Tribunal is the next level within the CMJ. Presiding over the court is a judge, the Juez Militar. He is a high ranking officer, General or higher and is not a lawyer. He is advised by an auditor, who is a military officer of higher rank (Major, Colonel, etc). All staff members are military personnel. The Tribunals are located in Antofagasta, Santiago, Concepcion, Valparaiso (Navy only), Puerto Montt and Punta Arenas. The Tribunal has at least three Fiscalias under it, one for each of the branches.

The Tribunal sentences the accused. He may or may not consider the recommendation of the Prosecutor. The Tribunal has the option to pass an alternative sentence. If the penalty is less than three years, the convict can sign in at the jail once a month and then leave. If the sentence is greater than five years, the convict can seek parole.

The Corte Marcial (Court) is the highest military court and is located in Santiago. It consists of five justices, two from the Chilean Supreme Court and one from each of the following, the Army, Air Force and Carabineros. The two justices from the Supreme Court are the only civilians acting within the CMJ. The Court handles appeals and all issues related to an individual’s liberty, in which the prosecutor from the Fiscalia will notify the Tribunal but will bring the issue directly before the Court. The Court confirms, revokes or

1 General (J) Verdugo interview

modifies the sentences passed by the Tribunal. Additionally, justices consult in the event of an investigation of serious crimes.

The Navy operates its own parallel system, through the Tribunal Militar and up to its higher court, and Corte Marcial Naval. The Chilean Supreme Court can also hear appeals from both military justice systems. This is the only civilian check over the CMJ.

Under the CMJ, the judges occupy an important position. They are the ones who investigate the cases before it. They decide on all issues of the law. They also determine the guilt or innocence of the accused and pass sentence on them. Another party to the system is the Realator. He has the duty of keeping and maintaining the casebooks, as well as reads from them during the trial.

Because of the interview with General (J) Verdugo, we can see several concerns that need reflection and reevaluation to improve the military justice system, which include:

a. Judges and prosecutors having too much independence,b. Denial of liberty for long periods and without compensation in case of

wrongful detention,c. All persons in charge of the process are in the military, &d. Judges are not appointed for life.

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Reforma Procesal Penal/Code of Criminal Procedure

In June of 2005, Chile completed its transition from a written inquisitorial criminal justice system to an oral, adversarial criminal justice system (Reformed Code of Criminal Procedure ((RCCP))). This new code made many changes from the original code and sought to protect individual rights and increasing judicial efficiency, as well as increase transparency, fairness, accessibility and respect for fundamental rights. The reform process aimed policies at integrating human rights and international civil liberty standards on the Chilean justice system and adapt to the social, economic, political and cultural development exhibited by Chilean society in recent decades1.

Title One of the RCCP outlines the Basic Principals of the RCCP. These principals include that no conviction can be held without an impartial tribunal conducted orally and open to the public (Art. 1), and it forbids the establishment of special commissions created after the perpetration of the action being judged (Art. 2). Further, an individual cannot be charged with the same crime more than once (Art. 1). The Imputee is presumed innocent, until proven guilty (Art. 4). The Imputee has a right to an attorney and a right to be involved with the process and contribute to his defense (Art. 8). This title also protects the individual’s liberty, holding that any action that will deprive the Imputee of his liberty requires judicial authorization (Art. 9), and individual liberty will not be restricted except when authorized by the Constitution and Chilean laws (Art. 5). Lastly, the Imputee’s rights will be safeguarded by a Guarantee Judge (GJ).

Title Two of the RCCP deals with the judicial efficiency. Article 20 stipulates that the courts will provide each other with all necessary information so that they can properly and efficiently adjudicate cases before them.

Title Four deals with Substantive Procedure. Article 70 stipulates that only the Guarantee Judge has the right to authorize any actions by the prosecutor that disrupts or deprives the rights of the Imputee. Further, in cases where there is a conflict of jurisdiction, any judge can decide urgent issues that require action; however only the judge who has jurisdiction over where the Imputee was taken into custody (i.e. arrested) can give liberty (Art. 72). This title also orders the Carabineros and Investigative Police to assist the

1 http://www.minjusticia.cl/rpp/index.php

prosecutor in the investigation of crime, in accordance with Articles 180, 181 & 187 (Art. 79). Further, the police report to the prosecutor (Art. 84).

Title 4 articulates the actions the police forces can take without judicial approval:

a. Assisting the victim,b. Detention based on a flagrant violation of law.c. Protection of a crime scene, protect evidence, keeping evidence

under seal and within the chain of custody,d. Indentify witnesses and collect statements from those willing to

give them,e. Receive complaints from the public, &f. Assist in other actions requested by a legal corporation

(Art. 83). Under Article 85 (as Modified by Law No. 19,789), the police have the ability to control identity by verifying an individual’s identity within certain standards:

a. Police may indentify people who committed or are about to commit a crime, or are ‘simply missing’ or who might provide information useful for the investigation of a crime,

b. The police may register the clothing, luggage or vehicle of the person who is detained,

c. In the case of a refusal to show identification, police can detain the individual to establish the identity, but they cannot detain for longer than six hours; further, if the police are unable to identify the individual, they may take his fingerprints, but once the identity is established, the fingerprints must be destroyed.

Title Four also includes restraints on what the police can do and protections for the Imputee. Article 91 prohibits the police from questioning the Imputee without his lawyer being present. This article allows the Imputee to waive this right, but the police are still to report this waiver to the prosecutor. Article 93 outlines the rights that the Imputee has and may invoke throughout the legal process:

a. Right to be informed of charges against him,b. Right to be assisted by his attorney,c. Right to information held by the prosecutor that undermines the

State’s case (i.e. Discovery),d. Right to a hearing to determine whether the facts of the case

warrant detention,

e. Right to know the contents of an active investigation against him, and in the case of a secret investigation, it can remain secret only for the time outlined by law,

f. Right to file for a dismissal of the case and a right to appeal refusing said dismissal,

g. Right to either remain silent or to testify under oath,h. Right to not be subject to torture or inhumane treatment.

While in custody, the Imputee has another set of rights. He has the right to

a. Know why he is detained and see the order authorizing it in the case that he was not detained because of a flagrant infraction of the law,

b. Be informed of his rights by the functionary in charge of the detention,

c. Be brought before the court ordering his arrest,d. Request the court for freedom,e. The functionary to inform the detainee’s family or person of his

choosing that he is a prisoner, the reason for the imprisonment and where he is imprisoned,

f. Meet privately with a lawyer,g. Amenities that comply with the detainment centers security

program, at a cost to the detainee, &h. To have visitors and write letter, in accordance with Article 151.

(Art. 94).

Article 95 is a habeas corpus clause, and is similar to Article 93 (c) and 94 (c); it states any person deprived of their liberty shall be entitled to be promptly brought before a judge who will review the legality of the detention. Further, the Imputee’s lawyer and family may act on his behalf (Art. 95). Articles 99-102 deal with issues and code modifications related to trying absent rebels. Under Article 151, a detainee’s communication may be restricted, except with his attorney and for medical care.

Title 5 deals with Precautionary Personal Measures. The term “delito flagrante” (Red Handed) is defined when the Imputee is caught:

a. Committing a crime,b. Completing a crime, &c. Fleeing the scene of the crime and is found with the tools of the

crime committed

(Art.125). Upon the arrest of the Imputee, the police must bring the detainee before a judge within 24 hours and notify the prosecutor within 12 hours (Art. 131). Further, the Imputee must be informed of his rights under Article 93 (a), (b), (g) and Article 94 (f) and (g) (Art. 135). To determine whether a pre-trial detention is reasonable, the court must weigh the following factors:

a. History of criminal conduct,b. Reasonable suspicion that the accused had participated in the crime, &c. Background information to show that the detention is required for

successful prosecution or the accused is dangerous to the victim.

(Art. 140). If the pre-trial detention reaches ½ of the proposed sentence for the crime being charged, the judge must reevaluate the need for the detention (Art. 152). The judges also have alternatives to pretrial detentions. These alternatives are:

a. House arrest,b. Probation,c. Obligation to report to the court during proscribe time intervals,d. Ban on leaving the country or locality,e. Ban on visiting certain places,f. Ban on communicating with certain people, &g. Ban on approaching the victim and/or family.

(Art. 155). The judge also has the power to temporarily to limit Imputee’s individual protections without affecting the final disposition of the case (Art. 156).

The Second Book, starts with Title 1: Standard Procedure. Any person with knowledge of any crime may make a complaint to the prosecutor, Carabineros or Investigative Police (Art. 173). Ongoing investigations remain a secret to all parties who not actually involved in the case (Art. 182). The Imputee and others involved may request and obtain copies of the information gathered during the investigation (Art. 182 (a)). However, the prosecutor may keep the investigation secret from all parties for up to forty days, if it is deemed essential to the investigation, but the Imputee may seek relief from the judge (Art. 182 (b)). Additionally, with judicial approval, the prosecutor may initiate an investigation without the subject’s knowledge (Art. 236). An investigation will be terminated after two years; however, a judge can suspend this provision (Art. 236).

Book Two, Title One also addresses the manner in which the State can question and interrogate the Imputee. The State is forbidden to restrict the right of the Imputee to testify, further barring coercion, threats, promises, torture, deception and hypnosis (Art. 195). Additionally, excessive

questioning or excessive interview duration creates a need for the Imputee to rest (Art. 196).

Title 2 of Book Two covers the Preparations for Trial. The trials will be conducted orally and immediately, and presided over by a judge who will oversee the trial in its entirety (Art. 266). Article 289 requires the trial to be public. Article 285 requires the Imputee to be present throughout the proceedings, although exceptions are available for unruly conduct on the Imputee’s part. Witnesses have the right not in incriminate themselves (Art. 305). The Imputee, if found guilty, cannot be convicted of a crime more grave than the one listed on the indictment (Art. 341).

The power of the presiding judge is codified under Article 292:The judge will direct the discussion of the trial. He will ordered the submission of evidence and require compliance with the solemness needed to moderate the discussion. He also prevents allegations and submissions that are not relevant or inadmissible under the RCCP; however, he cannot limit the Imputee’s right to a proper defense of the charges against him. He has the ability to set limits on the time each party uses to speak, setting ceilings to questioning and rebuttals. The judge can also interrupt the parties who violate the rules of the court. The judge is also given disciplinary powers to enforce his decisions and rulings so he can maintain an orderly and dignified court.

The RCCP also contains an Appeal of Nullity clause under Title 4, Article 374. The grounds for the revocation of the ruling include:

a. Where judgment is pronounced by a court without proper jurisdiction, or is not composed in accordance with law, when the ruling does not have enough votes or the court did not have enough judges that are required by law,

b. Absence of any person whose presence is required under Articles 284 and 286,

c. The defendant has been prevented from exercising the rights guaranteed to him,

d. When the trial has violated the provisions concerning publicity and the continuation of the trial,

e. Any omissions of the requirements provided under Articles 342 (c), (d) or (e);

f. Breach of the requirements of Article 341, org. Having been tried a crime for which the Imputee had previously

been tried.

Considerations to Reflect on Concerning the Carabineros de Chile

The RCCP affords civilians many protections and limits the actions of the State to intervene and control the lives of its citizens. The benefits of these protections has been thoroughly studied by legal scholars1. These benefits have created rights for individuals, ensuring they do not have a fear of their government, but are able to control and influence it through Chile’s democratic institutions. The reformed RCCP has taking great strides to ensure that all citizens are respected and will be free from governmental persecution.

Maintaining the Public Confidence in the Carabineros

While the focus on protection of civil liberties is paramount, it can also create obstacles to law enforcement, particularly as the Carabineros may fall completely within the RCCP. Two specific areas where there should be concern is the maintenance of overall quality and competency of the Carabineros and criminal protections of them during the performance of official state duties. The CMJ provided both, as strict and severe penalties ensured that the Carabineros maintained proper discipline, and any breach allowed for quick removal. Additionally, the prospect of severe military justice and immediate incarceration acted as a deterrent for those who would seek to harm the Carabineros in the line of duty. As adopted, it appears that the RCCP may not have been designed to maintain internal discipline of the police nor properly protect them while in the line of duty2.

One manner in which quality and competency can be measured is through the level of trust the public has for their police forces. In a 2007 report, Facultad Latinoamericana de Ciencias Sociales (FLASCO) published the public’s level of confidence held in their respective police forces; Chile’s

1A sampling of reviews include: Proyecto Acceso: Using Popular Culture To Build The Rule Of Law In Latin America (5 Rutgers J. L. & Pub. Pol'y 378 2008) and Revolution In Latin American Criminal Procedure: Diffusion Of Legal Ideas From The Periphery (55 Am. J. Comp. L. 617 2007)2 During the General (J) Verdugo interview, he specifically credited the CMJ for helping maintain the quality of the Carabineros; further, he stated the RCCP lacked any specific protections for the police when carrying out their duties

Carabineros had less than 10% of the population lacking trust in their police, whereas the nearest contender, El Salvador had over 20% of the population lacking trust in their police1. Many of the Latin American and Caribbean countries had a lack of confidence in the 30-40% ranges2. This favorability is also higher than the citizens favorable view of police in the United States, which found about 81% viewing their police favorable, while only 58% held them in high regard3.

As the Carabineros maintain one of the highest trust standings in the entire Western Hemisphere, great care should be taken to ensure they maintain such a degree of professionalism and support from the local populations. A large portion of this trust comes from the military model. The institution the public has most confidence in in the United States is the military, with a 71%4 approval rating and Turkey’s citizen have 75-85%5 trust their military. This trust and confidence comes from “internal discipline the [military] maintains, its honesty, lack of involvement in corruption allegations and organizational structure impresses society.”6 Any reorganization of the Carabineros will need to take internal control issues into account. Further, as the Carabineros have achieved so much under the CMJ, it may be wise to keep them under the control of the CMJ7, while making crimes committed by civilians for exclusively under the RCCP. Alternatively, the development of an administrative code that mimics the control and quality maintenance over the Carabineros may be sufficient to maintain the current standards8.

State’s Interest in the Peaceful Projection of Power

The second issue that needs to be addressed is the need to develop protective laws for the Carabineros9 and society in the performance of law

1 Report of the Security Sector in Latin America and the Carribean (2007), page 682 Id.3 The Public Image of the Police, http://www.theiacp.org/profassist/ethics/public_image.htm#ch2 4 June 2008 Poll, http://www.gallup.com/video/108130/US-Military-Ranks-Best-Congress-Worst.aspx 5 Why does the public trust the military? (July 2006),

http://www.turkishdailynews.com.tr/article.php?enewsid=481336 Id.7 While the CMJ is recommended for the Carabineros, the author realizes there are inherent deficiencies within it, notably issues regarding the lack due process safeguards, including pretrial detention and the potential for these detentions of service members to be wrongly incarcerated for up to ten years; however, such a topic is beyond the scope of this paper, which seeks to explore laws assisting law enforcement to safely perform their duties.8 Due to time constraints and translation difficulties, the issue of an administrative code had not been fully explored.9 Based on the interview with General (J) Verdugo stating that the harsh penalties of the Code Military Justice are the only protections afforded to the Carabineros de Chile.

enforcement duties. These laws could be simply a code for a heightened penalty for those who resist arrest and who interfere with the commencement of the State functions of internal security and law enforcement or may call for a new statute altogether. Under the current system, an attack on the Carabineros would be met with an immediate detention, an assumption of guilt and a severe sentence. However, the reformed system creates numerous protections for the Imputee. There is no preference for a pretrial detention. The protections in place may remove punishment far enough away from the act so as to undermine the effective projection of State power on the Imputee; further, the absence of such a prohibition may create a right to resist the legal authority of society to engage in social control. A civilian who resists an arrest

undermine[s] the weighty interest of society in both the prevention of unnecessary violence and the orderly resolution of legal disputes. Vesting an arrestee with the right to resist quite clearly invites the police to respond with force and frequently the violence would entail the use of deadly weapons, a circumstance that ought never be encouraged.

U. S. ex rel. Kilheffer v. Plowfield, 409 F.Supp. 677, 680 -681 (D.C.Pa. 1976).

The RCCP has expanded due process rights for the Imputee to include a right to council, access to a court within 24 hours to challenge his custody, a right not to be tortured, and many others which have given “the arrestee who feels the police have overstepped their bounds … [a] fair assurance that the impact of the concededly onerous imposition of … arrest will be minimized.” Id. The absence of such a statute “encourage[s] resistance and breaches of the peace ... If the arrest is illegal (a determination which few citizens can make while being arrested), the arrestee should pursue civil and criminal remedies rather than resort to self-help.” State v. Laughlin, 933 P.2d 813, 814 - 815 (Mont., 1997). Further, the American Law Institute (ALI)1

has recommended the criminalization of resisting an arrest. U.S. v. Heliczer, 373 F.2d 241, 247 (C.A.N.Y. 1967). Lastly, as Learned Hand, US Judge and legal

scholar2, said, “The idea that you may resist peaceful arrest because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine, is not a blow for liberty but, on the contrary, a blow for attempted anarchy.” Id.

In 1965, a New Jersey Appellate Court found that “[t]oday, every American police officer is armed with a pistol and has orders not to desist from making an arrest though there is forceful resistance. Accordingly, successful resistance is usually possible only by shooting the officer to

1 The ALI is an independent US legal think tank that has created the Restatement legal series and the Model Penal Code, both of which have been very influential in the development and reform of US law2 http://en.wikipedia.org/wiki/Learned_Hand

prevent him from shooting first.” State v. Koonce, 214 A.2d 428, 434 - 435 (N.J.Super.A.D. 1965) (emphasis added). That same court also said

But it seems to us that an appropriate accommodation of society's interests in securing the right of individual liberty, maintenance of law enforcement, and prevention of death or serious injury not only of the participants in an arrest fracas but of innocent third persons, precludes tolerance of any formulation which validates an arrestee's resistance of a police officer with force merely because the arrest is ultimately adjudged to have been illegal. Force begets force, and escalation into bloodshed is a frequent probability. The right or wrong of an arrest is often a matter of close debate as to which even lawyers and judges may differ. In this era of constantly expanding legal protections of the rights of the accused in criminal proceedings, one deeming himself illegally arrested can reasonably be asked to submit peaceably to arrest by a police officer, and to take recourse in his legal remedies for regaining his liberty and defending the ensuing prosecution against him. At the same time, police officers attempting in good faith, although mistakenly, to perform their duties in effecting an arrest should be relieved of the threat of physical harm at the hands of the arrestee.

Id. Further, such resistance of individuals undermines the rule of law and social stability by refusing to allow the courts to redress any grievances caused by the officers or the State. It is an attempt of the imputee to hold himself above the law by refusing to acquiesce to the legal procedures of society.

In order to give credence to the rule of law and to facilitate peaceful apprehensions and reduce unnecessary violence, the federal government of the United States enacted this statute:

Title 18, Part I § 111. Assaulting, resisting, or impeding certain officers or employees

(a) In general.--Whoever--(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 11141 of this title

1 Title 18 Part I § 1114. Protection of officers and employees of the United States

Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished—

while engaged in or on account of the performance of official duties; or

(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced penalty.--Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

This statute also is not dependant on the Imputee’s knowledge that the individual is a law enforcement officer (LEO), but only that he intended to commit the action in question. United States v. Goldson, 954 F.2d 51, 54 (2d Cir. N.Y. 1992)1. This act allows the LEO to fully engage in their duties, while providing them protections as they engages in such duties. More importantly, this penalty puts the criminal on notice that if he attacks a police officer, he will be subject to additional penalties, on top of the penalties he would receive for the original criminal actions. These heightened penalties act as a deterrent for violence, allowing the police to engage in law enforcement and protect society from unnecessary violence stemming from arrests.

Conclusion

In 2005, the Republic of Chile completed a historical legal transformation, shifting the criminal law system from an inquisitorial to an adversarial model. The hallmark of this transition was to ensure the rights of the individual when in a confrontation with his government. The reformed code sought to limit what the state can do when it accuses one of its citizens of a criminal

(1) in the case of murder, as provided under section 1111; (2) in the case of manslaughter, as provided under section 1112; or (3) in the case of attempted murder or manslaughter, as provided in section 1113. 1 See also, United States v. Williams , 604 F.2d 277, 279 (4th Cir. S.C. 1979) ; United States v. Young, 464 F.2d 160, 163 (5 Cir. 1972); etc.

offense. The new code curbs the power of the state to arrest and interrogate, as well as ensures the individual enjoys the protections of the legal system and the ability to challenge his captors. Further, the code eliminated the ability of the state to coerce it citizens. This success in human rights and the rule of law, however; it left a large loophole open. Civilians can still be charged under the Military Justice System, a system inquisitorial in nature that maintains an assumption of guilt with limited due process protections. In order to rectify this situation, the Republic of Chile needs to bring civilians back under the control of the Reformed Code of Criminal Procedure. However, this, too, poses some problems for the law enforcement and internal security forces. Specifically, it can pose a problem of maintaining the security forces’ professionalism and provides no protections to it when enforcing the rule of law within the community. In order to ensure that the new legal system works to its utmost potential, additional laws will need to be implemented that seek to protect police from violence when engaged in their official capacity, protections that are lost when the Carabineros de Chile transition out of the military justice system. For this reason, there must be additional penalties for those who interfere with official police actions or attempt to commit violence on those called to act on the behalf of the State.

Appendix I

Appendix II

Appendix III

Appendix IV