The decision granting pre-trial release to the accused of the offenses referred to in article 9 must always
be consulted with a higher authority. This and the appeal against the decision issued on the release shall
be heard by the corresponding higher court composed exclusively of full-time members. The decision
that approves or grants the release must be taken unanimously. During the pre-trial release period, the
accused shall always be subject to measures of supervision by the authority established by law.
(f)
[…] The release of the accused shall be in order unless the judge considers that pre-trial
detention is necessary for the investigations or for the safety of the victim or of society. The Law shall
establish the means and requirements for obtaining this.
2.
Criminal law
a) Criminal Code
96.
The Chilean Criminal Code (which dates from 1874 and has been amended several
times) is pertinent insofar as the Counter-terrorism Act refers to various types of crime
established therein, as well as the corresponding punishments.102
97.
Among the punishments established in its article 21 are “[a]bsolute and permanent
disqualification from public office and positions, and titled professions” and that of “[a]bsolute
and temporary disqualification from public office and positions, and titled professions.”
b) Counter-terrorism Act
98.
In 1984, Law 18,314 (Counter-terrorism Act) was enacted, which “[d]efines acts of
terrorism and establishes their punishments.”103 This law was amended in 1991, 2002, 2003,
2005, 2010 and 2011.104 The 2010 amendment eliminated the part of the text of article 1
102
Cf. Criminal Code of Chile of November 12, 1874, and its amendments. The State indicated that the “Criminal Code
in force at the time of the acts for which
the presumed victims in this case were tried” is available at:
http://www.leychile.cl/Navegar?idNorma=1984&idVersion=2001-06-05
103
Cf. Law No. 18,314 that “defines terrorist acts and establishes the corresponding punishments,” published in the
official gazette on May 17, 1984 (file of annexes to the Merits Report 176/10, annex 1, folios 5 to 11, file of annexes to the
CEJIL motions and arguments brief, annex B 1.1, folios 1740 to 1746, file of annexes to the FIDH motions and arguments
brief, annex 27, folios 817 to 823, and annexes to the State’s answering brief, annex 3, folios 84 to 87). This law is also
available at: http://www.leychile.cl/Navegar?idNorma=29731&tipoVersion=0
104
i)
Law No. 18,314 was amended by the following laws:
Law No. 19,027 of January 24, 1991, which “[a]mends Law No.18,314 that que defines terrorist acts and establishes
the corresponding punishments” (file of annexes to the FIDH motions and arguments brief, annex 29, folios 825 to
827).
ii) Law No. 19,806 of May 31, 2002, on “[n]orms to adapt the Chilean legal system to the reform of criminal
procedure,” which regulates witness anonymity (file of annexes to the CEJIL motions and arguments brief, annex B.2,
folios 1776 to 1829 and file of annexes to the FIDH motions and arguments brief, annex 30, folios 828 to 881);
iii) Law No. 19,906 of November 13, 2003, which “[a]mends Law No.18,314, on terrorist acts, in order to sanction the
financing of terrorism more effectively in keeping with the provisions of the International Convention for the
Suppression of the Financing of Terrorism” (file of annexes to the FIDH motions and arguments brief, annex 31, folio
882);
iv) Law No. 20,074 of November 14, 2005, which “[a]mends the Code of Criminal Procedure and the Criminal Code”
(file of annexes to the CEJIL motions and arguments brief, annex B.1.2, folios 1747 to 1758);
v) Law No. 20,467 of October 8, 2010, which “[a]mends provisions of Law No.18,314 that defines terrorist acts and
establishes the corresponding punishments.” This law, inter alia, eliminates the presumption of terrorist motives owing
to the use of certain methods ,and expressly establishes “the exclusion of minors from the application of the Counterterrorism Act” by stipulating that “[i]f the acts were executed by persons under 18 years of age, based on the
speciality principle the proceedings and the reduced penalties established in Law No. 20,084 which creates a system of
adolescent criminal responsibility, shall always be applied” (file of annexes to the Merits Report 176/10, annex 2, folios
12 to 15, file of annexes to the CEJIL motions and arguments brief, annex B.1.3, folios 1759 to 1774, file of annexes
to the FIDH motions and arguments brief, annex 32, folios 883 to 1309 and file of annexes to the answering brief of
the State, annex 4, folios 84 to 87), and
vi) Law No. 20,519 of June 21, 2011, which “[a]mends provisions of Law No.18,314 and other laws, excluding from
their application acts executed by minors.” As indicated by the State in its answering brief, “in order to avoid certain
34
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