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Chile: Proposed Changes to the Penal Code to Increase the Sanction against Public Unrest

(Oct. 11, 2011) On October 2, 2011, President Sebastián Pinera of Chile submitted a proposal to amend the Penal Code (CP) (Código Penal, Aug, 12, 1874, updated as of Aug. 13, 2011, Biblioteca del Congress website) to the Chilean Congress. The proposal would add the crime of sacking and looting and increase the sanction applicable to the crimes of public unrest in marches and protests; invading or occupying and private property; causing disruption of transportation or public services, and treating public officials with disrespect or contempt. These crimes will have an aggravated sanction if the perpetrators wear masks to hide their identity. If the amendment is passed, perpetrators of these crimes would be punished on conviction with imprisonment for a period of 541 days to three years. (Mensaje de S.E. el Presidente de la República con el que inicia un proyecto de ley que fortalece el resguardo del orden público, Mensaje No. 169-359 (Sept. 27, 2011) (official site).)

The rationale behind the proposal is to formulate more clearly the definition of the above crimes. According to Pinera, the language in the current definition of the crime against public unrest, article 269 of the CP, is deficient and outdated, leaving room for would-be perpetrators to commit with impunity actions that should be subject to criminal sanctions. (Id.) Article 269 currently reads as follows:

Those who seriously disturb public peace in order to cause damage or other harm to another individual or with another reprehensible end, may be subject to the minimum level of imprisonment [61 days, arts. 21 & 25 of the CP] in addition to the sanctions imposed for related damages.

Those who obstruct or hinder actions by personnel of the Fire Department or any other public service in charge of controlling a disaster, accident, or other calamity that constitutes a danger to the safety of individuals will incur a penalty of imprisonment of a minimum of a medium level. (CP art. 269, summary translation by the author.)

Pinera's proposal comes as a response to the wave of student protests throughout the country that started more than seven months ago, with the aim of pressuring the government to reform the country's education system. The student movement began in 1981 and has been calling for comprehensive reforms that would secure equal access to affordable and quality education for all citizens. It was in that year that the school system was privatized and decentralized; funding of universities was reduced, and tuition increased under the Pinochet government. Since then, student protests and marches have continued, and they grew in intensity during Michelle Bachelet's presidency (2006-2010). (Council on Hemispheric Affairs (COHA), The Fight to Make Education a Guaranteed Right: Chilean Students vs. the Nation's President, COHA website (Aug. 24, 2011).)

According to Pamela Sepúlveda, President of the Federation of University Students in Chile, part of the problem of changing the education system in Chile is the fact that the Political Constitution (Constitución Política de Chile, 1980, Biblioteca del Congress website (official site) (last visited Oct. 7, 2011)) does not require the state to provide a quality, free education to all people and make a substantial contribution toward university education. (Pamela Sepúlveda, Education-Chile: Unequal System Under Fire, IPS NEWS (July 1, 2011).)

On June 6, 2006, then President Bachelet submitted a Constitutional amendment proposal to recognize the obligation of the state to provide quality education. (Mensaje de S.E. la Presidenta de la República con el que inicia un proyecto de reforma constitucional que establece como deber del estado velar por la calidad de la educación (June 6, 2006)), but it did not obtain the number of votes needed for passage. (Parlamentarios de oposición exigen al gobierno reformas estructurales a la educación, EL MOSTRADOR (Aug. 17, 2011).)

Now, lawmakers from the opposition have already called for caution and for a serious and in depth debate of the proposal to amend the Penal Code. Critics believe that the proposal is mainly repressive and violates the constitutional guarantee of freedom of expression, by discouraging and condemning social movements. A large number of lawmakers believe that there is no need for the reform, because sacking is already punished in the Penal Code. They further stated that it is not reasonable to increase criminal sanctions as a way to solve social and political problems. (Anuncio sobre envío de proyecto que tipifica el delito de saqueo y tomas ilegales genera polémica, Chilean Senate website (Oct. 3, 2011).)