Chile’s law criminalizing protest gutted but not dead

A protest by Amnesty International, Greenpeace and Accion outside of Chile's Congress to revoke the Hinzpeter law on August 6. (WNV/Gabriela Penela)

A protest by Amnesty International, Greenpeace and Accion outside of Chile’s Congress to revoke the Hinzpeter law on August 6. (WNV/Gabriela Penela)

On August 6, the Chilean Congress gathered to vote on the controversial Public Security Law, popularly known as “Hinzpeter Law,” which both Chilean and international human rights organizations have vehemently opposed, arguing that it criminalizes public protests. For more than two years, they have organized against it, and as a final effort, Amnesty International, Greenpeace and Accion staged a protest to present to Congress more than 20,000 signatures of people who oppose the law.

After a heated debate, the law was approved to be debated by the Senate, although every single article that human rights organizations criticized was eliminated. With this, the Hinzpeter Law still exists, but only in name.

The Hinzpeter Law was a response to Chile’s strong civil society, where social movements and protests have gained momentum in recent years. Dozens, if not hundreds, of protests take place throughout the country every year, and most are nonviolent.

However, a violent phenomenon has tainted public demonstrations: the presence of “encapuchados,” or young men and women who resort to violence — using molotov cocktails, throwing rocks at the police, barricading streets with burning tires and destroying public transportation buses — with their faces covered during protests. The police in turn respond with water cannons, tear gas and batons. Both police and encapuchados have been badly wounded during many of these protests.

The Hinzpeter Law was sent to Congress by President Sebastian Piñera in 2011 as a response to the need to stop these instances of violence by encapuchados. The first draft proposed several modifications to the current penal code, and three points in specific sparked immediate action by human rights organizations. It included language to punish “those who participated or incited, promoted or encouraged, disorder,” and those “trying to conceal their identity with bandanas or other means used with the same purpose.” It also would “incorporate a new power for the Order and Security Forces so that they can request the voluntary surrender of recordings, filming or other electronic devices that may be used to demonstrate a crime or participation in a crime, without a warrant.”

The first proposed modification has been criticized because the term “disorder” was too vague and could potentially lead to police abuse or violence against protesters. In addition, this modification could result in violations of the right to freedom of assembly since those who organized any protest where there was “disorder” could be arrested. Opponents have contended that this could negatively impact Chile’s civil society by deterring people from organizing public demonstrations.

The second modification could restrict people’s right to freedom of expression by forbidding people from covering their faces in any way during an act of protest, even if they were to do so to protect themselves from tear gas; and the third modification could violate the right to freedom of press by forcing a “voluntary” surrender of any visual material obtained by journalists.

Critics argued that these proposed modifications not only would clearly violate several universal human rights, but they would also establish a correlation between public protests and crime.

To be sure, the aim of activists, organizations and politicians who oppose the Hinzpeter Law has not been to condone the violence that encapuchados engage in, as President Piñera suggested recently. Their point has always been that the Chilean government should not seek to reduce crime and violence by passing laws that violate people’s right to assemble, protest and the freedom of press. As a county that has made enormous leaps to strengthen its democracy, opponents of the law insist that Chile can do better.

Civil society and human rights organizations have organized for two years to stop the Hinzpeter Law. They have staged mass demonstrations, collected thousands of signatures, raised awareness through the mass media, and met with the government to dialogue possible alternatives.

As a result, the government has had to listen to these critiques and the Hinzpeter Law has gone through several important changes. First, the article regarding the “voluntary” surrender of audio or video footage, and the article that allowed public demonstrations organizers to be detained for “disorder,” were both removed.

Second, the term “disorder” was restricted to demonstrations that interrupt traffic or obstruct the functioning of public services (e.g., hospitals, emergency rooms, public transportation, electricity, water) through the use of force or violence against people or objects. Although the definition of “disorder” was significantly narrowed, opponents of the law rejected it based on the ambiguity of the term “force.”

And third, a new provision was added that further criminalized the use of any device to cover one’s face — or as was written in the law, to “conceal one’s identity” — during a protest, this time regardless of whether or not there was any violence. The wording of this provision was so vague, that it would have included items completely unrelated to the context for which the law was created, such as indigenous ceremonial masks, Halloween costumes, or even religious attire. As a Greenpeace activist joked before the voting, even the person dressed in a polar bear suit to raise awareness about global warming could be arrested. Had the law been approved in its entirety, this provision could have resulted in blatant violations of the right to freedom of expression.

When Congress voted on the Hinzpeter Law on Tuesday, all of the above mentioned articles were eliminated from the law. The only two articles that were approved for debate were concerned with increasing sentences for crimes committed against the police, and with the government’s powers to file lawsuits against those who commit those crimes.

This is a bittersweet victory for Chile’s civil society, because although the most contested articles of the Hinzpeter Law have not been allowed to proceed to the Senate, the law itself continues to exist, and with it, the possibility that protests and public action might be criminalized in the future. Still, August 6 was a day to celebrate a small but tangible success.

Although this law was not the appropriate way to deal with this problem, a solution to the encapuchados is yet to be found. As Congresswoman Alejandra Sepulveda said during Tuesday’s debate in Congress, the presence of encapuchados in protests reveals a profound discontent of Chile’s youth — a discontent that cannot and should not be silenced. And so, a difficult challenge lies ahead: How can the violence of the encapuchados be reduced, without ignoring their demands for change and the root causes of social unrest?

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