Global Legal Monitor

(Sept. 1, 2016) On July 5, 2016, the Chilean Congress passed Law 20931 on Easing the Effective Application of the Established Penalties for Robbery, Theft, and Receipt of Stolen Goods and Improving Criminal Prosecution of the Said Offenses. (Facilita la Aplicación Efectiva de las Penas Establecidas para los Delitos de Robo, Hurto y Receptación y Mejora la Persecución Penal de Dichos Delitos, Ley 20931, DIARIO OFICIAL (July 5, 2016).) The new Law authorizes the Carabineros, the police force, to apply preventive identity checks. Police may now stop any individual 18 years of age or older in a public place or a private place with public access and request that they show an identification document, such as a Chilean identification document, a passport, a driver’s license, or a student ID. Minors under 18 will not be subject to identification checks. If the officer is in doubt about the age of the young person, the presumption will always be that he or she is a minor. (Control de Identidad, Biblioteca del Congreso Nacional de Chile website (last updated July 7, 2016).)

Under Law 20931, the control exercised by the police has to be strictly limited to the time needed to verify the individual’s identity and may not extend beyond one hour. (Id.) If the individual refuses to show identification documents or provides a false one, he or she may be sanctioned with a fine. If the person has one or more pending arrest orders, the police will proceed with his or her arrest. (Id.)

Police officers who carry out the identity verification authority in an abusive or demeaning way will be subject to administrative or even criminal sanctions. (Id.) Persons not carrying any identification document may be subject to arrest. (Id.)

Reactions to the New Law

According to the government, the Law aims to apply a mechanism to identify individuals who have pending arrest orders or who may commit crimes. (Id.)

Law 20931 has been criticized by the human rights community, however, for giving the police “disproportionate and arbitrary powers,” putting the legal guarantee of the presumption of innocence in jeopardy. (El Control de Identidad en Chile Enciende el Debate Ciudadano, EL TELEGRAFO (Apr. 11, 2016).) Other Chilean human rights groups contend that the legislation is a pretext for reinstating the measure of “preliminary detention on grounds of suspicious behavior” applied during the dictatorship of Augusto Pinochet to arrest members of the political opposition, a measure that was abrogated in 1998, eight years after the dictatorship ended. (Id.)

The Office for South America of the United Nations High Commissioner for Human Rights (OHCHR) also expressed concern about the measures allowed under the new law, because, in its view, police officers would be able to perform preventive identity checks in Chile without taking into consideration other domestic legislation and international standards on the subject.  (Relator de la ONU Alerta por el Uso Excesivo de la Fuerza Policial en Chile ante el Consejo de Derechos Humanos, INFOGATE (June 20, 2016).) According to the U.N. Special Rapporteur on rights to freedom of peaceful assembly and association, Maina Kiai, commenting on the draft version, provisions on identity checks under Law 20931 limit the rights guaranteed in international treaties ratified by Chile. (Lorena Fries, Sobre el Control de Identidad, LA TERCERA (Oct. 7, 2015).)

The Chilean Supreme Court has also criticized the discretionary aspects of Law 20931, referring to preventive identity control as “hardly acceptable” under the rule of law principle. (Corte Suprema Objeta Control de Identidad, CNN (June 15, 2016).)