Submission to the Committee on the Rights of the Child Review of Chile

This submission relates to articles 2, 3, 9, 10, 12, 19, 24, 28, 37, 39, and 40 of the Convention on the Rights of the Child and focuses on access to education during the Covid-19 pandemic; police abuse, detention, and torture or cruel, inhuman or degrading treatment of children; treatment of migrant children; protection of education from attack; girls’ access to abortion; and violence against children under the care of the National Service for Minors (SENAME).

Access to Education during the Covid-19 Pandemic (Article 28)
After the Covid-19 pandemic’s start in Chile in March 2020, schools in Chile were fully closed for 14 weeks, and partially closed for an additional 63 weeks.[1] During times of partial school closures, return to school was gradual and voluntary. Educational establishments could make a request to the government to resume in-person instruction.[2] The number of establishments that applied and were granted requests varied by region and grade instruction, with establishments in the Santiago Metropolitan region and those providing instruction for the last year of secondary school leading in requests.[3]

In response to the pandemic, the education ministry implemented an online platform for students to access educational content. According to the ministry, 89 percent of students in high-income households had access to online education, but only 27 percent in low-income households did.[4]

Insufficient access to devices is one reason that children in low-income households were not able to access online education. Human Rights Watch interviewed a primary school teacher in an under-resourced neighborhood of Santiago who described how the school she worked for recalibrated the delivery of distance learning several times to try to meet students’ needs. She said that first they sent homework through WhatsApp, used Zoom at the beginning of the pandemic, and in May 2020, began using Google Classrooms to teach. However, this did not prove useful for most of her students. She said: “The majority of my students, the cellphones they use are their parents’, and they have to wait for them to arrive home at 9pm to connect online. Therefore, they miss out on the virtual classes.”[5]

Other factors that relate to social inequality can also explain the difficulty children from low-income households had to connect to their classes online. The fifth-grade teacher described 70 percent of her students as being from families living in poverty: “There is no phone, there is no internet, there is no lunch, and therefore there is no desire to connect.”[6]

When discussing the difficulties her students face, she said, “The [health] pandemic also exposed us to the social issue that is the real pandemic: inequality.”[7]

Despite an attempt to reopen classes in the Metropolitan region at the beginning of October 2020, some schools had little to no attendance.[8] In-person education resumed in July 2021, although, as of October 2021, attendance was not mandatory and remained low.[9]

In addition, the ministry presented a plan called “Juntos, Chile se recupera y aprende” (Together, Chile recovers and learns), aimed at mitigating the effects of the pandemic on learning, introducing 20 measures in December 2021.[10] The Ministry of Education announced that a return to in-person classes would be mandatory at the beginning of the new school year on March 2, 2022.[11] The ministry also outlined health measures for schools to follow upon the return to school.[12]

Human Rights Watch recommends that the Committee ask the government of Chile:

• What specific measures does the government plan to take to remedy lost learning time of children from low-income backgrounds?
• How does the government plan to mitigate the learning inequities that resulted from disparate access to devices and internet between children from low-income and higher-income households?
• How has the education ministry monitored and followed up students’ attendance and participation at school and during distance education? How has the ministry ensured regular direct contact between the teachers or other school officials and students?
• What measures has the government adopted, or does it plan to adopt, to provide affordable, reliable, quality, and accessible internet, including targeted measures to provide free, equitable access to the internet for educational content, and capable devices for every student? Children most likely to be excluded or have inadequate access, including those from marginalized or vulnerable communities, living in rural areas, with disabilities, or living in families with multiple children, or due to their gender, should receive targeted support.

Human Rights Watch recommends that the Committee call on the government of Chile to:

• Explicitly allocate educational resources strategically to vulnerable and low-income groups, children traditionally at risk of exclusion from education, and those shown to have been particularly affected in their education during the pandemic;
• Now that in-person school is mandatory and has resumed, enable schools to assess students’ level of learning in each subject, and provide needed support to improve levels, including through free extra tutoring and counselling, as necessary;
• Ensure that all children who aged out of compulsory or free education during the pandemic are able to access, at a minimum, additional free schooling sufficient to allow them to catch up on any backsliding in their education caused by being out of school, plus time equal to school disruptions and closures; and
• If the public health situation in a community necessitates in-person school closures, prioritize keeping schools open, or reopening schools, for the children most at risk of not returning, dropping out, or being unable to continue learning through remote means.

Police abuse, detention, and cruel, inhuman or degrading treatment of children (Articles 37, 39, 40)
Demonstrations referred to as the “social crisis” began in October 2019 in response to an increase in the price of public transportation, but broadened to reflect anger over serious deficiencies in the provision of social services and economic inequality, and continued through March 2020.[13]

Chile’s Children’s Ombudsperson Office (Defensoría de la Niñez) reported that between October 18, 2019 and January 22, 2020, they received complaints of violations of the rights of children and adolescents due to excessive force by police and military, with a total of 602 child victims. The injuries detailed in the complaints included: 2 percent ocular trauma; 53 percent physical injuries of another type; 15 percent due to pellets; and 2 percent due to bullets.[14]

In November 2019, Human Rights Watch interviewed more than 70 people in Santiago and Valparaíso. We found compelling evidence that police used excessive force to respond to protests, injuring thousands of people, whether they were engaged in violent actions or not.[15]

In one account, a 16-year-old boy was looking out to the street from the hall of his apartment building with some friends in Santiago on October 19 when police officers entered and shot at him as he ran to his apartment, the Children’s Ombudsperson Office reported.[16] They hit him with at least 10 pellets in the back and ribs.[17]

In another account, the police entered the Liceo 7 school in Santiago on November 5 after the students voted to join the demonstrations. Two girls were injured, including one who was hit with more than 10 pellets, the Children’s Ombudsperson Office reported.[18] Prosecutors have charged a police major with inhuman treatment in this case.

Chile’s National Institute of Human Rights (Instituto Nacional de los Derechos Humanos, INDH) released data showing 1,249 children and adolescents were detained during protests between October 17, 2019 and February 13, 2020, constituting 12 percent of all people they reported detained during this period.[19] Given previous figures provided to Human Rights Watch, this is likely an undercount.[20]

Many detainees allege they were brutally beaten by police. One common complaint was that detainees, including children, were forced to undress and squat naked in police stations. Police protocols explicitly ban that practice, without any exceptions. Yet, several officers said it is allowed when there is suspicion that the detainee may have drugs or a weapon hidden in body cavities.

In reality, the police have ordered people to undress in a context that did not reflect even an erroneous belief that the detainee was seeking to smuggle contraband into detention, suggesting that they discriminated against women and girls. Officers are more likely to force women and girls to strip than men, according to INDH data.

On October 18, police detained a 17-year-old boy near the metro station Elisa Correa in Santiago. He told Human Rights Watch he was detained by a police officer as he was running away after the police attempted to disperse a peaceful demonstration. An officer that did not have a name tag on him handcuffed one of the boy’s hands to his motorcycle, resulting in a burn on the boy’s hand, and drove away, forcing the boy to run after the motorcycle. The boy said he was held with another boy and that during their detention, which lasted all night, officers forced them to strip and squat, and brutally beat and kicked them. The officers also banged the other boy’s head against the wall, the 17-year-old boy said.

Human Rights Watch spoke to an 18-year-old who said that on October 20, police made him and three other detainees, including a 14-year-old boy, strip naked and squat at a police station in Santiago.

Human Rights Watch recommends that the Committee ask the government of Chile:

• What remedy has the government provided for children who were deemed to be unlawfully detained, and who were abused while in detention?

Human Rights Watch recommends that the Committee call on the government of Chile to:

• Enforce the existing ban on strip searching of people detained during protests (requiring them to fully undress) and hold accountable officers who continue that practice;
• Suspend all use of pellet shotguns – not just at protests – until a proper examination of their risks is conducted by competent and independent authorities;
• Ensure accountability for police abuses and misuse of less-lethal equipment;
• Strengthen training on less-lethal equipment and crowd control for all police, including but not limited to special forces; and
• In addition, the Attorney General’s Office and the Public Defender’s Office should closely and regularly monitor the work of the police, including by instructing judicial officials to frequently inspect police stations and interview detainees there.

Treatment of migrant children and children of migrants (Articles 2, 3, 9, 10, 37)
In April 2021, the government announced that it was planning to deport 1,500 people of various nationalities on 15 charter flights through 2021.[21] That month alone, the government deported 294 people, most of them without judicial review, government figures obtained by the Jesuit Migrants Service (Servicio Jesuita a Migrantes, SJM) show. The government deported another 125 people of various nationalities in June. On June 6, 2021, Chilean authorities deported 53 Venezuelans, including 34 who were summarily deported over one weekend.[22] By November 2021, 800 people had been returned to their countries under this plan.[23]

Some of those deported had family in Chile, which should have weighed against their deportation, human rights organizations and the Diego Portales University Migrants and Refugees Legal Clinic told Human Rights Watch.[24]

In a survey conducted by the International Organization on Migration in October 2021 of 300 Venezuelans in Chile, 71 percent of respondents said they migrated with at least one child or adolescent.[25]

Human Rights Watch spoke to a 24-year-old Venezuelan man who was detained on June 5, 2021, at his workplace, transferred to an investigations police (Policía De Investigaciones, PDI) station, and deported on the June 6 flight. He said he had told the investigative police that his pregnant partner was in Chile, but they proceeded with the deportation regardless. An appeal of the deportation order he received in March 2021 was pending, he said. The Iquique Court of Appeal annulled his deportation order on June 14, 2021, when he was already in Venezuela.[26]

For the many Venezuelans whose parental or marital status remains unregistered with the Chilean state, summary deportations deny migrants the opportunity to demonstrate family ties in Chile. Establishing these ties can be difficult for Venezuelans, as official documents—including marriage and birth certificates—are hard to obtain in Venezuela and abroad, given that Venezuelan consular services are limited.[27] Because deportation decisions in Chile are consistently being made without giving migrants a hearing, migrants lack an opportunity to present arguments and evidence demonstrating family ties. Human rights lawyers told Human Rights Watch that some of the detainees with deportation orders do not tell authorities about family ties to protect their family members from deportation.[28]

Deportations of caregivers may violate children’s right to family unity, of both migrant children and Chilean-born children of Venezuelan migrants, and may not be in the child’s best interest.[29]

In September 2021, Carabineros (Chile’s national police) evicted Venezuelans from a square in the city of Iquique.[30] UNICEF reported that police violence during the eviction affected more than 30 children and adolescents, caused destruction of property, and resulted in detention of migrants.[31]

The next day, anti-migrant protesters burned personal belongings of Venezuelans living in the streets.[32] Media reports state that some of the burned items included children’s toys and diapers,[33] and many children fled the square with their parents.[34]

Human Rights Watch recommends that the Committee ask the government of Chile:

• What protections are being given to migrant children and their families upon entering Chile?
• What recourse has there been for the migrant children and families who were displaced due to police evictions in Iquique?

Human Rights Watch recommends that the Committee call on the government of Chile to:

• Ensure the best interest of the child, and a child’s right to family unity, is taken into account when considering deportation of family members; and
• Facilitate the reunification of children with their parents, prioritizing a child’s best interest.

Protection of Education from Attack (Article 28)
Chile was among the first countries to endorse the Safe Schools Declaration in May 2015,[35] contributing to global efforts to protect education and improve compliance with international law.

The Safe Schools Declaration is an inter-governmental political commitment that provides countries the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict;[36] the importance of the continuation of education during armed conflict; and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.[37] As of April 2022, 114 countries have endorsed the Safe Schools Declaration.[38]

As of January 2022, Chile is contributing 16 uniformed personnel to UN peacekeeping missions, including seven personnel to the UN Verification Mission in Colombia, six to the UN Peacekeeping Force in Cyprus, and the United Nations Truce Supervision Organization, for operations in the Middle East.[39] The 2017 Child Protection Policy of the UN Department of Peacekeeping Operations, Department of Field Support, and Department of Political Affairs notes: “United Nations peace operations should refrain from all actions that impede children’s access to education, including the use of school premises. This applies particularly to uniformed personnel. Furthermore … United Nations peace operations personnel shall at no time and for no amount of time use schools for military purposes.”[40]

Human Rights Watch recommends that the Committee ask the government of Chile:

• What steps has Chile taken to implement the commitments in the Safe Schools Declaration?
• Do any Chilean laws, policies, or trainings provide explicit protection for schools and universities from military use during armed conflict?
• Does pre-deployment training for Chilean peacekeepers include the ban on using schools in military operations?

Human Rights Watch recommends that the Committee:

• Congratulate Chile on endorsing the Safe Schools Declaration and the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict;
• Encourage Chile to continue to develop and, if available, share examples of its implementation of the declaration’s commitments—including concrete measures to deter the military use of schools—with this Committee and with other countries that have endorsed the Safe Schools Declaration.

Girls’ access to abortion (Articles 12, 24)
Chile’s 28-year total abortion ban ended in 2017, when the Constitutional Court upheld a law decriminalizing abortion when the life of a pregnant woman or girl is at risk, the fetus is unviable, or a pregnancy results from rape.[41]

However, people seeking safe and legal abortions continue to face multiple barriers. The law, in its current form, allows doctors and private institutions to refuse to provide abortions for reasons of conscientious objection. Government data from 2019 shows that 18 percent of obstetricians in public hospitals refuse to perform abortions when the life of a woman or girl is at risk; 25 percent when the fetus is unviable; and almost 50 percent in cases of rape.[42] A study conducted by a physician at the University of Chile in 2020 shows similar levels of conscientious objection among obstetric professionals.[43]

Between 2018 and 2021, 2,313 abortions have taken place for one of three exceptions noted above. Of this number, 155 were girls; 130 of which were due to rape.[44]

In 2021, the Investigations Police of Chile reported that in the first three months of 2021, there were 691 cases of sexual abuse of children under 14 years old, a 17 percent increase from the same time period in 2020. Overall in both time periods, 43 percent of survivors of sex crimes were under 18 years old.[45]

Measures to curb the spread of Covid-19, including a lockdown, have negatively impacted access to comprehensive sexual and reproductive health, including access to abortion, according to local groups.

Human Rights Watch recommends that the Committee ask the government of Chile:

• How is the government working with authorities to guarantee access to legal abortion for anyone eligible under the current law, including all survivors of rape?
• How is the government working to disseminate public information, particularly to girls and to national and local authorities and health professionals, clarifying the circumstances under which abortion is currently legal?

Human Rights Watch recommends that the Committee call on the government of Chile to:

• Eliminate the possibility for institutions to invoke conscientious objection to refuse to perform abortion;
• Ensure abortion services are available in all private and public health institutions; and
• Ensure that conscientious objection is not a barrier to accessing timely abortion services, including by ensuring immediate referral to abortion services when an individual claims conscientious objection and prohibiting the exercise of conscientious objection in emergency situations.

Violence against children under the care of the National Service for Minors (SENAME) (Article 19)
The administration of former Chilean president Sebastián Piñera took several steps to overhaul the flawed National Service for Minors (SENAME). However, complaints against SENAME have continued. In August 2020, a SENAME residence worker in Valdivia was accused of mistreating children and suspended. In September 2020, a judge in Valparaíso ordered pretrial detention of a man charged with six counts of prostitution, sexual harassment, and assaults against children in SENAME residences. In November 2020, two children were wounded when police fired shots inside a SENAME center in Talcahuano, pushing the head of Carabineros, Mario Rozas, to resign.[46]

In August 2021, a judge presented before the Senate commission on children’s rights complaints of sexual exploitation and human rights violations in a shelter for children separated from their families run by the SENAME in Santiago.[47]

In October 2021, a new National Specialized Protection Service for Children and Adolescents took over SENAME’s child protection programs.[48] A pending bill would also create a new agency to handle children in conflict with the law, replacing SENAME. Human rights organizations have raised concerns that, despite institutional changes, substantial reform to improve care for children is lacking.[49]

Human Rights Watch recommends that the Committee ask the government of Chile:

• What remedy has the government provided for children who have suffered violence under the care of SENAME?

Human Rights Watch recommends that the Committee call on the government of Chile to:

• Ensure adequate protection and safeguarding for children currently under the care of SENAME, and consider substantial reform within the new agency that is created to replace it; and
• Ensure that there are adequate measures to provide remedy and recourse for survivors of abuse, as well as to hold perpetrators accountable.