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The doubts that Tohá sowed: the possible effect of the rules of use of force in the Nain Retamal Law

With more doubts than certainties, the project on rules of use of force (RUF) Its formal processing in the Senate will begin this Tuesday, after last Friday night, the Chamber of Deputies dispatched the initiative.

Although the opposition’s attempt to return powers to military justice will probably be revived in the Upper House, there are other legal implications that have not yet been completely decided and that will require a more in-depth analysis by senators.

In fact, the text that was approved “with a bang,” according to some deputies, pressured by the social context after the murder of three police officers in Cañete, did not completely satisfy either the government or the opposition, where they agree that the articles was left with gaps or inconsistencies that should be corrected in the Senate

One of those issues is the supposed effect that the RUF (which establish criteria and protocols so that troops can use their weapons, for example, to repel aggression) in the so-called Nain Retamal Law, regulations approved in April 2023, which arose in tribute to two martyred police officers and which created a statute of protection for police, military and gendarmes.

One of the central points of the Nain Retamal Law is to create a privileged presumption of legitimate defense for the troops, who, based on this legislation, are not automatically accused of having repelled an attack, but are presumed to have acted correctly in the performance of a duty. , so if there is a crime that they are accused of, it is the Prosecutor’s Office that must prove that they did not act in accordance with the law.

In the opinion of the opposition deputies, the government altered that order in its proposal on Rules for the Use of Force, since it allegedly required the officers to demonstrate that they adhered to the regulations, so that the same criminal defenses of presumption of legitimate defense could be applied to them. .

That criticism was consistently dismissed by the Minister of the Interior, Carolina Tohá (PPD)throughout the discussion that took place in the Chamber. (This project) was not created by a request from a part of the government alliance to make it counterweight to Nain-Retamalwas created by a political agreement of all the forces at the request of the Carabineros and the Armed Forces, and This public version that has been installed that this is a kind of nod to the Frente Amplio or the PC, is clearly false“said the minister in April last year.

However, in the final phase of the debate in the united Security and Constitution commissions, the deputy Andrés Jouannet (Yellows), with the support of the opposition, presented last Thursday an indication to return to the spirit of the Nain Retamal Law.

“It is presumed that the circumstance exempting from the fulfillment of duty, provided for in Article 10 No. 10 of the Penal Code, exists with respect to police or military personnel who, in compliance with the mandate received, act in accordance with the rules of use of force. contained in this law, whatever the damage or affectation caused to people or things,” said part of this indication.

“It is presumed that the circumstances of self-defense required in article 208 of the Code of Military Justice and in article 10 No. 4 and No. 6 of the Penal Code exist, with respect to police or military personnel due to their position,” he added.

“Officials of the Law Enforcement and Security Forces, and Armed Forces, who, by reason of their position or due to or on the occasion of the exercise of their functions provided for in this law, have caused damage or destruction of something, will not be civilly liable. , as long as there was no direct fraud, without prejudice to the possible responsibility of the State,” concluded the amendment, which was approved with 14 votes, against 11 for the ruling party. He independent-PPD Jaime Arayameanwhile, abstained.

This norm was ratified in the room, even with the support of more political forces. In fact, the DC presented an indication that pointed along the same lines.

However, there was a reference in this approved article that did not accurately reflect what the Nain Retamal Law states.

At this point, Minister Tohá exposed this problem of agreement over the weekend. “A presumption of an exemption from liability was made based on a presumption that was not fully harmonized with what was dictated in the Nain Retamal Law and this, certainly, is important to resolve properly, because they are criminal laws that a judge has to apply, and any inconsistency can have very serious consequences,” the Secretary of State told El Mercurio.

According to the government’s analysis, the problem lies in the fact that the RUF and the Nain Retamal Law have different applications and objectives and, by addressing the same topic with different, not exactly the same, wordings, an interpretative space is generated.

According to La Moneda’s vision, the presumption of innocence in Nain Retamal is only for when aggression that could seriously affect physical integrity or life is repelled, while what is approved in the RUF project does not distinguish according to the type of aggression or if it affects people or things, but it is for any aggression.

Furthermore, the government explains, the project establishes that the exemption is presumed when the official complies with the RUF, something that is not in Nain Retamal.

In the opinion of the Executive, the overregulation of the presumption of self-defense generates a serious problem, because it will be the judge who must apply two rules that regulate the same thing in a different way. For this reason, the idea is to correct this issue in the Senate

However, La Moneda’s analysis is not shared by the opposition. Deputy Gustavo Benavente (UDI), who is part of the Constitution Commission and participated in the drafting of the text on the RUF, commented that the minister’s argument regarding a possible inconsistency is a bit exaggerated, since thanks to this indication a major problem would have been corrected. “What the House approved is totally harmonious with Nain Retamal. This is very funny, because it was the defense proposed by the government that diminished the Nain Retamal Law,” Benavente said.

When explaining his abstention, the deputy Jaime Araya (indep. PPD)a member of the Security Commission, said that “finally I shared the government’s apprehension that the indication could generate problems in the application of Nain-Retamal, which in my opinion is the most relevant in terms of certainty for the police. in the fulfillment of his work and, therefore, I abstained, because I understood that, Sometimes, the sacristan’s care kills the priest. This is an example of that.”

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