Following Verdict in Gatica Case, Lawmakers Propose Repeal of Privileged Self-Defense Clause in Naín-Retamal Law: «It Has Meant Impunity»

Original article: Tras sentencia en caso Gatica, diputados presentan proyecto para derogar legítima defensa privilegiada en Ley Naín-Retamal: «Ha significado la impunidad»

«We are abolishing something that we consider, without a doubt, to be a tremendous legal error that has caused immeasurable damage to our country regarding the respect, care, and protection of human rights,» stated Deputy Tomás Hirsch, who introduced the bill to repeal privileged self-defense under the Naín-Retamal Law alongside fellow parliamentarians Ana María Gazmuri, Maite Orsini, Carmen Hertz, and Matías Ramírez.

Following the verdict that acquitted former Carabinero Colonel Claudio Crespo, the only accused in the incident that left now-elected Deputy Gustavo Gatica blind during the social uprising, deputies Tomás Hirsch (AH), Ana María Gazmuri (AH), Maite Orsini (FA), Carmen Hertz (PC), and Matías Ramírez (PC) introduced a bill on Wednesday aimed at repealing privileged self-defense in the context of the Naín-Retamal Law.

The 2023 law that amended the Penal Code to enhance the protection of police officers was cited by Judge Cristina Cabello when establishing Crespo’s privileged self-defense during the November 2019 incident.

According to the ruling, the actions of the former police officer that led to Gatica’s injuries «are protected by the law, as they constitute the legitimate exercise of self-defense against an illegitimate, current, and potentially lethal attack within the context of a constitutional and legal duty of significant public order.»

When reading the ruling that acquitted Crespo of charges of unlawful attacks, the judge stated: «Having validated the concurrent fulfillment of the three required conditions for the configuration of self-defense —illegitimate, current, and potentially lethal aggression; rational necessity of the means employed; and lack of sufficient provocation— this court concludes that the defendant’s actions are justified under Article 10 No. 6 of the Penal Code.» This refers to the privileged self-defense established under Law 21.560.

Bill to Repeal Privileged Self-Defense

In light of this situation, lawmakers from progressive parties presented a bill seeking to repeal paragraphs 3, 4, 5, and 6 of numeral 6 of Article 10 of the Penal Code through a single article.

«We are introducing a bill to repeal certain aspects of the law known as Naín-Retamal, which proposes through a single article the repeal of the third, fourth, fifth, and sixth paragraphs of numeral six of Article 10 of the Penal Code. What does this mean? Essentially, we are repealing something that we consider, without a doubt, to be a tremendous legal error that has produced immeasurable damage to our country regarding the respect, care, and protection of human rights,» stated Deputy Tomás Hirsch.

«We propose to repeal what has been known as privileged self-defense, which directly contradicts international norms regarding the protection of human rights. Without any intention to interfere in a legal case as painful and dramatic as that of the impunity of a Carabinero commander, Claudio Crespo, who shot Gatica in the eyes, we believe it is crucial to prevent such horrific, painful, and dramatic situations from occurring again,» he asserted.

The lawmaker indicated that the current legal framework in Chile directly conflicts with the binding jurisprudence of the Inter-American Human Rights Court (IACHR), which has established that the use of force by security personnel must be exceptional and tightly regulated, «which is not the case with this privileged self-defense of the Naín-Retamal Law.»

Naín-Retamal Law «Contradicts International Standards»

«Moreover, this Chilean privileged self-defense contradicts the standard of presuming the necessity of rationality, which in practice serves as a barrier preventing the assessment of whether the means employed were indeed the last resort available, which is the basis of traditional self-defense,» he stated.

The deputy urged President Gabriel Boric’s administration to support this bill, given the verdict surrounding the «Gatica case.»

«We believe it is time to correct something that was clearly an error and causes harm to human rights in our country. We call for the government to prioritize this bill, just as it is doing with another piece of legislation,» he emphasized.

According to the parliamentarians, President Boric’s administration still has time for this bill to be debated immediately, allowing it to pass both the Chamber and hopefully the Senate, and to end this aberration.

«What we want is to ensure that in the future, we never again have to lament situations as painful, terrible, and dramatic as what happened to Gustavo Gatica, which has allowed the perpetrator of his loss of vision to remain unpunished due to this law,» he concluded.

For her part, Deputy Ana María Gazmuri stated, «Those of us who voted against the Naín-Retamal Law see that we were right.»

«We see the consequences of that penal populism, even if well-intentioned. The fact that Crespo blinded Gustavo Gatica remains unpunished alters any democratic order. We invite our colleagues and certainly the Executive to recognize that acknowledging an error is dignified,» she pointed out.