Augusto Pinochet-Ugarte was born on 25 November 1915.
On 11 September 1973 Augusto Pinochet, then Commander-in-Chief of the army since 22 August 1973, with the support of the USA, led a military coup d’état that overthrew the democratically elected government of the socialist Salvatore Allende. Pinochet became self-appointed president of Chile and set up a military dictatorship that was very repressive towards political opponents. The regime ended in 1990 but Pinochet remained Commander-in-Chief of the army until 11 March 1998. He then obtained a senator-for-life position, which he left in 2002 because of health problems.
Acts of torture, abductions, forced disappearances and summary executions were committed during the dictatorship. The elected government which succeeded Pinochet published, on 4 March 1991, an official report listing 3,197 deaths and 967 disappearances during the 17 years of Pinochet’s presidency. The National Commission on Political Imprisonment and Torture, set up in August 2003, transmitted to President Ricardo Lagos, on 11 November 2004, a report indicating that torture was practised systematically under the Pinochet regime.
More than 200 criminal complaints were filed against Pinochet in Chile by close relatives of the victims. The proceedings, conducted mainly by Judge Juan Guzman Tapia, were based on two events. First, the abduction of 75 political opponents followed by the summary execution of 56 of them and the disappearance of 19 others: these acts were committed by a military unit known by the name of the “Caravan of Death” which criss-crossed the country in the months following the coup d’état. The second event related to the so-called “Operation Condor”, a quasi network of all the Secret Services of the South-American dictatorships (Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay) whose purpose was to eliminate political opponents abroad. The Chilean Secret Service (the DINA), under the command of Manuel Contreras, a close ally of Pinochet, was thought to have played an important, if not fundamental, role in promoting this project. Manuel Contreras was judged and convicted in Chile. It was during his trial in 1997 that Pinochet’s responsibility as the real head of the DINA became apparent.
Pinochet’s responsibility could also be proven in a third case, namely the assassination of Carlos Prats, whom Pinochet succeeded as Commander-in-Chief. This case became the object of a new request to have the immunity of the ex-dictator lifted.
Arrested in London in 1998 (see Augusto Pinochet Ugarte), Pinochet spent more than 500 days there in detention. He went back to Chile in March 2000.
Arrested in London in 1998 (see Augusto Pinochet Ugarte), Pinochet spent more than 500 days there in detention. He went back to Chile in March 2000.
When Pinochet’s was arrested in 1998, the government of Chile requested his release and affirmed its intent to have him tried in Chile. At first sight, several obstacles seemed likely to hinder the holding of such a trial, among them being:
– the law of 18 April 1978 which decreed an amnesty for all acts committed between 11 September 1973 and 10 March 1978;
– the immunity granted to Pinochet as a Member of Parliament and ex-President;
– the dominant position of the armed forces institutionalised by Pinochet himself in the 1981 Constitution which was still in force and pressure from high ranking military who highlighted the potential danger of a trial for the security of the State
These obstacles were in part overcome by legal decisions. Three requests out of four to have immunity lifted were successful. Moreover, the theory of “ongoing offence” as applied to the crime of disappearance enabled circumvention of the application of the Amnesty Law: Indeed, the Supreme Court in its decision of 20 July 1999 qualified the crime of disappearance as a permanent misdemeanour and, as such, not subject to amnesty and imprescriptibility. Furthermore, the unconditional support of the military at the time of Pinochet’s return had progressively weakened whilst at the same time a popular movement, increasingly favourable to a trial of the ex-dictator, had grown.
1. First case against Augusto Pinochet concerning the case known as the “Caravan of Death”:
On 5 July 2000, the Appeal Court of Santiago decided to remove the parliamentary immunity of Pinochet. This decision was confirmed by the decision of 8 August 2000 of the Supreme Court. Judge Guzman could therefore initiate proceedings.
On 1 December 2000, the judge ordered Pinochet to be held under house arrest after charging him as the mastermind and co-planner of the acts committed by the “Death Caravan”. In the indictment the judge held that Pinochet ordered the abduction of 75 persons followed by summary executions and disappearances. An appeal by the defendant attempted to have the decision quashed on the basis of a procedural flaw. In fact, the Code of Penal Procedure requires that the accused be interrogated before his indictment and that, if older than 70, he should be submitted to a medical examination. The indictment and house arrest order was annulled by the Appeal Court that did not take into account in its deliberations, as advocated by Judge Guzman, the interrogation already held in London. On 20 December 2000 the Chilean Supreme Court upheld the decision. This decision was based on a question of procedure and did not prevent the continuation of legal proceedings. The Court in fact granted a delay of 20 days to judge Guzman to proceed with Pinochet’s interrogation.
A first, brief interrogation took place at Pinochet’s residence on 23 January 2001.
The medical results, to which 8 experts contributed, made mention of a «light to moderate senility ». On 29 January 2001, Judge Guzman issued another indictment and another house arrest order. The Appeal Court rejected an appeal by the defence against this decision on 8 March 2001. However the Court re-categorised Pinochet’s responsibility for the alleged acts as being one of accessory rather than as mastermind or co-planner as set out by the judge in the act of indictment. Based on this new categorisation, the accused was released on bail on 12 March 2001.
Following a request by the defendant’s lawyers, which referred to deterioration in Pinochet’s health, the Santiago Appeal Court, on 9 July 2001, decided to temporarily suspend all legal proceedings. Based on the January 2001 medical tests, the Court ruled that Pinochet is “is not in possession of the mental capacity to allow him to enjoy the rights he is entitled to at every stage of the proceedings under the principle of due process”. The Court further pointed out that it offered no opinion on the guilt or innocence of the accused but that it conceded the gravity of the charges. A year later, on 1st July 2002, the Supreme Court dropped the charges against Pinochet because of his ill health. This decision effectively barred any proceedings against him with regard to any responsibility he carried for acts committed by the “Death Caravan”.
The mental state of Pinochet however was still subject to controversy at the time.
2. Second case: «Operation Condor»
Following an appeal by lawyers of the families of the 19 leftist militants who disappeared between 1973 and 1990, Judge Guzman filed a new petition before the Santiago Appeal Court. The petition was aimed at the removal of Pinochet’s incapacity to testify so that he could give an account of his participation in “Operation Condor”. To support the claim that Pinochet was mentally fit for trial, Judge Guzman based his request on an interview given by the ex-dictator to a television station on 23 November 2003, in which he stated himself to be in perfectly good health.
In 2002 Pinochet resigned as senator- for- life and thereby was no longer able to benefit from his parliamentary immunity. However Parliament conferred on him immunity as an ex-president. For the fourth time a request to have Pinochet’s immunity lifted, was introduced before the Appeals Court. Indeed, the law provides that the immunity of an ex-head of state must be lifted during each case under consideration. A first request to lift immunity had been granted in the case of the “Death Caravan” (cf. above).
In its decision of 28 May 2004, the Santiago Court of Appeals lifted Pinochet’s immunity with regard to acts committed under “Operation Condor”. By a very small margin the decision was confirmed by the Supreme Court on 26 August 2004 thus opening the way for a potential trial. However, Pinochet’s state of health was again invoked to bring proceedings to a close.
Since the Supreme Court confirmed the lifting of Pinochet’s immunity, two further steps in the proceedings relating to “Operation Condor” went against the defence. In the first, the Supreme Court turned down a request to exclude Judge Juan Guzman, on the grounds of his supposed antipathy towards Pinochet. In the second, in an attempt to prove the sound mental state of Pinochet, the plaintiff’s lawyers made a request to examine his will and to interrogate the notary with whom the will had been deposited.
Judge Guzman went ahead with a first interrogation of Pinochet on 25 September 2004 and ordered new medical tests. These concluded that Pinochet suffered a « mild form of sub-cortical vascular dementia ». The parties retained the possibility to lodge an appeal against the medical report.
Judge Guzman rated the mental state of Pinochet as sufficient on 13 December 2004, placed him under house arrest and indicted him. These decisions were confirmed subsequently by the Court of Appeal in Santiago on 20 December 2004 and by the Supreme Court on 3 January 2005. Thus there were no more juridical obstacles to close the investigations and initiate a procedure against Pinochet.
On 10 January 2005 Judge Guzman authorized the release of Pinochet on bail.
On 7 June 2005, a three-member chamber of the Santiago Court of Appeals unanimously decided to discontinue the procedure. The decision was based on the “moderate dementia” of the accused, a defence already sustained by the Supreme Court in 2002. The judges ruled that Pinochet “suffered neurological problems which rendered him incapable to defend himself in a legal procedure.” The Supreme Court upheld this decision on 15 September 2005. Pinochet could therefore not be prosecuted anymore in the framework of “Plan Condor”, which carried the gravest accusations against him.
3. Third case: the assassination of Carlos Prats:
Following a claim introduced by the daughters of the ex-Commander-in-Chief of the Army, Carlos Prats, the Appeal Court of Santiago removed the immunity of ex-president Pinochet on December 2, 2004. However, the Supreme Court quashed this decision by judgement of March 25, 2005, thus making it impossible to continue criminal proceedings against Pinochet in the Prats case.
Carlos Prats was Augusto Pinochet’s predecessor in the role of Commander-in-Chief of the Army. He refused to join the military Coup d’état of 11 September 1973 and subsequently went into exile in Argentina. He was assassinated on 30 September 1974 in Buenos Aires. Seven former members of the army and of the DINA, including its chief Manuel Contreras, had already been charged in this same case.
4. Fourth case: the Colombo Case
In this case, Pinochet was said to have covered up the assassination of 119 members of the MIR, a Chilean leftist revolutionary movement. The victims’ bodies were found in Argentina and Brazil in July 1975. At the time, DINA had officially concluded that they had become the victims of a settlement of accounts between Guerrilla movements.
Judge Guzman, who had led investigations against the militaries in this case, had already indicted Manuel Contreras, former head of the secret police under Pinochet, and 15 agents.
On 6 July 2005, following the judge’s request, the Santiago Court of Appeals ordered, by 11 votes against 10, the lifting of the immunity attached to Pinochet’s position as ex-president. On 14 September 2005, the Supreme Court upheld this decision by 10 votes to 6. This decision paved the way for a possible trial and authorized Judge Victor Montiglio, who took over the file when Judge Juan Guzman retired, to interrogate Pinochet. The Court, however, ordered preliminary medical checks, which could have again allowed Pinochet to avoid a trial.
On 24 November 2005, Judge Victor Montiglio charged General Pinochet in connection with the disappearance of six dissidents arrested by Chile’s security services in the course of Operation Colombo.
The same day, Pinochet was put under house arrest.
On 1st February 2006, Santiago’s appeals Court ruled that Pinochet was healthy enough to stand trial for alleged human rights abuses stemming from the Colombo Operation.
5. Fifth procedure regarding acts of torture and illegal detention at the Villa Grimaldi.
This investigation evolved around Pinochet’s alleged responsibility for the deaths of 59 people illegally detained at the Villa Grimaldi. From 1973 to 1978, Chilean secret services, the DINA, used the Villa as a detention centre. Officially, 4500 people were confined and mistreated in the Villa and 226 of them died under torture.
On 20 January 2006, a decision by the Court of Appeal of Santiago revoked Pinochet’s immunity by a large majority. This is the fifth time around that Pinochet was declared not to be immune despite his former presidential status. The decision was confirmed by the Supreme Court of Chile on 8 September 2006.
On 27 October 2006, a Chilean judge issued an arrest warrant in the “Villa Grimaldi” case.
Augusto Pinochet died on 10 December 2006, putting an end to all legal procedures in Chile and abroad.
The proceedings initiated against Augusto Pinochet in Chile are interesting for different reasons. In particular, the transition towards a democratic regime, the independence of the judiciary and national reconciliation were all interests that were at stake in the Chilean Pinochet Case.
Furthermore, the use of the “ongoing offence” doctrine to qualify the crime of disappearance allowed circumvention of the application of the 1978 Amnesty Law. This law has not yet been abolished although Chile has been the subject of comments from the Human Rights Committee, the Committee against Torture and the Inter-American Commission on Human Rights. The applicability of the “permanent misdemeanour” theory was confirmed by the Supreme Court in the trial of Manuel Contreras, the ex-Chief of the Chilean secret service under Pinochet’s dictatorship.
Dismissal pronounced by the Supreme Court on 15 September 2005, in the Condor case,, intervenes the day after the confirmation of the removal of Pinochet’s immunity by the same Court in the Colombo case.
This apparent incoherence which can shock, is explained by the fact that, in Chile, each file is prepared for trial independently from another.
For the world, Augusto Pinochet, who held Chile in his grip during 17 years, embodied the ruthless tyrants of every continent and age. As counterpoint, (11 Sept. 1973 – 10 March 1990), an exemplary human rights defense movement paralleled the systematic practice of state terrorism during Chile’s military dictatorship. This dual legacy has been ever-present since human rights shifted primarily to the judicial front in the post-dictatorship period.
When military forces seized power on 11 September 1973, they closed down the National Congress and created an all-powerful executive branch vested with law-making authority. Only the judiciary was not directly intervened, a privilege attributed to the military rulers’ interest in maintaining a façade of legality.
The Supreme Court judges responded wholeheartedly, lending legitimacy to the regime through symbolic acts, public speeches and its resolutions. In late September 1973, when thousands were still imprisoned in stadiums and other places, the four members of the ruling Junta arrived at the court building where the Supreme Court president formally acknowledged their authority, expressing “satisfaction for the change in government.”
From the initial moments of the dictatorship, attorneys in Chile mobilized to demand respect for fundamental rights, despite a judicial structure that legitimized the military regime’s trampling of those rights. The first habeas corpus writs for arbitrary arrests were filed within days after the coup and in October the Santiago Archdiocese created the interfaith Pro Paz Committee. Subsequently, attorneys of the Vicariate of Solidarity, Christian Social Assistant Foundation (FASIC) and Committee for Defense of the People (Codepu), continued to denounce human rights violations, file complaints and habeas corpus writs (recursos de amparo), despite repeated refusal of the courts to accept these pleas. Elements of proof gathered immediately after the occurrence and criminal complaints filed during dictatorship provided the groundwork for pursuing justice years later when rule of law was restored.
The Inter American Human Rights Commission confirmed that of more than 5000 habeas corpus writs filed between 1973 and 1987, the courts granted only 10 – of these, by the time the writs were conceded, the victims were already dead. In 1991 the Truth and Reconciliation Commission Report concluded that the courts could have saved lives and protected prisoners from mistreatment had they accepted the thousands of habeas corpus.
The military regime that so gravely and systematically disregarded human rights took precautions to protect itself from prosecution through the amnesty decree, DL 2191, in 1978.
When DL2191 came into effect in April 1978, Chilean jails and prison camps contained hundreds of political prisoners, most of whom had never been charged, much less sentenced. In January 1978, discovery of the remains of 15 people in an abandoned limestone mine in Lonquen had provided the first concrete evidence of the fate of disappeared persons, while pressure was mounting from the United States to extradite perpetrators of the assassination of Orlando Letelier committed in Washington DC September 1976.
A “self-pardon” by the military rulers to benefit agents who carried out their repressive policies, DL2191 shields from criminal prosecution all persons who were authors, accessories or had concealed crimes committed from the day of the coup, up to 10 March 1978, when state of siege was lifted temporarily. When the transition to democracy ensued, DL2191 and other de facto laws – most notably the Constitution of 1980 – were not repealed as democratic parties had pledged, in part, due to lack of congressional majority. International human rights agencies such as the Inter American Human Rights Court have condemned the amnesty decree as an infringement of treaties of which Chile is signatory (See Luis Almonacid Case, 2006).
During dictatorship courts applied the amnesty law without investigating cases. To accuse military personnel of a crime was sufficient cause for ordinary courts to declare themselves incompetent and transfer a human rights case to military tribunals, which automatically closed the cases.
During the early post-dictatorship years, courts continued to follow this formula, systematically dismissing cases involving disappeared persons on the basis of the amnesty law. Yet, by late 1994, President Patricio Aylwin fostered a reinterpretation of DL2191 that led to a new willingness on the part of the courts to investigate the facts of a case and identify the responsible parties, rather than automatically invoking the amnesty decree.
On 21 September 1994 the First Bench of the Santiago Court of Appeals unanimously ruled to reopen the investigation phase of the case involving Anselmo Radrigan, abducted on a public street in 1974 by DINA secret police. Revoking the application of the amnesty law, the court ruled that the crime of abduction is permanent until the victim is located either alive or dead. Other appellate courts followed suit a few days later with similar rulings that upheld the Geneva Convention over domestic law.
On 12 September 1998 a Supreme Court ruling set an historic precedent when it ordered the reopening of a case involving the 1974 disappearance of Enrique Poblete Cordoba, echoing the argument of the ongoing crime put forth by the appeals courts four years earlier.
Since then, judges have rarely invoked the amnesty decree, allowing judicial investigations to advance for the first time. However, unless DL is repealed, there is no assurance that a changed political climate may send the courts a different signal and reverse this trend.
PREEMINENCE OF INTERNATIONAL LAW
The Military Junta’s Decree Law 5 defined state of siege as synonymous with state of war. (State of siege, implying suspension of individual freedom, was in effect from the day of the coup until March 1978, replaced by state of emergency from 11 March 1981 until 27 August 1988.) Throughout the years of dictatorship and up to the present day, the former military rulers and their civilian collaborators employ this interpretation to justify their practice of terror as a necessary response to war.
In declaring Chile at war, the Junta unwittingly invoked the Geneva Conventions that demand protection of prisoners of war and prohibit summary executions. Yet during 25 years Chilean courts denied the Geneva Conventions as grounds for justice in human rights. Not until the Poblete case, cited above, did the judiciary begin to accept preeminence of international treaties over Chilean law as well as the concept that human rights violations committed by the military dictatorship are crimes against humanity.
Following Augusto Pinochet’s arrest in London on October 15, 1998, the crime of genocide became one of the most prevalent causes of action in the hundreds of criminal complaints filed against the former dictator and his collaborators.
This represents one of the most significant jurisprudence developments in Chile, overcoming the amnesty decree and statutes of limitation claims, thus opening the way to advances in numerous cases.
Significantly, on 5 January 2004 the Santiago Court of Appeals, citing the Geneva Conventions and Universal Declaration of Human Rights, issued the first convictions in the case of a disappeared person, 26-year-old tailor Miguel Angel Sandoval arrested on 7 January 1975.
TORTURE RECOGNIZED AS CRIME AGAINST HUMANITY
In March 2005 Appeals Court judge Alejandro Solis issued the first indictments for the crime of torture in a case filed by survivors. Citing the International Convention against Torture and other Cruel Treatment or Punishment, Judge Solis identified three elements that define the act of torture in Chile:
“1) It inflicted extreme pain or suffering, either physical or psychological; 2) It was inflicted with a deliberate intent, and 3) It was inflicted by public employees or by persons who exercised public functions, upon instigation by officials or with his own consent and acquiescence.”
In his ruling Judge Solis traced the development of international jurisprudence related to torture from the Nuremberg Tribunal and the Geneva Conventions to the establishment of the principle of jus cogens in the case of torture.
On 27 January 2010 the Santiago Court of Appeals issued the most recent ruling that recognizes the crime of torture. A unanimous ruling from the bench confirmed the conclusions Judge Alejandro Solis reached after six years of investigation: that four secret agents tortured Sergio Aguiló during 10 days in December 1981. Today Aguiló is a prominent national congressman.
DISTURBING TREND : INDICTMENTS BUT LOW SENTENCES
FASIC, since 1992 the principal legal representative of victims, reports that as of May 2009, 702 indictments had been issued against members of the Armed Forces, police, detectives and civilians. Defendants include 39 generals, 6 admirals, 71 colonels, 16 brigadier generals, 31 lieutenant colonels, and 313 lowering-ranking officers.
Sentences have been handed down for 109 Army officers, 11 Naval officers, 20 Air Force, 98 police, 9 detectives and 13 civilians.
General Manuel Contreras, director of the former DINA secret police, has been sentenced in several cases for multiple counts of crimes, summing 300 years in prison. Of these prison sentences, 90 years have been definitively confirmed, while the remaining are pending various appeals.
In a report issued on 1 February 2010, Supreme Court Judge Sergio Muñoz noted that 326 cases are in progress. Of these, 239 are in the investigatory stage, 14 have had first instance rulings, while another 47 await decisions from the Court of Appeals or the Supreme Court.
Muñoz has also instructed detectives of the Brigade on Human Rights Violation Crimes to investigate the situation of 1,167 victims of dictatorship with the aim of obtaining elements of proof to enable filing new criminal complaints. These are cases the Truth and Reconciliation Commission omitted in 1991 for lack of sufficient evidence.
Although the courts have made significant progress in the investigation of cases, a growing trend of disproportionately low sentences has been observed in recent years. An example is the case of Ecuadorian doctor Jose Felix Garcia Franco. Four retired police officers had been sentenced to 10 or 8 years in prison for the 13 September 1973 arrest of Garcia, whose whereabouts have been lost since that time. On 1 January 2009 the Santiago Court of Appeals lowered the four convictions to 5 years, the threshold period for accessing parole and avoiding incarceration. The court invoked the peculiar Chilean legal concept of the half prescription (media prescripción or prescripción gradual, under article 103 of the Penal Code) by which a sentence may be reduced when more than half the statute of limitation has elapsed.
Such rulings, which critics ironically call “sentences without punishment” (“condena sin castigo”), increasingly prevalent since 2007, effectively contradict the doctrine that predominated since Poblete Cordova, that human rights crimes are not subject to statutes of limitation or consideration of any extenuating circumstances. In this case, the court cited as extenuating factor “unblemished past conduct” (intachable conducta anterior), an equally peculiar concept, in light of the nature of human rights violations.
During the same period of time, civil suits have gained force, and in the Garcia Franco case, the court did uphold the payment of 30 million pesos ordered for moral damages.
An ambivalent approach to human rights characterized the four presidents that of the democratic alliance that governed Chile in the two decades of post dictatorship. While the Truth and Reconciliation Commission recorded more than 3000 human rights crimes that resulted in extra judicial killings or disappearances, the testimony used to document these cases is off limits to the courts. Likewise, 35,000 people testified to the Commission on Political Imprisonment in 2004 that they endured torture, yet their testimonies too are strictly reserved and inaccessible to all for 50 years. On 11 January 2010, President Michelle Bachelet inaugurated the Museum of Memory yet only 50% of victims have had legal actions filed on their behalf.
And the announcement that FASIC’s legal department has closed for lack of funding may well frustrate aspirations for justice, especially in light of the expected reopening, in mid 2010, of both the Truth and Reconciliation Commission and the Commission on Political Imprisonment to receive new testimony.
Despite a policy that privileged truth over justice, significant strides have been achieved in justice. Detectives’ meticulous investigation of the military regime’s repressive practices convinced judges such as Juan Guzman Tapia, who Pinochet appointed to the Appeals Court as a conservative judge, of an irrefutable brutality, leading him to indict the man who had promoted him in judiciary ranks.
The coming inauguration (10 March 2010) of millionaire businessman Sebastian Piñera as president of Chile will usher in a period of uncertainty on the human rights front, and on social issues in general. While on the campaign trail, Piñera, candidate of a right-wing coalition that includes collaborators of the military regime, promised victims’ relatives not to interfere in cases, and then secretly pledged to 700 retired military officers to expedite cases by applying statutes of limitation.
Even as their rulings take distance from the military dictatorship, the legacy of judicial complicity with that regime continues to cast a long shadow over judges. The political horizon promises to test, once again, the independence of the Chilean judiciary.