Discreet Path to Justice?: Chile, Thirty Years After the Military Coup
A Human Rights Watch Briefing Paper, September 2003
II. The Pinochet Case
To appreciate the dramatic progress made on human rights investigations since 1998, one must remember the situation that existed before Pinochet's arrest in London. The amnesty decree introduced by the former dictator in 1978 effectively blocked human rights prosecutions for crimes committed before that date.2 Military courts exercised jurisdiction over officers accused of human rights violations, and an army judge sat on Supreme Court panels dealing with appeals affecting cases under military jurisdiction. Pinochet himself had the extra benefit of immunity as a former president who occupied a lifetime seat in the Senate following his retirement as army commander. And before departing from the presidency, Pinochet had left in place a pliant judiciary by retiring ageing judges and replacing them with younger men he personally selected.
During the 1990s, apart from the notable conviction in 1995 of former DINA chief Manuel Contreras and his deputy Pedro Espinosa, the Supreme Court frequently blocked prosecutions initiated in the lower courts.3 In such cases, it would either invoke the amnesty decree itself or would transfer the cases to military courts, which then did so.
As of October 1998, of the thousands of crimes committed during the period covered by the amnesty decree, only the Letelier-Moffitt murder had been solved. 4 Although twenty members of the security forces had been convicted for human rights crimes committed between 1978 and the end of military rule in March 1990, all but four of them were implicated in the same crime.5
Pinochet's prosecution abroad changed the legal and political landscape in Chile. A new, more outspoken and challenging debate on human rights began to occupy the Chilean media. The political parties of the right, facing a presidential election in December 1999, distanced themselves from Pinochet's legacy (the former dictator's name was scarcely mentioned by either side in the campaign). Even the army, then under the command of Gen. Ricardo Izurieta, was quite restrained in its support for Pinochet.6
As part of their diplomatic strategy to persuade the British government to hand Pinochet back, the Chilean authorities promised to bring Pinochet to justice in Chile.7 This commitment, which had been so notably lacking before Pinochet's arrest, gave fresh hope to the victims and spurred on the courts to take their duty to protect human rights more seriously.
One by one, each of the layers of immunity Pinochet had created for himself was pierced. Application of the amnesty law fell in 1999 to the doctrine of "disappearance" as an ongoing crime.8 By the time of Pinochet's return to Chile in March 2000, the former dictator's appointees on the bench were in a minority. Basing its decision on the seriousness of the evidence against him, the Supreme Court lifted Pinochet's parliamentary immunity, obliging him to face trial. In the new political climate, transfer of the case to a military court composed of his former subordinates was never seriously contemplated.
Finally, with his immunity in tatters, only humanitarian considerations saved the former tyrant from prosecution and probable conviction. On July 9, 2001, the Sixth Chamber of the Santiago Appeals Court suspended the criminal proceedings against Pinochet, ruling by two votes to one that "moderate vascular dementia" disqualified him from trial. Within days, he had announced his retirement from the Senate and from public life. When the Supreme Court confirmed the appellate decision one year later, it was already clear that the former dictator would never have to face prosecution.9 But it was equally clear that his political career was over and his legacy seriously tarnished.
2 The decree provided amnesty for criminal acts committed between the day of the coup and March 10, 1978, the day the state of siege was lifted. At least 2,269 (82 per cent) of the junta's victims died or "disappeared" during this period.
5 The case was the abduction and murder in 1985 of José Manuel Parada, an archivist at the Catholic Church's human rights organization; Manuel Guerrero, a teacher; and Santiago Nattino, a graphic artist. The case was called Caso Degollados (slit-throats case), because of the gruesome way in which the victims died.
7 As President Frei stated: "All our efforts to get Senator Pinochet home have had a sole objective: that it should be the Chilean courts not those of another country that apply the law." Quoted in Human Rights Watch World Report 2001 (New York: Human Rights Watch, 2000), p.110.
8 See discussion below. Relying on this doctrine, the Second Chamber of the Supreme Court in June 1999 unanimously upheld the prosecution on kidnapping charges of former hard-line general Sergio Arellano Stark, and four other army officers in the "Caravan of Death" case. It was a particularly egregious episode of multiple executions and "disappearances" in October 1973 that implicated soldiers allegedly acting with special authority from Pinochet himself. For a detailed discussion of the legal effects of the amnesty, see Human Rights Watch, When Tyrants Tremble: The Pinochet Case (New York: Human Rights Watch, October 1999), pp. 38-43.
9 Other judicial proceedings followed, however. On October 7, 2002, the Santiago Appeals Court rejected a request for Pinochet´s parliamentary immunity to be removed as a prelude to his extradition to Argentina to stand trial for the car-bomb murder of former army commander-in-chief Carlos Prats and his wife Sofía Cuthbert, in September 1974 in Buenos Aires. On August 27, 2003, the same court rejected a similar request in connection with the Calle Conferencia case (the abduction and "disappearance" of twenty members of the Communist party in May 1976).