Discreet Path to Justice?: Chile, Thirty Years After the Military Coup
A Human Rights Watch Briefing Paper, September 2003
IV. First Convictions Despite The Amnesty Decree
In a landmark development, the year 2002 saw the first conviction for human rights crimes committed during the period covered by the amnesty decree. On November 15, 2002, two army generals, Héctor Bravo Muñoz and Jerónimo Pantoja, were sentenced to three years in prison for the October 1973 kidnapping of trade union leader Pedro Espinoza Barrientos.
Other such convictions quickly followed. On April 15, 2003, special judge Alejandro Solis sentenced the former chief of the DINA, Manuel Contreras Sepúlveda, to fifteen years imprisonment for the 1975 kidnapping of Miguel Angel Sandoval Rodríguez. Four other senior DINA officials also received prison sentences in the case. Next, on August 6, 2003, Judge Solis sentenced army colonel Hugo Cardemil to seventeen years imprisonment and two Carabinero officers to shorter terms for the disappearance of twenty-seven people from Parral, a town in the south of Chile, during the first six months of the military government.
The legal basis of these convictions is the doctrine that "disappearance" is an ongoing crime. According to this view, which is now widely accepted in the Chilean courts, "disappearance" is a crime that continues until the victims are located, or if found to have been killed, until the estimated date of their deaths. When the fate of the victims remains unknown (as is true in all but about 10 percent of cases) the crime falls outside the time period covered by the amnesty. In other words, the amnesty decree does not prevent the prosecution and conviction of those responsible for the crime.16
The Supreme Court will soon hear appeals against the first convictions for crimes committed during the period the amnesty covers, and much will hinge on the legal principles the court decides to apply. It has already relied on the doctrine of "disappearance" as an ongoing crime in past cases, including in the 2000 decision in which it affirmed the lifting of Pinochet's parliamentary immunity. In fact, relying on this doctrine, neither the appeals courts nor the Supreme Court have applied the amnesty decree in any case during the last five years.
In addition, over the past few years, some judges, including a few Supreme Court justices, have cited international humanitarian law as grounds for decisions to order the reopening of cases closed under the amnesty decree.17 In fact, the argument that, pursuant to Article 5 of the Chilean Constitution, international human rights treaty obligations are binding on the courts even when they conflict with domestic law, was used by two panels of the Santiago Appeals Court as early as 1994.18 Recently, some appellate judges have asserted publicly that their duties include interpreting the laws and ensuring that their decisions are consonant with human rights principles.19 Although statements like this are encouraging, one should also remember that in the past the Supreme Court overruled the application of international humanitarian and human rights law in a string of important cases.20
President Lagos made reference to the ongoing prosecutions when he announced his accountability proposals on August 12. He stated that the interpretation of the amnesty was a job for the courts:
I repeat my conviction that the courts are the only correct arena in which to advance in establishing the truth and applying justice in accordance with the laws in force. Consequently my government does not agree with any proposal that means establishing a full stop to trials, either because such proposals are morally unacceptable or because they are legally ineffective. By the same token, it leaves the courts to decide how to interpret the amnesty decree.21
Each side in the controversy found support in this statement. Politicians of the right immediately latched onto Lagos's reference to "the laws in force," calling it an "explicit" ratification of the amnesty decree.22 But Lagos's commitment to "leave it to the courts to decide how to interpret the law" actually suggests the opposite, given that the courts have been consistently avoiding any application of the decree.23 The government also explicitly rejected placing a time limit on court investigations, as the main opposition party had proposed in July.24
17 The most noted case was that of Enrique Poblete Córdova, which the Supreme Court´s Criminal Bench ordered to be reopened in September 1998, on grounds that Common Article 3 of the Geneva Conventions of 1949 was applicable. See Human Rights Watch, When Tyrants Tremble, p. 43.
18 The cases were Lumi Videla (September 27, 1994) and Bárbara Uribe and Edwin Van Yurick (October 3, 1994). Cited in Amnesty International, Chile: Transition at the Crossroads, Amnesty International Publications, AMR 22/01/96, March 1996. Article 5(2) of the Constitution, added after negotiations between the opposition and the military government on the eve of the 1989 elections, states: "the exercise of sovereignty recognizes as a limitation respect for the essential rights that emanate from human nature. The duty of the organs of State is to respect and promote those rights, guaranteed by this Constitution, as well as the international treaties ratified by Chile and that remain in force."
19 For example, in July the President of the Santiago Appeals Court, Carlos Cerda, stated in an article on the human rights debate that "any law that is passed does not necessarily have to be applied by the judges, unless it is framed in a way compatible with the essential rights that the Chilean Constitution orders us to safeguard and that International Law, not yet written, demands as a basic requirement for civilized coexistence." His comments were interpreted by the conservative press, quite wrongly in our view, as undermining the stability of the law. See "Los dichos del ministro," El Mercurio, August 20, 2003; "Doctrina Cerda genera áspero debate jurídico," El Mercurio, July 18, 2003.
20 Examples are the case of seventy detainees who "disappeared" between 1973 and 1977 (on August 24, 1991, the Supreme Court ruled that the amnesty's application in this case was constitutional) and the case of international civil servant Carmelo Soria, abducted and murdered by the DINA in 1976 (Supreme Court decision of August 23, 1996).
22 The president of the Union Demócrata Independiente (UDI), Pablo Longueira, said "If there was no proposal to eliminate the amnesty, it's a clear sign that the law is beneficial for social peace." "Longueira: Lagos fue explícito en reconocer la ley de amnistía," La Segunda, August 13, 2003. Neither Jose Miguel Insulza, the minister of the Interior, nor Secretary General of Government Francisco Vidal allowed themselves to be drawn by journalists into defining the government's position on the law. C. Iglesias and C. Rivas, "El misterioso oráculo de Lagos sobre la ley de amnistía," El Mostrador, August 14, 2003 http://www.elmostrador.cl/modulos/noticias/constructor/noticia.asp?id_noticia=95951 (retrieved on August 14, 2003). In the past, some high-level government officials have explicitly argued that the decree should not stand in the way of convictions. In 1991, for example, President Aylwin's minister of justice stated that he considered the amnesty decree to be "tacitly derogated" in the case of grave human rights crimes. The International Commission of Jurists and the Center for the Independence of Judges and Lawyers, Chile: A Time of Reckoning (Geneva: The International Commission of Jurists, 1992), p. 199.
24 La Paz Ahora: Propuesta dela UDI sobre Derechos Humanos, June 20, 2003