The Chilean courts persevered in efforts to clarify the fate of victims of the military dictatorship and to hold accountable those responsible for killings, "disappearances," and other serious abuses. In two separate cases, however, the Supreme Court and the Santiago Appeals Court ruled that the mental infirmity of former dictator Gen. Augusto Pinochet was serious and irreversible, leading them to exempt him from prosecution for human rights crimes. The government of President Ricardo Lagos suffered reverses in its efforts to ratify important human rights treaties, including the Rome Statute establishing the International Criminal Court. Congress approved a law abolishing film censorship and began discussion of a bill to strengthen free expression guarantees.
On July 1, the Supreme Court held that General Pinochet was unfit to undergo trial in the notorious "Caravan of Death" case, involving the murder of fifty-seven political prisoners and the abduction of eighteen others not long after the September 1973 military coup. Expanding upon an appeals court ruling issued a year previously that had suspended the proceedings on mental health grounds, the Supreme Court panel ruled by four votes to one that Pinochet's condition was irreversible, and closed the case against him permanently. Disagreeing with many legal experts, the court held that the "moderate dementia" Pinochet was deemed to be suffering from was sufficient to satisfy the statutory requirements for terminating proceedings.
A week later Pinochet resigned his honorary lifetime seat in the Senate, which had been empty since he was arrested in October 1998 in Britain. Due to a constitutional amendment introduced by President Lagos's government in April 2000, Pinochet was allowed to retain both his parliamentary immunity from prosecution and his senatorial stipend because of his status as former president. Immediately after the court proceedings, Pinochet embarked with his family and entourage on a visit to the northern port of Iquique. His frequent public outings in the city prompted the minister of defense to urge the general to "rest up," and he returned earlier than planned to Santiago. Although the Supreme Court decision satisfied members of the government, the armed forces, and the Catholic Church, many Chileans remained unconvinced that Pinochet was seriously ill.
Argentine judge María Servini de Cubría continued to seek the former dictator's extradition to stand trial for the car-bomb attack that killed Gen. Carlos Prats, Pinochet's predecessor as army commander, and Prats' wife, Sofia Cuthbert. The assassination occurred in September 1974, when the couple was living in exile in Buenos Aires. As a first step toward the extradition, Judge Servini petitioned the Santiago Appeals Court to lift Pinochet's immunity. On October 7, the Santiago Appeals Court dismissed the request by sixteen votes to five, holding that the July Supreme Court ruling was applicable to this case also. Lawyers for the Prats family appealed to the Supreme Court, arguing that the appellate court had exceeded its competence and should have ruled only on the merits of the case. A Supreme Court justice also denied a request for the extradition of five former secret agents already charged in Argentina for the murder, holding that evidence of their involvement was insufficient. At this writing, the Supreme Court had still to rule on an appeal lodged by lawyers for the Prats family against this ruling.
In April, the Supreme Court renewed the mandate of more than twenty "special judges" appointed to investigate, exclusively or with priority, the fate of hundreds of people who "disappeared" under military rule. The judges were commissioned to continue the investigations after an official civil-military roundtable initiated in August 1999 to provide information about the "disappeared" produced flawed and incomplete information on their fate and the whereabouts of their bodies. The court investigations led to dozens of former military officials being charged for extrajudicial executions and "disappearances."
Concluding its work in June 2000, the roundtable had agreed that each branch of the armed forces would provide the fullest possible information on the whereabouts of the "disappeared" within six months. The suspicions of relatives and human right lawyers that some branches had concealed information collected as a result of the agreement were confirmed in October, when air force general Patricio Campos was arrested and charged with obstruction of justice. Campos, who had been given the job of collating information volunteered by members or former members of the air force, confessed that he had concealed and destroyed details about five of the "disappeared." The facts came to light as a result of interviews published in the newspaper La Nación with a former member of the Combined Command (Comando Conjunto), a death squad active during the military government. The former agent said that the squad had regrouped recently in order to thwart the judicial investigations. Campos' prosecution led to the resignation of air force commander-in-chief Gen. Patricio Ríos, who had appointed Campos knowing that the latter's wife had been a member of the Combined Command.
Human rights groups, and some judges, accused the Medical Legal Service (Servicio Medico Legal, SML, a forensic branch of the Ministry of Justice which identifies skeletal remains) of incompetence, excessive delays, and of hiding evidence from the courts. It became known in August that the SML had suppressed for seven years a report by the Department of Forensic Medicine and Science of the University of Glasgow, Scotland, which had been commissioned by the Ministry of Justice in 1994 to identify the remains of twenty-seven bodies recovered from a grave in Santiago, thought to be victims of "disappearance" during military rule. The report cast doubt on the identification by the SML of three victims whose remains had been already returned to their relatives and buried. Lack of confidence in the work of the SML led several judges, including the judge who had investigated the Caravan of Death case, Juan Guzmán, to rely on the services of former members of the institution who had been dismissed or who had resigned to work independently.
The courts achieved justice in other cases dating from the military dictatorship. On August 5, Judge Sergio Muñoz sentenced Maj.(Rtd.) Carlos Herrera Jiménez, a former army intelligence agent, to life imprisonment for the 1982 murder of trade union leader Tucapel Jiménez, an influential opponent of the dictatorship. High level cover-ups and the inactivity of the former investigating judge had prevented clarification of the crime for twenty years. The director of army intelligence at the time, Gen.(Rtd.) Ramsés Álvarez Scoglia, received a ten-year prison sentence for ordering the murder. Three other former army generals who helped cover it up received suspended sentences. Each of the generals implicated benefited from a reduction of sentence due to the time that had passed before they were indicted, even though their own cover-ups had contributed to the delays.
Freedom of expression continued to be limited by outmoded laws protecting public authorities from criticism. On January 15, television panelist Eduardo Yáñez Morel was arrested and charged with contempt of authority (desacato) for his remarks on a talk show dedicated to miscarriages of justice, aired in November 2001. After a former prisoner complained that the courts had not offered her an apology for a wrongful conviction, Yáñez commented: "the justice system is immoral, cowardly and corrupt .... I think not to show its face is a sign of moral cowardice." The Supreme Court promptly filed charges against him under article 263 of the criminal code, which makes anyone who offends the president, members of Congress, or the higher courts of justice, "by word or deed," liable to fines and imprisonment. Yáñez was held overnight in prison. In October, the Santiago Appeals Court ruled by two votes to one against the appeal of his indictment.
Largely due to the Yáñez case, the government presented a bill to Congress in September proposing repeal of article 263, as well as provisions of the code of military justice making it a crime to insult the armed forces, and prohibiting civilians from making comments considered likely to damage military morale or discipline. Human Rights Watch had advocated each of these reforms in its 1998 and 2001 reports on freedom of expression in Chile.
After long debate, Congress approved at the end of October a bill eliminating the powers of the film classification board to censor films, and removing members of the armed forces from the board. The reform put into effect a July 2001 constitutional amendment abolishing film censorship, and allowed Chileans to see more than four hundred films banned by the board during military rule.
A dramatic inmate protest in the high security "Alpha Module" of Santiago's Colina Dos prison in January drew attention to ill-treatment and inhumane conditions of detention in this unit and led to the dismissal of seven prison guards. On January 18, guards allegedly beat and clubbed some twenty-five inmates after they had demanded a meeting with a prison official to discuss grievances. Some of the prisoners then cut and stabbed themselves with knives to draw attention to the abuses. In a letter to relatives cited in an electronic newspaper, one prisoner said that they were kept locked in their cells for hours without light or any toilets, so that they were forced to "defecate in bags or newspapers and throw them into the corridor." An official of the Supreme Court visited the prison soon afterwards and confirmed the reports of ill-treatment. The Santiago Appeals Court granted a habeas corpus petition filed by one of the prisoners injured in the protest, and ordered the Alpha Module closed until improvements had been made. In April, a Colina Dos prison guard was charged with the sexual abuse of a prisoner held on drug charges.
In September, the head of the prison service (gendarmería) announced measures intended to fully segregate youth held in adult prisons from adult prisoners. The instructions followed a ruling by the Santiago Appeals Court that current practices infringed Chile's obligations under the Convention on the Rights of the Child.
In January, the president of the Episcopal Conference, Cardinal Francisco Javier Errázuriz, appeared in person in the Senate to persuade the committee considering Chile's ratification of the Optional Protocol to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) not to recommend ratification. The prelate argued that the convention expressed a "unilateral vision" of women, and criticized recommendations to Chile made by the committee established to monitor compliance with the convention. He also warned that ratification of the Optional Protocol would intensify pressure on Chile to legalize abortion. Human Rights Watch wrote to the chair of the Senate Foreign Relations Committee urging ratification. In the wake of the Cardinal's intervention, however, the government postponed consideration of the protocol and chances of its early approval by the Senate receded.
On April 8, the Constitutional Court ruled by five votes to one that Chile could not ratify the Rome Statute establishing the International Criminal Court without a prior constitutional reform. The government presented to the Senate a constitutional amendment. This required a two-thirds majority of both chambers to be approved, and by October debate on the reform had not progressed. Many right-wing Congress members were said to oppose ratification, partly as a reaction to the detention of Pinochet in London.
Chile ratified the Mine Ban Treaty in September 2001. In August 2002, the army destroyed some seventy-six thousand landmines warehoused near the northern city of Arica, in a ceremony attended by President Lagos, the minister of defense, and the minister of foreign affairs. The rest of Chile's stockpile of more than two hundred thousand mines was to be destroyed by 2003, and the localization and destruction of mines in the ground was expected to follow. The press reported that twelve people had died and seventy had been wounded by mine accidents in recent years.
Chile had a sturdy network of human rights defenders, who worked freely and without government restriction.
In April, the Committee on the Rights of the Child published its observations on Chile's compliance with the Convention on the Rights of the Child. The committee praised Chile for several improvements in legislation protecting children's rights. However, it urged stronger measures to combat child abuse, including abuse taking place in state institutions run by the National Service for Minors (Servicio Nacional de Menores, SENAME). It also recommended that more effective steps be taken to prevent discrimination against disadvantaged children, particularly those belonging to indigenous groups, children with disabilities, and children living in rural areas.
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