Q. How likely are the Chilean courts to prosecute Pinochet?
A. There are legal obstacles to Pinochet's prosecution in Chile, including:
- his immunity from criminal process as a senator for life;
- an amnesty decree that covers crimes committed from 1973 to 1978;
- a proposed constitutional reform that would make it more difficult to challenge that immunity in court;
- a statute of limitation which makes it difficult to try torturers after five years have elapsed since the crime; and
- the wide jurisdiction of military courts which would be unlikely to prosecute their former patron.
However, the courts have powers to strip Pinochet of his immunity, and the Supreme Court has pronounced the amnesty law to be inapplicable in "disappearance" cases. President Ricardo Lagos has promised publicly not to interfere in the actions of the courts, and opposition leader Joaquin Lavin has stated that Pinochet is subject to the law like any other Chilean citizen.
Q. What is the status of the cases against Pinochet now in Chilean courts?
A. Pinochet currently faces 59 criminal complaints in Chile for kidnapping, murder, and torture, all of which were lodged in 1998 and 1999 and are currently being investigated by Judge Juan Guzman Tapia of the Santiago Appeals Court. The cases are in the preliminary stage of investigation and Judge Guzman has yet to make formal charges against Pinochet. He sent a list of questions last year to Pinochet in London, but Pinochet, in his reply, refused to provide substantive answers.
The charges against Pinochet include the abduction, torture, disappearance, and execution of thousands of political opponents. The crimes for which Pinochet is closest to indictment include his command responsibility for a military task force, popularly known as the "Caravan of Death," which removed scores of prisoners from jail and executed them one month after the 1973 military coup. Before the case against Pinochet can go ahead, Judge Guzman must first have Pinochet's senatorial immunity lifted.
Q. What is the procedure for revoking Pinochet's immunity?
A. Judge Guzman must request the Santiago Appeals Court to lift his parliamentary immunity. If the Appeals Court assents, Pinochet may appeal to the Supreme Court, which has the final say. If the Supreme Court declines to revoke his immunity, the indictment cannot proceed.
Q. Would the proposed constitutional reform give Pinochet additional ways to evade prosecution?
A. The proposed reform would allow Pinochet to retire from the Senate, while retaining for life his senatorial privileges, including his salary and parliamentary immunity. Pinochet's lawyers would presumably argue that the procedures for lifting parliamentary immunity (desafuero) do not apply to ex-presidents, to whom the Constitutional reform would accord a special status.
Human Rights Watch has called on President Frei to abandon this reform proposal which adds an extra obstacle to Pinochet's trial in Chile. Unless Frei does so, the proposal is likely to become law in the final week of March.
Q. What legal devices will enable human rights activists to get around the amnesty law?
A. Judge Guzman ruled last year that the amnesty is not applicable to crimes involving abduction and "disappearance," since such crimes are "ongoing, unless the victim can be legally established to have died during the period covered by the amnesty decree (1973-1978).
Some nineteen victims of the Caravan of Death remain unaccounted for, and the perpetrators of these crimes therefore are not subject to amnesty. The Supreme Court unanimously confirmed this doctrine in July 1999, when it upheld the indictment on kidnapping charges of a former general and four senior former army officers who belonged to the Caravan of Death unit. Effectively, therefore, the amnesty could not prevent Pinochet from being tried for "disappearances," although it may shield him for prosecution for other crimes, such as torture and extrajudicial execution.
Human rights lawyers in Chile may also argue that the amnesty law is invalidated by the provisions of international human rights law, which establish that crimes against humanity may not be subject to amnesty or statutes of limitation. Judging from earlier decisions, however, the Supreme Court is unlikely to endorse this doctrine.
Q. Given Pinochet's status as a former army officer, would Judge Guzman not have to surrender the case ultimately to a military court?
A. Pinochet could contest Guzman's jurisdiction on these grounds, and the dispute over jurisdiction would ultimately have to be settled by the Supreme Court. Among the arguments the Supreme Court would have to take into account is whether the crimes were committed on military premises, and whether they could be considered "acts of service"by a military officer. The Chilean courts have traditionally given wide scope to military jurisdiction in such cases.
Q. Could Pinochet's lawyers block prosecution on humanitarian grounds, citing his ill-health or mental impairment?
A. Under Chilean law, even grave illness does not constitute legal grounds for the termination of legal proceedings. Only irreparable dementia or mental impairment may constitute such legal grounds. Judge Guzman is obliged by law to have Pinochet examined to establish whether he is mentally capable of facing trial, suffering from temporary disabling mental impairment (in which case the proceedings may be suspended), or irreparable dementia, in which case they would be terminated.
This examination is carried out by doctors attached to the state forensic service (Servicio Medico-Legal), which is independent of military control. If he requires permanent medical treatment, Pinochet could be admitted to Santiago's Military Hospital. Pinochet's British medical records do not have the same status in Chile as medical reports from an authorized forensic doctor, but probably would be considered relevant evidence by a Chilean court.