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Chile: Court Ruling May Define Future of Rights Prosecutions

Key Doctrine on Pinochet-Era 'Disappearances' at Stake

(Santiago) — The Chilean Supreme Court on Friday will hear an appeal by former military officers convicted for the “disappearance” of an opposition activist in 1975. The court’s ruling may be decisive in determining whether Chile will finally bring to justice those responsible for serious human rights violations following the 1973 military coup, Human Rights Watch said today.

The court is considering an appeal lodged by a former intelligence chief against his conviction for the “disappearance” of an opposition activist. The court will examine the validity of a legal interpretation of Chile’s 1978 amnesty decree that has allowed hundreds of former military and police officers to be prosecuted in the last few years for “disappearances” and killings during the first five years of the Pinochet dictatorship.

“This promises to be a historic decision,” said José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch. “Chile’s top judges should fully back the efforts made by their colleagues to clarify these terrible crimes and hold those responsible accountable.”

Among the issues the court must resolve is the validity of the “permanent crime” doctrine, which holds that enforced disappearance is an ongoing crime until the victim’s remains have been recovered or the fact of death established. In recent years special judges appointed to investigate killings and “disappearances” under military rule have repeatedly cited the doctrine as grounds for side-stepping an amnesty decreed by the military government in 1978 to protect officers from facing trial for human rights abuses. They have charged about 250 officers—and obtained 15 convictions—for crimes committed during the period covered by the amnesty.

In the doctrine’s best-known application, Judge Juan Guzmán indicted General Pinochet for kidnapping in December 2000. In July 2002, however, the Supreme Court terminated the prosecution after deeming Pinochet mentally unfit to stand trial.

The case now before the Supreme Court is an appeal by Pinochet’s former head of intelligence, Manuel Contreras, and several other army officers against their conviction for the “disappearance” of Miguel Angel Sandoval, a 26-year-old tailor. Secret police agents abducted Sandoval in January 1975 and held him in secret detention in the Villa Grimaldi, a clandestine camp in Santiago, where he was tortured and later “disappeared.” Sandoval was one of 119 missing detainees who were later falsely reported in the press to have been found dead in Argentina, a ruse concocted by the secret police to cover up their secret execution.

Contreras’s lawyer is expected to argue that the “permanent crime” doctrine is a legal fiction, and that there is no evidence that the victim is still being held captive. In December 2003, a Santiago Appeals Court panel accepted this argument when it dismissed charges against Contreras in a separate case. Most other appeals court panels, however, have upheld the “permanent crime” thesis.

The 21-judge court will also hear lawyers representing the victim and the Council for the Defense of the State, a legal body that represents state interests in judicial proceedings. Normally, criminal appeals go before the court’s criminal chamber, but on this occasion the court accepted a request from Contreras’s defense lawyer to hear the case in plenary. Although jurisprudence is not legally binding in Chile, a decision of the full Supreme Court carries great weight and could have a decisive impact on future human rights cases.

“The prosecution of these crimes is fully consistent with the principles of international law,” said Vivanco. “The Supreme Court should uphold those principles.”

A fundamental principal of international human rights law is that crimes against humanity are not subject to statutes of limitation or amnesties. In 1999 the U.N. Human Rights Committee stated that Chile’s amnesty decree “prevents the State party from complying with its obligation … to ensure an effective remedy to anyone whose rights and freedoms under the Covenant have been violated.” Last week, on May 19, the U.N. Committee against Torture issued a report criticizing Chile for failing to abolish the amnesty decree. The Inter-American Commission on Human Rights declared in 1996 and again in 1998 that the Chilean amnesty decree is incompatible with the Chile’s international obligations under international law.

The appeal court that convicted Contreras based its decision in part on Article 3 of the Inter-American Convention on Forced Disappearance of Persons, which states specifically that “this offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined.” Chile has signed this treaty, indicating a commitment to abide by its principles.

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