President Ricardo Lagos Escobar
President of the Republic of Chile
Palacio de la Moneda
Dear Mr. President,
I write in regard to the measures your government is currently considering to expedite judicial investigations into the grave human rights violations committed under military rule, and to provide further means of reparation and compensation to relatives of the victims.
Although much remains to be done to clarify the fate of victims and to hold accountable those responsible for the abuses, the courts have undoubtedly made considerable advances in recent months. Most of the indictments are the result of investigations conducted by special judges who were appointed after the Mesa de Diálogo and whose focus is human rights cases.
Statements made in January by the commander-in-chief of the army, Gen. Juan Emilio Cheyre, to the effect that human rights violations committed by the armed forces during the military government "had no justification" are helpful. His view that the path to social peace lies in respecting the verdicts of the courts is worth recalling in the context of the current discussions. We also welcome the recent declaration made by eight retired generals who held command positions during the military government acknowledging the responsibility of the armed forces for human rights abuses. We hope that statements like these will encourage those with information on human rights violations to provide it to the courts.
From a legal point of view, advances in court investigations have been possible largely due to the doctrine, now widely adopted by the courts, that "disappearances" must be considered an ongoing crime until the remains of the victim have been found or the circumstances of their death clarified. The courts have thus allowed criminal investigations to continue despite the amnesty law introduced by the military government in 1978. This doctrine is consistent with international standards regarding the investigation and punishment of grave human rights abuses. As the Inter-American Court of Human Rights ruled in the Barrios Altos case in 2001: "it is unacceptable to use amnesty provisions, statutes of limitation, or measures designed to remove criminal liability, as a means of preventing the investigation and punishment of those responsible for gross violations of human rights such as torture, summary, extra-legal or arbitrary executions, and disappearances."
Despite the criticism this doctrine has attracted from some political sectors, Your Excellency's government has rightly abstained from intervening in what is properly an issue for the courts to decide.
There is little prospect that the judicial investigations will soon be completed, due to the enormous difficulties in clarifying the fate of victims and the whereabouts of their bodies. The recovery and identification of remains was prevented in some cases by their exhumation and secret disposal by military personnel years after the victims' presumed execution. As the armed forces revealed in the Mesa de Diálogo, the remains of many were dropped from aircraft into the ocean, making their recovery impossible. The delays and difficulties in ascertaining what happened to these victims have caused great distress to their relatives. There is even less information on the fate of hundreds who "disappeared" at the hands of the DINA, General Pinochet's secret police. Under these circumstances, there can be no question but that judicial investigations must continue, and every possible effort must be made to expedite them and make them more effective.
First, the courts must investigate the circumstances of the secret removal of bodies and hold accountable those responsible for covering up evidence of grave human rights abuses. We welcome the recent indictment of five former soldiers for the illegal exhumation in 1978 of the bodies of victims killed in September 1973 and buried in Fuerte Arteaga. Valuable information may be obtained in these investigations that throws light on how victims were killed and what happened to their bodies afterwards.
We support legislation to allow the courts to consider the cooperation of military personnel in providing valuable information on "disappearances" or the disposal of bodies as a mitigating circumstance when fixing penalties. Those who refuse to cooperate in providing information should receive stiffer sentences. Measures to this effect would provide an incentive for those charged with lesser crimes to cooperate and assist the investigations
Second, any time limits on judicial investigations should be strictly avoided. In its proposal on human rights submitted to Your Excellency on June 20, the Unión Democrática Independiente (UDI) has suggested that court investigations be conducted within a fixed period, after which the judge would determine whether the victim was still alive and held captive, or must be presumed to be dead. We believe that setting a time limit on the invesigations may lead to cases being closed prematurely, before the investigations have found evidence to determine the death of the victim or the identity of those responsible. Moreover, this proposal could have the effect of encouraging those who have information to remain silent, in the knowledge that on expiry of the time limit they would be beyond reach of the law.
Third, judges should base their findings on the fate of victims on evidence pertinent to the case in hand, not on a "conviction" based in part on extrapolation from other cases, as the UDI proposal suggests. Cases should in no circumstances be closed on the strength of a presumption. If conclusive evidence of death is lacking, and/or the identity of those responsible unclear, the investigation should remain open. .
We believe that the Medical-Legal Service (SML) should be provided additional resources to carry out its forensic work to identify remains and determine the cause of death. The performance of the SML and its needs should be carefully monitored. We also strongly support continuing the mandate of the special judges dedicated exclusively or preferentially to human rights cases..
In regard to provisions for reparation and compensation for the relatives of victims of human rights violations, we were extremely encouraged to learn that your government is giving serious consideration to establishing a commission to investigate cases of torture under the military government and draw up a list of victims who would receive special benefits in compensation for their suffering. The establishment of such a commission, which has long been advocated by the Ethical Commission Against Torture, would be an important breakthrough. Despite the landmark work done by the Rettig Commission and its successor, the full scope of the phenomenon of torture has never been the subject of an official investigation in Chile. The thousands of individuals who survived torture were not included in their reports, and they have never received compensation from the state. The formation of a commission on torture would also have an important deterrent effect.
In addition to these new initiatives to investigate cases of torture and the possibilities of reparation to torture victims, we believe that your government should review and increase benefits and compensation to the relatives of those who were killed by state forces or by armed groups opposed to the state during the military government.
Finally, we hope that your government will tackle another legacy of military rule: the over-extension of military justice to include crimes committed by civilians as well as non-military crimes committed by military personnel. The competence of military courts should be limited to purely military offenses and civilians should be judged exclusively by civilian courts. Human rights violations committed by military personnel should also be a matter for civilian courts. We welcome the bill to limit the jurisdiction of military courts recently presented by Congressman Juan Bustos and others. We urge Your Excellency to treat the reform of military justice as a priority human rights issue in the government's legislative program.
Thank you for your attention to these important matters.
José Miguel Vivanco
Cc: José Miguel Insulza, Minister of the Interior
Cc: Francisco Vidal Salinas, Ministro Secretaría General de Gobierno
Cc: Luis Bates Hidalgo, Minister of Justice
Cc: Francisco Huenchumilla Jaramillo, Ministro Secretaría General de la Presidencia
Cc: Dra. Michelle Bachelet Jeria, Minister of Defense
Cc: María Soledad Alvear Valenzuela, Minister of Foreign Relations