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RIGHTS-CHILE: Ruling Paves Way for Trials in Forced Disappearances

Gustavo González

SANTIAGO, Nov 17 2004 (IPS) - Chile’s Supreme Court handed down a landmark ruling Wednesday that says the amnesty law passed by the de facto military regime of Gen. Augusto Pinochet (1973-1990) cannot be invoked by the former heads of the dictatorship’s secret police.

Chile’s Supreme Court handed down a landmark ruling Wednesday that says the amnesty law passed by the de facto military regime of Gen. Augusto Pinochet (1973-1990) cannot be invoked by the former heads of the dictatorship’s secret police.

The unanimous verdict by the second chamber of the Supreme Court also sets an important legal precedent: that forced disappearances amount to “kidnappings”, to which no statute of limitations or amnesty applies, until the victim – or the victim’s body – appears.

Retired Gen. Manuel Contreras, who headed DINA, the secret police in the early years of the dictatorship, from 1973 to 1978, was previously sentenced to 12 years in prison by a lower court, in connection with the January 1975 abduction and disappearance of Miguel Angel Sandoval.

Contreras’ lawyers had sought an annulment of the sentence, but Wednesday’s Supreme Court verdict rejected that plea.

The 12-year sentence for Contreras, who already served seven years in prison for the 1976 assassination of former foreign minister Orlando Letelier, was upheld by the Santiago Appeals Court in January.

At that time, the Appeals Court also ratified the 12 and 10-year prison terms handed down to retired Colonel Manuel Moren and retired Brigadier-General Miguel Krassnoff, as well as the five-year sentences for retired Captain Fernando Laureani and retired Carabineros (militarised police) Lieutenant-Colonel Gerardo Godoy.

Moren, Krassnoff, Laureani and Godoy were all senior DINA officials.

The retired officers’ lawyers sought the annulment of the sentences, invoking the amnesty law decreed by Pinochet in March 1978, which shielded members of the armed forces and police from legal action for human rights violations committed until that date, and after the Sep. 11, 1973 coup d’etat that overthrew democratically elected socialist President Salvador Allende.

Sandoval, a 26-year-old activist with the Movement of the Revolutionary Left (MIR), was seized by security agents on Jan. 7, 1975.

According to testimony from other political prisoners, he was last seen in very bad shape in Villa Grimaldi, one of DINA’s clandestine torture centres in Santiago.

The Supreme Court ruling ratifies an argument that has been gaining strength since 1990, in verdicts issued by several judges, according to whom kidnapping is an ongoing crime until the victim appears dead or alive.

Human rights lawyer Nelson Caucoto, who represents the Sandoval family, said the ruling sets a precedent to be applied by all of the special prosecuting judges currently investigating human rights crimes, especially those who are handling the cases of forced disappearance, which date back to the early years of the de facto regime and were thus covered by the amnesty.

The report released by a Truth and Reconciliation Commission in 1991 found that around 3,000 people were killed under the dictatorship, including 1,119 who were “disappeared”.

Very few of the bodies of the “disappeared” have been found. According to testimony by members of the military and reports that the army itself made public in January 2001, many of the bodies were dumped into the sea. In other cases, the dictatorship ordered the removal of the remains of victims, to prevent them from being discovered.

President Patricio Aylwin (1990-1994), who initiated the transition to democracy, did not address the demands of victims’ families to overturn the 1978 amnesty. However, he was the first to suggest to the Supreme Court that the amnesty should not apply to cases that were labelled “kidnappings”.

Debate over this issue has strained civilian-military relations, and hindered all governmental and legislative attempts to proceed with hundreds of pending trials involving disappearances, in which some 300 former members of the military, the DINA and other repressive forces are implicated.

Lorena Pizarro, the president of the Association of Relatives of the Detained-Disappeared, applauded the Supreme Court’s decision to “reject the shameful application of the amnesty law.” As a result of this ruling, “we might finally be able to see the people responsible for these human rights violations and genocide behind bars,” she added.

Caucoto commented that with this ruling, Chile has fully entered the 21st century. The Chilean Supreme Court really had little choice but to reach this decision, he said, given the fact that crimes of this nature are being prosecuted all over the world, and that impunity is no longer being allowed to stand.

One of the most significant aspects of the ruling is that it invokes the Inter-American Convention on Forced Disappearance of Persons, adopted by the Organisation of American States in 1994 and in force since March 1996, despite the fact that Chile has still not ratified the treaty.

The Supreme Court also stated that Sandoval’s disappearance occurred when Chile was under a wartime state of siege, decreed by the dictatorship, which means that the country was subject to the 1949 Geneva Conventions and their provisions for the humane treatment of prisoners of war.

This historic ruling has come at a time when the issue of human rights is a particularly sensitive one in Chilean society, following the presentation to President Ricardo Lagos last week of a report compiling the testimony of over 35,000 Chileans who were detained and tortured under the Pinochet regime.

The former dictator, who turns 89 on Nov. 25, was also involved in legal proceedings this Wednesday, through statements given in a court of appeal that is examining a new request for lifting the former dictator’s immunity from prosecution.

The proceedings are aimed at trying Pinochet for his role in the 1974 assassination in Buenos Aires of General Carlos Prats, his predecessor as the head of the armed forces, who was killed along with his wife, Sofía Cuthbert, in a terrorist attack organised by DINA.

The court postponed passing sentence until next week, while a ruling is also being awaited from Judge Juan Guzmán as to whether Pinochet can be tried in another case or if the charges should be dismissed based on the testimony of medical experts who have diagnosed him as suffering from mild dementia.