Definitive Dismissal of Proceedings against Augusto Pinochet Ugarte

(Translation by Memoria y Justicia)

Santiago, July 1, 2002

In compliance with article 544 of the Code of Criminal Procedure, the following decision is dictated on appeal:

WHEREAS: The appeal of the ruling of January 29 of the year 2001, beginning on page 5863 of the record, is here reproduced with the exception of its third, fourth, fifth, seventh, and eighth clauses which are eliminated and replaced by the following:

FIRST. That, as established in the second cause of the judgment under review, attorneys Pablo Rodriguez Grez and Gustavo Collao Mira, on behalf of Senator Augusto Pinochet Ugarte, seek temporary dismissal, or stay of proceedings in consideration of conditions of health that affect him at this time.

SECOND. That, the petition on behalf of the defendant, as read in the brief of 5863 pages, draws from constitutional guarantees of right to life, physical health, and psychological health, as set forth in the section one, clause N. 1, article 19 of the Constitution of the Republic of Chile as well as due process guarantees provided in the fifth section, clause N. 3 of the Constitution, that stipulate the principle of constitutional preeminence over all other laws. The petitioners add, that to protect due process, lawmakers set forth articles 47bis and 67 of the Code of Criminal Proceedings, articles 7 and 10 of the new Code of Criminal Procedure, and the International Pact of Civil and Political Rights of the United Nations and the American Convention on Human Rights, otherwise known as the Pact of San Jose, Costa Rica are granted full force of law.

THIRD. That, the defense affirms expert appraisal found that defendant Pinochet suffers from moderate vascular subcortex dementia subcortical vascular dementia "which has caused disturbances in memory and thought processes, a clinical condition that is always progressive." This situation places his life in permanent state of risk, impeding adequate defense in the case, for which reason, they seek compliance with the cited constitutional norms in view of their preeminence over any other law or regulation.

Thus, the defense argues that this Court should invoke article 10 of the new Code of Criminal Procedure, which, in their opinion, is fully in effect. The new procedural law should be applied in the absence of regulations that "prevent substantial encumbrance of the rights of the charged," as in that case, article 10 orders suspension of proceedings. The defense further seeks application of article 409, No. 3 of the Code of Criminal Procedure, as the defendant has fallen into a state of dementia, and as long as this condition persists, the case should be temporarily dismissed in his respect.

FOURTH. That, the primary petition to suspend proceedings, implying invocation of articles 7 and 10 of the new Code of Criminal Procedure, presumed to be in force, merits certain special considerations.

FIFTH. That, compliance to law, as stipulated by articles 6 and 7 of the Constitution, comprises a fundamental principle of the State that underlies the Republic's constitutional framework. The first article [6] establishes that "State institutions must comply with the Constitution and with laws enacted in conformance with the Constitution." The second [7] prescribes that in order to consider valid the actions of State institutions, these must vest their members with institutional competency "and in the manner prescribed by law." From this we understand that an essential condition for the existence of the constitutional state is that government offices must act and exercise their authority in conformance with the framework of the Constitution and laws, as the only way to safeguard not only fundamental individual rights, but also the operation of the State.

SIXTH. That, the principle of constitutional preeminence, by which laws are interpreted in conformance with the Constitution, is applied by the defense on the basis of the constitutional provisions previously cited, and compels the courts to interpret laws consistent with the Constitution. Constitutional preeminence also implies that individual laws derive full value and significance as a function and in the context of the Constitution. Moreover, the interpretation of law must be conducted with respect for the principle of judicial preservation to retain the intent of the lawmaker, who may be presumed to enact legislation in conformance with the Constitution. To the contrary, the judicial security required to exercise a right would not exist (Derecho Constitucional, Vol I., Mario Verdugo, Emilio Pfeffer and Hector Noguera., Ed. Juridica de Chile, 1994, p. 132).

SEVENTH. That, enactment of the Code of Criminal Procedure created a new system that presupposes the existence of a constitutionally mandated Public Ministry, and an entire procedural infrastructure different from the one in practice. These new institutions must make full employment of the newly created set of laws. The material cost to the State associated with building new structures has been a major factor preventing uniform implementation of the constitutional, procedural, and structural changes throughout the country, although this not the place for analyzing the reasons for this problem. Only in certain regions of the national territory is the new system in practice.

In recognition of this difficulty, law N. 19.519, which introduced the procedural changes to the Constitution, in 1997, created transitional provision 36, which established criteria for the gradual changeover. The second clause of this provision states "...the constitutional structural law of the Public Ministry and laws that complement these norms to modify the Court Structural Code and the Criminal Procedural Code, shall be applied exclusively to events that take place subsequent to the date these laws come into effect."

EIGHTH. That, the unequivocal provisions of the new procedural Code's article 483 undermine the employment the defense makes of regulations seven and ten of the Code. Article 483 indicates that the new code shall only be applicable to events that occur subsequent to the moment it enters into force. In accordance with article 484 of the new Code, the changed system shall come into effect in the various regions of the country on the dates therein indicated, beginning December 16, of the year 2000. Consequently, the provisions of the Code of Criminal Procedure referred to previously are not yet in force in the Santiago Metropolitan Region.

In the regions of the country where the new system is already implemented, the law is not applicable to events that took place before enactment of the reform. Given that the delay in putting the regulations in practice is due not only to explicit operational and structural procedural provisions but, especially to specific constitutional statute, it is incomprehensible how they can be interpreted either systematically nor teleologically without seriously infringing upon the Constitution that governs us.

NINTH. That, this interpretation is in not possible in light of the application of international treaties cited by Pinochet Ugarte's defense. The objective of such treaties is to ensure the defense of human rights and particularly the principle of due process. This seeks to prevent discriminatory application of laws and against persons who fall under their jurisdiction. Therefore, the State's main obligation is to respect all aspects of the principle of due process. Criminal procedural law in force in the Metropolitan Region governing events that occurred prior to the new procedural code contains sufficient regulatory safeguards to protect the rights of the accused and due process guarantees.

Examples of such procedural guarantees are found in articles 318bis, 320, 322, 324, 329, 330, 333, 334 and 336 of the former Code of Criminal Procedure, all of which are intended to ensure the rights of the accused. The defendant has made efficient use of these articles, to avoid placing his life at risk and has invoked existing laws to protect his individual rights.

TENTH. That, as a consequence of what has been stated in the preceding paragraphs, these judges have not dictated the suspension of the proceedings as sought by petitioners, as the laws invoked by the defense are not presently in force in the Metropolitan Region and because the circumstances under investigation in this case took place long before enactment of the new procedural system.

ELEVENTH. That, as secondary petition, the attorneys of Augusto Pinochet Ugarte seek temporary dismissal of the case. The defense invokes clause N. 3 of article 409 of the Code of Criminal Procedure, arguing that the defendant suffers from a dementia that prevents his adequate defense. Consequently, "he has not been heard with the depth, detail and rigor merited by the nature of the charges, due to his physical impairment, resulting from the afflictions that affect him."

TWELFTH. That, in order to arrive at an adequate conclusion regarding the issue posed by this case, we must make a fundamental point about the situation that is the subject of this discussion. The defense never petitioned for a stay of proceedings on the grounds that Pinochet Ugarte's condition of dementia qualifies him for exculpation from penal responsibility in the actions under prosecution. Even a superficial knowledge about the case will infer that this is not possible.

At the time the actions under investigation were committed, shortly after the military pronouncement took place and in the defendant 's exercise of authority, no elements whatsoever, not even minimal, suggest that Pinochet could have suffered from dementia at that time. This compels us to reach a determination regarding the specific petition. That is, whether the accused currently is affected by a condition of mental health that obliges the court to dismiss the case against him and suspend proceedings because that condition, which would be mental incapacitating, impedes him from defending himself.

THIRTEENTH. That, in the petition stated on page 89 of the writ in the court record of medical examinations before us, the defense of Augusto Pinochet Ugarte petitioned for an appraisal of the defendant 's state of health. This petition was accepted and dictated by the first appeal trial before the Santiago Court of Appeals. The court record, on page 279, dictated that to arrive at a resolution of the matter, "a neurological evaluation must be conducted to determine whether appreciable organic change was produced in the defendant, aggravated by an intervening disease, that may affect his mental health." And, "in addition, the defendant shall be subjected to neurological appraisal for the purposes previously indicated." The court concludes by ordering that expert witnesses of the Legal Medical Service conduct these exams as well as two neurological experts of the Forensic Medicine Department of the University of Chile.

A reading of the legal medical evaluation that accompanies the court record on page 564 of the respective examinations confirms that the tests were conducted in order to determine whether Augusto Pinochet presents a psychosis or dementia "and in the event that these conditions exist, determine their severity." The Legal Medical Service staff appointed to conduct the appraisals were the following four doctors: Hugo Aguirre Astorga in his capacity as neurologist and the psychiatrists Slavko Benusic Carevic, Inge Onetto Mu–oz and Siomara Chahuan Chahuan. Neurologists Manuel Fruns Quintana and Violeta Diaz Tapia participated in the medical evaluations on behalf of the Clinical Hospital of the University of Chile. Other expert witnesses who participated as observers of the medical evaluations were the neuropsychiatrist Luis Fornazzari Nu–ez and neurologist Sergio Ferres[r] Ducaut [d]. All medical professionals were appointed with no objections from either party.

FOURTEENTH. That, before considering the analysis of expert testimony produced in the record of this case, we must unravel certain concepts described by the medical science of psychiatry. Such is the only way to elucidate the meaning of the terminology madness, dementia and mental incapacity, which are employed by our Penal Code and our Code of Criminal Procedure as similar concepts.

FIFTEENTH. That, the authors' descriptions of dementia indicate that it is a disease in which the intelligence or mental capability, is disturbed or diminished. Karl Jaspers, one of the first psychiatrists to describe the condition, states that dementia is a type of disturbed intelligence. He described organic dementia as a process in which the memory and attention span, conditions prerequisite to intelligence, tend to be destroyed. The descriptions add that sometimes the mechanisms of language are also affected. In such cases, it states, the entire intelligence capacity may disintegrate progressively due to the process occurring in the brain.

Finally, persons afflicted with this illness may have a reduced reasoning capacity and reduced attention span. (Psicopatologia General. Editorial Beta, Buenos Aires, 1966, p.256). In his description of psychiatric disturbances associated with cerebral lesions, Oskar Diethelm states that the fundamental psychopathological symptoms are disturbed recent and long-term memory. He adds that the course of the disease is progressive and leads to deterioration. (Tratamiento en psiquiatria. Editorial Paidos. Buenos Aires, page 334). Our Penal Code and Code of Criminal Procedure employ the terms madness, dementia and mental derangement as similar ideas.

SIXTEENTH. That, other scientists describe deterioration of memory as a basic characteristic of both the Alzheimer type of dementia as well as vascular dementia and other classes of dementia associated with other diseases, or due to the effect of narcotics. These authors explain that the condition involves loss of the capacity to learn new information or remember information previously learned. Short-term memory tends to deteriorate, although long-term memory is retained during the early stages of the disease. The loss of memory may prevent the patient from performing work and daily tasks. It may also be accompanied by memory lapses covered by confabulations (Stories are invented in order to hide memory deficit.) (Allen Frances, Michael B. First, and Harold Alan Pincus. DSM-IV. User's Guide, Masson, Barcelona, 1997. P. 138)

SEVENTEENTH. That, criteria for the diagnosis of dementia is said to include memory loss that causes significant deterioration in the individual's actions and is associated with at least one of the following cognitive alterations: 1) Aphasia, a language disorder; 2) Apraxia, a deterioration of mobility although the motor function remains intact; 3) Agnosia, the failure to recognize or identify objects, although the sensory functions are intact and 4) Alteration in the ability to carry out actions (e.g., planning, organization, sequential actions, and abstraction). In the case of vascular dementia, there must also exist evidence of cerebral vascular disease, confirmed through physical examination and lab tests. (Allen Frances and Ruth Ross, DSM-IV. Case Studies, Clinical Guide for differential diagnosis; Masson, Barcelona, 1999. p. 44)

EIGHTEENTH. That, as described in the reports, the examinations led the expert witnesses to important conclusions that these judges deem appropriate to briefly review, presenting only the essential details needed in order to understand the doctors' decision.

NINETEENTH. That, upon conducting the psychiatric examination, experts confirmed that the individual speaks coherently although he can become evasive or refuse to respond. He tends to enter into detail and his responses are often concrete, but lower than expected for his level. He evidences a short attention span and a failure to focus attention, which may be observed in his repetition of an automatic series and has a significantly diminished short-term memory. Inductive reasoning tests (similarities, differences, etc.) reveal that his abstraction capacity and judgment are diminished. The subject displays reduced interest in activities that previously attracted him, a state of boredom, a tendency to withdraw, contained anger and rumination of ideas, and capacity for self-criticism is reduced. These factors lead experts to conclude that the subject "presents a reduced intellectual level, with cognitive deterioration more advanced than expected for his age, corresponding to a moderate level dementia."

TWENTIETH. That, the neurological evaluation practiced through an interview with the defendant verified that he correctly recognizes doctors with whom he was previously acquainted. His speech evidences clear signs of brain damage, manifesting itself in persistence, apathy, concern for physical things rather than abstract concepts, and unnecessary details. At times he loses the trail of thought and forgets uncommon words. He mistakes the date and day of the week; and forgets two out of three words. When told to perform three tasks, he remembers to perform only two. His attention span and concentration are adequate initially but decline as he tires during the test, with evident exhaustion and subsequent decline in test results. He has severe difficulty in resolving problems involving similarities and differences.

He responds inadequately to problems posed to evaluate judgment. He is incapable of functioning independently in work activities at large. His interests are very narrow and he only maintains the simple nucleus of the home. He abandons more complex tasks such as reading; does not finish reading a book because he forgets the subject he has been reading about; and replaces reading for tasks in his library such as arranging books on the bookcase. He requires assistance in dressing, in his personal hygiene and in care of his personal things.

These facts led to the conclusion that the accused "is in the category of moderate dementia." Moreover, the segmentary neurological examination confirmed that he walks with marked difficulty, loss of posturual reflexes and other symptoms that "indicate multifocal cerebral damage, predominantly subcortical, basal and of the frontal lobe.

TWENTY-FIRST. That, lastly, a neuro-psychological evaluation consisting of four tests complemented and confirmed the diagnostic hypothesis posed by the neurologists and the psychiatrists for the purpose of obtaining evidence that could point to a more precise diagnosis.

TWENTY-SECOND. That, the test (Luria-Nebraska Test Battery) establishes the precise location of the neurological damage. That even though his intellectual capacity was found to be within the expected range for his chronological age, there is evidence of generalized brain damage. The qualities most affected by this damage are memory, learning ability, logical memory, short-term memory, and writing letters and words.

Furthermore, he was unable to touch his thumb to his fingers in order and sequence, and was unable to repeat the action of pressing his middle finger with the thumb for two seconds (apaxia). He has difficulty in repeating and writing simple sentences, fails in those activities which involve remembering an immediately prior sensorial stimulus. He also failed in activities involving analysis and identification of a thematic picture (He was shown figures in mistaken order and asked to rearrange them in the correct order.). He also showed difficulty in the ability to form analogies, find opposites, and find the logical relationship between specific objects and the group to which these objects belong. He fails to answer adequately when asked to describe the similarities between pairs of objects and could not identify a word that does not belong to a same group.

TWENTY-THIRD. That, in the test to assess cognitive disorders, determine the existence and degree of dementia (SKT Kurz Syndrome Test), the subject obtained a score of 21, which situates him "according to the standarized Chilean table, in the category of moderate dementia." In the test evaluating abstraction capacity and cognitive flexibility in regard to generating and substituting categories (Wisconsin Card Sorting Test) he persisted in a number of answers that show significant damage.

The incapacity verified by a series of tests leads to the conclusion "that 95 percent of his peers in age and educational level possess a higher and better score." From the Rorschach test, the conclusion is reached that his reasoning system is predominated by excessive distance and theoretical perception of reality. This suggests a decline in common sense and ability to connect with the more pragmatic and concrete aspects of reality. Although capable of elaborating an opinion about reality, he has lost the sense of reality. All the above leads the experts to conclude "that there exists a deterioration of his cognitive functions, specifically regarding attention span, concentration, and memory (particularly recognition and short-term memory). Moreover, he has a loss of language functions and intellectual processes, especially in carrying out actions."

TWENTY-FOURTH. That, the summary of the tests described above and other complementary tests performed on Pinochet Ugarte indicate that he is an 85-year-old patient, who suffers from hypertension and diabetes, with a history of strokes and that the result of the "neurological, psychiatric and neuropsychological examinations supports evidence of a dementia of vascular origin in moderate degree, in accordance with international classifications."

TWENTY-FIFTH. That, furthermore, from the file of the 546-page initial medical report, that is incorporated to the court record at page 5783, the professionals concur with the final report, but they indicate that Pinochet Ugarte suffers from light to moderate dementia. All the experts concur that he retains long-term memory but his responses are not credible, that he fabricates answers and it is not clear at any given moment if his answers correspond to reality.

The experts also agree that he is affected by an apathy that distances him from reality and does not grasp what is happening. Doctor Ferrer has even established that he lacks adequate reasoning capability, and selects information from previous files that frequently have no relation with reality. The court record also includes the statement by doctor Fornazzari that the medical and psychological proceedures were conducted in conformance with the highest of international standards. Because he had to return to Canada, Fornazzari submitted a written statement that later was incorporated at page 550 when the record was drawn. The doctor's statement presents a diagnostic of mild to moderate subcortical dementia of vascular origin.

TWENTY-SIXTH. That, six experts, including two observers, all of whom are authorities in their field, conducted the medicial evaluation referred to in the previous clauses, guided by principles of the science which they profess. Thus, their findings may be considered sufficient proof that Augusto Pinochet Ugarte suffers from mental derangement. That, one expert observer, Dr. Fornazzari believes the subject is affected by light to moderate dementia, in contrast to his colleagues who believe it is a moderate dementia, is unimportant, in the opinion of the court, for he concurs with the fundamental diagnosis of dementia. Neither shall the court give importance to Dr. Claudio Molina Fraga's neuropsychiatric report incorporated at page 3632. That report lacks relevance as it was unsolicited by the court and lacks expert quality, comprising a mere commentary on the expert evaluation conducted in this proceeding.

TWENTY-SEVENTH. That, the facts submitted above give rise to the conviction that, as stated in whereas twenty-four, Augusto Pinochet Ugarte suffers from subcortex dementia of vascular origin in moderate degree, a mental illness consistent with vascular dementia. In effect, the finding meets requisites for giving course to diagnosis of dementia described previously in the seventeenth point. The derangement was acquired in years after the crimes under investigation were committed, for which reason the regulations set forth in Paragraph 2, Title III, Book IV of the Code of Criminal Procedure, which establishes the procedure for derangement, are applicable in this case.

TWENTY-EIGHTH. That the legal provisions contained in Paragraph 2, referred to previously, are regulations that are intended to protect defendants' right to be tried with no infringement of due process guarantees. This legal system was born from the concern of legislators for safeguarding equality of all citizens who are called upon to defend themselves in court from charges against them. Thus, when the court encounters a situation in which the full exercise of due process rights is impeded, article 349 of the Code of Criminal Procedure compels the judge to order a mental examination of the defendant if older than seventy years of age, regardless of the penalty associated with the crime with which he is charged.

TWENTY-NINTH. That, from the laws previously cited, it may be deduced as indicated by article 684, that should a defendant fall into a state of mental incapacity or derangement, the judge must decide whether to continue with the proceedings or if dismissal is not appropriate. In order to reach this decision, the magistrate must determine consider the nature of the crime and ascertain the nature of the illness, shall commission a legal medical report for this purpose. In order to determine whether to continue the proceedings against the defendant, as provided in article 686 of the Procedural Code that corresponds to the matter, the disease must be incurable, and, if confirmed, the court shall dictate permanent dismissal of proceedings. If, on the contrary, the mental illness is curable, the court shall dictate temporary dismissal, and resume proceedings once the defendant has recovered reason.

THIRTIETH. That, it is evident that the serious nature of the crimes under investigation in this case holds a great responsibility for the judge. The nature of the crimes is of a very serious complexity and the investigation of these crimes so many years after the events transpired is difficult and arduous. The interrogatories must be exhaustive and highly demanding in order to obtain the greatest possible information. Through the defendant's testimony, the investigation must verify the facts and his involvement as well as the involvement of other persons. Upon informing the defendant of the charges against him and of the evidence that incriminates him, the court must listen to defendant's answer.

THIRTY-FIRST. That, defendants who testify in a case of this nature must be in full possession of their mental faculties in order to contribute those elements needed to obtain a degree of success and in order to avail themselves of their rights. A person who does not have full use of his mental faculties is not capable of testifying. While it is true that legal representation may be delegated to an attorney, this does not replace the opportunity to personally testify with full use of reasoning. Nor is such a person capable of testifying on the facts, modifying his testimony, proving that the events did not occur or that he had no involvement in the events.

THIRTY-SECOND. That, as stated in whereas twenty-six, defendant Augusto Pinochet Ugarte suffers from mental derangement known as vascular dementia. As previously described in motifs nineteen through twenty-three, this condition produces symptoms that cause the patient to suffer a cognitive deficit, manifested in memory loss, as described in reflection nineteen. This condition has resulted in significant deterioration in his actions, preventing him from organizing relatively complex actions required to carry out a task (such as touching his fingers, described in paragraph twenty-two). The condition has also produced an alteration in the capacity to act, that is, in planning, organizing, carrying out sequential operations, and abstraction, as stated in sections twenty through twenty-three. This may be observed in his failure to complete sequential tasks, his inadequate response to problems posed to test reasoning, inability to function independently in work activities in his community, and in his abandonment of more complex activities such as reading.

THIRTY-THIRD. That, moreover, this mental condition, in the words of the doctors cited in whereas fifteen, may eventually and progressively cause degeneration of intelligence and may lead to irreversible deterioration. This is congruous with the various encephalic vascular accidents confirmed by brain scans and the patient's clinical history, which, if continue, would augment the loss. For this reason, it is the opinion of these judges that the mental illness from which the accused suffers is incurable.

THIRTY-FOURTH. That, the mental problems of Pinochet Ugarte, in the opinion of these magistrates, affect his ability to stand trial. As a person whose ability to act is encumbered, he is not in sound mind to face a criminal proceeding. In light of what has been previously described in whereas twelve, however, this does not refer to his imputability for the purposes of penal responsibility in the actions with which he is charged. In consideration of what has been stated, in keeping with article 686 of the former Code of Criminal Procedure, and acting officially in conformance with its legal authority, this Court must resolve not to continue proceedings against Augusto Pinochet Ugarte; and, consequently, shall dictate definitive dismissal of proceedings in his favor. In the absence of reasons to believe that his freedom comprises a danger to society, or, in the terms of article 688 of the Code of Criminal Procedure, the defendant shall remain free at large.

THIRTY-FIFTH. That, for the reasons here expounded in the ruling, these judges dissent from the opinion of the Prosecutor in his report at page 6280 in the sense that the dismissal of the case should be temporary.

Due to these considerations and in light of provisions set forth in articles 408 N¡6, 684, 686 and 688 of the Code of Criminal Procedure, the ruling set forth as of page 5868 and appealed from January twenty-nine of last year shall be revoked, and the case shall be declared partially and definitively dismissed in favor of Augusto Pinochet Ugarte.

Resolved with an opposing vote from Judge Jose Luis Perez Za–artu, who advocated upholding the resolution appealed, in virtue of grounds that he alone sustains.

Enter judgment of record and incorporate to files in view.

Written by Judge Alberto Chaigneau del Campo. Rol N¡2986-01. Dictated by Judges Alberto Chaigneau del C., Enrique Cury U., Jose Luis Perez Z., Milton Juica A. and Nibaldo Segura P.

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