with Attorney Hugo Gutierrez
9, 2001 the Sixth Chamber of the Santiago Court of Appeals
ordered the temporary and partial dismissal of Augusto Pinochet's
indictment in the Caravan of Death case. The ruling would
exclude him from the investigation headed by Judge Juan Guzman
of the homicides and abductions in which Pinochet was implicated,
unless the Supreme Court accepts plaintiff appeal motions.
Hugo Gutierrez, one of the prosecuting attorneys, offers his
appraisal of the case.
did the prosecution respond to the Court's ruling?
August 2001 I filed a motion to dismiss, which Juan Pavin
and Juan Subercaseaux followed with a second motion to dismiss.
The two motions have been joined and will be considered in
the same hearing. These motions state three reasons to annul
the Court of Appeals decision to temporary dismiss the Pinochet
indictment: First, the ruling failed to explicit the legal
grounds for the temporary dismissal. Second, the ruling applied
a law which was not in effect at the time, and, third, we
object that the Court found Pinochet to be not of sound mind.
attorney Alfonso Insunza filed a motion to review the ruling
on the basis of its unconstitutionality. The motion indicated
that a legal provision had been incorrectly and applied, as
the new Criminal Procedures Code cited in the court ruling
has not come into effect in the Santiago Metropolitan Region.
This also forms part of our argument in the motions to dismiss.
motion to review must be considered first even though it was
filed after the other two. If the motions to dismiss were
considered first and were rejected, no further remedy would
be possible. The case would be closed, and the motion to review
could not considered.
is happening with the case now?
These motions are pending before the Supreme Court. And the
Supreme Court has its reasons for not wanting to speed up
the procedure. The indictments of the other defendants remain
unchanged. We are all waiting. I have the impression that
a decision exists to let these appeals lie, but sooner or
later the court will have to move on it.
the temporary dismissal a judicial solution to a political
believe the temporary dismissal of the Pinochet indictment
is a negotiated way out. What happened in the Pinochet trial
is the consequence of the kind of political transition we
have in this country. Our country has the degree of justice
that the political transition permits us to have. We advanced
all we could in the Pinochet case, but we have reached a limit.
results have been good, although our expectations were much
higher. Still, common sense said that we would not be able
to get very far in bringing Pinochet to justice. What happened
is that Pinochet accepted the most indignant way out of all:
he end up as a criminal madman. He failed to weigh this out
in historic terms. Certainly, it favors him in the immediate
future, but in the long term it will hurt him tremendously.
defense never argued that Pinochet was innocent of charges.
right. His defense argued he was affected by certain physical
and mental conditions that impeded him from facing trial.
In the beginning, both in the immunity hearings as well as
the criminal trial, but principally in the immunity hearings,
the defense always argued that Pinochet was not in condition
to physically face a trial. Later, we noted a change in the
defense strategy. They looked for a solution tailor-made to
fit Pinochet and that turned out to be temporary dismissal
for madness and dementia. Pinochet was the sole beneficiary
of that solution. No other defendant could benefit from it.
The indictments stand for all the other defendants and it
is quite possible that all of them will be convicted.
cases against Pinochet appear to have been filed at an opportune
moment for human rights cases.
arrest of Pinochet in London opened the way to excellent conditions
in Chile for breaking the impunity human rights violators
have enjoyed. Indeed, the Poblete
Cordoba case is a good indication that jurisprudence is
on the road to preventing impunity. Yet the possibility of
depriving Pinochet of congressional immunity and charging
him with a crime were practically null. The existence of a
positive climate for a more progressive jurisprudence in human
rights that permits prosecution of human rights offenders
is a direct result of the Pinochet arrest. Pinochet's arrest
- outside Chile - allowed us to make a qualitative leap in
justice and opened up the possibility for new cases, while
reactivating old ones that law dormant many years.
order to bring Pinochet back to Chile, the government of the
Concertation was compelled to demonstrate before the whole
world that justice was possible in our country. The Chilean
judiciary also had to play its part in showing the international
community that human rights violators, and Pinochet in particularly,
could be brought to trial here.
does the case tell us about judicial independence of the Chilean
independence of the Chilean judiciary is quite relative. But
this is nothing new. The President in conjunction with the
Senate must approve the annual judiciary budget. The judiciary
has always reflected the politics of the government in office.
And the government in office at this time has certainly sought
to reassure the Armed Forces, specifically the Army, that
its commander would not be brought to trial. Such have been
the politics of the first and second governments of the Concertation.
The current government is no exception.
the judicial branch also reflects the disposition to avoid
annoying the military. But this posture eroded considerably
when both the executive and judicial branches had to give
signs that Pinochet could be tried in Chile.
believe the judicial branch has gained certain autonomy from
the executive branch. To the extent that the judiciary is
able to distance itself from political considerations, this
will be good for the courts. The judicial branch should serve
to put government politics in practice.
has the Caravan of Death case contributed to the judicial
case against Pinochet for the Caravan of Death is an historic
achievement. It is the first time that a former President,
a former Army commander-in-chief, or a former dictator is
deprived of immunity from prosecution. Never before has such
a thing occurred in our history. In the past, national leaders
shielded themselves with a series of legal obstacles that
prevented prosecution. Pinochet was no different but every
obstacle he set up began to tumble, leading the way to the
removal of his judicial immunity. Pinochet may be content
now, but history books will say that he was brought to trial
and got out of it on account of madness.
Rettig Report relates all the crimes he committed. He was
deprived of immunity because of those crimes and he got off
because he was crazy.