Francisco Marin
APRO, November 19, 2007
Translation by Memoria y Justicia

The Supreme Court dealt a hard blow to aspirations for justice regarding human rights violations committed during the military dictatorship (1973-1990). Two consecutive rulings cloaked with impunity the perpetrators of the kidnapping and disappearance of four persons during the early years of the military regime.

The first ruling, handed down November 12 by the Penal Chamber of the Supreme Court, says that statutes of limitation prevent prosecution of the abduction and forced disappearance of three Vidal Riquelme, Cesario Soto and Ruben Acevedo, arrested by a military and police patrol in the rural village of Melosal, 350 kilometers south of Santiago, on September 15, 1973. Both Soto and Acevedo were farm worker leaders, while Riquelme was a left leaning businessman.

The three were arrested at their homes, and then shot on the Sifon Bridge, their bodies thrown into the Loncomilla River below. Abraham Riquelme, brother of Vidal, testified that Volunteer Firefighters, authorized by police, began searching the waters for the bodies of the victims. "The river was filled with bodies that the skin-divers would take out of the water by the hair to show us and ask if this was the person we were looking for. If not, they threw them back into the river. One could see the bullet wounds in the back and their chests were destroyed," he testified in a sworn statement to the court.

The bodies of Riquelme, Soto and Acevedo were never found.

In the ruling, the Supreme Court Penal Chamber acquitted retired army colonel Claudio Lecaros, who in January 2005 Judge Zepeda convicted to five years in prison for the crime. In November of the same year the Santiago Court of Appeals upheld the sentence.

Now the highest court has repealed that sentence, arguing, in part, that Chile was not at war when these crimes were committed.

On the very day of the coup, the Military Junta issued Decree 5 that declared the existence of a war in Chile and warning that Òlaw applicable in time of war as set forth in the Military Justice Code" thereby came into force. The Supreme Court decision thus supported the defense argument that the Geneva Conventions that oblige States to respect the life and dignity of prisoners of war did not apply in this case.

In order to invoke statutes of limitation, the Supreme Court determined the existence of a homicide even though the bodies of the victims have not been recovered. This decision ignores the thesis that has predominated in the high court that considers forced disappearance as an on going abduction. Under both international and Chilean law, an abduction is considered a continuing crime until the victim or the body is recovered.

The Supreme Court ruling contradicts the judicial doctrine adopted by the same court more than five years ago that rejects amnesty and statutes of limitation in cases involving disappeared and executed persons, because these are considered crimes against humanity under international human rights law.

Penal Chamber member judges voted three to two to invoke statutes of limitation in the crime Lecaros committed in Loncomilla. The determining vote was that of attorney Jose Fernandez Richards, substituting for judge Alberto Chaigneau, who does not favor application of amnesty or statutes of limitation in crimes against humanity. The government of Chile through the Justice Ministry holds responsibility for the vote because it appointed the attorneys to the Chamber.

The Contreras Maluje Case

The disfavorable ruling in the Loncomilla River case was followed the next day by yet another disappointment for family members of victims. On November 13 the Supreme Court ruled in the well known case involving the abduction and subsequent disappearance of Carlos Contreras Maluje.

In this case, the Supreme Court Second Chamber issued a divided ruling (4 a 1) that convicted seven agents of the Comando Conjunto (so called Joint Command), a repressive unit comprised of the four branches of the Armed Forces as well as members of the ultra right Patria y Libertad movement.

Although the defendants were found guilty, the extremely lenient sentence of three years and a day was a great disappointment to the family members. Moreover, defendants were granted parole, meaning that the perpetrators of this horrendous crime will never spend a day behind bars.

Contreras Maluje had been a leader of the Communist Youth organization and was a city council member of Concepcion at the time of the coup. At noon November 3, 1976, Comando Conjunto agents attempted to capture Contreras in downtown Santiago. Contreras Maluje decided to throw himself in the street in front of an on coming bus, preferring to die rather than suffer torture under arrest. But the bus driver was able to stop and Contreras was only lightly wounded.

Lying on the street, with his head bleeding, Contreras shouted that he was a Communist and was being persecuted. He also shouted his name and asked bystanders to tell his family, owners of a pharmacy in Concepcion, what had happened to him. Within seconds his pursuers captured him. As this was taking place, he begged, "Let me die in peace." It is known that he subsequently died in custody as a consequence of torture. He remains disappeared to this day.

The circumstances of his arrest and the numerous witnesses compelled the Santiago Court of Appeals to accept the first habeas corpus petition, among hundreds that had been filed. Although it did not succeed in freeing Contreras, the impact of the judicial ruling led to the disbanding of the Comando Conjunto.

More than 30 years later and after arduous judicial proceedings, the identity of the perpetrators, accomplices and those who covered up the crime was determined. Despite the conviction, all defendants are out on parole.

In an interview with Apro plaintiff attorney Nelson Caucoto called the ruling a "major contradiction." He explained, "In the case of the executions on the Loncomilla River bridge the Supreme court held that there was no war in Chile and therefore the Geneva Conventions were inapplicable. But the next day, in the Contreras Maluje case, the same group of judges ruled the opposite. The Penal Chamber stated that a state of war did exist in Chile and therefore the Geneva Conventions applied."

Caucoto notes that in the Loncomilla case, the Supreme Court said the Convention on Non Prescription of Crimes against Humanity and War Crimes, adopted by the United Nations General Assembly in 1968 was inapplicable because the treaty has not been ratified by Chile. However, in the Contreras Maluje case the High Court sustained that it is applicable even though Chile has not ratified the treaty, due to the principle of jus cogens (general principles of law that are broadly accepted internationally).

"The Supreme Court did a tremendous somersault," the lawyer adds. "In less than 24 hours it radically changed the content of its own rulings. One would have to assess these decisions as not serious, inconsistent, contradictory and inconsequential." Caucoto believes this "great contradiction" damages the credibility of the Chilean government.

The low sentences issued in the Contreras Maluje case are explained in that the court considered the crime a simple homicide, the least severe category of murder under Chilean law. Caucoto believes the attitude of the Supreme Court is not accidental, but rather a change in "court policy that permits human rights violators to serve their sentence in the comfort of their homes." He believes this policy pertains to a negotiation within the court between advocates of justice and those who favor complete impunity.

To justify its lenient sentences, the Supreme Court cloaks its reasoning under the concept of half the statute of limitations. This means the years that have transpired since the crime was committed are considered an extenuating circumstance. Under this formula, crimes that should be punished with 15 years in jail are reduced to just three years. Caucoto believes this is mistaken criteria. "If the court calls these crimes against humanity, then no statutes of limitation are applicable, and certainly not half the statutes of limitation."

Caucoto announces that he will bring the Loncomilla case to the Inter American Human Rights Commission and he has "no doubt" that the case will be accepted and Chile sanctioned for "obstruction of justice." His confidence is drawn from the case the Commission ruled in October of last year in which Chile was sanctioned for having applied amnesty to the perpetrators of the abduction and disappearance of Luis Almonacid, in September 1973.

In the Almonacid case, the Inter American Court established that crimes such as murder, forced disappearance and torture are "inhumane acts that due to their gravity and extent go beyond tolerable limits for the international community which demands punishment." It thus rejected the amnesty decree and statutes of limitation in the Almonacid case. Caucoto notes that the failure of the Supreme Court to punish the perpetrators of the Loncomilla River crimes "seriously damages the image of Chile internationally" because it appears to ignore the international ruling in the Almonacid case which is mandatory, as a signatory of the American Convention of Human Rights.

The attorney questions the actions of the present Concertation alliance government in appointing judges. He points out that former president Ricardo Lagos as well as current President Michelle Bachelet have proposed judges known to favor application of the amnesty decree and statutes of limitation.

Lawyer Loreto Meza, of the governmental Human Rights Program under the Interior Ministry, indicated that the Supreme Court ruling is a "setback for jurisprudence" in human rights, as it ignores all the progress Chile had achieved in development of international human rights law. Meza also questioned the government appointment of attorneys to the high court, noting that only judges should be allowed to rule in such important cases.

The recent decisions handed down by the Supreme Court have cast uncertainty regarding the future of human rights cases in Chile. But family members of the victims of dictatorship do not relinquish their demand for justice. On November 15, the Association of Families of the Disappeared held a noisy demonstration outside the doors to the Supreme Court Penal Chamber.

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