November 25, 2004

By Maxine Lowy, for Memoria y Justicia

Turning a deaf ear to pressure from multiple sources, on November 17 the Criminal Law Bench of the Chilean Supreme Court issued a solid ruling that upholds convictions for the hierarchy of the DINA secret police in the case of Miguel Angel Sandoval Rodriguez, arrested and made to disappear nearly 30 years ago.

MIR Miguel Angel Sandoval was a 26 year old tailor and member of the Rodriguez who was arrested January 7, 1975 and was last seen alive in the Villa Grimaldi secret detention center. The case is considered key for jurisprudence in all human rights cases in Chile involving the forced disappearance of persons by agents of the military dictatorship.

Both the family members of the victims as well as the former agents of the military regime had centered their hopes upon this case, for diametrically opposed reasons. The defense teams for Manuel Contreras, Miguel Krassnoff, Marcelo Moren Brito, Fernando Laureani and Geraldo Godoy urged the Chilean Supreme Court to definitively pronounce itself on amnesty decree law 2191 and the concept of disappearance as the ongoing crime of abduction. For military officers accused of committing human rights crimes, the persistence of the amnesty is essential for ensuring them impunity, and they were counting on the Supreme Court to rule in their favor. For the plaintiffs and family members of the victims, the possibility of justice hinges on the possibility of overcoming the amnesty decree law.

In this transcendental, first case of a disappeared person to reach the high court, pressure was brought to bear not only by military supporters but even by the President of the Supreme Court Marcos Libedinsky and the President of the State Defense Council Clara Szczaranski. However, the unanimous vote of the five members of the Criminal Law Bench demonstrates that the judges did not allow themselves to be influenced.

In various clauses of the ruling the judges skillfully turn the defendant positions upside down. Thus, the decision does not actually rule out the amnesty decree law. Rather, the judges state that the circumstances for invoking amnesty do not exist because "the date the crime ended cannot be established."

As the judges pointedly note, the defense lawyers repeatedly argued that "no one believes he (Sandoval Rodriguez) is still alive or held in custody,on the contrary, everyone believes he is dead." This line of reasoning, employed to weaken the doctrine of abduction as a permanent crime, was shared by Marcos Libedinsky as well as Clara Szczaranski.

But the ruling issued by the Criminal Law Bench last week collapses that logic. The ruling states: "With the abduction extending more than 90 days without any further information on the whereabouts of Miguel Angel Sandoval Rodriguez, this qualifies as sufficient evidence to consider the abduction as an ongoing crime." And it adds that in the absence of substantiated evidence that Sandoval Rodriguez is dead and that he died before enactment of Decree Law 2191, amnesty cannot be invoked."

In this regard the Supreme Court justices present the military defendants a challenge. In a paragraph that promises to brew controversy, they state: "In the event that the defendants communicate the place in which the victim may be located, statutes of limitation could begin to run at that point to their advantage. If the victim should be discovered to be dead, the date of death would have to be determined" in order to decide whether amnesty is applicable.

The defense attorney for Gerardo Godoy invoked article 10 of Decree Law 521 to argue that the former police officer simply carried out duties stipulated by law. Decree Law 521 was the provision that created the repressive DINA secret police. The ruling discounts this procedural shield, stating that article 10 of decree law 521 "is a provision that was never published in the Diario Oficial (Congressional Record equivalent); in other words, it is clearly and plainly a secret regulation whose force is unknown to any citizen" and therefore cannot have force of law.

In its ruling last January, the Fifth Chamber of the Santiago Court of Appeals elaborated in great depth on the preeminence of international human rights law over internal law. It recognized that the State of Chile has the obligation to respect international law even in treaties not yet ratified by Chile. During the marathonic sessions before the Supreme Court, the defense took strong exception at this line of reasoning. The defense attorney for Manuel Contreras sustained the principle of Chilean judicial sovereignty in regards to international law. He also objected that the prosecution "likened aggravated kidnapping to a crime against humanity."

The response from the Criminal Law Bench to this questioning centered on the thesis that a war existed in Chile. This logic is a construct of the military and their collaborators as a self-defense strategy. But human rights attorneys have turned it around as an avenue to access justice. The ruling recognized that an internal war took place with the characteristics outlined by Decree Law 5 of September 12, 1973. The argument goes that if a war existed, then the Geneva Conventions came into force and mistreatment and execution of prisoners of war violated that treaty ratified by Chile in 1951.

Where the ruling of the Fifth Chamber of the Court of Appeals goes into notable detail on international human rights law, the Criminal Law Chamber of the Supreme Court succinctly crystallizes the principle in the following words: "Šin numerous rulings this Supreme Court has recognized that the internal sovereignty of the State of Chile recognized its limits as the rights that stem from human nature; from values that are higher than any law that officials of the State may enact, including the Constitution itself."

Plaintiff attorney and member of FASIC legal staff, Nelson Caucoto describes far reaching implications of the ruling. He states: "This judicial scenario is tremendously favorable for the world of human rights and one has to know how to read what the ruling says to understand its future consequences. I believe this decision shows that we are establishing the basis for an increasingly mature democratic society with a number of defects but with an indisputable vigor."

Two weeks before the Criminal Law Bench made known its historic decision, judge Gerardo Bernales Rojas, assigned exclusively to investigate human rights cases in the city of Talca, sentenced a former police officer for the summary execution in October 1973 of Javier Segundo Alvear Espinoza, a mechanic and member of the MIR. The ruling Judge Bernales issued draws extensively from the Appellate Court decision in the Miguel Angel Sandoval Rodriguez case.

Like Judge Bernales, whose ruling went practically unnoticed in Santiago, many other judges also assigned exclusively to human rights cases are meticulously advancing in the investigation of crimes committed during dictatorship. They have been attentive to what the Supreme Court would rule in the Sandoval Rodriguez case. And now the Supreme Court has given them the green light to proceed with greater resolve in their respective investigations. This ruling has also raised hopes of family members of victims that justice in human rights cases may at last be within reach.

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