By Cristina Silva, for Memoria y Justicia

April 2005

Hernan Quezada, attorney for the Prats family, talked with Memoria y Justicia about the recent Supreme Court ruling that blocks Augusto Pinochet from prosecution in the case, and where the case will go fromhere.

Thirty-one years have passed since General Carlos Prats was assassinated together with his wife Sofia Cuthbert in the Palermo sector of Buenos Aires. On September 30, 1974 a collaborator of the DINA , US citizen Michael Townley, installed a bomb under the car driven by the couple. When the remote control device was activated, the bomb ended the life of the General who the dictatorship of Augusto Pinochet perceived as a threat to regime stability.

Argentine courts initiated a judicial inquest into the audacious crime, the first repressive venture outside Chilean borders, the very day of the crime. That investigation is headed the present by Argentine Federal Court Judge Maria Servini de Cubria. The judge proved participation of various former DINA agents and charged Augusto Pinochet Ugarte as intellectual author of the crimes of first degree murder and illicit association created to carry out the crime.

In December 2001, Judge Servini petitioned the Chilean high court to deprive Pinochet of immunity from prosecution in order to question him in Argentina, but in October 2002, the Chilean Supreme Court denied the request. However, on December 2, 2002 the same court ordered the Santiago Court of Appeals to initiate judicial proceedings, assigning the to Judge Alejandro Solis. On October l 8, 2004 Solis accepted the petition from the daughters of the murdered couple to deprive the former dictator of immunity, due to the existence of probable cause regarding his role as intellectual author. In a vote of 14 to 9, the full session of the Santiago Court of Appeals upheld that decision on January 5, 2005.

The next prerequisite Judge Solis needed in order to investigate Pinochet involvement in the Prats case was Supreme Court confirmation of the lower court ruling. The appeals hearing was held March 16, 2005, with attorney Hernan Quezada, pleading on behalf of the Prats family, and attorney Irma Soto for the State Defense Council (CDE) which had made itself party to the prosecution. Defense attorney for Pinochet was Pablo Rodriguez Grez.

On March 22 the Chilean Branch of the American Association of Jurists (AAJ) and other human rights lawyers held a press conference to support and reaffirm the arguments presented by the CDE, regarding the good mental health of Augusto Pinochet. Speaking from the courthouse steps, attorneys Fabiola Letelier, Julia Urquieta and Juan Subercaseaux indicated that, as the CDE had shown, Pinochet does not suffer from any disabling mental condition that would prevent him from standing trial.

To reinforce that finding, the attorneys pointed out that Judge Sergio Muñoz, who is investigating Pinochet in the Riggs Bank case, gathered testimony from more than 60 witnesses who verify that Pinochet is able to perform a wide range of normal physical and intellectual activities. These include physical exercises, reading newspapers, receiving visitors, coordinating his defense attorneys, managing his money, and making complex investment decisions. The human rights lawyers insist that "these revelations belie repeated attempts by the Pinochet defense team to obtain absolute impunity in the numerous criminal cases on the grounds of a pretended dementia."

ARGUMENTS OF THE PROSECUTION

Plaintiff attorney for the Prats-Cuthbert family, Hernan Quezada, focused his arguments to prove participation of Pinochet in the crime. The lawyer explained to Memoria y Justicia that "the objective of the immunity hearing is to determine whether or not there exists probable cause of participation by the defendant. This is decisive element that can either open proceedings or dismiss him from the case. If Pinochet is deprived of his constitutional immunity as former president, the investigation may move forward and judge can arraign, indict, and convict him."

Quezada described the pleadings he presented the Supreme Court for the aim of seeking removal of immunity:
"There were four classes of probable cause, the same ones established before the Appeals Court. The first is the direct accountability of the DINA and its director (Manuel Contreras) to Pinochet, as involvement of the DINA has been proven in the crime."

"The second is the denial of the passport request from General Prats to enable him to leave Argentina for a safer country. He requested that passport at least four months before and the Chilean government never granted it. That situation was not simply negligence. You have to remember that the Foreign Relations Ministry was a State apparatus directly dependent on Augusto Pinochet. The Foreign Relations Ministry could not issue Prats a passport without authorization from Pinochet. He ordered that the passport be denied to keep General Prats in Argentina and within reach of the assassins.

"The third is the verticality of command. Manuel Contreras, as well as the other DINA officers who participated in their capacity as members of the Army, followed orders and from and answered to their Commander in Chief, who was Pinochet. No subordinate officer would carry out an operation of this kind without at least the knowledge of his hierarchical superior."

"The fourth class of probable cause concerns the various accusations that arise from Townley, in a sworn statement he gave in 1992, in the United States, and another he lent before Judge Servini in 1999 and is secret at the moment. The former US prosecutor in the Letelier case also levels accusations against Augusto Pinochet as does an Italian connected to the DINA. Several persons have lent testimony from which we surmise that Pinochet gave the order to eliminate General Prats."

The solidity of these arguments did not sway the Supreme Court of Chile, however. On March 24, 2005, the full Supreme Court, in a 15 to 4 vote, rejected the petition to deprive Pinochet of immunity in this case.

The ruling shields the former dictator from prosecution and definitively dismissed from the proceedings related to the homicide of General Prats and his wife Sofia Cuthbert. The highest court of Chile founded its decision on a technicality, arguing the principle of res judicata (la cosa juzgada).

Attorney Quezada explains:
"The strength of evidence of probable cause in this case necessarily should have led to acceptance of immunity petition, as did the Santiago Court of Appeals. That would have been the logical decision from the Supreme Court. Instead, it declined to address the merits of the case, with the majority of Court justices concluding that res judicata [cosa juzgada] had been produced."

The justices found that res judicata had been produced because the Santiago Court of Appeals had previously ruled on the immunity issue when Judge Servini de Cubria had sought to bring Pinochet to testify in Argentina in October 2002. As previously described, the Appellate Court turned down that petition on grounds of alleged mental incapacity of the former dictator to stand trial.

The plaintiff attorney recalls it was on that occasion, when the court refused to give course to the lifting of immunity, that the Chilean court announced the case would be opened in Chile, and assigned Judge Solis to investigate the Prats assassination. "However, now it is obstructing investigation of participation by one of the main individuals responsible for the crime."

Notwithstanding, Quezada insists that "the ruling is highly questionable, as the Appeals court decision of 2002 was issued on petition from a foreign court that sought to extradite Pinochet. The origin was different than that established by Judge Solis."

THE DISSENTING OPINION

Of the four dissenting opinions, Justices Libedinsky and Juica agreed with Quezada and voted to approve the stripping of immunity. Just as Quezada argued, they believe the circumstances are different. Judge Servini de Cubria requested that Pinochet be deprived of immunity for extradition purposes; therefore, the decision of 2002 cannot be extrapolated to the present situation in which a Chilean court is investigating the facts. Another dissenting vote was cast by Judge Benquis who argued that decisions adopted by Chilean courts on the basis of a petition from an Argentine court, cannot interfere with the legitimate exercise of jurisdiction by the competent Chilean court, in other words, the investigation under Judge Solis. Lastly, Judge Medina sustained that the petition for removal of immunity, as validly posed by Solis had not been previously decided. Therefore, the judge argued, it is proper to accept the plaintiff request without causing res judicata.

TOWNLEY POINTS THE FINGER

One of the principle perpetrators of the crime is Michael Townley, a United States citizen who is an electronics expert and a former collaborator of the DINA. Townley, who has protected status in the United States since turning state witness, admitted to the Argentina judge that he was the material author of the double homicide. Townley testified: I carried out the operation under orders from Colonel Espinoza. Planning and execution were exclusively my work."

The testimony Townley gave Judge Servini in 1999 is secret and, their use is confidential because the defendant is protected by the US states witness program. For that reason Solis sent his own letter rogatory and requested authorization to be present during the questioning, so as to make use of the testimony in the proceedings he heads in Chile. In early February 2005, Judge Solis traveled to Washington, DC for the hearing in which Michael Townley was asked 100 questions the Judge had been conveyed to Townley earlier. Hernan Quezada thinks this interrogatory could lead to a new line of inquiry and possibly the indictment of Juan Morales Salgado and Ricardo Lawrence Mires, who Townley recognized from photographs.

POSSIBLE CLOSURE OF THE CASE

Regarding the possible closure of the investigation due to the Supreme Court decree to close all human rights inquests within 6 months (by July 2005) , Quezada is unconcerned. He thinks "Judge Solis will conclude the investigation within that time period. Should he not finish, we will ask for an extension on account of proceedings still pending."

Moreover, the testimony Townley gave before Judge Servini de Cubria has been officially incorporated as part of the case investigated by Chilean Judge Solis. This also may give rise to new information that the judge must investigate.

"We know Townley revealed two new names, that had not been previously considered, in addition to the other six, " the lawyer said.

The incoherence between the verdict of the Court of Appeals and the ruling of the Supreme Court is evident. We might well wonder whether the court adhered strictly to legal technicalities to deny the removal of immunity of the top defendant in the assassination of the former Army commander in chief and his wife. After the regrettable decision delivered by the court of last resort, the trial will continue for the former DINA members who are indicted. As for Pinochet, we shall have to hope that other cases in which he is also defendant prosper.

APPENDIX Who are the defendants?

Enrique Arancibia Clavel: He is the only former DINA agent serving time in prison for the double crime. He was arrested in Argentina on January 18, 1996 after Judge Maria Servini ordered his preventive custody for charges of illicit association and presumed complicity in the Prats and Cuthbert murder. In November 2000 Federal Oral Court number 6 of Argentina charged him with the assassination and illicit association. He was consequently sentenced to life imprisonment in the Buenos Aires Judicial Investigations and Procedures Unit.

Manuel Contreras: According to Townley, Pinochet ordered the former DINA chief and his operations director Pedro Espinoza to mind Prats. Contreras subsequently ordered Espinoza to delegate the mission to Townley. In late June 2001, Judge Servini charged him for his role in the crime. On October 8, 2001, another Argentine judge Jorge Rodriguez Ariztia decreed the preventive custody of Contreras and the other defendants in the Prats-Cuthbert case. In February 2002 Contreras was granted bail but he remained under house arrest due to other cases. February 25, 2003 Contreras was indicted as author of first degree murder and as head of an illicit association. Three months later he was granted bail, freeing him from three years under house arrest.

Pedro Espinoza: He DINA operations chief in the first years of the military regime. Townley testified that Contreras assigned Espinoza the mission to end the life of Prats, and several thousands of dollars to accomplish the crime. According to Townley, Espinoza provided him with the materials to build the bomb. For these reasons, he was indicted in Argentina, while in Chile, Judge Solis charged him as author of first degree murder and illicit association.

Jose Zara Holger: This former DINA agent was indicted February 25, 2003 as a member ofthe illicit association that planned and carried out the homicides of General Pratsand his wife. Zara was in pretrial custody only three weeks before the court granted him bail of a million and a half pesos.

Raul Iturriaga: A retired Army general, this individual was indicted June 27, 2001by Argentine court for the crimesof illicit association and first degree murder. El 20 de febrero de 2003, el ministro Solís lo citó a declarar. Cinco días más tarde se le notificó su encausamiento como miembro de la asociación ilícita que participó en el doble crimen. Casi tres meses después obtuvo su libertad bajo fianza.

Mariana Callejas: A writer who hosted a literary circle while DINA chemists worked in her basement, she had an active participation in the DINA Foreign Department, in which she worked alongside her former husband Michael Townley. Callejas was indicted in Argentina as member of the illicit association and for her role in the double homicide aggravated by the use of explosives. She remained under house arrest during extradition hearings but was released in July 2003, a month before she was indicted for the crime.

Michael Townley: This United States citizen who was a collaborator of the DINA, enjoys protected status, living with a new identity, after turning state witness in the Letelier case.
He admitted having fabricated and placed the explosive device on the Prats car, and described details of the assassination to Judge Servini.

Fuente: Starmedia

Por m

Back to top

Return to Human Rights Today