Silva, for Memoria y Justicia
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.
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.
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.
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
(CDE) which had made itself party to the prosecution. Defense
attorney for Pinochet was Pablo Rodriguez Grez.
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.
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."
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
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 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
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.
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).
"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.
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."
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 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.
POINTS THE FINGER
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
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.
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.
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.
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