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REASONING
Today, July 13, 2005, the Chilean courts are approaching the
decisive moment when they must rule on several key motions
and cases involving Augusto Pinochet, officials of the DINA
and former civilian authorities of the military regime. These
include:
Cases of disappeared persons and political executions
a) Removal of immunity of Pinochet to permit indictment in
Operation Colombo, which the Santiago Court of Appeals approved
in an 11 to 10 vote, although the ruling has not yet been
released in writing. The appeal of this ruling, as announced
by the Pinochet defense, is pending before the Supreme Court;
(b) The three cassation motions (Rol 2163-2005-Corte Santiago)
and the appeal for review of the facts as well as law (Rol
1517-2005-Corte Suprema) filed against the decision that revoked
the indictment of Pinochet for Operation Condor;
(c) Follow-up of the case against Pinochet and others for
illegal inhumations and exhumations, an operation military
intelligence perversely called "Retiro de televisores" (Removal
of televisions), investigated by Judge Gajardo. (Rol 1896-Pleno-2004)
(d The uling, which also has not been drafted in writing,
that blocked removal of immunity of Senador Sergio Fernandez,
the former Interior Minister for the military regime. The
ruling may be appealed to the Supreme Court.
(e) Indictment of several former and active duty police officers
in the case of 2 disappeared persons, the Barria Basay brothers
in Rio Negro, Region X, in 1973, in which the Seventh Chamber
of the Santiago Court of Appeals (Cerda, Dahm and Billard)
overturned the dismissal of Pinochet, as ruled by Solis, on
grounds that he was not mentally incapacitated, and proceed
with the trial, which would mean Pincohet will again be stripped
of immunity. Ruling is Rol N15.765-2004 of July 6, 2005, of
the Santiago Court of Appeals.
2) Cases for torture (including former political prisioners).
The appeal of indictments of six military officials will be
heard by the Second Chamber of the Santiago Court of Appeals.
3) Cases for economic crimes (Riggs Cases and others), in
which the Santiago Court of Appeals voted in favor of stripping
Pinochet of immunity to allow prosecution for four crimes.
The Pinochet defense will appeal.
4)
Many other cases (Berrios, Frei, Llido and Woodward)pending
against Pinochet and/or DINA Officials and others.
POLITICAL
ANALYSIS:
As both Cheyre and Lagos approach the end of their terms,
as Commander in Chief of the Army and President of the Republic,
respectively, they will attempt to continue pressuring for
impunity via the following routes:
1) JUDICIARY:
A) Full Amnesty: H.Alvarez-Montiglio, Improper Amnesty: Clara
Szczaransky-CDE.
B) Statutes of Limitation: total (Villarroel) or partial (Fuentes).
C) Double Jeopardy in Pinochet case (Pfeiffer);
2) LEGISLATIVE -EXECUTIVE BRANCH (Ley de empalme); or
3) EXECUTIVE alone (Pardon)
A HUMAN RIGHTS STRATEGY
1) A fundamental element of the "national security" and "neoliberal"
system, is its primary symbol: Pinochet. We must vigorously
set ourselves upon the task to ensure that Pinochet be sentenced
and obliged to pay. Only if he is obliged to pay damages will
we have justice. Not a symbolic remedy such as the payment
to the Chilean Treasurys of US 3 millon of the sum that ascends
to more than US 100 millones that he stole from all Chileans.
So far all Chileans have paid compensation, in terms of pensions,
to the victims of Pinochet. And the amount the Riggs Bank
will give them, through the Salvador Allende Founcadion of
Joan Garces will be paid by a foreign bank, but not by Pinochet.
His impunity in crimes of genocide as well as multimillion
dollar robbery is still intact.
2) If Pinochet is brought to trial and sentenced, not only
would the former dictator be condemned but also the whole
system of human rights violations that he set in motion, and,
indirectly, the economic system he installed, which also violates
economic and social human rights. That sentence would open
the way for a decisive condemnation of all his co-authors,
accomplices and accessories to the crimes. On the other hand,
if Pinochet is freed from having to face trial, and only is
stripped of immunity and arraigned by a lower court, only
to be overturned on appeal, there is no truth and certainly
not justice.
3) As we well know, the primary weapon available to Pinochet
to confront the more than 300 criminal complaints filed against
him, is making an issue of alleged problems related to his
health and age. The legal grounds have been sufficiently studied
and must always be signaled as well as improved. However,
we must attack at the heart of the questionable medical tests
that have been conducted. A multidisciplinary team must be
formed to draw out and develop that strategy.
4) While the strategy is being developed to counter the medical
tests, I believe much more can be done to counteract the public
relations campaigns of the Pinochet team (Fernando Barros,
Garin, etc.) in the communications media. The two basic points
in this regard are the health and age of Pinochet. Why not
counteract them with the following:
i) The number of victims murdered, tortured, exiled, and so
on.
ii) The number of relatives of these victims who have died
whether due the deep pain of losing their loved ones, committed
suicide, who are afflicted with terminal cancer and other
diseases these 30 years, despite the Reparations laws and
the Valech Commission. iii) The long-term effects of torture,
especially for women and children.
iv) What age would the victims have had today (elderly, young
people, children)?
v) How is it that more highly develped nations, such as France,
Nazi collaborators such as Papon and Petain are arrested,
brought to trial and sentenced to life in prison at the age
of 88, 92 and 95 years of age?
5) All the above must be publicly aired in constant rounds
of press conferences, radio and television interviews, posters,
and other publicity, nationally and internationally.
6) Such actions are essential for strengthening and reinforcing
the struggle lawyers undertake in the courts. Family members
of the victims and human rights organizations must attend
and be present, en masse, all court hearings. The political
prisoners and their fahunger strike. What are we waiting for,
at this decisive moment in the struggle? At stake is nothing
short of what we will teach new generations, our children
and grandchildren.
7) Do we want impunity? Or do we yearn for justice to ensure
that the human rights violations are never again repeated
in the history of Chile?
CONCLUSION
It is urgent that the Association of Families of the Disappeared
(AFDD), the Association of Families of Executed (AFEP), the
Human Rights Assembly, FASIC, CODEPU, and every other human
rights organization counteract the campaign Pinochet and his
cohorts have launched to distort the truth of the genocide
they unleashed. We must expose the reality of that genocide
and its effects on the families of the victims over these
30 years.
Juan Subercaseaux Amenabar
Human Right Attorney
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