Decree Law 2191, drafted by the military regime¹s Justice Minister Monica Madariaga has come to be known as the Amnesty Law. Published in the Diario Oficial on April 19, 1978, five years after the National Congress had been closed, the amnesty law has been one of the major obstacles that prevented investigation of human rights crimes committed during the dictatorship. The law shielded from criminal responsibility all persons who were authors, accomplices, or had covered-up crimes committed from the day of the coup, September 11, 1973 to March 10, 1978, when the state of siege was lifted.

The preamble to DL 2191 explains the "ethical imperative" that motivated the law as intended

"...to strengthen the ties that bind Chile as a nation, leaving behind hatred that has no meaning today, and fostering all measures that consolidate reunification of all Chileans."

Three months earlier, in December 1977, the United Nations had issued its fourth consecutive condemnation of Chile. On March 10, 1978 the regime exchanged its state of siege for a state of emergency, launching the CNI, DINA¹s successor in the business of sowing terror.

Beneficiaries

The amnesty law makes no distinction between common crimes and politically motivated crimes that violate human rights. Persons indicted for crimes such as armed robbery, abduction of minors, and fraud, who were indicted or sentenced at the time the law came into effect are among those shielded from prosecution. The expressly stated exception to the amnesty benefit, due to pressure from the United States, was for those individuals implicated in the homicide and passport falsification case that constituted a preliminary stage to the assassination of Orlando Letelier.

In April 1978 when DL2191 came into effect, Chile¹s jails and prison camps contained hundreds of political prisoners, most of whom had never been sentenced, but not a single agent of repression had even been charged. An estimated 69 political prisoners incarcerated in Chile, mainly in Santiago¹s Penitentiary, whose sentences had already been commuted to exile, were released, and were the only opponents of the military regime to benefit from the law¹s alleged humanitarian spirit.

The amnesty law was conceived as a tool to obstruct justice, and enshrine impunity for the criminals, their accomplices, and those who concealed crimes against humanity. Numerous military officers and their civilian collaborators have avoided prosecution when courts invoked DL 2191.

A Self-Pardon

Amnesty is a mechanism by which a State renounces its penal authority in light of compelling political and social factors shared by the majority of the population. A true amnesty must be general and objective, and must not favor a specific group of people.

Human rights defenders indicate that DL2191 is not a true amnesty law. Rather, it is a "self-pardon" decreed by the military regime to benefit the agents who carried out its repressive policies. It is "an abuse of power that denies the foundations of a constitutional state by preventing the judiciary from complying with its mandate to protect the rights of persons and investigate and punish crimes."

Impunity

With enactment of DL 2191 courts hastened to declare themselves incompetent and transferred cases related to human rights to the military courts.

Santiago Appeals Court Judge Adolfo Bañados, appointed to investigate the crimes discovered in 1978 at Lonquen, concluded that an Army lieutenant and a group of police were responsible for the massacre and illegal burial of 15 persons. However, after drawing these conclusions, he declared himself incompetent and transferred the case to the military courts with no indictments. At least one of the crimes ­ the homicide of minor Gerardo Ordoñez Lama - fell in the category of crimes against minors, which was excluded from amnesty protection.

DL 2191 remained largely uncontested until 1986.

The Case of José Gregorio Saavedra González

Ana Luisa Gonzalez Barraza was the first person to test a new legal strategy. Her son José Gregorio was abducted from the Calama Prison in October 1973 and killed in October 1973 by the Caravan of Death. His remains were never returned to the family. In April 1986, Gonzalez filed a criminal suit in Calama for premeditated abduction and first degree murder against members of Gen. Sergio Arellano Stark¹s Caravan of Death.

The complaint argued that abduction is excluded from the amnesty law and is an ongoing crime until the person is released or a body found. Therefore, investigation of an abduction cannot conclude until the abducted person is located and the abductors are identified. Other relatives of disappeared persons had long sustained the same argument, but only after the case of José Gregorio Saavedra did it gain greater acceptance among judges.

The Antofagasta military judge challenged the court¹s jurisdiction, but the Calama magistrate refused to relinquish the case. Finally, the Supreme Court upheld the military court¹s challenge, and it joined others which were related to the Calama executions. Citing DL2191, the Military Tribunal dismissed the case.

The 1990s: The Law is Weakened

During the dictatorship the courts applied the amnesty law without investigating the cases. To accuse military personnel of a crime was sufficient to invoke DL2191. During the early post-dictatorship years the courts continued to follow this guideline and systematically dismissed cases involving disappeared persons on the basis of the amnesty law. Yet, by the late 1990s a new willingness to reinterpret the law was perceptible. The facts of a case could be investigated and the responsible parties identified, rather than automatically invoking the amnesty law.

The concept of abduction as a permanent crime gained greater acceptance in the courts, allowing investigation of cases of the disappeared. Only once the remains were found, identified, and the case became one of first-degree murder, could the amnesty law apply.

On September 12, 1998 a Supreme Court ruling set an historic precedent. Three judges of the Penal Chamber of the Supreme Court (prevailing over Army prosecutor Fernando Torres Silva) ordered the reopening of the case involving the 1974 disappearance of Enrique Poblete Cordova, a member of the Movement of the Revolutionary Left (MIR). Sergio Concha, attorney for the Poblete family, argued that disappearance corresponded to the crime of abduction until the victim was located either alive or dead, and therefore amnesty did not apply.

Prior to that ruling, the Supreme Court consistently accepted the arguments of the military justice system, that human rights cases be closed as soon as the crimes are found to have been committed between September 1973 and March 1978.

Amnesty has not been applied in any of the cases filed against Pinochet before Judge Juan Guzman. The thesis that prevails today in cases of the disappeared is that until the whereabouts or destiny of the victim is known, neither amnesty nor statutes of limitation apply.

OAS Condemns Chile for the Amnesty Law

In November 1999 the Inter American Human Rights Commission issued a harsh condemnation of the amnesty law.

Carmen Soria Gonzalez filed a petition against the State of Chile on behalf of her father Carmelo Soria, a Spaniard assassinated July 1976 by DINA agents. In 1996, a special investigative judge appointed by the Supreme Court invoked the amnesty law to close the Soria case. The petition that attorney Alfonso Insunza Bascuñan presented in 1999 with the OAS, accused the State of Chile of violating the right to justice.

The OAS Commission agreed. The Inter American Human Rights Commission concluded that the dismissal of the case affects the right to justice and "...the self-amnesty law is incompatible with the American Convention ratified by Chile on August 21, 1990."

The resolution also found that Chile violates the Convention on Prevention and Punishment of Crimes against Internationally Protected Persons. Carmelo Soria had diplomatic status through his work with the United Nations agency CAPE and the failure to punish those responsible for his death violates Chile's commitment to this treaty.

Alfonso Insunza says: "The government of Chile says it agrees with the resolution but it cannot interfere because the judiciary is independent. Until now, the courts continue to ignore the OAS ruling, and ignore our petition to reopen the case."

(See The 1978 Amnesty Law and International Treaties )

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For many years, the amnesty law worked in tandem with the Military Justice system to ensure impunity in Chile. As a judge advanced in a human rights case to the point that individual responsibilities could be determined, the Military Tribunal was on the alert to shield its peers from prosecution. The same pattern was repeated many times: the Military Tribunal would contest the competence of the civil courts, the Supreme Court handed over the case, and then the military judge invoked the amnesty law to dismiss or temporarily close proceedings.

What follows is provided as context needed to understanding the powerful authority of the Military Justice system of Chile.

Under the military regime, the reach of martial court jurisdiction broadened while the increasing restriction of civilian court authority went unchallenged. In December 1973, the Supreme Court determined that it lacked disciplinary jurisdiction over military courts in time of war, a decision that contributed to the violation of constitutional guarantees of persons tried by the military courts. Later this self-limiting posture became law in the Constitution of 1980. The high court also accepted imposition of statutes preventing civil judges from conducting procedures or inspections in military or police property and did not challenge the participation of active duty military officers on the Military Tribunal.

Jurisdiction over Civilians

Unlike other countries where the martial courts exist only to discipline the Armed Forces for crimes under the military code, Chilean military courts may judge military or civilians. However, only until the late 1990s were civilian courts able to bring military personnel to trial for crimes committed against civilians. In the past, the mere filing of a law suit against a member of the Armed Forces, either in active duty or retired, was enough to ignite a contest for competency that would end up delivering the case to the military courts.

Under Article 11 of the Military Justice Code the military courts have jurisdiction not only over a military officer charged with a crime but also over the others responsible for the crime who are not members of the military. Because of the clear disadvantage of a civilian judged in a military court, this provision has been criticized as a violation of the principle of equality before the law.

Military courts have different authority in time of peace or war, with very broad reach in time of peace. But the definition of the state of war also has several variables. Chile is in time of war, not only when war has been declared, but also when military mobilizations are ordered and when a state of siege is declared.

Although military courts had jurisdiction over civilians prior to the military coup, such trials were infrequent. After the coup, the jurisdiction of military courts over civilians was extended to such an extent that the majority of the persons judged by military courts were civilians. The surge in cases heard by military courts was also due to changes to the military justice code and the creation of special crimes in new laws under military court jurisdiction.

When on March 1, 1989, Supreme Court President Luis Maldonado inaugurated the last judicial session under military rule, he surprised military prosecutors present for the ceremony by calling for a limit to encroaching military jurisdiction. Civilians, he noted, comprise 80 percent of all cases tried in military courts, a fact which "impinges upon civilian court jurisdiction and seriously affects due process guarantees for civilians."

Political Crimes

In addition to the military crimes that properly pertained to the martial courts — rebellion, sedition, desertion, abandonment of duty — several new statutes and amendments to existing law expanded martial court jurisdiction. On the other hand, the civilian Courts of Appeals and the Supreme Court heard almost exclusively cases related to infraction of the State Security Law.

Not only did the legal foundation change. The concept of the Armed Forces itself changed after the enactment of the Constitution of 1980. The Constitution retained the basic characteristics of the military as professional, hierarchical, disciplined and "obedient institutions," but its Article 90 added the formalized perception of the Armed Forces as "essential for National Security," the doctrine which had guided the military since the day of the coup.

This changed concept introduced an ideological role for the Chilean military as moral guardians of society and it explains the incorporation of numerous political crimes under military court jurisdiction.

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With Decree Law N. 5, the Military Junta introduced a new definition of Art. 418 of the Military Justice Code, defining "state of siege" as synonymous with state of war. The military regime employed this new interpretation to create a legal fiction in order to justify its repressive politics, and specifically the war councils. In declaring Chile at war, the military rulers unwittingly invoked the Geneva Conventions.

Throughout the years of the dictatorship and up to the present day the former military rulers and their collaborators have justified the institutionalization of terror as a necessary response to a state of war. According to this criteria, prisoners should have been granted the conditions and guarantees that are due to prisoners of war, as provided in the Geneva Conventions ratified by Chile in 1951. The Geneva Conventions call for physical protection of prisoners of war and its Article 3 prohibits the summary execution of prisoners.

Yet, Chilean courts never accepted the Geneva Conventions as grounds for justice in human rights. In 1995 the Santiago Court of Appeals issued two rulings that denied the application of the amnesty law on the basis of the Geneva Conventions, but these decisions were overturned by the Supreme Court.

The 1998 ruling in the Poblete case, cited above, gave preeminence to international treaties over Chilean law.

In 1999, the Geneva Conventions assumed greater importance with courts accepting cases filed for crimes against humanity, which permanently annul the amnesty law and statutes of limitation. The crime of genocide was one of the prevalent causes of action among the nearly 300 complaints filed against Pinochet and others with Judge Guzman. (See The 1978 Amnesty Law and International Treaties)

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Defense attorney Pablo Rodriguez opened appeals hearings June 18, 2001 with a plea for humanitarian consideration of the fragility of Augusto PinochetŒs health, a line which had been successful in bringing the ex dictator home to Chile after 503 days in detention in London. The attorney argued that the medical reports from the exams conducted January 10-13, 2001, indicated the Pinochet suffered from moderate subcortical dementia. He concluded that this condition prevented Pinochet from interacting with his attorneys or remembering the events for which he is accused. Rodriguez cited another five serious infirmities that allegedly afflict his client and impede him from fully availing himself of his due process rights. (See Judicial and Biblical Considerations for Annulment of the Dismissal of the Pinochet Indictment - Spanish)

The health of Pinochet was the sole argument offered by his defense team. The innocence of defendant Pinochet never constituted a line of defense.

On June 19 and 20, 2001 prosecuting attorneys and the State Defense Council attorney challenged this interpretation of the reports on the battery of psychological tests to which Pinochet had been submitted earlier in the year. According to the reports, Pinochet could not be considered either crazy or demented, as this type of diagnosis is only valid in situations of profound mental alteration, which was not the case with him. (See Letter from Dr. Luis Fornarzzari)

On June 20, 2001 Reinaldo Selaive Reyes, of the Military Hospital medical staff, appeared before the court upon request from Judge Guzman to resolve the Pinochet's processing. Selaive stated that the procedure — photographing and fingerprinting — could provoke Pinochet's death.

Guzman then asked for the opinion of another set of experts, the Neurology Department of the University of Chile Medical School. These medical experts responded that the fingerprinting and photographing procedure would not endanger the defendant¹s health. In their opinion, the procedure might only affect him emotionally, and in that case, they recommended prescribing tranquilizers beforehand.

On July 9, 2001 the Sixth Chamber of the Court of Appeals of Santiago ordered the temporary dismissal of the indictment of Augusto Pinochet in the Caravan of Death case. The medical reports formed the entire basis for the ruling, even though the present Penal Procedural Code does not exempt a defendant on the basis of health.

To accept the arguments of the defense, the only recourse available to the judges was the newly formulated Procedural Reform, which was not yet in effect. Thus, the magistrates anticipated the future application of a law, which plaintiff attorneys indicate in their petition to vacate, "...crassly violates constitutional legality and principles of equality before the law."

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President Ricardo Lagos: "Let justice work on its own."

The Presidents of Chile elected after the dictatorship have stated repeatedly that the judiciary is fully independent and political considerations do not influence rulings.

Eduardo Contreras, one of the team of plaintiff attorneys in the Caravan de la Mart case has a different opinion:

"Neither before the dictatorship, during the dictatorship or after the dictatorship has the judicial branch been independent. Its structure depends on the government for promotions, salary increases, and retirements.

"When the Fifth Chamber of the Court of Appeals was about to rule on whether or not to dismiss the legal action, everyone was certain that Pinochet would lose. Judge Villarroel had left the courtroom and judges Hugo Dolmetsch and Valdovino remained to write the majority opinion. That was on Thursday. What happened over the weekend? The highest commanders of the Army met with President Ricardo Lagos and the Minister of Defense They pressured a judge. Finally, the ruling which we thought we had won 2 to 1, we ended up losing 2 to 1. (9 July 2001) This is a clear example of the lack of independence of the judiciary."

Alfonso Insunza:

"Dismissal for dementia is a judicial solution to a political problem."

Sergio Concha:

"The changed jurisprudence of the Supreme Court has political overtones. The climate is more favorable to investigating human rights cases. We also see that cases in the military courts are not immediately closed by amnesty. But the greater openness is quite relative because there is also a strong posture in the executive branch to end human rights proceedings as soon as possible.

... Remember the famous phrase of President Patricio Aylwin about "justice within the realm of what is possible." Then came President Eduardo Frei who never had an external position of support for justice in cases of human rights violations. He was not interested in receiving organizations of relatives of the disappeared and when he finally agreed to see them, he did not say a word during the entire meeting. Now Ricardo Lagos has a fairly ambiguous posture. He appears to want to give the impression that he wants justice and that the judiciary is independent but the government has not wished to join the plaintiffs in human rights cases."

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Illicit association: Article 292 of the Criminal Code states that this crime is committed when an association has been formed for the purpose of harming persons, the social order or property. The illicit intent of the association is presumed when one or more of its members carry out the criminal act. In human rights cases of Chile, illicit association refers to the DINA, the CNI, the Joint Command and other repressive organizations of the dictatorship.

Abduction: As set forth in Art. 141 of the Criminal Code, this action is committed when a person is enclosed or deprived of personal freedom. The criminality increases in degree to aggravated abduction if the victim is injured, raped or murdered. Penal doctrine considers abduction a permanent and ongoing crime that initiates when the victim is deprived of freedom and continues until the person is released or located. The permanent nature of abduction annuls amnesty and statutes of limitation.

First degree murder: In the case of homicide, or a body of a disappeared person that is found, the prevailing practice is that courts decide whether or not to invoke the amnesty law only once the date of death is determined. If the date falls within the period of September 11, 1973 to March 1978, the amnesty might be applied. When the crime was committed after April 1978, the amnesty law is not applicable.

Genocide: The Convention for the Prevention and Punishment of the Crime of Genocide, ratified by Chile June 3, 1953, defines genocide as any serious act or injury, either physical or mental, perpetrated for the intent of destroying either totally or partially a national, ethnic, racial or religious group. Chilean legislation does not contemplate the crime of genocide. However, after 1998 with the new acceptance of international treaties in the Poblete Cordova case, genocide became a recurrent cause of action among the cases filed against Pinochet. In these cases, genocide generally refers to the intent of the dictatorship to destroy members of political parties of the left as a national group.

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