Reflections on the practice of human rights attorneys


From the initial moments of the dictatorship, attorneys in Chile mobilized to demand respect for fundamental rights, despite a judicial structure that legitimized the military regime’s trampling of those rights. As members of the staffs of non-governmental organizations that emerged in defense of life, such as the Pro Paz Committee, Vicariate of Solidarity, Fasic and Codepu, attorneys denounced human rights violations, filed complaints and habeas corpus writs, despite the repeated refusal of the courts to accept these actions. Attorneys became targets of harassment and many were eventually forced to leave the country. The work of human rights law professionals was complimented by the concerted efforts of organizations of victims’ families to amass a vast body of evidence that would eventually form the basis for legal action in future years when the judiciary recovered its independence.

The struggle of attorneys was, first and foremost, to protect lives but they were equally engaged in demanding democracy and restoration of a constitutional state where principles of equality before the law would be respected. After the dictatorship in the era known as "transition" to democracy, justice continued to be largely illusory, as courts invoked the amnesty law and military tribunals challenged civil court jurisdiction, in both cases for the intent of closing human rights cases. At various times, lawyers have also continued to felt threatened for exercising their profession.


Alfonso Insunza, today Dean of ARCIS Law School, was a member of the Vicariate of Solidarity legal staff and belonged to the Association of Lawyers of Political Prisoners.

"Our commitment to bring the dictatorship to an end endowed us with a mystique... We were considered enemies of the regime, but most of us worked for important offices - the Vicariate under the Archbishop, Codepu, and Fasic — where we felt protected. International support was key for Chile in those years. That the whole world knew Pinochet was a dictator encouraged us to keep denouncing human rights violations and defending the victims.

It is curious to note that in comparison with other professions, such as doctors, few lawyers became victims of the regime. Although we were threatened, there existed a certain acceptance of our role as necessary in order to maintain the guise of legality, that prisoners had lawyers, that there were trials and that a constitutional state.

Political parties were outlawed and there were no politicians, so lawyers had a greater public profile. The only ones who could speak out a little were human rights lawyers."


Sergio Concha, also a lawyer from the Vicariate of Solidarity, recalls:

"The work began amid a certain chaos, as Chile had never experienced a situation like this one... It was difficult to establish a systematic human rights defense within a legal framework. In fact, we had little time to think things out. The urgency of our job was such that during the first four or five years, long lines of people were always waiting for assistance. We knew that lives and physical integrity were on the line. It was maddening to try to provide legal and human shelter to thousands, and at the same time, attempt to set up a system for human rights work.

...We always felt a great frustration. Other departments of the Vicariate attended more urgent cases, taking people to seek asylum in embassies or to get out of the country. These were all bandaid solutions that attempted to save lives.

The courts appeared completely negative and indifferent to the atrocious and massive violation of human rights. Even so, as lawyers, we came to understand that it was better to keep at our work than to do nothing. We knew it could have been worse had the Pro Paz Committee or the Vicariate not existed. Still, so many lives could not be saved.

After such a very long time, we have limited achievements; few today have been sentenced or even charged for the crimes. Yet the little we have managed to achieve would have been impossible without all the work we did in the past. All the major cases of disappeared persons initiated in the early years of the dictatorship, from 1974 to 1977. Some way or another many of these cases remained open to this day. Or else, lawyers were able to reopen them in the 1990s, in part, through the Rettig commission (Truth and Reconciliation Commission) and all the writs we sent to all the different courts around the country to reopen cases. At last, we witnessed a few changes as reflected in the Supreme Court rulings of 1997 and 1998, as well as the arrest of Pinochet in London."


Lawyers threatened in dictatorship included the following:

On May 12, 1976 the house of lawyer Hernan Montealegre was violently raided and searched by military personnel. Documents related to the Neltume case and to cases of 37 people he was defending who were to stand trial before a War Council on May 27, 1976. Montealegre was arrested and was placed incommunicado 17 days in the Cuatro Alamos detention center on charges of "serving as intermediary to the banned Communist Party."

In 1976 military agents charged into the office of attorney Jaime Castillo Velasco, who defended people accused by War Councils, and took him directly to the airport where he was boarded on a plane. When he was able to return 2 years later, Castillo founded the Chile Human Rights Commission. In 1981 he was again expelled from the country, this time with three other members of the Association of Lawyers for Human Rights.

In September 1987, Roberto Garreton, head of the Vicariate legal staff, was accused and jailed by the First Military Court for having published a critical review of human rights in Chile.


Lawyers Threatened in Democracy:

On July 11, 2000 the La Nacion newspaper received an anonymous phone call: "We of Patria y Libertad claim responsibility for the attack against attorney Contreras." Days earlier, a pickup truck struck the wife of Eduardo Contreras, one of the prosecuting attorneys of the Caravan of Death case, causing her serious injury. The phone call from the ultra-right wing group that took credit for the attack, aroused the lawyer’s suspicion that the incident had not been an accident.

During the arrest of Pinochet in London and the proceedings in Chile, a series of threats to human rights lawyers and to prominent human rights figures obliged the Interior Ministry to assign police escorts to 20 people, including several lawyers such as Codepu legal staff Hugo Gutierrez, Fabiola Letelier, and Julia Urquieta.


The Judiciary

In 1991 the Report of the National Truth and Reconciliation Commission stated: "...of the three branches of government only the judiciary continued to operate, and was neither disbanded nor intervened..." by the military rulers due to their "interest in maintaining ... a semblance of legality."

The Report adds: "The attitude the Judicial Branch adopted during the military regime aggravated the systematic violation of human rights."

The former Justice Minister for the military regime, Monica Madariaga, has explained how judges were appointed during her term in office. The Ministry proposed candidates to the Military Junta and she was called upon to defend them if the Junta doubted their ideological aptness for the post. When asked whether magistrates could have acted differently and chosen to protect human rights victims, Madariaga replied: "How could they have opposed the force of arms with only the force of their positions as magistrates? I knew the Junta; undoubtly they would have dissolved the judicial branch."

Decree Laws 80 and 81 created a judiciary in line with the politics of the dictatorship:

DL80 Permited removal of judges with the votes of only 50 percent of the Supreme Court when previously a two-thirds vote was required.

DL81 Changed the system for evaluating the competence of judges. A judge’s career hinged on the evaluation on a range of 1 to 4. A judge rated at 4 could be dismissed for political incompatibility.

In late April of 1974, 57 judges and magistrates — nearly 10% of the entire judicial body — were evaluated on "lista 4" and dismissed for political reasons. Among the judges whose careers in the courts came to an abrupt end in this way was the judge of the Second Criminal Court of Santiago, Rene Farias, today president of the Chilean chapter of the American Association of Jurists.


During the Dictatorship Three Judges Attempted to Exercise Judicial Independence:

Carlos Cerda
In March 1986, Santiago Appeals Court judge Carlos Cerda subpoened Manuel Contreras, the former director of the DINA secret police, to testify in the case of 10 Communist Party leaders abducted and made to disappear between 1975 and 1976. Contreras sued the judge for his audacity and Air Force General Fernando Matthei complained that Cerda had questioned a lieutenant in the case. Judge Cerda chose to ignore the annoyance produced among military authorities. On August 14, 1986, he ordered the arrest of 40 members of Carabineros police, detectives and the Air Force, including former Commander-in-Chief Gustavo Leigh. When the Supreme Court resolved a jurisdictional challenge in favor of the military court, Cerda ignored the ruling. The Supreme Court responded by suspending Cerda from the bench.

Jose Canovas Robles
In August 1985 Jose Canovas concluded his meticulous investigation of the triple homicide of Jose Manuel Parada, Manuel Guerrero and Santiago Natino, committed on March 28, 1985. The judge charged the police intelligence unit Dicomcar of illicit association and ordered the arrest of its highest officers. This constituted the first time that a member of the judiciary accused security forces of the dictatorship of commiting a crime. The Supreme Court responded by ordering the immediate release of police commanders Luis Fontaine and Julio Omar Michea. Subsequently, the regime dictated Decree Laws 18.431 and 18.472, known, respectively, as the "Fontaine law" and the "Mendoza law," which prohibited judges from indicting upper police commanders or or ordering them to testify.

Rene Garcia Villegas
Another judge who exercised judicial independence and was twice sanctioned by the Supreme Court was Santiago Criminal Court judge Rene Garcia Villegas. Garcia’s suspension in 1988 and subsequent dismissal as judge in 1990 resulted from his public criticism of the judicial branch. His statement that "people are tortured in Chile" was incorporated as part of the televised "No" campaign in 1988. When fellow judges Hernan Correa de la Cerda, Luis Correa Bulo and Jose Benquis, members of the National Association of Magistrates, denounced the Supreme Court admonishment of Garcia, they, too, were sanctioned for having expressed their support.





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