The International Federation of Human Rights (FIDH)
with their affiliated organisation in Chile, the
Commission for the Promotion of Peoples’ Rights
(CODEPU) sent an International Mission of Enquiry to
study the present state of complaints against him, and
against Chilean Army Officers in general.
This Mission, which took place in Santiago, from 3rd to
10th March, was made up of:
– Claude Katz, barrister in Paris and Secretary General
of the FIDH
– Antonio Donate, Spanish judge and member of "Judges
for Democracy" association
– Juan Carlos, barrister in Buenos Aires and member of
the "Legal Action Committee"
The Mission met with representatives of government
authorities, political parties and organisations making
up civil society - and also with Mr. Juan Guzman, judge
in charge of cases brought against Augusto Pinochet
and military officers, and with the Director of the
National Corporation for Reparation and Reconciliation.
The Mission, in its preliminary conclusions, considered
that presently, neither on the political nor the legal
level, would circumstances permit Augusto Pinochet to
be tried by Chilean courts in the event of his return to
Chile.
The Mission found various obstacles to bringing
a legal case against Augusto Pinochet :
– Decree Law of 19th April 1978 giving amnesty for acts
occurring from 11th September 1973 to 10th March
1978, the period in which the most serious crimes
were committed by the Chilean dictatorship.
– A full interpretation of constitutional and legal texts
giving jurisdiction to military courts over civil courts.
– Immunity enjoyed by General Pinochet as Senator for
life appointed under article 45 of the Constitution by
virtue of the decree law of 21st October 1980.
There is no evidence which would allow the Mission to
anticipate the removal of these obstacles to allow
prosecution of Augusto Pinochet. More generally, the
Mission notes that out of 3197 cases brought before
the Truth and Reconciliation Commission, only 19 have
resulted in convictions since 1990, the year of Chile’s
transition to democracy. These were mainly
convictions of low-level officers.
Certainly these obstacles could be formally removed,
but the present Constitution, drawn up in 1980 by
Augusto Pinochet, confers a primary role on the
Senate, in view of its power to nominate Supreme
Court judges and to lift the immunity of Pinochet. As
the present Senate includes 10 appointed Senators,
any normal development of a trial of Augusto Pinochet
is prevented. The Supreme Court President is Roberto
Davila Diaz, appointed like the other members of the
Court by Augusto Pinochet. Other members are
appointed by the President of the Republic after
approval by the Senate.
Further, the Mission found evidence of strong pressure
by the armed forces, which oppose any trial of Augusto
Pinochet, on the Government authorities, particularly
through the National Security Council, half of whose
members are the four army Commanders in Chief.
The mission acknowledges the important
investigations accomplished by Judge Juan Guzman,
who is currently handling 18 cases covering several
thousand victims, following substantial evidence of
crimes committed by Augusto Pinochet and other
military officers. Judge Guzman considers that the
crime of illegal detention followed by disappearance is
a crime not affected by the amnesty law.
The Mission met the National Director of Police and
was authorised to visit the Detention Centre Collina II,
on behalf of some 56 political prisoners transferred
there from the High Security Centre on 6th February
1999; cases referred to them before leaving for Chile.
Upon their transfer, they suffered systematic beatings
by a special major police detachment ; electric shocks
and cigarette burns ; and their heads held down in a
basin of water. These prisoners could not understand
why they were not treated as political prisoners, and
why they were being tried twice, both by civil and
military courts under the anti-terrorist law of 1990,
involving double punishment.