Dismissal of Proceedings against Augusto Pinochet Ugarte
(Translation by Memoria y Justicia)
July 1, 2002
compliance with article 544 of the Code of Criminal Procedure,
the following decision is dictated on appeal:
The appeal of the ruling of January 29 of the year 2001, beginning
on page 5863 of the record, is here reproduced with the exception
of its third, fourth, fifth, seventh, and eighth clauses which
are eliminated and replaced by the following:
That, as established in the second cause of the judgment under
review, attorneys Pablo Rodriguez Grez and Gustavo Collao
Mira, on behalf of Senator Augusto Pinochet Ugarte, seek temporary
dismissal, or stay of proceedings in consideration of conditions
of health that affect him at this time.
That, the petition on behalf of the defendant, as read in
the brief of 5863 pages, draws from constitutional guarantees
of right to life, physical health, and psychological health,
as set forth in the section one, clause N. 1, article 19 of
the Constitution of the Republic of Chile as well as due process
guarantees provided in the fifth section, clause N. 3 of the
Constitution, that stipulate the principle of constitutional
preeminence over all other laws. The petitioners add, that
to protect due process, lawmakers set forth articles 47bis
and 67 of the Code of Criminal Proceedings, articles 7 and
10 of the new Code of Criminal Procedure, and the International
Pact of Civil and Political Rights of the United Nations and
the American Convention on Human Rights, otherwise known as
the Pact of San Jose, Costa Rica are granted full force of
That, the defense affirms expert appraisal found that defendant
Pinochet suffers from moderate vascular subcortex dementia
subcortical vascular dementia "which has caused disturbances
in memory and thought processes, a clinical condition that
is always progressive." This situation places his life in
permanent state of risk, impeding adequate defense in the
case, for which reason, they seek compliance with the cited
constitutional norms in view of their preeminence over any
other law or regulation.
Thus, the defense argues that this Court should invoke article
10 of the new Code of Criminal Procedure, which, in their
opinion, is fully in effect. The new procedural law should
be applied in the absence of regulations that "prevent substantial
encumbrance of the rights of the charged," as in that case,
article 10 orders suspension of proceedings. The defense further
seeks application of article 409, No. 3 of the Code of Criminal
Procedure, as the defendant has fallen into a state of dementia,
and as long as this condition persists, the case should be
temporarily dismissed in his respect.
That, the primary petition to suspend proceedings, implying
invocation of articles 7 and 10 of the new Code of Criminal
Procedure, presumed to be in force, merits certain special
That, compliance to law, as stipulated by articles 6 and 7
of the Constitution, comprises a fundamental principle of
the State that underlies the Republic's constitutional framework.
The first article  establishes that "State institutions
must comply with the Constitution and with laws enacted in
conformance with the Constitution." The second  prescribes
that in order to consider valid the actions of State institutions,
these must vest their members with institutional competency
"and in the manner prescribed by law." From this we understand
that an essential condition for the existence of the constitutional
state is that government offices must act and exercise their
authority in conformance with the framework of the Constitution
and laws, as the only way to safeguard not only fundamental
individual rights, but also the operation of the State.
That, the principle of constitutional preeminence, by which
laws are interpreted in conformance with the Constitution,
is applied by the defense on the basis of the constitutional
provisions previously cited, and compels the courts to interpret
laws consistent with the Constitution. Constitutional preeminence
also implies that individual laws derive full value and significance
as a function and in the context of the Constitution. Moreover,
the interpretation of law must be conducted with respect for
the principle of judicial preservation to retain the intent
of the lawmaker, who may be presumed to enact legislation
in conformance with the Constitution. To the contrary, the
judicial security required to exercise a right would not exist
(Derecho Constitucional, Vol I., Mario Verdugo, Emilio Pfeffer
and Hector Noguera., Ed. Juridica de Chile, 1994, p. 132).
That, enactment of the Code of Criminal Procedure created
a new system that presupposes the existence of a constitutionally
mandated Public Ministry, and an entire procedural infrastructure
different from the one in practice. These new institutions
must make full employment of the newly created set of laws.
The material cost to the State associated with building new
structures has been a major factor preventing uniform implementation
of the constitutional, procedural, and structural changes
throughout the country, although this not the place for analyzing
the reasons for this problem. Only in certain regions of the
national territory is the new system in practice.
In recognition of this difficulty, law N. 19.519, which introduced
the procedural changes to the Constitution, in 1997, created
transitional provision 36, which established criteria for
the gradual changeover. The second clause of this provision
states "...the constitutional structural law of the Public
Ministry and laws that complement these norms to modify the
Court Structural Code and the Criminal Procedural Code, shall
be applied exclusively to events that take place subsequent
to the date these laws come into effect."
EIGHTH. That, the unequivocal provisions of the new procedural
Code's article 483 undermine the employment the defense makes
of regulations seven and ten of the Code. Article 483 indicates
that the new code shall only be applicable to events that
occur subsequent to the moment it enters into force. In accordance
with article 484 of the new Code, the changed system shall
come into effect in the various regions of the country on
the dates therein indicated, beginning December 16, of the
year 2000. Consequently, the provisions of the Code of Criminal
Procedure referred to previously are not yet in force in the
Santiago Metropolitan Region.
In the regions of the country where the new system is already
implemented, the law is not applicable to events that took
place before enactment of the reform. Given that the delay
in putting the regulations in practice is due not only to
explicit operational and structural procedural provisions
but, especially to specific constitutional statute, it is
incomprehensible how they can be interpreted either systematically
nor teleologically without seriously infringing upon the Constitution
that governs us.
NINTH. That, this interpretation is in not possible in light
of the application of international treaties cited by Pinochet
Ugarte's defense. The objective of such treaties is to ensure
the defense of human rights and particularly the principle
of due process. This seeks to prevent discriminatory application
of laws and against persons who fall under their jurisdiction.
Therefore, the State's main obligation is to respect all aspects
of the principle of due process. Criminal procedural law in
force in the Metropolitan Region governing events that occurred
prior to the new procedural code contains sufficient regulatory
safeguards to protect the rights of the accused and due process
Examples of such procedural guarantees are found in articles
318bis, 320, 322, 324, 329, 330, 333, 334 and 336 of the former
Code of Criminal Procedure, all of which are intended to ensure
the rights of the accused. The defendant has made efficient
use of these articles, to avoid placing his life at risk and
has invoked existing laws to protect his individual rights.
TENTH. That, as a consequence of what has been stated in the
preceding paragraphs, these judges have not dictated the suspension
of the proceedings as sought by petitioners, as the laws invoked
by the defense are not presently in force in the Metropolitan
Region and because the circumstances under investigation in
this case took place long before enactment of the new procedural
That, as secondary petition, the attorneys of Augusto Pinochet
Ugarte seek temporary dismissal of the case. The defense invokes
clause N. 3 of article 409 of the Code of Criminal Procedure,
arguing that the defendant suffers from a dementia that prevents
his adequate defense. Consequently, "he has not been heard
with the depth, detail and rigor merited by the nature of
the charges, due to his physical impairment, resulting from
the afflictions that affect him."
That, in order to arrive at an adequate conclusion regarding
the issue posed by this case, we must make a fundamental point
about the situation that is the subject of this discussion.
The defense never petitioned for a stay of proceedings on
the grounds that Pinochet Ugarte's condition of dementia qualifies
him for exculpation from penal responsibility in the actions
under prosecution. Even a superficial knowledge about the
case will infer that this is not possible.
At the time the actions under investigation were committed,
shortly after the military pronouncement took place and in
the defendant 's exercise of authority, no elements whatsoever,
not even minimal, suggest that Pinochet could have suffered
from dementia at that time. This compels us to reach a determination
regarding the specific petition. That is, whether the accused
currently is affected by a condition of mental health that
obliges the court to dismiss the case against him and suspend
proceedings because that condition, which would be mental
incapacitating, impedes him from defending himself.
That, in the petition stated on page 89 of the writ in the
court record of medical examinations before us, the defense
of Augusto Pinochet Ugarte petitioned for an appraisal of
the defendant 's state of health. This petition was accepted
and dictated by the first appeal trial before the Santiago
Court of Appeals. The court record, on page 279, dictated
that to arrive at a resolution of the matter, "a neurological
evaluation must be conducted to determine whether appreciable
organic change was produced in the defendant, aggravated by
an intervening disease, that may affect his mental health."
And, "in addition, the defendant shall be subjected to neurological
appraisal for the purposes previously indicated." The court
concludes by ordering that expert witnesses of the Legal Medical
Service conduct these exams as well as two neurological experts
of the Forensic Medicine Department of the University of Chile.
reading of the legal medical evaluation that accompanies the
court record on page 564 of the respective examinations confirms
that the tests were conducted in order to determine whether
Augusto Pinochet presents a psychosis or dementia "and in
the event that these conditions exist, determine their severity."
The Legal Medical Service staff appointed to conduct the appraisals
were the following four doctors: Hugo Aguirre Astorga in his
capacity as neurologist and the psychiatrists Slavko Benusic
Carevic, Inge Onetto Mu–oz and Siomara Chahuan Chahuan. Neurologists
Manuel Fruns Quintana and Violeta Diaz Tapia participated
in the medical evaluations on behalf of the Clinical Hospital
of the University of Chile. Other expert witnesses who participated
as observers of the medical evaluations were the neuropsychiatrist
Luis Fornazzari Nu–ez and neurologist Sergio Ferres[r] Ducaut
[d]. All medical professionals were appointed with no objections
from either party.
That, before considering the analysis of expert testimony
produced in the record of this case, we must unravel certain
concepts described by the medical science of psychiatry. Such
is the only way to elucidate the meaning of the terminology
madness, dementia and mental incapacity, which are employed
by our Penal Code and our Code of Criminal Procedure as similar
That, the authors' descriptions of dementia indicate that
it is a disease in which the intelligence or mental capability,
is disturbed or diminished. Karl Jaspers, one of the first
psychiatrists to describe the condition, states that dementia
is a type of disturbed intelligence. He described organic
dementia as a process in which the memory and attention span,
conditions prerequisite to intelligence, tend to be destroyed.
The descriptions add that sometimes the mechanisms of language
are also affected. In such cases, it states, the entire intelligence
capacity may disintegrate progressively due to the process
occurring in the brain.
persons afflicted with this illness may have a reduced reasoning
capacity and reduced attention span. (Psicopatologia General.
Editorial Beta, Buenos Aires, 1966, p.256). In his description
of psychiatric disturbances associated with cerebral lesions,
Oskar Diethelm states that the fundamental psychopathological
symptoms are disturbed recent and long-term memory. He adds
that the course of the disease is progressive and leads to
deterioration. (Tratamiento en psiquiatria. Editorial Paidos.
Buenos Aires, page 334). Our Penal Code and Code of Criminal
Procedure employ the terms madness, dementia and mental derangement
as similar ideas.
That, other scientists describe deterioration of memory as
a basic characteristic of both the Alzheimer type of dementia
as well as vascular dementia and other classes of dementia
associated with other diseases, or due to the effect of narcotics.
These authors explain that the condition involves loss of
the capacity to learn new information or remember information
previously learned. Short-term memory tends to deteriorate,
although long-term memory is retained during the early stages
of the disease. The loss of memory may prevent the patient
from performing work and daily tasks. It may also be accompanied
by memory lapses covered by confabulations (Stories are invented
in order to hide memory deficit.) (Allen Frances, Michael
B. First, and Harold Alan Pincus. DSM-IV. User's Guide, Masson,
Barcelona, 1997. P. 138)
That, criteria for the diagnosis of dementia is said to include
memory loss that causes significant deterioration in the individual's
actions and is associated with at least one of the following
cognitive alterations: 1) Aphasia, a language disorder; 2)
Apraxia, a deterioration of mobility although the motor function
remains intact; 3) Agnosia, the failure to recognize or identify
objects, although the sensory functions are intact and 4)
Alteration in the ability to carry out actions (e.g., planning,
organization, sequential actions, and abstraction). In the
case of vascular dementia, there must also exist evidence
of cerebral vascular disease, confirmed through physical examination
and lab tests. (Allen Frances and Ruth Ross, DSM-IV. Case
Studies, Clinical Guide for differential diagnosis; Masson,
Barcelona, 1999. p. 44)
EIGHTEENTH. That, as described in the reports, the examinations
led the expert witnesses to important conclusions that these
judges deem appropriate to briefly review, presenting only
the essential details needed in order to understand the doctors'
NINETEENTH. That, upon conducting the psychiatric examination,
experts confirmed that the individual speaks coherently although
he can become evasive or refuse to respond. He tends to enter
into detail and his responses are often concrete, but lower
than expected for his level. He evidences a short attention
span and a failure to focus attention, which may be observed
in his repetition of an automatic series and has a significantly
diminished short-term memory. Inductive reasoning tests (similarities,
differences, etc.) reveal that his abstraction capacity and
judgment are diminished. The subject displays reduced interest
in activities that previously attracted him, a state of boredom,
a tendency to withdraw, contained anger and rumination of
ideas, and capacity for self-criticism is reduced. These factors
lead experts to conclude that the subject "presents a reduced
intellectual level, with cognitive deterioration more advanced
than expected for his age, corresponding to a moderate level
That, the neurological evaluation practiced through an interview
with the defendant verified that he correctly recognizes doctors
with whom he was previously acquainted. His speech evidences
clear signs of brain damage, manifesting itself in persistence,
apathy, concern for physical things rather than abstract concepts,
and unnecessary details. At times he loses the trail of thought
and forgets uncommon words. He mistakes the date and day of
the week; and forgets two out of three words. When told to
perform three tasks, he remembers to perform only two. His
attention span and concentration are adequate initially but
decline as he tires during the test, with evident exhaustion
and subsequent decline in test results. He has severe difficulty
in resolving problems involving similarities and differences.
responds inadequately to problems posed to evaluate judgment.
He is incapable of functioning independently in work activities
at large. His interests are very narrow and he only maintains
the simple nucleus of the home. He abandons more complex tasks
such as reading; does not finish reading a book because he
forgets the subject he has been reading about; and replaces
reading for tasks in his library such as arranging books on
the bookcase. He requires assistance in dressing, in his personal
hygiene and in care of his personal things.
facts led to the conclusion that the accused "is in the category
of moderate dementia." Moreover, the segmentary neurological
examination confirmed that he walks with marked difficulty,
loss of posturual reflexes and other symptoms that "indicate
multifocal cerebral damage, predominantly subcortical, basal
and of the frontal lobe.
TWENTY-FIRST. That, lastly, a neuro-psychological evaluation
consisting of four tests complemented and confirmed the diagnostic
hypothesis posed by the neurologists and the psychiatrists
for the purpose of obtaining evidence that could point to
a more precise diagnosis.
That, the test (Luria-Nebraska Test Battery) establishes the
precise location of the neurological damage. That even though
his intellectual capacity was found to be within the expected
range for his chronological age, there is evidence of generalized
brain damage. The qualities most affected by this damage are
memory, learning ability, logical memory, short-term memory,
and writing letters and words.
he was unable to touch his thumb to his fingers in order and
sequence, and was unable to repeat the action of pressing
his middle finger with the thumb for two seconds (apaxia).
He has difficulty in repeating and writing simple sentences,
fails in those activities which involve remembering an immediately
prior sensorial stimulus. He also failed in activities involving
analysis and identification of a thematic picture (He was
shown figures in mistaken order and asked to rearrange them
in the correct order.). He also showed difficulty in the ability
to form analogies, find opposites, and find the logical relationship
between specific objects and the group to which these objects
belong. He fails to answer adequately when asked to describe
the similarities between pairs of objects and could not identify
a word that does not belong to a same group.
That, in the test to assess cognitive disorders, determine
the existence and degree of dementia (SKT Kurz Syndrome Test),
the subject obtained a score of 21, which situates him "according
to the standarized Chilean table, in the category of moderate
dementia." In the test evaluating abstraction capacity and
cognitive flexibility in regard to generating and substituting
categories (Wisconsin Card Sorting Test) he persisted in a
number of answers that show significant damage.
incapacity verified by a series of tests leads to the conclusion
"that 95 percent of his peers in age and educational level
possess a higher and better score." From the Rorschach test,
the conclusion is reached that his reasoning system is predominated
by excessive distance and theoretical perception of reality.
This suggests a decline in common sense and ability to connect
with the more pragmatic and concrete aspects of reality. Although
capable of elaborating an opinion about reality, he has lost
the sense of reality. All the above leads the experts to conclude
"that there exists a deterioration of his cognitive functions,
specifically regarding attention span, concentration, and
memory (particularly recognition and short-term memory). Moreover,
he has a loss of language functions and intellectual processes,
especially in carrying out actions."
That, the summary of the tests described above and other complementary
tests performed on Pinochet Ugarte indicate that he is an
85-year-old patient, who suffers from hypertension and diabetes,
with a history of strokes and that the result of the "neurological,
psychiatric and neuropsychological examinations supports evidence
of a dementia of vascular origin in moderate degree, in accordance
with international classifications."
That, furthermore, from the file of the 546-page initial medical
report, that is incorporated to the court record at page 5783,
the professionals concur with the final report, but they indicate
that Pinochet Ugarte suffers from light to moderate dementia.
All the experts concur that he retains long-term memory but
his responses are not credible, that he fabricates answers
and it is not clear at any given moment if his answers correspond
experts also agree that he is affected by an apathy that distances
him from reality and does not grasp what is happening. Doctor
Ferrer has even established that he lacks adequate reasoning
capability, and selects information from previous files that
frequently have no relation with reality. The court record
also includes the statement by doctor Fornazzari that the
medical and psychological proceedures were conducted in conformance
with the highest of international standards. Because he had
to return to Canada, Fornazzari submitted a written statement
that later was incorporated at page 550 when the record was
drawn. The doctor's statement presents a diagnostic of mild
to moderate subcortical dementia of vascular origin.
That, six experts, including two observers, all of whom are
authorities in their field, conducted the medicial evaluation
referred to in the previous clauses, guided by principles
of the science which they profess. Thus, their findings may
be considered sufficient proof that Augusto Pinochet Ugarte
suffers from mental derangement. That, one expert observer,
Dr. Fornazzari believes the subject is affected by light to
moderate dementia, in contrast to his colleagues who believe
it is a moderate dementia, is unimportant, in the opinion
of the court, for he concurs with the fundamental diagnosis
of dementia. Neither shall the court give importance to Dr.
Claudio Molina Fraga's neuropsychiatric report incorporated
at page 3632. That report lacks relevance as it was unsolicited
by the court and lacks expert quality, comprising a mere commentary
on the expert evaluation conducted in this proceeding.
That, the facts submitted above give rise to the conviction
that, as stated in whereas twenty-four, Augusto Pinochet Ugarte
suffers from subcortex dementia of vascular origin in moderate
degree, a mental illness consistent with vascular dementia.
In effect, the finding meets requisites for giving course
to diagnosis of dementia described previously in the seventeenth
point. The derangement was acquired in years after the crimes
under investigation were committed, for which reason the regulations
set forth in Paragraph 2, Title III, Book IV of the Code of
Criminal Procedure, which establishes the procedure for derangement,
are applicable in this case.
TWENTY-EIGHTH. That the legal provisions contained in Paragraph
2, referred to previously, are regulations that are intended
to protect defendants' right to be tried with no infringement
of due process guarantees. This legal system was born from
the concern of legislators for safeguarding equality of all
citizens who are called upon to defend themselves in court
from charges against them. Thus, when the court encounters
a situation in which the full exercise of due process rights
is impeded, article 349 of the Code of Criminal Procedure
compels the judge to order a mental examination of the defendant
if older than seventy years of age, regardless of the penalty
associated with the crime with which he is charged.
That, from the laws previously cited, it may be deduced as
indicated by article 684, that should a defendant fall into
a state of mental incapacity or derangement, the judge must
decide whether to continue with the proceedings or if dismissal
is not appropriate. In order to reach this decision, the magistrate
must determine consider the nature of the crime and ascertain
the nature of the illness, shall commission a legal medical
report for this purpose. In order to determine whether to
continue the proceedings against the defendant, as provided
in article 686 of the Procedural Code that corresponds to
the matter, the disease must be incurable, and, if confirmed,
the court shall dictate permanent dismissal of proceedings.
If, on the contrary, the mental illness is curable, the court
shall dictate temporary dismissal, and resume proceedings
once the defendant has recovered reason.
THIRTIETH. That, it is evident that the serious nature of
the crimes under investigation in this case holds a great
responsibility for the judge. The nature of the crimes is
of a very serious complexity and the investigation of these
crimes so many years after the events transpired is difficult
and arduous. The interrogatories must be exhaustive and highly
demanding in order to obtain the greatest possible information.
Through the defendant's testimony, the investigation must
verify the facts and his involvement as well as the involvement
of other persons. Upon informing the defendant of the charges
against him and of the evidence that incriminates him, the
court must listen to defendant's answer.
That, defendants who testify in a case of this nature must
be in full possession of their mental faculties in order to
contribute those elements needed to obtain a degree of success
and in order to avail themselves of their rights. A person
who does not have full use of his mental faculties is not
capable of testifying. While it is true that legal representation
may be delegated to an attorney, this does not replace the
opportunity to personally testify with full use of reasoning.
Nor is such a person capable of testifying on the facts, modifying
his testimony, proving that the events did not occur or that
he had no involvement in the events.
That, as stated in whereas twenty-six, defendant Augusto Pinochet
Ugarte suffers from mental derangement known as vascular dementia.
As previously described in motifs nineteen through twenty-three,
this condition produces symptoms that cause the patient to
suffer a cognitive deficit, manifested in memory loss, as
described in reflection nineteen. This condition has resulted
in significant deterioration in his actions, preventing him
from organizing relatively complex actions required to carry
out a task (such as touching his fingers, described in paragraph
twenty-two). The condition has also produced an alteration
in the capacity to act, that is, in planning, organizing,
carrying out sequential operations, and abstraction, as stated
in sections twenty through twenty-three. This may be observed
in his failure to complete sequential tasks, his inadequate
response to problems posed to test reasoning, inability to
function independently in work activities in his community,
and in his abandonment of more complex activities such as
That, moreover, this mental condition, in the words of the
doctors cited in whereas fifteen, may eventually and progressively
cause degeneration of intelligence and may lead to irreversible
deterioration. This is congruous with the various encephalic
vascular accidents confirmed by brain scans and the patient's
clinical history, which, if continue, would augment the loss.
For this reason, it is the opinion of these judges that the
mental illness from which the accused suffers is incurable.
That, the mental problems of Pinochet Ugarte, in the opinion
of these magistrates, affect his ability to stand trial. As
a person whose ability to act is encumbered, he is not in
sound mind to face a criminal proceeding. In light of what
has been previously described in whereas twelve, however,
this does not refer to his imputability for the purposes of
penal responsibility in the actions with which he is charged.
In consideration of what has been stated, in keeping with
article 686 of the former Code of Criminal Procedure, and
acting officially in conformance with its legal authority,
this Court must resolve not to continue proceedings against
Augusto Pinochet Ugarte; and, consequently, shall dictate
definitive dismissal of proceedings in his favor. In the absence
of reasons to believe that his freedom comprises a danger
to society, or, in the terms of article 688 of the Code of
Criminal Procedure, the defendant shall remain free at large.
That, for the reasons here expounded in the ruling, these
judges dissent from the opinion of the Prosecutor in his report
at page 6280 in the sense that the dismissal of the case should
Due to these considerations and in light of provisions set
forth in articles 408 Nˇ6, 684, 686 and 688 of the Code of
Criminal Procedure, the ruling set forth as of page 5868 and
appealed from January twenty-nine of last year shall be revoked,
and the case shall be declared partially and definitively
dismissed in favor of Augusto Pinochet Ugarte.
with an opposing vote from Judge Jose Luis Perez Za–artu,
who advocated upholding the resolution appealed, in virtue
of grounds that he alone sustains.
judgment of record and incorporate to files in view.
by Judge Alberto Chaigneau del Campo. Rol Nˇ2986-01. Dictated
by Judges Alberto Chaigneau del C., Enrique Cury U., Jose
Luis Perez Z., Milton Juica A. and Nibaldo Segura P.