U.S. Court Issues Historic Verdict in Caravan of Death

   


A U.S. civil court achieved what no court in Chile has been able to achieve: bring to trial and sentence one of the individuals responsible for the Caravan of Death executions. Details about the case and the organization that filed the complaint follow below.


Press Release
Background on the case


PRESS RELEASE
(by Center for Justice and Accountability)

Bay Area Family Wins Historic Verdict in Trial Against
Pinochet Operative for Role in "Caravan of Death" Killing

October 15, 2003

A Florida jury awarded four million dollars in compensatory and punitive damages to a Bay Area Chilean family for the torture and murder of their brother, a Chilean economist, on October 17, 1973 - almost 30 years ago to the day. The civil jury found Armando Fernandez Larios, in his role as a member of the "Caravan of Death" - a military squad acting under orders from Chilean dictator Augusto Pinochet - liable for torture, crimes against humanity, and extra judicial killing. The trial marks the first time any Pinochet operative has been tried in the United States for their role in human rights abuses committed in Chile, as well as the first jury verdict for crimes against humanity in the United States.

" The verdict also coincides with the fifth anniversary of the arrest of Augusto Pinochet in London," stated Sandra Coliver, Executive Director of the Center for Justice and Accountability, which brought the lawsuit, "Pinochet was being sought for having ordered the deaths that took place during the Caravan of Death. While Pinochet was never brought to justice, today at least there was an acknowledgment by a court of law that what the Caravan did to Winston Cabello and others constituted a crime against humanity."

Plaintiffs in the case are Elsa Cabello and Zita Cabello-Barrueto of Foster City, Karin Moriarty of Santa Clara, and Aldo Cabello of Oakland. They are the mother, sisters, and brother of Winston Cabello, one of the 70 or more civilians executed by the Caravan.

The jury found Fernandez liable, as a member of the Caravan, for conspiring to commit, and aiding and abetting in, the torture, cruel and inhumane treatment, and extra-judicial killing of Mr. Cabello. The "Caravan of Death" traveled through Chile by helocopter to different towns within weeks after the 1973 Pinochet-led coup d'etat ordering the deaths of political prisoners detained by Pinochet's military junta.

"This is a victory, not just for our family, but for all the families and victims of the Caravan of Death," said the Cabello family, "While we believe that Fernandez should be tried on criminal charges in Chile, we are happy that this case has disrupted his ability to live with impunity in the United States."

A Chilean amnesty law prevented Fernandez's prosecution in Chile, and U.S. criminal laws do not permit prosecution for summary killings committed abroad, or for torture committed abroad before 1994. However, two federal statutes, the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TPVA), permit human rights victims or surviving relatives to bring civil claims against perpetrators from other countries who are found in the U.S. The civil suit brought by Cabello family, therefore, was the only avenue available to them to pursue justice against Fernandez Larios.

Fernandez came to the United States in 1987 after reaching a plea agreement with federal prosecutors in which he pleaded guilty to covering up the responsibility of the Chilean secret service for its responsibility for the 1976 car-bomb assassination of former Chilean ambassador Orlando Letelier and his American assistant Ronni Moffett. After serving a five-month federal prison term, Fernandez moved to Miami. Argentina has also sought the extradition of Fernandez for his alleged role in the assassination of Chilean General Carlos Pratts in Buenos Aires.

The suit was initiated by the Center for Justice and Accountability (CJA), a San Francisco-based human rights organization that works to end the impunity of perpetrators of human rights abuses by, among other means, bringing civil lawsuits against perpetrators who live in the United States. Co-lead counsel, providing their services pro bono, were Robert Kerrigan, of Kerrigan, Estess, Rankin & McLeod based in Pensacola, Florida, & Leo Cunningham, a partner with the firm of Wilson Sonsini Goodrich & Rosati, in Silicon Valley, California.



Background on Cabello v. Fernandez Larios Case


What is this case all about?
On October 17, 1973, Winston Cabello Barrueto, who had been a well-regarded regional planning official in the ousted Chilean government of President Salvador Allende, was murdered by or at the orders of members of a Chilean military delegation known as the "Caravan of Death" in the city of Copiapo, Chile. The murder took place some five weeks after General Augusto Pinochet launched the military coup d'etat on September 11, 1973 that placed General Pinochet in power. In this case, Mr. Cabello's mother, sisters, and brother, all U.S. residents since the 1970s, seek to establish the responsibility of a Chilean former army officer, Armando Fernandez Larios, for his role in the killing. Fernandez Larios was one of several officers in this military delegation believed to have ordered or carried out the killings of more than 70 civilians during a journey by helicopter throughout Chile in late September to October 1973. This military group has become known as the "Caravan of Death." Criminal charges against General Pinochet in Spain and in Chile were based on his alleged role in ordering the Caravan journey of death. However, Pinochet escaped liability after being found mentally unfit to stand trial by the Chilean courts. Accordingly, the civil trial will mark the first time any member of the "Caravan" will stand trial for responsibility for any of the killings perpetrated during its journey.

Who was Winston Cabello?

Winston Cabello was a 28-year old regional planning official for two northern Chilean districts, Atacama and Coquimbo, in the coalition "Popular Unity" government of President Salvador Allende at the time of the Pinochet-led coup against the elected Allende government in September 1973. Cabello was highly regarded in Copiapo, the northern city in which he lived and worked: in addition to being chosen for a position of significant responsibility in the Allende government for his intellect and role as a mediator between diverse political groups, he played guitar with a local folkloric music group and had been a star Copiapo soccer player. Cabello refused to identify himself with any particular party, preferring to maintain his political independence. Cabello was detained on September 12, 1973, the day after the coup d’ etat, and held in the Copiapo miltary garrison without ever being formally charged with any offense. He was held for five weeks without incident until the evening of October 16, 1973, when the "Caravan of Death" arrived in Copiapo. On that evening, Cabello was taken from the garrison and killed along with 12 other civilian prisoners also detained after the coup.

Who are the plaintiffs?
The plaintiffs, Zita Cabello Barrueto, Karin Moriarty, Aldo Cabello, and Elsa Cabello, are the sisters, brother, and mother of Winston Cabello, respectively. The Estate of Winston Cabello, through its personal representative of Zita Cabello Barrueto, also is a plaintiff in the action. Soon after Winston Cabello's murder, Cabello's sister Zita Cabello Barrueto and her husband Patricio, who also had been detained in Copiapo and forced into internal exile, fled to the United States in 1974. The rest of the Cabello family followed in 1978. All eventually became U.S. citizens, except for Aldo Cabello, who is a legal permanent resident.


What role did Fernandez Larios play in the murder of Winston Cabello?
Plaintiffs claimed that Fernandez Larios either directly participated in Winston Cabello's murder, or that he at least provided assistance to or conspired with other members of the Caravan and local officers who carried out the killing. Fernandez admits that beginning in October 1973, he accompanied General Arellano Stark on the Caravan of Death, and that he became aware during the Caravan's journey that civilians had been killed in the cities where the Caravan had stopped. Testimony provided to Chilean courts and in public interviews by Chilean journalists implicates Fernandez in killings and torture in many of the cities in which the Caravan stopped. While evidence suggests that Fernandez may himself have murdered Winston Cabello, Plaintiffs claim in the lawsuit that Fernandez is at least liable as an accomplice or co-conspirator for having willfully participated in the Caravan's mission to torture and kill certain civilian detainees in Copiapo and elsewhere in Chile.

What do plaintiffs and CJA hope to achieve with this case?
The Cabello family seeks justice, first and foremost, for themselves and for all those whose loved ones were killed by the Caravan of Death. The perpetrators of such crimes should not be able to find safe haven in the U.S. Plaintiffs view this case as part of a larger effort to document, acknowledge, and assign individual responsibility for human rights violations committed under the banner of "state security" during the Pinochet regime. These abuses, in fact, were tools of repression and terror against a peaceful civilian populace. Finally, the plaintiffs believe that impunity is one of the biggest obstructions to the development of emerging democracies, especially in countries that have recently experienced periods of state-sponsored human rights abuses. By pursuing this case against Fernandez Larios, plaintiffs hope that they can lend solace and encouragement to people in Chile and elsewhere who feel justice has been left behind in the transition from dictatorship to democracy.


Why wasn't the case filed in Chile?
A 1978 amnesty law prevents charges from being brought in Chile against Chilean officials for crimes or cover-ups committed by officials under General Pinochet at any time between the military coup on September 11, 1973 and March 10, 1978, when a state of siege was lifted. Accordingly, relatives of most victims of the Caravan generally do not have a remedy in Chile. Chilean courts have, however, allowed cases to proceed in which the bodies of victims have never been recovered on the ground that these cases involve "continuing crimes" not covered by the amnesty law. As Winston Cabello's body was located in 1990, the Cabello family cannot bring a legal action in Chile against those responsible for his death.

Both the United Nations General Assembly and the Inter-American Commission on Human Rights have criticized the amnesty law. Since Pinochet's attempted extradition from the UK to Spain, Chilean courts have recognized that continuing violations such as disappearances are not covered by the amnesty law, and a number of cases involving human rights abuses during the 1973-78 period have been brought. It is only during the past year that these cases have been brought to trial and convictions obtained. The amnesty law has no legal effect in the United States. The Chilean courts dismissed charges against General Pinochet in 2002 for his role in the Caravan of Death after finding him unfit to stand trial owing to alleged mental and physical deficiencies. It appears unlikely that the Chilean courts now will bring any of the other participants in the Caravan of Death to trial. The Cabello family's case, therefore, stands as the first, and possibly only, case in which a Caravan participant will be required to face justice for his role in the Caravan.

What is CJA?
The Center for Justice and Accountability is a non-profit international human rights organization based in San Francisco that works to hold human rights abusers accountable. CJA represents survivors of torture and relatives of victims of summary killings in claims in U.S. courts against human rights violators who live in or visit the U.S. CJA also provides information to U.S. government agencies to help them pursue, prosecute, and deport human rights abusers within the U.S., and advocates for appropriate legislation and policies to ensure that human rights violators may be held accountable. CJA was founded in 1998 with initial support from Amnesty International USA and the United Nations Voluntary Fund for the Victims of Torture. CJA is now independent from Amnesty International USA, although both organizations continue to cooperate on many projects. CJA receives substantial pro bono support from law firms, lawyers, professors, translators, and private investigators around the country.

What is the legal basis of the suit?
The Alien Tort Claims Act, adopted in 1789, gives survivors of egregious human rights abuses, wherever committed, the right to sue persons responsible for the abuses in U.S. federal court. Since 1980, the law has been used successfully in cases involving torture (including rape), extrajudicial killing, crimes against humanity, war crimes, and arbitrary detention. The Torture Victim Protection Act, passed in 1991 and signed into law by President Bush in 1992, gives similar rights to U.S. citizens and non-citizens alike to bring claims for torture and extrajudicial killing committed in foreign countries. The perpetrator generally must be served with the lawsuit while they are present in the United States in order for the court to have jurisdiction.

Can you give examples of similar trials?
The first case brought under the ATCA for human rights abuses was Filartiga v. Peña-Irala. In 1976, the father of a young man who had been tortured and killed in Paraguay while in police custody saw the police inspector involved in his son's torture and killing walking the streets of Manhattan. The father called the INS, and the INS arrested the police inspector for overstaying his visitor's visa. The father and sister brought a claim against the inspector, and in 1980, the U.S. court in New York upheld their claims, opening the way for other claims using the Alien Tort Claims Act to be brought.

One of the most publicized cases in recent years was the case against former Philippines President Ferdinand Marcos. After he was voted out of power, he found safe haven in Hawaii. Eventually, a U.S. jury found him responsible for the torture and murder of Philippine dissidents, and ordered his estate to pay nearly $2 billion to his victims. In July 2002, CJA won a $54.6 million judgment against two Salvadoran generals, both former Ministers of Defense, who had retired to Florida in 1989.

A jury in West Palm Beach, Florida, determined that the generals bore command responsibility for the torture of CJA's clients, three Salvadoran refugees who now live in the United States. This case was the first case in which a jury found commanders liable under the doctrine of "command responsibility." This doctrine provides that commanders may be held liable for failing to take measures to prevent or punish abuses they knew or should have known were being committed by their subordinates.

Have plaintiffs been able to collect on their judgments?
There have been few successful efforts to collect damages awarded to plaintiffs in these suits because most of the defendants have either been visitors who did not keep assets in the United States, or individuals who lived in the U.S. but who did not have any significant assets. CJA intends to devote its efforts to ensuring that Fernandez Larios pays any judgment against him. The judge in CJA’s case against the Salvadoran generals ordered an investment firm to turn over to plaintiffs’ attorneys, on plaintiffs’ behalf, more than $200,000 held in an account by General Vides Casanova.

How does CJA find cases to file?
CJA works with survivor communities, human rights organizations, and torture treatment centers throughout the United States to help torture survivors seek legal remedies for their injuries. In addition, CJA does outreach to the over 500,000 refugees in the U.S. who have endured some form of torture. Victims are often reluctant to come forward because they were so traumatized that they still find it difficult to discuss their ordeals, and they are often scared about potential repercussions for themselves or for family members who remain in their country of origin. Along with this Chile case, CJA has filed cases on behalf of plaintiffs from East Timor, El Salvador, Bosnia, China, Honduras, Haiti, and Iran.

Why a civil suit? Why not a criminal prosecution?

Only government prosecutors have the authority under the U.S. legal system to initiate a criminal prosecution. Neither private citizens, nor organizations like CJA, have the authority to file a criminal case. There are several federal laws that allow for criminal prosecution of certain grave human rights abuses like torture, genocide, war crimes, and terrorism. However, the U.S. Department of Justice (DOJ) does not believe that it has the authority to bring criminal charges in this case. The U.S. law that gives jurisdiction to U.S. courts to hear criminal cases of torture wherever committed was signed into law in November 1994. The DOJ maintains that it can only prosecute criminal acts committed after that date, due to the prohibition on ex post facto application of criminal laws. The plaintiffs' claims against defendant Armando Fernandez Larios are for crimes committed in October 1973, and so the DOJ would not initiate a torture prosecution against Fernandez. CJA has provided legal authority to the Justice Department which establishes that prosecution for torture committed prior to 1994 would not violate the ex post facto prohibition. Regardless, to date, the DOJ has not brought any criminal prosecutions of torturers under the 1994 law. The DOJ tried to bring its first prosecution in March 2000, pursuant to a tip from CJA, when a Peruvian security agent believed to have tortured people in Peru in 1996-97 visited the U.S. However, the FBI released the man after the State Department gave its opinion, which was widely criticized, that the Peruvian had diplomatic immunity.

For more information, please visit CJA website at www.cja.org

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