Interview with Attorney Hugo Gutierrez

February 21, 2002

On July 9, 2001 the Sixth Chamber of the Santiago Court of Appeals ordered the temporary and partial dismissal of Augusto Pinochet's indictment in the Caravan of Death case. The ruling would exclude him from the investigation headed by Judge Juan Guzman of the homicides and abductions in which Pinochet was implicated, unless the Supreme Court accepts plaintiff appeal motions. Hugo Gutierrez, one of the prosecuting attorneys, offers his appraisal of the case.

How did the prosecution respond to the Court's ruling?

In August 2001 I filed a motion to dismiss, which Juan Pavin and Juan Subercaseaux followed with a second motion to dismiss. The two motions have been joined and will be considered in the same hearing. These motions state three reasons to annul the Court of Appeals decision to temporary dismiss the Pinochet indictment: First, the ruling failed to explicit the legal grounds for the temporary dismissal. Second, the ruling applied a law which was not in effect at the time, and, third, we object that the Court found Pinochet to be not of sound mind.

Later attorney Alfonso Insunza filed a motion to review the ruling on the basis of its unconstitutionality. The motion indicated that a legal provision had been incorrectly and applied, as the new Criminal Procedures Code cited in the court ruling has not come into effect in the Santiago Metropolitan Region. This also forms part of our argument in the motions to dismiss.

The motion to review must be considered first even though it was filed after the other two. If the motions to dismiss were considered first and were rejected, no further remedy would be possible. The case would be closed, and the motion to review could not considered.

What is happening with the case now?

Nothing. These motions are pending before the Supreme Court. And the Supreme Court has its reasons for not wanting to speed up the procedure. The indictments of the other defendants remain unchanged. We are all waiting. I have the impression that a decision exists to let these appeals lie, but sooner or later the court will have to move on it.

Was the temporary dismissal a judicial solution to a political problem?

I believe the temporary dismissal of the Pinochet indictment is a negotiated way out. What happened in the Pinochet trial is the consequence of the kind of political transition we have in this country. Our country has the degree of justice that the political transition permits us to have. We advanced all we could in the Pinochet case, but we have reached a limit.

The results have been good, although our expectations were much higher. Still, common sense said that we would not be able to get very far in bringing Pinochet to justice. What happened is that Pinochet accepted the most indignant way out of all: he end up as a criminal madman. He failed to weigh this out in historic terms. Certainly, it favors him in the immediate future, but in the long term it will hurt him tremendously.

The defense never argued that Pinochet was innocent of charges.

That's right. His defense argued he was affected by certain physical and mental conditions that impeded him from facing trial. In the beginning, both in the immunity hearings as well as the criminal trial, but principally in the immunity hearings, the defense always argued that Pinochet was not in condition to physically face a trial. Later, we noted a change in the defense strategy. They looked for a solution tailor-made to fit Pinochet and that turned out to be temporary dismissal for madness and dementia. Pinochet was the sole beneficiary of that solution. No other defendant could benefit from it. The indictments stand for all the other defendants and it is quite possible that all of them will be convicted.

The cases against Pinochet appear to have been filed at an opportune moment for human rights cases.

The arrest of Pinochet in London opened the way to excellent conditions in Chile for breaking the impunity human rights violators have enjoyed. Indeed, the Poblete Cordoba case is a good indication that jurisprudence is on the road to preventing impunity. Yet the possibility of depriving Pinochet of congressional immunity and charging him with a crime were practically null. The existence of a positive climate for a more progressive jurisprudence in human rights that permits prosecution of human rights offenders is a direct result of the Pinochet arrest. Pinochet's arrest - outside Chile - allowed us to make a qualitative leap in justice and opened up the possibility for new cases, while reactivating old ones that law dormant many years.

In order to bring Pinochet back to Chile, the government of the Concertation was compelled to demonstrate before the whole world that justice was possible in our country. The Chilean judiciary also had to play its part in showing the international community that human rights violators, and Pinochet in particularly, could be brought to trial here.

What does the case tell us about judicial independence of the Chilean courts?

The independence of the Chilean judiciary is quite relative. But this is nothing new. The President in conjunction with the Senate must approve the annual judiciary budget. The judiciary has always reflected the politics of the government in office. And the government in office at this time has certainly sought to reassure the Armed Forces, specifically the Army, that its commander would not be brought to trial. Such have been the politics of the first and second governments of the Concertation. The current government is no exception.

Likewise, the judicial branch also reflects the disposition to avoid annoying the military. But this posture eroded considerably when both the executive and judicial branches had to give signs that Pinochet could be tried in Chile.

I believe the judicial branch has gained certain autonomy from the executive branch. To the extent that the judiciary is able to distance itself from political considerations, this will be good for the courts. The judicial branch should serve to put government politics in practice.

How has the Caravan of Death case contributed to the judicial process?

The case against Pinochet for the Caravan of Death is an historic achievement. It is the first time that a former President, a former Army commander-in-chief, or a former dictator is deprived of immunity from prosecution. Never before has such a thing occurred in our history. In the past, national leaders shielded themselves with a series of legal obstacles that prevented prosecution. Pinochet was no different but every obstacle he set up began to tumble, leading the way to the removal of his judicial immunity. Pinochet may be content now, but history books will say that he was brought to trial and got out of it on account of madness.

The Rettig Report relates all the crimes he committed. He was deprived of immunity because of those crimes and he got off because he was crazy.