the past five years, no court in Chile has applied the Decree
Law 2191, better known as the amnesty law, to a single case
concerning human rights violations committed during the military
dictatorship. Moreover, on January 31, 2003, the Supreme Court's
Second Penal Chamber repealed the amnesty a military court
had invoked in the case involving the arrest and subsequent
disappearance of Roberto Aranda Romero in 1974, and ordered
the Martial Court to reopen the investigation it had previously
dismissed. This ruling and others suggest that amnesty is
no longer the insurmountable obstacle to justice that it once
was the relative state of consensus that Clara Sczaranski,
president of the State Defense Council, disrupted by expressing
her opinion, on July 19, 2003, that the Amnesty Law is still
fully in force.
learn more about the evolution of the Decree Amnesty Law,
we suggest reading in this web page, "Amnesty
Law and International Treaties" by Alfonso Insunza and
"Avenues and Obstacles to Justice".
Szczaransk's contentious statement of July 19, 2003 was the
following: "Judges are obligated to apply it (the Amnesty
Decree Law) on the principle of pro-defendant. Repressive
crimes should be pondered in the historic, social, and political
context in which these conducts occurred."
July 21, 2003 the State Defense Council president added:
"Procedural incentives such as immediate freedom on parole
must be created in order to come closer to the truth... and
then it is up to the court to decide whether it is proper
to apply the Amnesty Law."
public debate triggered by the statements of the State Defense
Council President took the following course, as recorded by
July 20, 2003
Attorney Hugo Gutierrez stated: "It is unacceptable that State
Defense Council attorneys investigate the worst crimes in
the history of this country and then she encourages the courts
to apply amnesty... She acts like an agent of the State who
denies justice to family members of the victims, and this
means she is harboring impunity. In so doing, she is transformed
in someone who violates human rights. Therefore, the National
Assembly for Human Rights called for the resignation of the
president of the State Defense Council.
July 22, 2003
Aylwin, President of Chile, 1990-1994: "It is not reasonable
to make a scene because someone says it is possible for the
Amnesty Law to work." Amnesty "does not impede courts from
investigating or ruling in human rights cases, and international
law makes it inapplicable in some crimes."
Churches Social Assistance Foundation (FASIC): "Not only does
she reveal a lack of profundity in judicial analysis, she
also shows a scant understanding of human rights law and to
the degree these have been incorporated in our institutional
framework. She appears to have forgotten that the limitation
for the exercise of law is respect for human rights and that
it is the duty of bodies of the State, one of which she presides,
to respect and foster these rights."
Gazmuri, Vice President of the Socialist Party: "It would
be very harmful for us to stimulate interference in the way
the courts approach cases concerning human rights violations.
In recent times, truth and justice have been established in
many emblematic cases. The courts are doing their job well
and we have to support that work."
Assembly on human Rights and the Association of Relatives
of the executed demonstrated outside the offices of the State
Defense Council, protesting that its president "favors reducing
sentences for persons who provide information and then apply
the amnesty law."
July 24, 2003
day, the Association of Relatives of the Disappeared also
protested in front of the CDE building. Association vice president
Mireya Garcia stated: " ...her statements went beyond the
limit of what is acceptable. Clara Szczaranski 's statement
contradicts what the government has always said about respect
for the constitutional state. As a former Communist Party
member and a former exile, Clara Szczaranski should not make
Subercaseaux, Secretary General of the American Association
of Jurists Chilean Chapter clarifies the meaning of the pro
defendant principle Clara Szczaranski cites to justify the
alleged force of the Amnesty Decree Law:
"She launches that thesis like a torpedo against a justice
system that has begun to work. The doctrine originates in
the Constitution and means that in the case of two conflicting
laws, the law that favors the defendant should be applied.
But these crimes against humanity sanctioned by the Geneva
Conventions and international treaties have preeminence over
internal law. Her words are troubling because the State Defense
Council answers directly to the President of Chile is creating
a climate that apt for intimidation of the judiciary."
Letelier, also a member of the American Association of Jurists
and Coordinator of Memoria y Justicia adds:
"When government officials refer to amnesty they usually call
it the Amnesty "Law". But in 1978 when it was enacted the
Chilean Parliament had been close by the military dictatorship.
This was not a law that is the expression of the will of the
people who elect lawmakers. This is a decree, an another expression
of a de facto government that sought to establish impunity
for serious crimes committed by agents of the State, primarily
members of the Armed Forces. Contrary to what the president
of the State Defense Council asserts, Decree Law 2191 should
not be applied but rather, repealed.
AMNESTY IS MORALLY ABERRANT
than fifty notable professionals from different fields fear
that the recent statements made by CDE president Clara Szczaranski
suggest that the Chilean government intends to evade its international
commitments to human rights. As the Chilean government prepares
to unveil its human rights proposal and at a time when Latin
American society, and Argentina in particular, is taking decisive
steps in the direction of justice, it is astonishing that
she insinuate ideas - her personal opinion - that may impair
the labor of the Judicial Branch. Our deep concern for the
conduct exhibited by the State Defense Council in civil suits
seeking damages for victims of human rights violations and
dismay caused by the affirmations of its president Clara Szczaranski,
advocating application of the 1978 amnesty decree law, leads
us to declare:
The essential mission of the State is to safeguard the common
good. Therefore, it is incomprehensible that the State Defense
Council, in seeking to protect fiscal resources, reaches the
extreme of disavowing the truth regarding most serious human
rights violations committed under dictatorship. Such has been
the effect of the decisions related to compensation petitions,
which ignore the conclusions of the Rettig Report. This can
be clearly observed in its acceptance of the thesis of the
military patrol that Carmen Gloria Quintana had accidentally
burned herself in 1986.
We who opposed the dictatorship regard the 1978 decree law
as morally aberrant. Moreover, both the Inter American Human
Rights Commission and the UN Human Rights Commission ruled
that it violates international commitments acquired by Chile.
In their defense pleas before the Inter American Commission,
the governments of the Concertation recognized this fact,
but indicate that it is impossible to repeal the decree law
for lack of a congressional majority. Therefore, the words
of the CDE President seriously affect the credibility of the
Chilean State before the world.
The words of Ms Szczaranski also influence the disposition
of the State to seek justice for the most serious human rights
violations committed during the period 1973-78. They appear
to suggest an abandonment of the doctrine that the Geneva
conventions Chile ratified in 1951, cannot be disavowed and
made vulnerable in our country by domestic legislation. All
the more so, considering that the decree law was imposed by
a dictatorship for the clear objection of shielding agents
of the State who had committed crimes against humanity and
The words of Ms Szczaranski may also be interpreted as an
attempt to influence the Judicial Branch to refrain from considering
persons who disappeared after detention as judicial abductions,
unless their liberation or death can be proven. We must remember
that the efforts of the Courts located one person who the
Rettig Report had considered to be disappeared. This was Claudia
Poblete Hlaczik, who was eight months old at the time of her
arrest together with her mother, and DNA tests at last proved
her true identity.
But the most astonishing aspect of Szczaranski's declarations
was how that she posed the State character and practice of
the crimes as extenuating circumstances to be considered in
penal responsibility. Her thesis, moreover, is that impunity
should extend to the period 1978-1990, as observed in her
promotion of a pardon for one of the most merciless murderers
of the 1980s, retired army mayor Carlos Herrera Jimenez, author
of the homicides of Tucapel Jimenez Alfaro and the carpenter
Juan Alberto Alegria Mundaca.
Her justification for this: "these crimes are of an historic,
political and social nature, in which a personal relation
between offender and victim does not exist. In addition, the
crimes were not carried out by disorderly hordes but by highly
hierarchical and disciplined institutions, which obligated
individuals to follow orders. It is therefore indispensable
to consider the obedience to orders and to use caution at
the time of evaluating guilt." The same argument could be
used to justify a substantial reduction in the sentences of
individuals who committed crimes in Nazi or Stalinist extermination
as these crimes were committed by "highly hierarchical and
disciplined institutions" as Ms Szczaranski has noted, the
individuals who made the decision to commit these crimes and
ordered subordinated to carry them out deserve a more severe
sentence that the material authors. Such has not occurred
in these cases.
Martin Antonio Avaria
Sergio Baeza C. Lidia Baltra M.
Beatriz Brinkmann, CINTRAS
Luis Casado Jorge Cisternas Z.
Edgardo Condeza V.
Nilda Correa V.
Rodrigo Fernandez Fernandez
Angelica Gimpel Smith
Christian Gonzalez Diaz
Gustavo Gonzalez Rodriguez
Alejandro Guerrero Veliz
Pedro Alejandro Matta
Juan Pablo Olmedo
Edgardo Reyes Saldias
Simona Ruy-Perez B.
Julio Silva Solar
Roberto Vega Bravo
to Human Rights Today