By Memoria y Justicia
divided vote, this morning the Chilean Supreme Court upheld
a lower court decision to strip Augusto Pinochet of immunity,
opening the way for prosecution of the former dictator on
twenty counts of aggravated kidnapping and other crimes commited
under the aegis of Operation Condor.
In May the Santiago Court of Appeals found that "more than
probable cause" existed that Augusto Pinochet had involvement
as intellectual author of the aggravated kidnapping, illicit
association, and torture of Chileans in coordination with
other Southern Cone military regimes in the mid 1970s, a scheme
known as Operation Condor. Today the Supreme Court, in a very
close 9-8 vote, confirmed the lower court ruling.
2000 the Santiago Court of Appeals deprived Pinochet of immunity
as lifetime senator for his role in masterminding a series
of crimes known as the Caravan of Death. The Supreme Court
upheld that ruling, but subsequently blocked prosecution on
grounds that Pinochet was not in sound mind to stand trial.
The removal of immunity was only valid for the Caravan of
Death case, however. Later, the Court refused to deprive Pinochet
of immunity to bring him to trial for the assassination of
General Carlos Prats or the murder of Communist Party leaders
in Calle Conferencia, again citing alleged health conditions.
fundamental difference in the success of this present case,
according to plaintiff attorneys, was that pleadings in Operation
Condor immunity hearings shifted the focus away from health
to remind the Court that procedurally the only issue that
corresponds at that point is whether probable cause exists.
Pinochet of immunity for his status as former President is
the first crucial step that opens the possibility that he
can be prosecuted, but in no way ensures that the former dictator
will come to trial. While confirming the lower court decision,
four Justices strongly recommended that Appeals Court judge
Juan Guzman order medical and psychological examinations before
resolving the procedural situation of Pinochet. A group of
human rights attorneys planned to approach Judge Guzman to
urge him to proceed with the initial declaration prior to
attorney Ambrosio Rodriquez had opened the hearing Wednesday
before the 17 Supreme Court Justices pleading res judicata,
known in Chilean law as cosa juzgada. He contended that the
issue at question had been settled previously in the Caravan
of Death case, and his client could not be charged again.
Rodriguez recognized the existence of Operation Condor, comparing
it to an Interpol coordination to combat terrorism, but contended
that Pinochet had no knowledge of its day-to-day workings
and was not in a position to have prevented any crimes that
may have taken place. As evidence of the alleged continuing
incapacity of Pinochet, he referred to a letter written by
a Miami television reporter who noted that Pinochet lost his
train of thought during her interview with him a year ago.
the intense four hours that followed, the team of plaintiff
attorneys consisting of Francisco Bravo, Eduardo Contreras,
Hiram Villagra, Sergio Concha, Juan Pavin, Juan Subercaseaux,
and Hugo Gutierrez responded to the defense. Res judicata
is inapplicable, they argued, because it is not the same case.
A different set of facts and crimes comprise Operation Condor
with the only common denominator being the defendant.
Francisco Bravo clarified that the Court of Appeals deprived
Pinochet of immunity not because he was "President" but as
head of the DINA. Manuel Contreras, former DINA director,
has testified that he did only what Pinochet ordered. Sergio
Concha brought home the point that the operative arm of Operation
Condor was always the DINA. As Hugo Gutierrez indicated, Pinochet
had knowledge of every Operation Condor action because he
was its intellectual author and mastermind. Hiram Villagra
described the tour Pinochet made in the weeks after the 1973
coup to Argentina and Paraguay as a trip that set the groundwork
for what would be formalized as Operation Condor. Pinochet,
he charged, personally made a phone call to assure clearance
in the United States for the would-be killers of Orlando Letelier.
Subercaseaux posed the following questions to the judges:
"At stake here is what we will teach future generations. Will
we teach them that it is okay to torture 200,000 people? That
you can murder 3000 people and get away with it?"
the Supreme Court has allowed the once untouchable dictator
to face prosecution suggests the possibility that future generations
may learn that no one in Chile is above the law.
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