Law 2191, drafted by the military regimešs Justice Minister
Monica Madariaga has come to be known as the Amnesty Law.
Published in the Diario Oficial on April 19, 1978, five years
after the National Congress had been closed, the amnesty law
has been one of the major obstacles that prevented investigation
of human rights crimes committed during the dictatorship.
The law shielded from criminal responsibility all persons
who were authors, accomplices, or had covered-up crimes committed
from the day of the coup, September 11, 1973 to March 10,
1978, when the state of siege was lifted.
preamble to DL 2191 explains the "ethical imperative" that
motivated the law as intended
strengthen the ties that bind Chile as a nation, leaving
behind hatred that has no meaning today, and fostering all
measures that consolidate reunification of all Chileans."
months earlier, in December 1977, the United Nations had issued
its fourth consecutive condemnation of Chile. On March 10,
1978 the regime exchanged its state of siege for a state of
emergency, launching the CNI, DINAšs successor in the business
of sowing terror.
amnesty law makes no distinction between common crimes and
politically motivated crimes that violate human rights. Persons
indicted for crimes such as armed robbery, abduction of minors,
and fraud, who were indicted or sentenced at the time the
law came into effect are among those shielded from prosecution.
The expressly stated exception to the amnesty benefit, due
to pressure from the United States, was for those individuals
implicated in the homicide and passport falsification case
that constituted a preliminary stage to the assassination
of Orlando Letelier.
April 1978 when DL2191 came into effect, Chilešs jails and
prison camps contained hundreds of political prisoners, most
of whom had never been sentenced, but not a single agent of
repression had even been charged. An estimated 69 political
prisoners incarcerated in Chile, mainly in Santiagošs Penitentiary,
whose sentences had already been commuted to exile, were released,
and were the only opponents of the military regime to benefit
from the lawšs alleged humanitarian spirit.
amnesty law was conceived as a tool to obstruct justice, and
enshrine impunity for the criminals, their accomplices, and
those who concealed crimes against humanity. Numerous military
officers and their civilian collaborators have avoided prosecution
when courts invoked DL 2191.
is a mechanism by which a State renounces its penal authority
in light of compelling political and social factors shared
by the majority of the population. A true amnesty must be
general and objective, and must not favor a specific group
rights defenders indicate that DL2191 is not a true amnesty
law. Rather, it is a "self-pardon" decreed by the military
regime to benefit the agents who carried out its repressive
policies. It is "an abuse of power that denies the foundations
of a constitutional state by preventing the judiciary from
complying with its mandate to protect the rights of persons
and investigate and punish crimes."
enactment of DL 2191 courts hastened to declare themselves
incompetent and transferred cases related to human rights
to the military courts.
Appeals Court Judge Adolfo Baņados, appointed to investigate
the crimes discovered in 1978 at Lonquen, concluded that an
Army lieutenant and a group of police were responsible for
the massacre and illegal burial of 15 persons. However, after
drawing these conclusions, he declared himself incompetent
and transferred the case to the military courts with no indictments.
At least one of the crimes the homicide of minor Gerardo
Ordoņez Lama - fell in the category of crimes against minors,
which was excluded from amnesty protection.
2191 remained largely uncontested until 1986.
Case of José Gregorio Saavedra González
Luisa Gonzalez Barraza was the first person to test a new
legal strategy. Her son José Gregorio was abducted
from the Calama Prison in October 1973 and killed in October
1973 by the Caravan of Death. His remains were never returned
to the family. In April 1986, Gonzalez filed a criminal suit
in Calama for premeditated abduction and first degree murder
against members of Gen. Sergio Arellano Starkšs Caravan of
complaint argued that abduction is excluded from the amnesty
law and is an ongoing crime until the person is released or
a body found. Therefore, investigation of an abduction cannot
conclude until the abducted person is located and the abductors
are identified. Other relatives of disappeared persons had
long sustained the same argument, but only after the case
of José Gregorio Saavedra did it gain greater acceptance
Antofagasta military judge challenged the courtšs jurisdiction,
but the Calama magistrate refused to relinquish the case.
Finally, the Supreme Court upheld the military courtšs challenge,
and it joined others which were related to the Calama executions.
Citing DL2191, the Military Tribunal dismissed the case.
1990s: The Law is Weakened
the dictatorship the courts applied the amnesty law without
investigating the cases. To accuse military personnel of a
crime was sufficient to invoke DL2191. During the early post-dictatorship
years the courts continued to follow this guideline and systematically
dismissed cases involving disappeared persons on the basis
of the amnesty law. Yet, by the late 1990s a new willingness
to reinterpret the law was perceptible. The facts of a case
could be investigated and the responsible parties identified,
rather than automatically invoking the amnesty law.
concept of abduction as a permanent crime gained greater acceptance
in the courts, allowing investigation of cases of the disappeared.
Only once the remains were found, identified, and the case
became one of first-degree murder, could the amnesty law apply.
September 12, 1998 a Supreme Court ruling set an historic
precedent. Three judges of the Penal Chamber of the Supreme
Court (prevailing over Army prosecutor Fernando Torres Silva)
ordered the reopening of the case involving the 1974 disappearance
of Enrique Poblete Cordova, a member of the Movement of the
Revolutionary Left (MIR). Sergio Concha, attorney for the
Poblete family, argued that disappearance corresponded to
the crime of abduction until the victim was located either
alive or dead, and therefore amnesty did not apply.
to that ruling, the Supreme Court consistently accepted the
arguments of the military justice system, that human rights
cases be closed as soon as the crimes are found to have been
committed between September 1973 and March 1978.
has not been applied in any of the cases filed against Pinochet
before Judge Juan Guzman. The thesis that prevails today in
cases of the disappeared is that until the whereabouts or
destiny of the victim is known, neither amnesty nor statutes
of limitation apply.
Condemns Chile for the Amnesty Law
November 1999 the Inter American Human Rights Commission issued
a harsh condemnation of the amnesty law.
Soria Gonzalez filed a petition against the State of Chile
on behalf of her father Carmelo Soria, a Spaniard assassinated
July 1976 by DINA agents. In 1996, a special investigative
judge appointed by the Supreme Court invoked the amnesty law
to close the Soria case. The petition that attorney Alfonso
Insunza Bascuņan presented in 1999 with the OAS, accused the
State of Chile of violating the right to justice.
OAS Commission agreed. The Inter American Human Rights Commission
concluded that the dismissal of the case affects the right
to justice and "...the self-amnesty law is incompatible with
the American Convention ratified by Chile on August 21, 1990."
resolution also found that Chile violates the Convention on
Prevention and Punishment of Crimes against Internationally
Protected Persons. Carmelo Soria had diplomatic status through
his work with the United Nations agency CAPE and the failure
to punish those responsible for his death violates Chile's
commitment to this treaty.
Insunza says: "The government of Chile says it agrees with
the resolution but it cannot interfere because the judiciary
is independent. Until now, the courts continue to ignore the
OAS ruling, and ignore our petition to reopen the case."
1978 Amnesty Law and International Treaties
many years, the amnesty law worked in tandem with the Military
Justice system to ensure impunity in Chile. As a judge advanced
in a human rights case to the point that individual responsibilities
could be determined, the Military Tribunal was on the alert
to shield its peers from prosecution. The same pattern was
repeated many times: the Military Tribunal would contest the
competence of the civil courts, the Supreme Court handed over
the case, and then the military judge invoked the amnesty
law to dismiss or temporarily close proceedings.
follows is provided as context needed to understanding the
powerful authority of the Military Justice system of Chile.
the military regime, the reach of martial court jurisdiction
broadened while the increasing restriction of civilian court
authority went unchallenged. In December 1973, the Supreme
Court determined that it lacked disciplinary jurisdiction
over military courts in time of war, a decision that contributed
to the violation of constitutional guarantees of persons tried
by the military courts. Later this self-limiting posture became
law in the Constitution of 1980. The high court also accepted
imposition of statutes preventing civil judges from conducting
procedures or inspections in military or police property and
did not challenge the participation of active duty military
officers on the Military Tribunal.
other countries where the martial courts exist only to discipline
the Armed Forces for crimes under the military code, Chilean
military courts may judge military or civilians. However,
only until the late 1990s were civilian courts able to bring
military personnel to trial for crimes committed against civilians.
In the past, the mere filing of a law suit against a member
of the Armed Forces, either in active duty or retired, was
enough to ignite a contest for competency that would end up
delivering the case to the military courts.
Article 11 of the Military Justice Code the military courts
have jurisdiction not only over a military officer charged
with a crime but also over the others responsible for the
crime who are not members of the military. Because of the
clear disadvantage of a civilian judged in a military court,
this provision has been criticized as a violation of the principle
of equality before the law.
courts have different authority in time of peace or war, with
very broad reach in time of peace. But the definition of the
state of war also has several variables. Chile is in time
of war, not only when war has been declared, but also when
military mobilizations are ordered and when a state of siege
military courts had jurisdiction over civilians prior to the
military coup, such trials were infrequent. After the coup,
the jurisdiction of military courts over civilians was extended
to such an extent that the majority of the persons judged
by military courts were civilians. The surge in cases heard
by military courts was also due to changes to the military
justice code and the creation of special crimes in new laws
under military court jurisdiction.
on March 1, 1989, Supreme Court President Luis Maldonado inaugurated
the last judicial session under military rule, he surprised
military prosecutors present for the ceremony by calling for
a limit to encroaching military jurisdiction. Civilians, he
noted, comprise 80 percent of all cases tried in military
courts, a fact which "impinges upon civilian court jurisdiction
and seriously affects due process guarantees for civilians."
addition to the military crimes that properly pertained to
the martial courts rebellion, sedition, desertion,
abandonment of duty several new statutes and amendments
to existing law expanded martial court jurisdiction. On the
other hand, the civilian Courts of Appeals and the Supreme
Court heard almost exclusively cases related to infraction
of the State Security Law.
only did the legal foundation change. The concept of the Armed
Forces itself changed after the enactment of the Constitution
of 1980. The Constitution retained the basic characteristics
of the military as professional, hierarchical, disciplined
and "obedient institutions," but its Article 90 added the
formalized perception of the Armed Forces as "essential for
National Security," the doctrine which had guided the military
since the day of the coup.
changed concept introduced an ideological role for the Chilean
military as moral guardians of society and it explains the
incorporation of numerous political crimes under military
Decree Law N. 5, the Military Junta introduced a new definition
of Art. 418 of the Military Justice Code, defining "state
of siege" as synonymous with state of war. The military regime
employed this new interpretation to create a legal fiction
in order to justify its repressive politics, and specifically
the war councils. In declaring Chile at war, the military
rulers unwittingly invoked the Geneva Conventions.
the years of the dictatorship and up to the present day the
former military rulers and their collaborators have justified
the institutionalization of terror as a necessary response
to a state of war. According to this criteria, prisoners should
have been granted the conditions and guarantees that are due
to prisoners of war, as provided in the Geneva Conventions
ratified by Chile in 1951. The Geneva Conventions call for
physical protection of prisoners of war and its Article 3
prohibits the summary execution of prisoners.
Chilean courts never accepted the Geneva Conventions as grounds
for justice in human rights. In 1995 the Santiago Court of
Appeals issued two rulings that denied the application of
the amnesty law on the basis of the Geneva Conventions, but
these decisions were overturned by the Supreme Court.
1998 ruling in the Poblete case, cited above, gave preeminence
to international treaties over Chilean law.
1999, the Geneva Conventions assumed greater importance with
courts accepting cases filed for crimes against humanity,
which permanently annul the amnesty law and statutes of limitation.
The crime of genocide was one of the prevalent causes of action
among the nearly 300 complaints filed against Pinochet and
others with Judge Guzman. (See The
1978 Amnesty Law and International Treaties)
attorney Pablo Rodriguez opened appeals hearings June 18,
2001 with a plea for humanitarian consideration of the fragility
of Augusto Pinochets health, a line which had been successful
in bringing the ex dictator home to Chile after 503 days in
detention in London. The attorney argued that the medical
reports from the exams conducted January 10-13, 2001, indicated
the Pinochet suffered from moderate subcortical dementia.
He concluded that this condition prevented Pinochet from interacting
with his attorneys or remembering the events for which he
is accused. Rodriguez cited another five serious infirmities
that allegedly afflict his client and impede him from fully
availing himself of his due process rights. (See
Judicial and Biblical
Considerations for Annulment of the Dismissal of the Pinochet
health of Pinochet was the sole argument offered by his defense
team. The innocence of defendant Pinochet never constituted
a line of defense.
June 19 and 20, 2001 prosecuting attorneys and the State Defense
Council attorney challenged this interpretation of the reports
on the battery of psychological tests to which Pinochet had
been submitted earlier in the year. According to the reports,
Pinochet could not be considered either crazy or demented,
as this type of diagnosis is only valid in situations of profound
mental alteration, which was not the case with him. (See
Letter from Dr. Luis Fornarzzari)
June 20, 2001 Reinaldo Selaive Reyes, of the Military Hospital
medical staff, appeared before the court upon request from
Judge Guzman to resolve the Pinochet's processing. Selaive
stated that the procedure photographing and fingerprinting
could provoke Pinochet's death.
then asked for the opinion of another set of experts, the
Neurology Department of the University of Chile Medical School.
These medical experts responded that the fingerprinting and
photographing procedure would not endanger the defendantšs
health. In their opinion, the procedure might only affect
him emotionally, and in that case, they recommended prescribing
July 9, 2001 the Sixth Chamber of the Court of Appeals of
Santiago ordered the temporary dismissal of the indictment
of Augusto Pinochet in the Caravan of Death case. The medical
reports formed the entire basis for the ruling, even though
the present Penal Procedural Code does not exempt a defendant
on the basis of health.
accept the arguments of the defense, the only recourse available
to the judges was the newly formulated Procedural Reform,
which was not yet in effect. Thus, the magistrates anticipated
the future application of a law, which plaintiff attorneys
indicate in their petition to vacate, "...crassly violates
constitutional legality and principles of equality before
Ricardo Lagos: "Let justice work on its own."
Presidents of Chile elected after the dictatorship have stated
repeatedly that the judiciary is fully independent and political
considerations do not influence rulings.
Contreras, one of the team of plaintiff attorneys in the Caravan
de la Mart case has a different opinion:
before the dictatorship, during the dictatorship or after
the dictatorship has the judicial branch been independent.
Its structure depends on the government for promotions,
salary increases, and retirements.
the Fifth Chamber of the Court of Appeals was about to rule
on whether or not to dismiss the legal action, everyone
was certain that Pinochet would lose. Judge Villarroel had
left the courtroom and judges Hugo Dolmetsch and Valdovino
remained to write the majority opinion. That was on Thursday.
What happened over the weekend? The highest commanders of
the Army met with President Ricardo Lagos and the Minister
of Defense They pressured a judge. Finally, the ruling which
we thought we had won 2 to 1, we ended up losing 2 to 1.
(9 July 2001) This is a clear example of the lack of independence
of the judiciary."
for dementia is a judicial solution to a political problem."
changed jurisprudence of the Supreme Court has political
overtones. The climate is more favorable to investigating
human rights cases. We also see that cases in the military
courts are not immediately closed by amnesty. But the greater
openness is quite relative because there is also a strong
posture in the executive branch to end human rights proceedings
as soon as possible.
Remember the famous phrase of President Patricio Aylwin
about "justice within the realm of what is possible." Then
came President Eduardo Frei who never had an external position
of support for justice in cases of human rights violations.
He was not interested in receiving organizations of relatives
of the disappeared and when he finally agreed to see them,
he did not say a word during the entire meeting. Now Ricardo
Lagos has a fairly ambiguous posture. He appears to want
to give the impression that he wants justice and that the
judiciary is independent but the government has not wished
to join the plaintiffs in human rights cases."
association: Article 292 of the Criminal Code states
that this crime is committed when an association has been
formed for the purpose of harming persons, the social order
or property. The illicit intent of the association is presumed
when one or more of its members carry out the criminal act.
In human rights cases of Chile, illicit association refers
to the DINA, the CNI, the Joint Command and other repressive
organizations of the dictatorship.
As set forth in Art. 141 of the Criminal Code, this action
is committed when a person is enclosed or deprived of personal
freedom. The criminality increases in degree to aggravated
abduction if the victim is injured, raped or murdered. Penal
doctrine considers abduction a permanent and ongoing crime
that initiates when the victim is deprived of freedom and
continues until the person is released or located. The permanent
nature of abduction annuls amnesty and statutes of limitation.
degree murder: In the case of homicide, or a body
of a disappeared person that is found, the prevailing practice
is that courts decide whether or not to invoke the amnesty
law only once the date of death is determined. If the date
falls within the period of September 11, 1973 to March 1978,
the amnesty might be applied. When the crime was committed
after April 1978, the amnesty law is not applicable.
The Convention for the Prevention and Punishment of the Crime
of Genocide, ratified by Chile June 3, 1953, defines genocide
as any serious act or injury, either physical or mental, perpetrated
for the intent of destroying either totally or partially a
national, ethnic, racial or religious group. Chilean legislation
does not contemplate the crime of genocide. However, after
1998 with the new acceptance of international treaties in
the Poblete Cordova case, genocide became a recurrent cause
of action among the cases filed against Pinochet. In these
cases, genocide generally refers to the intent of the dictatorship
to destroy members of political parties of the left as a national