Analysis of the Ruling in the
Miguel Angel Sandoval Rodriguez Case

by Memoria y Justicia

Miguel Angel Sandoval, a 26-year old tailor and member of the MIR, was arrested January 7, 1975 by agents of the DINA secret police on a public street of Santiago. Several people who were in detention with him have testified that he was last seen alive, but in very bad condition as a result of torture, in the Villa Grimaldi torture center. Twenty-eight years later, on January 5, 2004, the memory of Miguel Angel Sandoval and all disappeared persons received a tribute in the form of the Fifth Chamber of the Court of Appeals' confirmation of the first conviction of upper echelons of the DINA.

Prior to this decision, the Supreme Court's Second Criminal Chamber had revoked the application of the amnesty law in cases related to the forced disappearances of Enrique Poblete Cordoba, Julio Fidel Flores Perez, Anselmo Radrigan Plaza and Roberto Aranda, among others. The military courts had dismissed these cases before concluding the investigations. Reopening of these cases by ordinary courts of justice added force to the principle that amnesty is not an impediment to investigation, as advanced by former President of Chile Patricio Aylwin. Many human rights organizations and lawyers wondered, with varying degrees of skepticism, whether the courts would allow a sentence to stand.

On April 16, 2003 Judge Alejandro Solis sentenced Manuel Contreras, former chief of the repressive DINA agency, to 15 years in prison as author of the abduction of Sandoval. This was the first guilty verdict against Contreras since the trial and symbolic conviction in 1995 for the assassination of Orlando Letelier. Four other DINA operatives received sentences ranging from 5 to 15 years as authors or accomplices in Sandoval's abduction and subsequent disappearance.

Nine months later the Court of Appeals upheld this historic ruling, although with reduced sentences. The ruling is the first handed down by the Appellate Court in a case involving a disappeared person with a sentence dictated.

Viviana Diaz, president of the Association of Relatives of the Disappeared, described the significance of the decision for Memoria y Justicia:
"For us the ruling's importance lies in its recognition of abduction as a permanent crime. Throughout the dictatorship and this political transition period, we have wagered on the courts. In the past, even in the face of adversity with the rejection of thousands of habeas corpus writs, we always believed that the correct road to follow was via the courts. That is why we value the appointment of judges exclusively to human rights cases. Once more judges have with the infrastructure they need, events have shown that it is possible to advance in ascertaining the truth regarding what happened."

The decision also establishes more solid ground for the preeminence of international human rights treaties over domestic law, recognizing the State's obligation to respect international law established even by treaties as yet not ratified by Chile.

In this regard, the plaintiff attorney for the Sandoval case, Nelson Caucoto, described the ruling as "…solid and modern; in step with the globalization process. It is an international-oriented decision appropriate for this age."

The ruling reflects arguments on the supremacy of international law that Caucoto developed as part of his pleadings. He explained to Memoria y Justicia:
"International law does not refer only to treaties. International law also includes the right of peoples - customary or common law - as well as the universal laws of jus cogens. These are mandatory, inalienable norms that are binding upon states. The laws of jus cogens pertain to what are known as peremptory norms of general international law. For example, Chile does not have to enact a law prohibiting slavery because as a principle of international law slavery is not permissible in any country. The same goes for torture. The prohibition against crimes against humanity and serious war crimes are becoming general principles of international law. That is why the court says even though Chile has not ratified the treaties, it is still obligated to adhere to those norms. We have a strange situation in Chile. International law is not alien in economic matters whereas international human rights law receives a discriminatory treatment."

Military officers accused of serious human rights crimes committed during the dictatorship commonly shield themselves with the excuse that they were only following orders. But rarely has any defendant deliberated on whether what he was ordered to do was a crime. This ruling includes extensive analysis on the responsibility of military personnel to exercise reflexive obedience and to safeguard the life and rights of citizens.

In this regard Nelson Caucoto observes:
"The ruling also considers the issue of due obedience that Chilean law had resolved from the standpoint of criminal doctrine. Military due obedience has three requirements. First, there must exist the relation of military superior and subordinate. The second requirement is that the order must be legitimate, that is, within the function as military. For example, a regiment commander lacks legitimacy to tell the conscript to vote for Lavin in the next elections. Third, what is ordered must be part of the military functions. Abduction is not part of military functions. Ordering to kill or torture is not part of military functions. If we analyze these requirements, we see that due obedience has no place as justification for human rights crimes."

During the course of the year 2004, the Supreme Court will hear the last appeal of the Sandoval case. Judicial development of the present time makes Caucoto optimistic for a favorable resolution:
"Without a doubt, the decision in the Miguel Angel Sandoval case is an important advancement. Those who do not see that are blind. Those who still think that impunity is the only outcome for cases today disregard the progress of the past year. We are experiencing a zenith and the results speak for themselves. You need only take a look at the number of military personnel arraigned. The most remarkable development is the great number of confessions that occured during the trials. Never before have we seen this here.

" I don't know how long this period of progress will last. It is directly related to the special judges. Nothing would have been obtained without the mechanism of the special judges. And we must not forget the work of police. Behind every special judge there is the Investigations Police Fifth Department that supports that judicial case." "I always maintained an optimistic outlook. That's what has kept me in this area for so many years. I begin this year with the same optimism I begin every year. It should go well for us in the Supreme Court. In its previous rulings, the Supreme Court has said that the amnesty law does not hinder investigations. I can't believe it will be so inconsistent as to say that amnesty is not an obstacle for investigation but it is an obstacle for sentencing."

Excerpts from the Ruling of the Fifth Chamber of the Santiago Court of Appeals
in the case of Miguel Angel Sandoval Rodriguez

On abduction as a permanent crime

27 That, we must state that abduction as regulated in article 141 of the Criminal Code may become aggravated when the action is extended in time, for more than 90 days, as a consequence of the action, whether as the result of a serious harm to the person or to the interests of the affected person;

28 That, considering records of the case established that abduction took place and that this was prolonged for more than 90 days, and we still lack information regarding the whereabouts of Miguel Angel Sandoval Rodriguez, this is sufficient information to consider the presence of aggravated abduction in this case;

29 That the aforementioned crime is permanent or on-going as the action that brought it about and the injury to the affected individual is prolonged in time; the action and consequence persists.

On international human rights treaties

33 "That the crime of abduction that affects Miguel Angel Sandoval Rodriguez to the present time, set forth in article 141 of the Criminal Code. It also corresponds to the crime described in article II of the Inter American Convention on Forced Disappearance of persons subscribed in Belen de Para, Brazil on June 9, 1994 and entered into effect internationally on March 29, 1996, upon ratification by several Latin American States. This treaty was approved by the Chamber of Deputies by 45 votes in favor, 2 opposed and 14 abstentions, and is currently in course in the National Congress.(...)

34 That, in effect, article II of the Convention states: "For purposes of these proceedings, the Para Convention shall consider forced disappearance as the deprivation of freedom of one or more persons committed by agents of the State or by persons or groups of persons who act with authorization, support or acquiescence of the State, followed by the lack of information or the refusal to acknowledge said deprivation of freedom or to inform on the whereabouts of the person, by which it impedes the exercise of legal recourses and pertinent procedural guarantees.

35 That, as signatory to the Convention on the Forced Disappearance of Persons, Chile is obligated by the Vienna Conventions of 1969 on Treaty Law, that was incorporated as part of our country's domestic law, not to frustrate the purpose and objective of said Convention, in accordance to its article article 18, prior to its entrance in force;

36 That, consequently, if the situation described by the aforementioned article II of the Convention on Forced Disappearance of Persons, were to remain unsanctioned in Chile, the object and purpose of this Convention would be violated;

37 That, as the President of the Republic stated in his Message upon introducing the Convention to the Honorable Chamber of Deputies, "It is important to bear in mind that the practice of forced disappearance of persons constitutes one of the most atrocious forms of human rights violations and that this Convention will strengthen the political will of the American continent to completely eradicate that abominable form of injury to human dignity;"

38 That, while it is true that the Convention on Forced Disappearance of Persons classifies this crime as an International Crime, from a merely formal standpoint it has not been incorporated as yet in Chilean domestic law. It is not less true that for many years forced disappearance of persons has been considered a grave offense to intrinsic human dignity enshrined by numerous international instruments obligatory for Chile such as: the United Nations Charter, Charter of the Organization of American States, American Convention on Human Rights or the Charter of San Jose, United Nations Pact on Civil and Political Rights and, that, more importantly, constitutes a crime against humanity as defined by the Statutes of the International Criminal Court, that is in effect internationally."

39 That, the Convention on Forced Disappearance of Persons classifies the crime of forced disappearance of persons as an international crime, which carries the following legal consequences: individual responsibility and State responsibility, the inadmissibility as extenuating circumstance of due obedience to an order from a superior officer, universal jurisdiction, the obligation to extradite or try those responsible for the crime, the obligation not to provide asylum to those responsible for the crime, the inapplicability of statues of limitation, the illegality of benefiting from actions of the executive or legislative branches which may led to impunity of the crime and obligation to investigate and sanction those responsible for the crime(…)

On the Preeminence of International Human Rights Treaties

45 That, in 1989, the Constitution of Chile incorporated the following second clause of article 5 that states: "The exercise of sovereignty recognizes as limit the respect for fundamental rights that arise from human nature. It is the duty of State agencies to respect and foster such rights, guaranteed by this Constitution, as well as international treaties by Chile and that are presently in effect." Article 5 thus grants constitutional status to treaties that guarantee respect for human rights, conferring a greater hierarchy over other international treaties, in relation to the regulation of inherent fundamental rights.

48 That, as Humberto Nogueira stated: "… According to article 5, clause 2 of the Constitution, human rights ensured by the treaty are incorporated as part of internal order, forming part of constitutional matter in full force with legal validity and efficiency that no State institution may disavow, mandating respect and promotion as well as protection for the full respect for rights. … This obligation derives not only from article 5 of the Constitution but also from the international treaties themselves, including article 1 of the Four Geneva Conventions of 1949 that establish the duty of States party to the treaty to respect and enforce respect for international humanitarian law."...

50 That, the Permanent International Court of Justice ruled: "A universally recognized principle of Rights of Man regarding signatories is that domestic law cannot prevail over a treaty," and "A state cannot invoke its own Constitution in order to evade obligations imposed by International Law to treaties in force."

On the Inapplicability of Amnesty Law

76 That, in regards to the applicability of amnesty and statutes of limitations as argued in the court record, the following should be taken into consideration: a) That article 1 of Decree Law 2191 granted amnesty to all persons who, as authors, accomplices, and concealers of a crime, incurred in certain criminal actions during the existence of state of siege, from September 11, 1973 and March 10, 1978; b) That, as has become clear during the course of proceedings, the aggravated kidnapping of Miguel Angel Sandoval Rodriguez at Villa Grimaldi is an accredited crime, in which no information exists as to his whereabouts or possible demise, whether through confession of the accused or testimony of witnesses who likewise were abducted and tortured in the Villa Grimaldi secret detention center, or through the recovery of Sandoval Rodriguez's body; c) That, in light of these facts, and in view of the ongoing nature of the crime of abduction as long as it extends in time, Amnesty Law is inapplicable, nor does the penal action prescribe, as the illegal action has not ceased in its consequences for the victim who is still disappeared."

On Lack of validity of the argument of due obedience

95 That, article 33 of said Statute sets forth that whoever commits a crime by obeying an order issued by his government or superior, either military or civilian, shall not be exempted of responsibility unless: Law obligated him to follow orders given by his government or hierarchical superior officer; or he was unaware that the order was illegal or the order was not explicitly illegal. Orders to commit genocide or crimes against humanity are understood to be explicitly illegal. (…)

98 That, articles 334 and 335 of the Military Justice Code amply refer to the situation of obedience to orders... And article 335 adds: "…if the lower-ranking officer who received the order knows that the higher officer did not sufficiently understand the situation, or the events preceded the order, or the order appears to have been received by deceit or there is reason to fear that evil results arise from its execution that the higher officer failed to foresee, or that the order will clearly lead to the perpetration of a crime, then, the lower officer may suspend compliance with that order. In urgent cases, he may alter it after informing his superior. If he insists in carrying out the order, it should be carried out in the terms set forth by the previous articles." This is set forth in article 20 of the Armed Forces Disciplinary Regulations, according to Supreme Decree N 1445 of December 14, 1951.

99 That, the court record in this case does not present evidence that the defendants expressed disagreement with the orders to carry out the crime. This renders invalid the argument that their condition as military men obligated them to carry out all orders. Their attitude also deserves severe reprimand, as they were fully familiar with military doctrine and traditions, which never harbor the commission of a crime such as that for which they are now sanctioned;

100 That, the Army, other Armed Forces and Carabinero Police of Chile, are founded upon ethical principles such as honor, patriotism, self-denial and subordination, loyalty, moral honesty, disciplinary spirit, obedience and courage. In name of these values they should be inclined to comply with their duties that have as objective to protect and respect the country's institutional life from external or internal attack. In such a situation, the protection of life and rights of citizens is clear and the defense function derives from this vantagepoint. The highest value is to defend a nation and the life of its citizens and a defensive attack cannot have any other objective other than to safeguard these precious values;

101 That, nonetheless, evidence presented in the proceedings indicate those ethical principles were violated. Once the Armed Forces came to power, with support from the population, subsequently, persons whose ideas were contrary to theirs came under their power. It was their primary duty as soldiers to protect these people and accord them a dignified treatment and bring them before the courts, within the institutional framework of the country, even military courts in the case of war or internal disturbance, so that judges may judge their actions. Thus, the human grandeur implicit in a soldier's honor and the characteristic the founders of this nation endowed the Army and Armed Forces of Chile was absent.

On the Reflexive Obedience Theory

102 That, obedience deserves particular mention as a military virtue, moral habit, sign of nobility and basic principle upon which is founded the discipline for defense and national security, that, in the case of the Armed Forces of Chile, is set forth by article 20 of Disciplinary Regulations established by Supreme Decree N 1445 of December 14, 1951, and in the case of Carabineros, by article 7 of the Disciplinary Regulations established by Supreme Decree N 900 of July 17, 1967, incorporate the Theory of Reflexive Obedience. This means that lower-ranking military officers who receive an order must examine the order. If he believes it to be illegal, he is not obligated to comply, and must suspend his compliance, after indicating the illegality of the order to his superior. Should the superior insist, the lower officer must comply, but only the superior office will hold criminal responsibility for the crime committed. The lower officer will only be responsible if he fails to object to the order or, if he did object, carries out the order without the insistence of the higher officer.

Illegal detention of persons is not a public employee function

103 That, regarding the allegation that the crime documented by the case records is illegal detention as set forth in article 148 of the Criminal Code, with a different penal sanction, from the crime of abduction, indicating the public employee nature of the defendants; this argument should be disregarded, as, on the contrary the crime of abduction sanctions he who arrests or holds a person in custody for no reason, depriving him of freedom. In contrast, the crime of illegal detention corresponds to the public employee who outside the bounds of law, arrests an individual, when the faculty to arrest has a precise objective that is regulated by articles 251 to 272, 278 and 280 to 305 of the Code of Criminal Procedure. Moreover, this is not a case of a public employee who acts as such, as arresting people without a court order, taking them to secret detention centers and depriving them of freedom would be inadmissible as part of their public employee functions.

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