Interview with the Honorable Judge Carlos Cerda
President of the Court of Appeals of Santiago

December 19, 2002

In the opinion of the Honorable Judge Carlos Cerda, President of the Santiago Court of Appeals, the failure of the Chilean courts to prosecute human rights offenders is an indication of a flawed judiciary. In conversation with Memoria y Justicia, Judge Carlos Cerda declares his intention to correct this flaw by designating judges to dedicate themselves exclusively to certain human rights cases. He also analyzes positive changes he perceives within the judiciary: "The thinking of yesterday's judge was identical with the mentality of the dictator... Today's judge is committed to defending the fundamental rights of persons."

Special Judges
"Ministro de Fuero"
Judicial Independence
Amnesty Law
Prats Case in Chile
Historic Memory and the Judiciary

Special Judges

Is the situation that gave rise to special judges an indication of a flawed judiciary?
Categorically and decidedly, yes. From the perspective of today's Court of Appeals, an evident flaw for so many years has been the failure of the judicial branch to give a clear response to Chilean society and the international community regarding the denunciations and complaints filed for the human rights violations committed during dictatorship. The idea behind these special judges is to address those failings. Seven judges have been designated to dedicate themselves exclusively to human rights cases. With the redistribution of the cases accumulated by Judge Juan Guzman, there are now four statutory judges: Guzman and three others. That brings to 11 the total number of judges exclusively dedicated to resolving human rights cases, and this seeks to fill the void.

Are these judges appointed for a specific time frame?
We must make an important distinction. When the Dialogue Table concluded its work in January of 2001, the Supreme Court took more or less half a year to ascertain how many cases existed related to persons who disappeared following detention. In my opinion, that job remained incomplete. The Court appointed judges specifically for the purpose of locating the remains of disappeared persons, and set a time limit for that task. At the time the expectation was that information provided by members of the Armed Forces who participated in the Dialogue Table would lead to bodies, or remains. That was not the case.

On the other hand,what this Appeals Court had in mind in appointing judges exclusively to human rights cases during the year 2002 is much more intense and complete. The idea is to investigate cases that courts had temporarily dismissed, in order to determine what happened in human rights violations denounced in the jurisdiction of Santiago. It is difficult to set a peremptory time limit for this task. Before appointing the other three statutory judges we had thought it possible to conclude the investigations by February 28, 2003 to coincide with the conclusion of my term as court president. Now we see that in the best of cases, all these investigations - only the investigative stage, not the subsequent public phase of accusation and defense - are likely to conclude in the first six months of the year. Time limits are flexible for this court's designation of judges exclusively to these cases.

Some observers attribute the appointment of these special judges to the beginning of a process to close human rights cases. What is your view?
I do not believe that opinion is accurate and I can attest to that fact because I have been a protagonist of the entire process. Certainly, the process results from absolute good faith and clear intentions. Our intention is to respond to the national and international community as corresponds a judiciary in a constitutional state and a democracy, regarding what happened in crimes committed during the dictatorship, to the degree it is still possible.

What is your assessment of the Supreme Court decision to redistribute cases originally under Judge Guzman?
The Court of Appeals had the absolute support of the Most Excellent Supreme Court not only regarding the convenience but also the need to appoint judges to dedicate themselves exclusively to these cases. But this Court as well as the Excellent Supreme Court discovered a reality that impeded achievement of the objective that motivated appointment of special judges. What was that reality? That there was one single judge named Juan Guzman Tapia, who had accumulated a tremendous jurisdiction. Despite his unquestionable capabilities, it would be difficult to imagine that the investigative phase could be completed and a response offered to the national and international communities if all those cases remained in hands of Juan Guzman. Therefore, it was believed most appropriate that these cases be divided. Four judges will now be responsible for what one judge previously had under his charge. That is the sole intent and represents an indirect support for Guzman.

Ministro de Fuero

Please explain the concept of "ministro de fuero."
Certain individuals who exercise authority and represent popular sovereignty may not be brought to court by a simple accusation lacking legal merit. Otherwise, the free exercise of public office would be obstructed. Those persons are vested with a procedural privilege. In order to be considered passive individuals in a penal relationship and stand trial, they must be dispossessed of that privileged condition. That is called "desafuero" {removal of immunity].

When protected by that privileged status, in some cases these individuals are also guaranteed that a judge of special rank will hear the case they are charged in. In Chile, that special judge must be a member of the Appellate Court, and serves as first trial judge. We must note that the institution of "ministro de fuero" seeks to protect not only the privileged person but also his opponent in a procedural relationship. The idea is that through this judge of special status, the party who lacks immunity feels he is on equal ground with the privileged individual. That is the sense of the "ministro de fuero."The responsibilities do not differ greatly from those of a "ministro en visita." Both act as first instance judges. The only real difference is that the condition of "ministro de fuero" is the privileged status of one or more individuals involved in the case.

Judicial Independence

Among the cases that advanced greatly with Judge Guzman is the Comando Conjunto case. You initiated the investigation of this case at a difficult time, during dictatorship, leading the Supreme Court to sanction you. How do you compare the judicial climate of those years with today?
There is a glaring difference. The focal point of this difference is that today's judicial institution is composed, especially in its upper echelons, of judges who understand their political responsibility in the true sense of the word, different from how it was understood in those years. If they understood it at all. And I have serious doubts whether the people who comprised the higher ranks of the judicial branch in those years understood the concept.

Do you perceive that the judiciary has greater independence today?
When you pose the issue of independence, perhaps you imagine structural independence. At the time I was not permitted to continue with the Comando Conjunto investigation, perhaps you think the judicial branch lacked independence because it depended on the dictator. Maybe you imagine the dictator had a phone he used to communicate directly with the President of the Most Excellent Supreme Court, to tell him, "Look, sir, dismiss that case, or punish Judge Cerda." If your question presumes that kind of judicial dependence, I must tell you that there is no appreciable difference between yesterday and today. It never happened that way either in those years or today. The government did not directly intervene with judges.

Then, you rightly ask, what was going on at the time? Within the concept of judicial independence, it is important to consider the principle of ethical independence. We could explain it as the idea that a judge acts coherently with his conscience. The judge knows that he does not copy, he does not heed instructions from others, he does not routinize and he is not inert. In the final analysis, he knows that justice lies in his freedom of conscience, always hand in hand with law, and he must never bow down to social, historical, or cultural demands. That is the difference between yesterday's judge and today's judge.

The thinking of yesterday's judge was identical with that of the dictator: National Security Doctrine. Marxists are contrary to national security, so they must be dealt with rigorously. Therefore, elimination of extremists did not trouble Chilean judges. After all, they were extremists. Internal security demands cleansing Chilean society of this class of vermin and to do so was patriotic. How could a judge oppose this attitude? Impossible. As a judge of your nation, and a man of law, you have to uphold such actions.

These days, the perspective has changed. The prevailing perspective has its origins in the Magna Carta, was later enshrined in the Universal Declaration of Human Rights, and is reflected in our Constitution. International human rights law clearly states that no government can consider itself legitimate if it disregards the fundamental rights of persons. That is the essence of judicial branch jurisdiction. May the entire world hear it and may no judge fear to affirm that the purpose of the judiciary, above all, is to defend - and defend effectively - fundamental individual rights. The Most Excellent Supreme Court and the Court of Appeals now accept this discourse. That is the difference.

In 1985 the future of your professional career as jurist was in doubt. However, you were appointed President of the Court of Appeals. Do you view your appointment as a sign of the times?
Certainly, it is an indication of change. Now, I must add that I always believed in people. Even those who at one point in time sanctioned me were very good individuals. They never intended to harm me. They thought they were complying with their duty. It was probably more painful for them to sanction a judge than it was for me to be sanctioned. Never did I ever lose confidence that destiny would one day make room for a judge as particular as I, considering the times those events took place.

Projecting the same issue to the future, political parties of the right warn that in two more years [If a politician of the right is elected President of Chile] the Amnesty Law will again be strictly enforced. If this should occur, would the Judicial Branch once again face a challenge to the vitality of its independence?
Chilean courts have not settled the issue of the Amnesty Law. Therefore, I cannot share my opinion on it because I could well be one of the judge called upon to decide on it. What I can say is that the manner the courts have treated human rights cases reveals certain understanding of the Amnesty Law. If the law were interpreted and applied precisely as it was in the 1980s, none of the investigations underway today would be possible. It remains to be seen what will happen when one of these cases reaches a sentence condemning the crimes committed in the period covered by the Amnesty Law, 1973 to 1978. It remains to be seen whether the courts will enforce that sentence. The issue is still unresolved; you might say it is ad portas before the eventuality I have described. But I can assure you that when the time comes, you can trust the judiciary to act independently.

Prats Case in Chile

What is your evaluation of the Supreme Court decision to try the Prats Case in Chile? I cannot comment on resolutions made by my superiors. The law forbids me. However, it is self-evident, and I say so as a citizen of this country, that it reveals the spirit of judges that respond to the issue of human rights violations committed during the dictatorship. They studied, created and applied a regulation that may not have been applied in Chile before. That is notable. A judgeship that is alive, that has vitality, accepts reality, takes the challenge, and gives society a response. It is an evident indication that jurisdiction on this subject is being built, and that the judiciary is resuming the place in Chilean society it had abandoned. And that is laudable.

Historic Memory and the Judiciary

"Social peace can only be built upon a foundation of truth and justice."

What relation do you see between historic memory and the judiciary?
Memory is not a review of the past but a revitalization of a past that endures because it is memorable. Therefore it is a way to project events of yesterday into the futureÉ It is fundamental that the objective in attaining the truth we urgently and responsibly strive for is not to focus on despicable actions of the past such as torture and the murder of fellow citizens. No, we remember so that it may never again form part of our society. Without the Judicial Branch, the only institution the system recognizes to legitimately place that truth in the heart of society, it is impossible to connect yesterday to tomorrow. That is the role of memory. Historic memory is revitalizing.

Some sectors say we must not proceed with human rights concerns because they pertain to the past.
It is normal for an institution to have a diversity of views. In this case, some believe social peace requires bringing an end to human rights investigations. These people say, "Let's not open up that old wound." Others believe that only by investigating human rights violations - not for the intention of reopening old wounds but to arrive at the truth - can social peace exist and form the foundation for future generations. Now the judiciary as an institution is revealing its vitality. It is awakening and inserting itself in Chilean society, enabling Chile to become a truly democratic society once more. This issue is reshaping and redefining the judiciary. The judicial hierarchy is choosing the second position. Not the position of those who think the issue should remain concealed because it might affect social peace. Judicial authorities increasingly share the second view, of those who believe that social peace can only be possibleif built upon upon the foundation of truth and justice.