A Free People Will Not Tolerate Incomplete Justice




Judge Juan Guzman Tapia, the first Chilean judge to prosecute Pinochet, stepped down from the Santiago Court of Appeals on May 5, 2005. As keynote speaker at the presentation of the Amnesty International Annual Report at Cardinal Raul Silva Henriquez University in Santiago May 25, 2005, Guzman reviewed the fight for justice in human rights cases in Chile.

I wish to dedicate these words to the families and relatives of the disappeared persons, to victims of torture, and humiliations, to the lawyers who gave and continue to give the fight every day against impunity. To that hero of human dignity, Cardinal Silva, in whose house, we are gathered tonight. To the NGOs who struggle for a better world. To those who suffer discrimination. To those who are humiliated and oppressed in Chile and throughout the world.

I will talk about the consequences of the military coup of September 11, 1973 and how the judiciary collaborated with the regime. Once the dictatorship was over, what factors came to play in the investigation of the crimes? And how can judges and prosecutors be effective?Certain evidence may be inferred and deserve taking into account. Some eloquent examples allow us to verify the effectiveness of universal justice.

Consequences of the coup of 1973. Within just a few days, the armed forces and police had taken complete control. The military conducted mass raids, arrested opponents or in some cases people settled private disputes by turning in old enemies. The Armed Forces hardened to dominate complete control. State terrorism ensued.

Special tribunals were formed in workplaces to rout out suspected members of opposition groups and people whose presence was considered dangerous for companies and factories. During 5 years more than 10,000 habeas corpus writs were denied. More than 3000 persons were killed and more than 1000 persons remain missing to the present day. Communications media were totally controlled by the regime. With a few honorable exceptions, the judiciary collaborated completely. The jurisdiction of the military courts was vastly expanded.

How did the judiciary collaborate with the repression? We all know that operative groups of state agents kidnapped persons and took them to secret places of detention and torture. Relatives of the victims and human rights defense attorneys filed habeas corpus writs that were rejected. The Catholic Church exercised a tenacious fight against the repression. It was not respected much, but at least it was allowed to operate. Without a doubt, it was a bastion that helped stem some killings and torture. It helped many persecuted people leave the country.

Courts requested reports from the Interior Ministry, the DINA, SENDET and other agencies that simply covered up the crimes. Meanwhile, torture and interrogations continued. People unable to withstand torture are taken to different cities to identify their fellow comrades. Many die from torture. Others were shot and buried in clandestine graves or thrown into the sea.

The courts went through the motions of investigating. Cases were closed quickly without determining what happened. In 1978 an amnesty decree was dictated and judges applied it ipso facto, ipso juris. Denunciations and complaints were simply filed away. The Armed Forces, the military government and the judges operated in unison.

Once the dictatorship ended, what factors came to play in judicial investigations of crimes committed by the dictatorship? Great fear inhibited denunciations and prevented witnesses from testifying. Threats continued. A code of silence prevailed. The communications media exercised and continue to exercise pressure upon judges who investigate cases.

In this regard, I would like to emphasize the role the media can play in human rights cases. The media are the eyes of society. I believe investigative judges and prosecutors must inform the press about what they are discovering. Often, that is the only way to confront those people set in their thinking who hope to cover up the crimes systematically committed by the dictatorship. It is through the communications media that judges are able to fulfill their mission to inform and to act transparently.

The Supreme Court and many appellate courts still have people who collaborated with the dictatorship. Likewise, the Senate is hardly democratic in composition. Everyone knows that after the 1988 plebiscite politicians and members of the dictatorship forged an agreement not to touch Pinochet. Pressure is brought to bear from within the government, Parliament and even the upper levels of the judiciary to ensure that human rights cases against military personnel and others be mere formalities. When the first possibility for a real judicial investigation arose, the military mobilized, as occurred with the boinazo. The press, television, economic groups, and opposition parties pressure judges. State agencies such as the Legal Medical Institute prepare hurried forensic and DNA reports, lacking in scientific rigor, to placate relatives of the disappeared.

The Supreme Court makes bad evaluations of earnest judges. Not all the Supreme Court, of course. Just two or three unfavorable evaluations from Supreme Court justices suffice for the computer to compute a lower evaluation that removes a judge from the merit list, which is a requisite for ascending in the judiciary.

How can judges be more effective in these cases? First of all, they must make use of the communications media to enable the country and the international community to learn and understand what is happening. That is how we can break the great lie. The media influence institutions, and, in this specific case, influence the judicial branch. Judges must publicly denounce pressure in no uncertain terms.

Judges also need reliable scientific researchers to convey a sense of trust. The recreation of the scenes of crimes generally succeed in discrediting absurd alibis of people who commit crimes. Interrogatories, in my opinion, should begin with lower ranking agents of the state. Judges must learn to distinguish when those lower ranking agents had no other choice. Of course, certain crimes must always be punished because there is no justification for some situations, such as torture as it was practiced in Chile. International crimes or crimes against humanity may be applicable through our own code of criminal procedure.

Some points may be inferred and should be taken into consideration. For example, judicial actions against state agents of one country encourage judicial actions in other countries, where human rights violations are concerned. The communications media help judges progress in such cases. The international community should intervene actively to facilitate extradition proceedings, implement greater agility in witness testimony, help gather evidence more efficiently, and send people without undue bureaucracy, as occurred with the capture of Paul Schaeffer and his transfer to Chile.

Prosecutors and judges are sometimes attacked by their peers, the Supreme Court, the national media and litigants. Judges and prosecutors act without any support, without a complementary force. Many do not feel supported by any NGO. Then arises what we call the solitude of the judge. The judge acts within that solitude. How can the solitude of the judge be mitigated? Through the love and support of relatives of the disappeared and other victims.

Another fact. Plaintiff attorneys sometimes lack greater coordination. They are the major force in the fight against impunity but they do not always coordinate with each other, resulting in delays, and a weakened legal action. A few eloquent examples illustrate how justice could be more effective. Again, exposure in the media can be an important means of supporting court investigations and the cases. Remember that the media are the eyes of the world. Pointed criticism of communications media that misinform is also key.

NGOs can neutralize media that collaborate through lies, by vigorously discrediting such actions. We need to encourage the international associations of judges, prosecutors, human rights lawyers and NGOs to unite for a more effective action against impunity. In this, we need greater work with the media. Governments and state authorities that sabotage judicial sovereignty must by publicly denounced. International pressure can be an effective instrument for the achievement of honest justice.

An eloquent example that deserves attention is the arrest of Pinochet in London, which gave the case international importance. Although political will and to an extent judicial will was lacking, the coverage in communications media worldwide was a powerful stimulus for judicial action in Chile. The judiciary could not remain indifferent in the face of such attention in the media. National justice and international justice forcefully complemented each other. Acting in conjunction, they achieved what was possible to achieve.

In conclusion, I must point out that a siege mentality persists. Fear and timidity to speak out is persistent. There is still a fear of changing offensive things. For example, many of us on bus, in our cars or on foot pass along as street called 11 de Septiembre. We must end this post dictatorship syndrome. The post dictatorship syndrome has persisted too long.

More examples. We have a stone-age Constitution, an anti democratic constitutional decree continues, and is tolerated by the major communications media. Justice continues to be intervened. However, there is a light at the end of the tunnel and it is beginning to reveal truth and justice. Universal justice is gaining ground. Groups of people, family members of victims, are opened the door to threshold of hope. Truth is gaining ground. A free people will not tolerate an incomplete justice that fails to fulfill its mission transparently and courageously. That is why we must continue to fight against impunity, and fight for our own dignity.

Thank you very much.







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