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.
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
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
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.
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
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.
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.
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.
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
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
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
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.
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.
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.
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.
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.
you very much.