Judges claim they had no knowledge of torture during the military dictatoship, but human rights attorneys recall that the courts were informed and chose to do nothing to deter the practice of torture.

by Maxine Lowy

Santiago, July 2005

Nearly 30 years since the United Nations General Assembly first condemned torture in Chile, Santiago Appellate Court Judge Alejandro Solis Muñoz has handed down two rulings that begin to mitigate decades of negligence by some magistrates and outright complicity by others regarding the practice of torture during the military dictatorship.

In March, Solis issued the first indictment for the crime of torture, filed by 19 survivors of the Tejas Verdes concentration camp. This past June 17, he followed that ruling with a second set of indictments for the crime of torture, this time, against 23 survivors of Villa Grimaldi concentration camp.

Both rulings describe in stark detail the hangings, application of electric current, blows, rapes, sleep deprivation and other brutal treatment that prisoners commonly endured during the military dictatorship headed by Augusto Pinochet.

Supreme Court turns a deaf ear

In December 2004 the Valech Commission on Political Imprisonment and Torture released its conclusions, drawn from 37,000 denunciations by former prisoners. The Valech Commission report included a scathing assessment of the failure of the judicial branch to protect prisoners during the military dictatorship. The Supreme Court Justices reacted by denying the existence of any institutional responsibility. Some magistrates, as well as some politicians, who collaborated with the dictatorship, asserted that they had no knowledge of the existence of the facts documented by the Report prior to its publication in December 2004.

Judges would seem to have had ample opportunity to learn that torture was practiced since the very day of the military coup until practically the end of the regime. International organizations such as Amnesty International, the Inter American Human Rights Commission and organizations within the country such as the Comité Por Cooperacion por la Paz (Comité Pro Paz) and the Vicariate of Solidarity informed the world of torture in Chile. At the same time, habeas corpus writs, including briefs filed for large groups of people, and denunciations of abuse suffered after arbitrary arrests, were filed since the initial days of the military takeover.

Torture as an instrument of control

In late September and early October 1973, attorney Andres Aylwin, brother of former president Patricio Aylwin, filed the first habeas corpus writs, on behalf of individuals who had been arbitrarily arrested. The writs sought protection for peasant leaders, a businessman from the town of Paine, and persons held in the Air Force War Academy (AGA). Some of these people were never seen nor heard from again; their arrests denied by military and civilian officials of the time, to subsequently cause them to "disappear." Of the survivors who were released and returned home, few wanted any contact with a lawyer, remaining mute about what had happened to them.

Aylwin recalls: "You deduced that either these people were witnesses or they themselves had been terribly beaten. In either case, the experience had left them terrorized. Many people began to fear torture much more than death. There was awareness that if you were arrested, you were bound to be tortured. At first, what mothers feared most was that their children would be tortured. They would tell me, �I do not want my son to come home blind, to come back all broken.� You heard that from the first day."

In San Bernardo, where Aylwin had been a congressman until the military Junta shut down the Parliament, many railroad workers were arrested. He would come across people who confided to him, "So and so came home broken into pieces. But do not visit him because it could be worse for him." People feared they would be arrested again or threatened if they reported what happened.

Terror was the first public expression of torture. Throughout the world, dictatorships are known to employ torture as an instrument that controls not only the individual whose body endures the physical abuse, but the society as a whole as well. Survivors make apparent the danger of opposing the regime, thus obtaining a submissive population. Such practices constituted a prime tool of the Pinochet dictatorship, for which torture served the objective of dominating the Chilean population through terror.

The facts were known

Prior to the formation of the interfaith Comite Pro Paz, attorney Andres Aylwin, who had been a congressman until the Junta shut down the Chilean Parliament, began taking cases from his small office on Huerfanos Street, a block from the courthouse. Several lawyers worked closely with the Comite Pro Paz ecumenical effort to save lives. A number of young attorneys and recent law school graduates collaborated with Aylwin, as did Sergio Corvalan, who later went on to work many years with the Vicariate of Solidarity human rights defense organization. Aylwin�s office was one of the earliest instances to inform judges about torture and to plead that they take action to stop it.

In the months following the coup, Appellate Court judges as well as Supreme Court justices received testimonies, attached to habeas corpus writs, that described the practice of torture. When a person was freed, lawyers considered it important to obtain testimony, Corvalan explains, because they thought it might facilitate the release of other persons. Nonetheless, the person in custody frequently remained imprisoned, sometimes for months, so the lawyers would again contact the witness, to ask him/her to make a sworn, notarized statement. Some notary publics were reluctant to receive the statements and would "intimidate the witness in order to dissuade him." Other notary publics, however, were willing to notarize the witness statements and would take care to reassure the individual, in order to produce a valid, notarized document.

In 1990, when Corvalan worked for the Truth and Reconciliation Commission, he came across notarized statements that he had helped prepare sixteen years earlier.

Face to face with the evidence

Despite such efforts to document the effects of imprisonment, Appellate Court judges invariably remained indifferent. Corvalan recalls judges who remarked, "Surely you exaggerate." That judges denied what had become common knowledge and rejected urgent habeas corpus petitions spurred the Aylwin office to judicially document cases of torture.

Andres Aylwin brought the court the first direct testimonies. On more than one occasion he personally brought persons who had been tortured before a judge to show that the danger the habeas corpus writ had sought to avoid had been real. One case in particular � of a peasant woman whose breasts had been burned � so shocked him that he showed her to the Santiago Appeals Court president.

In January 1974 Andres Aylwin had to argue before the Supreme Court in a case involving farm workers who had disappeared from the rural locale of Paine, south of Santiago. Human rights attorneys commonly sustained before the Appeals Court that the disappeared persons had indeed been arrested, contrary to the standard Interior Minister denial in thousands of cases. Although procedurally possible, few lawyers appealed to the Supreme Court because they viewed it as futile. On this particular occasion, the Aylwin office had accumulated several cases and the decision was made to appeal to the Supreme Court. Aylwin asked some of the victims and witnesses to accompany him, to accredit the detentions. Expecting no more than a handful of brave souls willing to testify before the high court, Aylwin was astonished when 50 people gathered at the hearing. The judges "came face to face with the people who had witnessed arrests and mistreatment at the time of the arrest."

Attorneys, like Andres Aylwin, also defended persons unfairly accused and imprisoned by War Councils, kangaroo military courts conducted between 1973 and 1974. Most of the hearings of these summary trials were entirely oral, but sometimes the military prosecutors allowed the defense to prepare a written statement as well. Sergio Corvalan had the opportunity to listen as defense attorneys described the torture to which the prisoner had been subjected. Then, as now, the Military Justice Code invalidated confessions extracted as a result of torture. Although defense attorneys commonly were conceded only a brief time with the imprisoned client, the effects of torture were evident: a broken arm, bruises, a wound of some sort, or simply the sense that the individual was terribly threatened and under duress. Frequently, the prisoner was reluctant to admit having been tortured and even less willing to denounce it.

Later the written defenses and motions the Comité Pro Paz, and particularly the Vicariate of Solidarity, filed with the Military Tribunal included denunciations of "illegal pressure" or "undue violence," legal euphemisms for torture. The Military Tribunal admitted a few cases; however, Corvalan does not recall any investigation that condemned military personnel for the act of torture.

By early 1974 the Comite Pro Paz had developed a form sheet that social workers and lawyers filled when receiving the initial testimony of persons whom had been tortured. The accumulated form sheets were used as the basis for writing human rights reports for international organizations such as the Inter American Human Rights Commission and Amnesty International, that maintained a special interest in documenting cases of torture. The Comité Pro Paz, as well as the Vicariate of Solidarity presented the Supreme Court with its reports on torture, demanding that the judiciary take steps to prevent mistreatment of prisoners.

Public relations, public scrutiny

Between July 22 and August 2, 1974 the Inter American Human Rights Commission (IHRC) conducted its first on-site inspection to confirm atrocities described in the human rights reports on Chile. The delegation visited seven detention facilities in Santiago, in addition to concentration camps in Ritoque, Chacabuco, Tejas Verdes, Linares, Isla Quiriquina, Talcahuano and Concepcion. In Santiago the delegation set up an office in the Hotel Crillon where it received a "constant parade" of people daring to denounce human rights violations. Subsequently, the delegation prepared a report for the Organization of American States (OAS) and addressed a letter of concern to the military rulers. The report indicated names of people who had testified directly to Commission members during their visit. Some of these people managed to get out of Chile and subsequently reconfirmed their testimonies before the United Nations Human Rights Commission.

The IHRC report notes that the Military Junta responded with a series of statements in the Chilean press between August and September 1974, asserting that certain police officers and military personnel had been dismissed due to their participation in acts of torture against persons in custody. Thus confirming the veracity of the denunciations of one of the most prevalent forms of human rights violations reported to the Commission. In a letter dated October 22, 1974, Admiral Patricio Carvajal, in his capacity as Foreign Relations Minister, replied to the IHRC delegation denunciations. The letter states: "The government of Chile continues to work to safeguard the freedom of each and every one of its inhabitants and our rigorous respect of basic rights surpasses the mandatory standards set forth by international treaties."

The Junta�s public relations ploy failed to convince international critics. Nor did it succeed in silencing them. As of 1974, and every year until the late 1980s, the United Nations prepared a report on the state of human rights violations in Chile, with a chapter devoted to the subject of torture, containing detailed accounts of abuse.

Sergio Corvalan notes, "If it doubted the reports, the Supreme Court could have conducted an investigation of its own to discredit the human rights denunciations. Better still, the reports should have induced the Supreme Court to take action to protect the victims. Instead, it did nothing."

On March 1, 1975, after yet another UN condemnation, Supreme Court President Enrique Urrutia Manzano personally came to the defense of the ad hoc military government: "�Regarding torture and other such atrocities, I can affirm that neither firing squads nor iron curtains exist in Chile. Any affirmation to the contrary derives from a press that spreads ideas that could not prosper in our country."

Urrutia discounted any credibility from the international condemnation of Chile, when just four months earlier, he had received confirmation from source that he regarded as very credible: Andres Aylwin, son of Miguel Aylwin, Supreme Court president from 1957 to 1960. Andres Aylwin had unusual access and familiarity with the judges. Several had visited his father at home as young lawyers. Disturbed by the barbarous treatment of prisoners, in November 1974, Aylwin held private conversations with certain Court of Appeals and Supreme Court judges. "I spoke to them about the things I had seen, not as a lawyer, but as a concerned human being. I pleaded that they do something because people were being tortured and many were disappearing after arrest. I told them all this. None of the judges appeared in the least surprised. Their only response was, �But, this is a war.�

Torture intensified and became a systematic practice. Human rights lawyers continued to file habeas corpus writs and denunciations. And the Courts of Appeals and the Supreme Court continued to reject them.

In late 1980, the Association of Human Rights Lawyers petitioned the Supreme Court to appoint a Special Prosecutor to investigate denunciations that seven men and women had been tortured by the Central Nacional de Informaciones (CNI). The petition indicates that between January and August 1980 the lawyers had ascertained more than 130 cases in which detainees had been subjected to torture. The document states: "the characteristics and repetition of such cases suggest that torture is a habitual practice of State security services � Moreover, certain sectors of the population and government officials appear to have become accustomed to the existence of torture. This social phenomenon of habituation must be avoided at all cost, not only for the victims of torture but for the sake of Chilean society as a whole." The lawyers not only requested a judicial investigation of the seven specific cases they describe in the writ. They also asked the Supreme Court to put an end to the inhumane practices institutionalized by the military dictatorship. Nevertheless, the high court denied the request for a special prosecutor.

Legal framework outlaws the crime of torture

It is important to note that "illegal pressures" had long been crimes in Chile at the moment of the coup. Articles 145 and 150 of the Military Justice Code punish military personnel who order or prolong the condition of incommunicado, when a prisoner is most vulnerable to abuse. Officers who personally subject a prisoner to physical or psychological abuse or exercise undue force are also punished. Articles 150 and 255 of the Code of Criminal Procedure set forth the crime of torture. In addition, since the Nuremberg Trial Statutes and the Geneva Conventions, ratified by Chile in 1950, jurisprudence concerning torture establishes its prohibition as a principle of ius cogens, a norm so fundamental that no State may revoke it.

Then, the judges were not uninformed.
The courts did not lack a legal framework to establish torture as a crime.
Nor was there a dearth of denunciations to enable the courts to take action.

As the Valech Commission report well points out, the courts had the authority to act and could have stopped torture in Chile. The responsibility of the Chilean courts, clearly and simply, lies in the failure of judges to fulfill their judicially mandated duty.

The two indictments for torture inflicted during the military dictatorship, dictated by Judge Alejandro Solis Muñoz in March and June 2005 are the first in the history of the Chilean judiciary. If during the dictatorship, the courts turned a deaf ear to the cries of prisoners and denied the proper exercise of justice by rejecting thousands of habeas corpus petitions, perhaps Judge Munoz is opening a new procedural route that will bring justice at long last for victims of torture.