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
by Maxine Lowy
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
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.
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.
Court turns a deaf ear
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
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.
as an instrument of control
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.
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."
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
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
facts were known
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.
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.
when Corvalan worked for the Truth and Reconciliation Commission,
he came across notarized statements that he had helped prepare
sixteen years earlier.
to face with the evidence
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.
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
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."
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.
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.
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.
relations, public scrutiny
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.
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."
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
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."
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."
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.�
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.
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.
framework outlaws the crime of torture
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.
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
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.