|From the initial
moments of the dictatorship, attorneys in Chile mobilized to
demand respect for fundamental rights, despite a judicial structure
that legitimized the military regimes trampling of those
rights. As members of the staffs of non-governmental organizations
that emerged in defense of life, such as the Pro Paz Committee,
Vicariate of Solidarity, Fasic and Codepu, attorneys denounced
human rights violations, filed complaints and habeas corpus
writs, despite the repeated refusal of the courts to accept
these actions. Attorneys became targets of harassment and many
were eventually forced to leave the country. The work of human
rights law professionals was complimented by the concerted efforts
of organizations of victims families to amass a vast body
of evidence that would eventually form the basis for legal action
in future years when the judiciary recovered its independence.
The struggle of attorneys was,
first and foremost, to protect lives but they were equally
engaged in demanding democracy and restoration of a constitutional
state where principles of equality before the law would be
respected. After the dictatorship in the era known as "transition"
to democracy, justice continued to be largely illusory, as
courts invoked the amnesty law and military tribunals challenged
civil court jurisdiction, in both cases for the intent of
closing human rights cases. At various times, lawyers have
also continued to felt threatened for exercising their profession.
Insunza, today Dean of ARCIS Law School, was a
member of the Vicariate of Solidarity legal staff and belonged
to the Association of Lawyers of Political Prisoners.
"Our commitment to bring
the dictatorship to an end endowed us with a mystique...
We were considered enemies of the regime, but most of us
worked for important offices - the Vicariate under the Archbishop,
Codepu, and Fasic where we felt protected. International
support was key for Chile in those years. That the whole
world knew Pinochet was a dictator encouraged us to keep
denouncing human rights violations and defending the victims.
It is curious to note that
in comparison with other professions, such as doctors, few
lawyers became victims of the regime. Although we were threatened,
there existed a certain acceptance of our role as necessary
in order to maintain the guise of legality, that prisoners
had lawyers, that there were trials and that a constitutional
Political parties were outlawed
and there were no politicians, so lawyers had a greater
public profile. The only ones who could speak out a little
were human rights lawyers."
also a lawyer from the Vicariate of Solidarity, recalls:
"The work began amid a
certain chaos, as Chile had never experienced a situation
like this one... It was difficult to establish a systematic
human rights defense within a legal framework. In fact,
we had little time to think things out. The urgency of our
job was such that during the first four or five years, long
lines of people were always waiting for assistance. We knew
that lives and physical integrity were on the line. It was
maddening to try to provide legal and human shelter to thousands,
and at the same time, attempt to set up a system for human
...We always felt a great frustration.
Other departments of the Vicariate attended more urgent
cases, taking people to seek asylum in embassies or to get
out of the country. These were all bandaid solutions that
attempted to save lives.
The courts appeared completely
negative and indifferent to the atrocious and massive violation
of human rights. Even so, as lawyers, we came to understand
that it was better to keep at our work than to do nothing.
We knew it could have been worse had the Pro Paz Committee
or the Vicariate not existed. Still, so many lives could
not be saved.
After such a very long time,
we have limited achievements; few today have been sentenced
or even charged for the crimes. Yet the little we have managed
to achieve would have been impossible without all the work
we did in the past. All the major cases of disappeared persons
initiated in the early years of the dictatorship, from 1974
to 1977. Some way or another many of these cases remained
open to this day. Or else, lawyers were able to reopen them
in the 1990s, in part, through the Rettig commission (Truth
and Reconciliation Commission) and all the writs we sent
to all the different courts around the country to reopen
cases. At last, we witnessed a few changes as reflected
in the Supreme Court rulings of 1997 and 1998, as well as
the arrest of Pinochet in London."
threatened in dictatorship included the following:
On May 12, 1976 the house of
Montealegre was violently raided and searched by
military personnel. Documents related to the Neltume case
and to cases of 37 people he was defending who were to stand
trial before a War Council on May 27, 1976. Montealegre was
arrested and was placed incommunicado 17 days in the Cuatro
Alamos detention center on charges of "serving as intermediary
to the banned Communist Party."
In 1976 military agents charged
into the office of attorney Jaime
Castillo Velasco, who defended people accused by
War Councils, and took him directly to the airport where he
was boarded on a plane. When he was able to return 2 years
later, Castillo founded the Chile Human Rights Commission.
In 1981 he was again expelled from the country, this time
with three other members of the Association of Lawyers for
In September 1987, Roberto
Garreton, head of the Vicariate legal staff, was
accused and jailed by the First Military Court for having
published a critical review of human rights in Chile.
Threatened in Democracy:
On July 11, 2000 the La Nacion
newspaper received an anonymous phone call: "We of Patria
y Libertad claim responsibility for the attack against attorney
Days earlier, a pickup truck struck the wife of Eduardo Contreras,
one of the prosecuting attorneys of the Caravan of Death case,
causing her serious injury. The phone call from the ultra-right
wing group that took credit for the attack, aroused the lawyers
suspicion that the incident had not been an accident.
During the arrest of Pinochet
in London and the proceedings in Chile, a series of threats
to human rights lawyers and to prominent human rights figures
obliged the Interior Ministry to assign police escorts to
20 people, including several lawyers such as Codepu legal
Gutierrez, Fabiola Letelier, and Julia
In 1991 the Report
of the National Truth and Reconciliation Commission stated:
"...of the three branches of government only the judiciary
continued to operate, and was neither disbanded nor intervened..."
by the military rulers due to their "interest in maintaining
... a semblance of legality."
The Report adds:
"The attitude the Judicial Branch adopted during the
military regime aggravated the systematic violation of human
The former Justice
Minister for the military regime, Monica Madariaga, has explained
how judges were appointed during her term in office. The Ministry
proposed candidates to the Military Junta and she was called
upon to defend them if the Junta doubted their ideological
aptness for the post. When asked whether magistrates could
have acted differently and chosen to protect human rights
victims, Madariaga replied: "How could they have opposed
the force of arms with only the force of their positions as
magistrates? I knew the Junta; undoubtly they would have dissolved
the judicial branch."
Laws 80 and 81 created a judiciary in line with the politics
of the dictatorship:
DL80 Permited removal
of judges with the votes of only 50 percent of the Supreme
Court when previously a two-thirds vote was required.
DL81 Changed the system
for evaluating the competence of judges. A judges
career hinged on the evaluation on a range of 1 to 4. A
judge rated at 4 could be dismissed for political incompatibility.
In late April
of 1974, 57 judges and magistrates nearly 10% of the
entire judicial body were evaluated on "lista
4" and dismissed for political reasons. Among the judges
whose careers in the courts came to an abrupt end in this
way was the judge of the Second Criminal Court of Santiago,
Rene Farias, today president of the Chilean chapter of the
American Association of Jurists.
the Dictatorship Three Judges Attempted to Exercise Judicial
In March 1986, Santiago Appeals
Court judge Carlos Cerda subpoened Manuel Contreras, the former
director of the DINA secret police, to testify in the case
of 10 Communist Party leaders abducted and made to disappear
between 1975 and 1976. Contreras sued the judge for his audacity
and Air Force General Fernando Matthei complained that Cerda
had questioned a lieutenant in the case. Judge Cerda chose
to ignore the annoyance produced among military authorities.
On August 14, 1986, he ordered the arrest of 40 members of
Carabineros police, detectives and the Air Force, including
former Commander-in-Chief Gustavo Leigh. When the Supreme
Court resolved a jurisdictional challenge in favor of the
military court, Cerda ignored the ruling. The Supreme Court
responded by suspending Cerda from the bench.
In August 1985 Jose Canovas concluded
his meticulous investigation of the triple homicide of Jose
Manuel Parada, Manuel Guerrero and Santiago Natino, committed
on March 28, 1985. The judge charged the police intelligence
unit Dicomcar of illicit association and ordered the arrest
of its highest officers. This constituted the first time that
a member of the judiciary accused security forces of the dictatorship
of commiting a crime. The Supreme Court responded by ordering
the immediate release of police commanders Luis Fontaine and
Julio Omar Michea. Subsequently, the regime dictated Decree
Laws 18.431 and 18.472, known, respectively, as the "Fontaine
law" and the "Mendoza law," which prohibited
judges from indicting upper police commanders or or ordering
them to testify.
Another judge who exercised judicial
independence and was twice sanctioned by the Supreme Court
was Santiago Criminal Court judge Rene Garcia Villegas. Garcias
suspension in 1988 and subsequent dismissal as judge in 1990
resulted from his public criticism of the judicial branch.
His statement that "people are tortured in Chile"
was incorporated as part of the televised "No" campaign
in 1988. When fellow judges Hernan Correa de la Cerda, Luis
Correa Bulo and Jose Benquis, members of the National Association
of Magistrates, denounced the Supreme Court admonishment of
Garcia, they, too, were sanctioned for having expressed their