Memoria y Justicia - Human Rights Today-Disappearing Husband

In the past five years, no court in Chile has applied the Decree Law 2191, better known as the amnesty law, to a single case concerning human rights violations committed during the military dictatorship. Moreover, on January 31, 2003, the Supreme Court's Second Penal Chamber repealed the amnesty a military court had invoked in the case involving the arrest and subsequent disappearance of Roberto Aranda Romero in 1974, and ordered the Martial Court to reopen the investigation it had previously dismissed. This ruling and others suggest that amnesty is no longer the insurmountable obstacle to justice that it once was.

Such was the relative state of consensus that Clara Sczaranski, president of the State Defense Council, disrupted by expressing her opinion, on July 19, 2003, that the Amnesty Law is still fully in force.

Clara Szczaransk's contentious statement of July 19, 2003 was the following: "Judges are obligated to apply it (the Amnesty Decree Law) on the principle of pro-defendant. Repressive crimes should be pondered in the historic, social, and political context in which these conducts occurred."

On July 21, 2003 the State Defense Council president added:
"Procedural incentives such as immediate freedom on parole must be created in order to come closer to the truth... and then it is up to the court to decide whether it is proper to apply the Amnesty Law."

The public debate triggered by the statements of the State Defense Council President took the following course, as recorded by the press:

Attorney Hugo Gutierrez stated: "It is unacceptable that State Defense Council attorneys investigate the worst crimes in the history of this country and then she encourages the courts to apply amnesty... She acts like an agent of the State who denies justice to family members of the victims, and this means she is harboring impunity. In so doing, she is transformed in someone who violates human rights. Therefore, the National Assembly for Human Rights called for the resignation of the president of the State Defense Council.

Patricio Aylwin, President of Chile, 1990-1994: "It is not reasonable to make a scene because someone says it is possible for the Amnesty Law to work." Amnesty "does not impede courts from investigating or ruling in human rights cases, and international law makes it inapplicable in some crimes."

Christian Churches Social Assistance Foundation (FASIC): "Not only does she reveal a lack of profundity in judicial analysis, she also shows a scant understanding of human rights law and to the degree these have been incorporated in our institutional framework. She appears to have forgotten that the limitation for the exercise of law is respect for human rights and that it is the duty of bodies of the State, one of which she presides, to respect and foster these rights."

Jaime Gazmuri, Vice President of the Socialist Party: "It would be very harmful for us to stimulate interference in the way the courts approach cases concerning human rights violations. In recent times, truth and justice have been established in many emblematic cases. The courts are doing their job well and we have to support that work."

The National Assembly on human Rights and the Association of Relatives of the executed demonstrated outside the offices of the State Defense Council, protesting that its president "favors reducing sentences for persons who provide information and then apply the amnesty law."

The next day, the Association of Relatives of the Disappeared also protested in front of the CDE building. Association vice president Mireya Garcia stated: " ...her statements went beyond the limit of what is acceptable. Clara Szczaranski 's statement contradicts what the government has always said about respect for the constitutional state. As a former Communist Party member and a former exile, Clara Szczaranski should not make such assertions."

Juan Subercaseaux, Secretary General of the American Association of Jurists Chilean Chapter clarifies the meaning of the pro defendant principle Clara Szczaranski cites to justify the alleged force of the Amnesty Decree Law:
"She launches that thesis like a torpedo against a justice system that has begun to work. The doctrine originates in the Constitution and means that in the case of two conflicting laws, the law that favors the defendant should be applied. But these crimes against humanity sanctioned by the Geneva Conventions and international treaties have preeminence over internal law. Her words are troubling because the State Defense Council answers directly to the President of Chile is creating a climate that apt for intimidation of the judiciary."

Fabiola Letelier, also a member of the American Association of Jurists and Coordinator of Memoria y Justicia adds:
"When government officials refer to amnesty they usually call it the Amnesty "Law". But in 1978 when it was enacted the Chilean Parliament had been close by the military dictatorship. This was not a law that is the expression of the will of the people who elect lawmakers. This is a decree, an another expression of a de facto government that sought to establish impunity for serious crimes committed by agents of the State, primarily members of the Armed Forces. Contrary to what the president of the State Defense Council asserts, Decree Law 2191 should not be applied but rather, repealed.

More than fifty notable professionals from different fields fear that the recent statements made by CDE president Clara Szczaranski suggest that the Chilean government intends to evade its international commitments to human rights. As the Chilean government prepares to unveil its human rights proposal and at a time when Latin American society, and Argentina in particular, is taking decisive steps in the direction of justice, it is astonishing that she insinuate ideas - her personal opinion - that may impair the labor of the Judicial Branch. Our deep concern for the conduct exhibited by the State Defense Council in civil suits seeking damages for victims of human rights violations and dismay caused by the affirmations of its president Clara Szczaranski, advocating application of the 1978 amnesty decree law, leads us to declare:

1. The essential mission of the State is to safeguard the common good. Therefore, it is incomprehensible that the State Defense Council, in seeking to protect fiscal resources, reaches the extreme of disavowing the truth regarding most serious human rights violations committed under dictatorship. Such has been the effect of the decisions related to compensation petitions, which ignore the conclusions of the Rettig Report. This can be clearly observed in its acceptance of the thesis of the military patrol that Carmen Gloria Quintana had accidentally burned herself in 1986.

2. We who opposed the dictatorship regard the 1978 decree law as morally aberrant. Moreover, both the Inter American Human Rights Commission and the UN Human Rights Commission ruled that it violates international commitments acquired by Chile. In their defense pleas before the Inter American Commission, the governments of the Concertation recognized this fact, but indicate that it is impossible to repeal the decree law for lack of a congressional majority. Therefore, the words of the CDE President seriously affect the credibility of the Chilean State before the world.

3. The words of Ms Szczaranski also influence the disposition of the State to seek justice for the most serious human rights violations committed during the period 1973-78. They appear to suggest an abandonment of the doctrine that the Geneva conventions Chile ratified in 1951, cannot be disavowed and made vulnerable in our country by domestic legislation. All the more so, considering that the decree law was imposed by a dictatorship for the clear objection of shielding agents of the State who had committed crimes against humanity and war crimes.

4. The words of Ms Szczaranski may also be interpreted as an attempt to influence the Judicial Branch to refrain from considering persons who disappeared after detention as judicial abductions, unless their liberation or death can be proven. We must remember that the efforts of the Courts located one person who the Rettig Report had considered to be disappeared. This was Claudia Poblete Hlaczik, who was eight months old at the time of her arrest together with her mother, and DNA tests at last proved her true identity.

5. But the most astonishing aspect of Szczaranski's declarations was how that she posed the State character and practice of the crimes as extenuating circumstances to be considered in penal responsibility. Her thesis, moreover, is that impunity should extend to the period 1978-1990, as observed in her promotion of a pardon for one of the most merciless murderers of the 1980s, retired army mayor Carlos Herrera Jimenez, author of the homicides of Tucapel Jimenez Alfaro and the carpenter Juan Alberto Alegria Mundaca.
Her justification for this: "these crimes are of an historic, political and social nature, in which a personal relation between offender and victim does not exist. In addition, the crimes were not carried out by disorderly hordes but by highly hierarchical and disciplined institutions, which obligated individuals to follow orders. It is therefore indispensable to consider the obedience to orders and to use caution at the time of evaluating guilt." The same argument could be used to justify a substantial reduction in the sentences of individuals who committed crimes in Nazi or Stalinist extermination camps. Also, as these crimes were committed by "highly hierarchical and disciplined institutions" as Ms Szczaranski has noted, the individuals who made the decision to commit these crimes and ordered subordinated to carry them out deserve a more severe sentence that the material authors. Such has not occurred in these cases.

Maria Angelica Alvarez
Martin Antonio Avaria
Sergio Baeza C. Lidia Baltra M.
Edison Barria
Beatriz Brinkmann, CINTRAS
Luis Casado Jorge Cisternas Z.
Marcel Claude
Edgardo Condeza V.
Nilda Correa V.
Jacques Chonchol
Ilona del Canto
Ricardo Duran
Monica Echeverria
Rodrigo Fernandez Fernandez
Pedro Gaete
Mireya Garcia
Angelica Gimpel Smith
Christian Gonzalez Diaz
Gustavo Gonzalez Rodriguez
Alejandro Guerrero Veliz
Patricio Herman
Claudio Herrera
Manuel Hidalgo Valdivia
Ramon Huidobro
Luis Inostroza
Fabiola Letelier
Manuel Jana
Mariscal Carlo
F. Maregatti G.
Pedro Alejandro Matta
Juan Pablo Olmedo
Libio Perez
Coral Pey
Felipe Portales
Gabriel Pozo
Edgardo Reyes Saldias
Paz Rojas
Simona Ruy-Perez B.
Gustavo Ruz
Hector Salazar
Sergio Sanchez
Jacobo Schatan
Julio Silva Solar
Vicente Sota
Armando Uribe
Hector Vega
Roberto Vega Bravo
Gabriel Vivallo