Details of the Decision to Strip Augusto Pinochet
of Immunity in Operation Condor Case

By Maxine Lowy for Memoria y Justicia

July 7, 2004

After eighteen hours, the bus from Buenos Aires arrived at the Argentine-Paraguayan border May 16, 1975. Jorge Fuentes Alarcon, Chilean courier for the MIR (Movement of the Revolutionary Left) was on the bus, accompanied by Argentine Amilcar Santucho of the ERP (Peoples Revolutionary Army). The two were emissaries of the Junta Coordinadora Revolucionaria (JCR) who had as objective to encourage scattered members of the left to regroup in a united Latin American alliance of the left. The mission that was meant to begin in Paraguay was abruptly aborted when the two entered Paraguayan territory. Paraguayan police arrested them and unleashed a nightmare of the extermination of leftist groups gathered in Buenos Aires. Fuentes and Santucho were taken to Asuncion where they were subjected to torture that led to the capture in Buenos Aires of many other Argentines, Chileans, and Uruguayans.

Documents declassified by the United States Department of State show that the Paraguayan intelligence chief informed FBI agent Robert Scherrer in Buenos Aires about the arrests. Scherrer, in turn, informed Gen. Ernesto Baeza, Santiago Intelligence Director and the Argentine intelligence chief. Within hours, Chilean and Argentine security agents were on their way to Asuncion, where three countries participated in the interrogation of Fuentes y Santucho. After three months of torment in Paraguay, Fuentes was transferred to Villa Grimaldi, the DINA¹s major torture and detention center in Santiago where he was last seen alive during the 4 months he was maintained in abysmal conditions.

The arrest of Fuentes and Santucho was a kind of dress rehearsal for military intelligence forces that formalized their pact under Operation Condor six months later. It corresponded to the model of Phase Two operations, consisting of actions of surveillance and capture of activists within the six Operation Condor member countries. Phase Three consisted of surveillance and assassinations outside Latin America, such as the assassination in September 1976 of former Foreign Relations Minister Orlando Letelier in Washington, DC and the failed attempt to assassinate Bernardo Leighton in Rome.

Thousands of refugees, many of them protected by the United Nations High Commissioner for Refugees (UNHCR), had fled to Argentina, the only country that was not yet under a military dictatorship. In fact 16 of the victims, on whose behalf the petition to deprive Augusto Pinochet of immunity was filed, were arrested and forcibly disappeared in Argentina, one (Julio del Transito Valladares) in Bolivia, one (Jorge Fuentes Alarcon) in Paraguay, and two (Hernan Soto and Ruiter Correa) in Chile through informants in Argentina.

The petition to deprive Pinochet of immunity specifies charges against him in the aggravated kidnapping, illicit association, and torture of Jorge Fuentes Alarcon, Ruiter Correa, Juan Hernandez Zaspe, Edgardo Enriquez, Luis Enrique Elgueta, Alexei Jaccard Siegler, Victor Oliva Troncoso, Jean Claudet Fernandez, Manuel Tamayo Martinez, Luis Munoz Velasquez, Ruiter Correa, Jacobo Stoulman, Matilde Pessa, Hernan Soto, Jose Luis de la Maza, Cristina Carreno, Jose Campos and Luis Quinchavi.

Depriving Pinochet of Immunity
Pinochet is no longer lifetime senator. Why,then, was it necessary to request removal of his immunity? When it became evident that the Santiago Court of Appeals would strip Pinochet of immunity to permit him to stand trial for the Caravan of Death case, the President and Congress forged an agreement. In record-time of 24 hours, in April 2000, the Chilean Congress approved Law 19662 conferring Pinochet, who was never elected immunity as former President of the Republic.

In 2000 the Santiago Court of Appeals stripped Pinochet of immunity as lifetime senator for his participation in crimes related to the Caravan of Death, ruling that the Supreme Court subsequently upheld. The removal of immunity was only valid for the Caravan of Death case. Later attempts to strip Pinochet of immunity in order to bring him to trial in the Carlos Prats case (December 2002) and the Calle Conferencia case (October 2003) focused on his health condition, when procedurally that issue pertains to a later judicial stage. The courts found that the former dictator suffered from incurable dementia when his own actions demonstrated that he enjoyed good health. Pleadings in the Operation Condor immunity hearings shifted the emphasis away from health to elements that proved probable cause and other procedural elements.

Evidence abounds of the involvement of Pinochet in Operation Condor, beginning with the conception of the repressive alliance: the official invitation Manuel Contreras sent to convene the November 1975 that formed Condor could not have been extended without the consent of the head of state. Clearly, Operation Condor was an instrument of state terrorism that carried out the policies of repression of member states.

Notably, in his arguments before the court, defense attorney Ambrosio Rodriguez acknowledged the existence of Operation Condor. However, he described it as a Southern Cone Interpol comparable to the current agreement among European nations to fight terrorism. A qualitative difference exists,however, between the covert, illegal pact among security forces and the public, legal alliance in Europe to protect citizens from precisely the kind of violence Operation Condor perpetrated on three continents.

On May 28, 2004 the Court of Appeals, in a solid 14-9 vote, accepted the petition to strip Augusto Pinochet of immunity, filed (December 22, 2003) before Investigative Judge Juan Guzman Tapia. Removal of immunity requires probable cause (sospecha fundada) that the individual in question participated in a crime. Plaintiff attorneys Francisco Bravo, Eduardo Contreras, Juan Pavin and Juan Subercaseaux were responsible for presenting the court with evidence of the involvement of Pinochet in Operation Condor.

More than probable cause
On July 5, the Santiago Court of Appeals made public the text of its May ruling that approved the removal of immunity of Pinochet as former President of Chile due to his role in Operation Condor. To a great extent, the judges accepted the line of reasoning argued by the plaintiffs. The judges state that "more than probable cause" exists that Pinochet holds responsibility for the crimes that affected the 20 victims. Citing plaintiff lawyers nearly verbatim, the ruling describes the hierarchical relationship between Pinochet and the DINA, and by extension, Operation Condor. It also cites the words of former DINA chief Manuel Contreras:

"Contreras has indicated that the DINA 'had the mission to eradicate and elliminate Marxist extremism," and "fulfilled the orders that I received directly from the President of the Republic, to whom I answered."

The ruling also clarifies certain procedural aspects that were at the heart of the immunity hearing. Contrary to what the defense contends, the dismissal of Pinochet for health considerations in the Caravan of Death case is not applicable to the present case. Picking up on the plaintiffs' arguments, the judges stated that the issue of health does not pertain to the immunity hearing, but rather to the trial stage.

Below we present a review (based on interviews conducted in May and June 2004) of the line of reasoning argued by the plaintiffs, that was fundamental to the Appeals Court ruling.

Is Pinochet above the law?
Francisco Bravo, lawyer with the governmental Human Rights Program clarified for the judges that the comparison between Operation Condor and the present European alliance against terrorism has no basis in reality. Operation Condor was not merely a mechanism for gathering and exchanging information as former DINA Chief Manuel Contreras has stated. Bravo pointed out to the judges, "An institutional relation existed among intelligence services to repress, persecute, and eliminate opponents."

Bravo also addressed the question that was central to the immunity hearing: What did Pinochet have to do with Operation Condor? He explained:
"The DINA was a technical-military body for the objective of producing intelligence that formally answered to the Military Junta, but in reality answered only to Augusto Pinochet. If Contreras asserts that he carried out orders his superior gave him, you reach the logical conclusion that Condor was an idea of Augusto Pinochet, or at least had his authorization. Pinochet cannot sustain that he had no knowledge of its actions.

Bravo concluded his arguments before the court with these words: "The issue before us is not related to whether or not probable cause exists. The issue of depriving General Pinochet of immunity has to do with the principle of equality before the law. Can Pinochet be brought to trial in Chilean courts? Does the law confer every Chilean citizen the same rights as Pinochet or is he above the law? Or is he still untouchable? That is the real issue."

Court rulings do not set precedent
Attorney Eduardo Contreras has participated in three of the four attempts to deprive Pinochet of immunity in order to bring him to trial.
"The history of the Code of Civil Procedure has clearly established that court sentences in Chile do not establish precedent. This means they are valid only in the specific case in which the rulings were issued. Article three of the Code of Civil Procedure states this. Moreover, the court record in motions to dismiss establishes that no matter how high the court that dictates the sentence, the ruling does not constitute law. It is not obligatory for other courts."

"The only thing under discussion in the immunity hearing should be whether or not probable cause exists. It is not a penal proceeding, which means it is invalid to plead res judicata. The procedural code calls for removing immunity, indicting him, and only then if we determine that he is mad, can res judicata be invoked. But during the immunity hearing, which is not a trial, you cannot bring up an issue like health, because that relates to the merits of the case. The only thing we ask of the court is to authorize an indictment. There is more than probable cause in both Prats and Calle Conferencia cases, as well as Operation Condor."

"Therefore, the Court of Appeals declaration of dementia to deter removal of immunity is not grounded in law. That is not just my opinion. That is the minority opinion from the court in Prats and Calle Conferencia, which with brilliantly argued that consideration of the issue of madness at this stage is contrary to law."

Obstructers of justice are as guilty as criminals
Attorney Juan Subercaseaux has specialized in a meticulous analysis of the medical reports and the pseudo-medical rationale of the Supreme Court on the mental capacity of Pinochet. His role at the immunity hearing was to show that the medical reports on which British Home Secretary based his decision to free Pinochet failed to prove that he suffered from mental derangement that prevented him from standing trial. The medical exams, Subercaseaux indicated, were not practiced under the conditions demanded by the international medical community to substantiate a serious and rigorous diagnosis. One doctor who examined Pinochet did not speak Spanish, impeding properly administering the tests and understanding his response. Besides, shortly after the temporary dismissal of Pinochet in the Caravan of Death case, his numerous public activities and excursions showed him to be an individual who enjoyed full use of his mental faculties, with no indication of deficient behavior.

Subercaseaux concluded his presentation at the court in the tradition of the Biblical prophets who wielded words as an arm to shake complacency. With resonating voice, the attorney reminded the judges that "Those who obstruct or misuse justice share guilt with the criminals who commit a crime."

The judges accepted their proper competency
Juan Pavin may very well be one of the few people who was not surprised by the Court of Appeals consent to strip Pinochet of immunity and he is optimistic that the Supreme Court will uphold that decision. This attorney argued the procedural aspects that appear to have been key to the Court of Appeals ruling.

"The difference was that the Appeals Court judges for the first time accepted a procedural line of reasoning. I believe the difference between the former immunity hearings and the Operation Condor hearing was the over emphasis plaintiff attorneys had placed on the issue of health. This had the effect of overlooking procedural irregularities in which the judges themselves had incurred. Until we reach the trial stage, the court should only consider certain procedural questions. It is a procedural issue not an issue of the merits of the case.

"The Court of Appeals ruling has not been swayed, in my opinion, by the interview with Pinochet in the United States. Nor is it a matter of the judges changing their position. What has happened here is that the judges accepted their proper competency, their true purpose in the immunity hearing. And that purpose has absolutely nothing to do with Pinochet¹s health or incapacity."

"Thanks to the discovery of the Archives of Terror in Paraguay there is an abundance of information. In nearly all cases the responsibility of Pinochet is evident. What happened was that we procedurally hit the mark. If the Court agreed to deprive Pinochet of immunity, then it should do so in all the previous cases as well."

"I believe the Supreme Court will confirm the ruling because it is a procedural argument difficult to defeat. The Court of Appeals ruling did not surprise me. There is a precedent. Even the Caravan of Death case left the medical issue for later. I don¹t see why the Supreme Court would change its opinion."

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