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.
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 DINAšs major
torture and detention center in Santiago where he was last
seen alive during the 4 months he was maintained in abysmal
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.
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.
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.
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
than probable cause
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
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."
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.
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.
Pinochet above the law?
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."
also addressed the question that was central to the immunity
hearing: What did Pinochet have to do with Operation Condor?
"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.
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."
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."
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."
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
"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 Pinochetšs 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 donšt see why the Supreme Court would change its
to Human Rights Today