On Insulza Legislative Proposal for Impunity



American Association of Jurists Chilean Branch

Juan Subercaseaux Amenabar, President
Graciela Alvarez Rojas, Secretary General

Santiago, March 31, 2004

The Chilean Branch of the American Association of Jurists publicly presents its analysis of the Legislative Proposal advocated by the Vice President Jose Miguel Insulza to Create Incentives for Information on Disappeared Persons and Executed Prisoners. We wish to alert the national and international public concerning the serious judicial implications of this bill, which proposes exemptions, commutations of sentencing, or reduced sentences with the intention of creating conditions to lead impunity for the political genocide committed under the Pinochet dictatorship.

Analysis of the Proposal

1. Individuals who on July 31, 2003 had not been arraigned, charged or convicted of a crime, and provide the Court with verifiable information that leads to reasonable and effective clarification of the whereabouts or fate of a victim or the circumstances surrounding the execution or disappearance, shall be compensated with extenuating circumstances that lower the sentence by 2 or 3 degrees, as determined by the judge. (Clause included March 1, 2004, art. 3, inc. 1).

2. Civilians who were conscripts performing their mandatory military service, subordinates with no command authority who followed orders from superior officers and could not have foreseen that the order would led to a crime would be completely exempt from prosecution. (Art. 3, inc. 2).

3. The bill states that the sentence shall be reduced by 2 or 3 degrees for authors of crimes whose participation falls within Clauses 1 and 3 of article 15 of the Code of Criminal Procedure. This refers to perpetrators who carry out and collaborate with the crime, when the " judge reaches the conviction that his conduct has been as mere accessory." The proposal only excludes from this benefit indirect perpetrator described in article 15, N 2. "Those who directly compel or induce others to commit a crime."

4. Article 4 of the Proposal refers to defendants charged as accomplices or individuals who cover-up a crime. In such cases, the Court would be required to replace the prison sentence for a restricted freedom sentence. For example, the individual would be restricted to Valparaiso or Santiago, which in another form of impunity. The Court could also reduce the sentence by 2 degrees if the defendant provides the information described in article 3.

5. Article 5 grants a reduced sentence by 1 or 2 degrees, according to criteria determined by the judge, to defendants or persons convicted for the crimes of abduction and homicide.

6. The Insulza Proposal must be analyzed in light of the Supreme Court rulings in the cases of the assassinations of Orlando Letelier and Tucapel Jimenez (the latter issued by the Penal Chamber on March 9, 2004). In order to obtain rulings "acceptable" to the military, the Supreme Court employed the mechanism known as the "half prescription" or "degree prescription" to the crime, as described in article 103 of the Criminal Code. In both cases, the military government holds absolute responsibility for having paralyzed legal proceedings for many years, and that lapse of time is counted in calculating "half prescription." The military class was able to impose half the statute of limitation to lower the sentences from at least 20 years in prison to only 7 or 6 years (retired General Manuel Contreras and Pedro Espinoza) in the Letelier Case. In the Tucapel Jimenez case, they obtained a sentence of just 8 years for retired General Ramses Alvarez and four other defendants.

7. The ruling of the Supreme Court Penal Chamber (March 3, 2004 Rol 323 03), in the Tucapel Jimenez case, rejects the full prescription pleaded by the military defendants because the initial legal action against the defendants interrupted the statute of limitation of 15 years. However, the high court stated that the four year suspension of proceedings (between the temporary dismissal in 1986 and the reopening of the investigation in 1990) resumed degree prescription, as if it had not been interrupted. Between the date the investigation opened in 1982 following the assassination of Tucapel Jimenez, and its reopening in 1990, the Court calculated that 8 years, or more than half the 15 year statute of limitation in criminal cases, had transpired. Thus, the Court determined that the defendants had the right to half prescription as set forth in article 103 of the Code of Criminal Procedure.

8. Application of the half prescription tremendously affects sentence reductions. Article 103 of the Code of Criminal Procedure states: "If the accused voluntarily presents himself or is located before expiration of penal statutes of limitation, but after more than half the statutory prescription have transpired, the court must regard the fact as invested with two or more very extenuating circumstances and no aggravating element, and must apply the norms of articles 65, 66, 67 and 68 in sentencing." Note that the norm states "must," meaning it is obligatory for the court. The regulation that the court must invoke derives from article 68 that sets forth the sentence for aggravated homicide (art. 391 N1) at least 2 degrees (medium range imprisonment to life imprisonment). Article 68, clause 2 states: "With the existence of 2 or more extenuating circumstances and in the absence of aggravating circumstances, the court may impose a sentence one, two or three degrees lower than the minimum indicated by law, according to the number and type of extenuating circumstances."

9. On the basis of this reasoning, in the Letelier and Jimenez cases, the Supreme Court imposed sentences one degree lower than the statutory minimum. In other words, it issued the lesser degree of the maximum sentence of 5 to 10 years with the extenuating circumstance of irreproachable past conduct. Instead of issuing the maximum sentence of 10 years, it issued the intermediate sentence of 8 years. The sentence in the Tucapel Jimenez case ignored the dissident opinion of Judge Perez who opposed application of half the statute of limitation, because the assassination of the union leader had four aggravating factors (premeditation, breach of trust, cruelty, and execution in a desolate location) and the maximum sentence of life imprisonment could well have been issued were iit not for the extenuating circumstance of irreproachable past conduct. Perez voted for 20 years imprisonment for Ramses Alvarez.

10. Now, what will happen if the sentence reductions contemplated in the Insulza Proposal run in addition to those of the half prescription? Quite simply, the perpetrators of horrendous crimes against humanity such as forced disappearances will have their sentences drastically lowered, not only to 8 years, but by two or three degrees more. This would be the minimum sentence in its medium degree (541 days to 3 years) or even the minimum sentence in its lowest degree (61 to 540 days). Such sentences may be served under parole, even though the crime may have all the aggravating factors, as in the Tucapel Jimenez case. Accomplices or persons who participated in the cover-up would have sentences corresponding to a misdemeanor, which are fines equivalent to $17,000 to $68,000 pesos (US$27 to US$111), as set forth in articles 494, 495 and 496 of the Code of Criminal Procedure or 21 to 60 days signing a prison parole book once a week.

11. The objection may be raised that the half prescription or full statute of limitation is inapplicable in cases of forced disappearances or aggravated abductions because these are continuing crimes. Until the person is released or a body is found, the crime of abduction continues and statutes of limitation do not begin. A double reduction of sentence would not be permissible in the case of disappeared persons. The Insulza Proposal aims to locate remains or bodies as well as the circumstances of the death and establish a date of death. Once a date of death is established the full or half statute of limitation may be applied, according to the particular case.

12. The intent can be discerned from the following features of the bill:
A) Article 1 indicates that investigation and judgment will adhere to established regulations in cases involving homicides and abductions committed between September 11, 1973 and March 10, 1990, in which the victims have been verified by the National Truth and Reconciliation Commission or by the National Reparation and Reconciliation Corporation. It suggests that the crimes were committed between the dates indicated. The verification of victims was established in 1991(National Rettig Commission Report) and in 1996 by the National Corporation Report.

B)Under article 141 of the Code of Criminal Procedure, the sentence for the crime of abduction not only is greater 15 days, but also takes into consideration the harm (injury, homicide, etc.) endured by the victim as a result of the crime. That explains the proposal's emphasis on determining whether or not a homicide occurred in order to set the sentence for abduction, which is applied in forced disappearances, the clarification of which is the central idea for this proposal. The proposal would be absurd if its intent were to reduce, replace or exempt from sentencing a crime in which the sentence could not be set for lack of proof that a homicide was committed. And for that, you need to clarify and prove fundamental facts such as the date and place the crime took place. The proposal suggests that witnesses or other means of proof establish the place as well as the date of death of disappeared persons. That is what the Armed Forces did with the 180 victims in their Report to the Dialogue Table.

C) The statements made by governmental human rights consultant Jose Zalaquett clearly indicate the proposalŐs intent. In an interview with La Segunda newspaper on June 20, 2003, jjournalist Carmen Gardeweg points out to him: "But as long as the bodies do not turn up, which is fairly improbable at this point, legal proceedings will remain open and there will be no rulings and therefore, no sentences to lower." To which Zalaquett replied: " The courts need solid evidence that people were murdered and the date the murder occurred in order to conclude the investigations. Of course, if the bodies turn up, the evidence will be more conclusive. But it is possible to reach that conviction through other means of proof even if the bodies do not turn up."

D) On July 15, 2003 La Segunda carried another article about the issue. "According to informed sources (A photo of Zalaquett accompanies the article.), judges who receive information may change their criteria concerning "permanent abduction." If informants give certain details or even names of people whose remains were illegaly exhumed (even if the remains are never found), judges could decree that the victim is "definitively deceased," enabling judges assigned to human rights cases to close or advance them more rapidly.

13. The Proposal asks judges to become "convinced within their conscience" of the "definitive death" of disappeared persons merely on the basis of "true" (or "feigned") statements regarding the identity, date, and place of the crime that secret witnesses (perhaps "perpetrators" or "conspirators"), unseen by family members of the victims, may have declared in court. Plaintiff family members are even deprived of the minimum right to cross-examine informants and collaborators. Even narco-traffickers have that right. (See the proposalŐs article 6)

14. Once the judges arrive at a conviction regarding the disappeared person is dead and the date of death, they must decide whether or nor to apply statutes of limitation. According to the Penal Chamber ruling in the Tucapel Jimenez case, if a lawsuit was filed within 15 years after the crime, complete prescription will not apply. However, if proceedings were paralyzed for more than 3 years due to temporary dismissal and the case is later reopened, statutes of limitation will run from the date of the crime until the date the investigation is resumed. If more than half the statutory prescription for penal action has transpired, (Of the 15 years this would be 7 and a half years.) the judge must apply half the statutory prescription. (Article 103 of the Code of Criminal Procedure). The vast majority of cases involving disappeared persons are at that stage, with long periods of temporary dismissal and suspended proceedings that have reopened only in the last 7 years since the creation in 1997 of the Supreme CourtŐs Penal Chamber. Therefore, the requisites for half prescription exist in nearly all these cases. The reductions in sentences in these cases, added to the sentence reductions of the Incentives Legislative Proposal, would give all perpetrators or accessories extremely low (2 years on the average) sentences that could be served on parole as described above in paragraph 9.

15. The advocates of the bill argue that those who planned or organized the crimes, such as Manuel Contreras, and all indirect perpetrators or instigators will not benefit from sentence reductions (art. 2 and art. 3 last clause). We must point out that by establishing the date of death of the disappeared persons the Insulza Proposal creates the conditions to permit the direct perpetrators to appeal for half prescription, as Manuel Contreras did in the Orlando Letelier case. In that case Contreras won a sentence two or three degrees lower than what he deserved (8 years instead of 20 or life imprisonment). And Contreras could obtain the same sentence reduction in all the other crimes for which he is presently on trial or will be in the future.

16. We need to pose the following question. Considering the intelligence background of the defendants, what will happen if the secret witnesses or informants, in confidential records, lead the judge to the conviction in his conscience that generals Manuel Contreras or Ramses Alvarez were not the true instigators, but mere instruments who carried out orders given by Pinochet? According to the daughter of General Lutz, Pinochet once said, "I am the DINA." Manuel Contreras always sustained that he simply obeyed orders Pinochet gave him every day. And Ramses Alvarez was director of Army Intelligence (DINE) under direct command of Pinochet. Then they could be favored with considerable sentence reductions or commutations (Arts. 4 and 5) if they confess or prove that the order and instigation to commit the crime originated from Pinochet. And they could be declared mere accomplices. Pinochet, who the Supreme Court declared incurably demented and not fit to stand trial, would never even lose prestige. As he stated on more than one occasion, he "would save his men." In other words, the entire military caste is ensured total impunity.

17. Lastly, we must note that the Supreme Court ruling in the Tucapel Jimenez case also unanimously rejected the plaintiff appeal that it is judicially impossible to argue for full or half prescription in light of the Geneva Conventions, as War Crimes and Crimes against Humanity are not subject to statutes of limitation. In Whereas 42 of the ruling, the Court limits or denies application of one or more of these Conventions. That the Court rejected this doctrine sets a dangerous precedent even in the application of the Amnesty Decree Law in cases involving disappeared persons.

18. The people of Chile have but a single avenue left to prevent complete impunity in the genocide committed during the military dictatorship. That avenue is the democratically elected congressional representatives who the military and the rightare pressuring through the Insulza Proposal.

We must note that the legislative proposal advocated by Vice President Insulza does not simply offer lower sentences for persons who effectively cooperate in clarifying cases of abduction. When we analyze the proposal in light of recent Supreme Court rulings, we observe that the bill was designed as an effective tool for establishing date of death for disappeared persons and thus open the way for half prescription with the subsequent sentence lowered by two or three degrees. That will lend legitimacy to complete impunity for the most atrocious acts of political genocide in Chilean history. The bill does not open a route to justice, instead; it makes way for a decisive and perverse road that leads to impunity. Therefore, the bill must be withdrawn from Congress. We must not teach future generations that the military caste can torture, murder, and make thousands of people disappear with absolute impunity in Chile because that may very well induce the military to repeat their genocidal actions in the future

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