Association of Jurists Chilean Branch
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
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
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.
to Human Rights Today