Pinochet Stripped of Immunity from Prosecution;
Sandoval Decision Postponed



Human Rights Case News

Court Again Strips Pinochet of Immunity from Prosecution
Supreme Court Postpones Decision on Sandoval Rodriguez Case

Court Again Strips Pinochet of Immunity from Prosecution
May 28, 2004

(Look for more details about this hearing in Memoria y Justicia soon.)

The Santiago court building today was the scene of surprising news for the families of human rights victims. While the Supreme Court in Full Session postponed a resolution in the decisive Miguel Angel Sandoval Rodriguez case due to procedural considerations, the Full Session of the Appeals Court gave its solid approval to a petition to strip Augusto Pinochet of immunity in the Operation Condor case.

Some 100 relatives of persons executed or forcibly disappeared accompanied by lawyers and human rights activists had gathered to attend the hearing of the Full Supreme Court. At the other end of the court building only a handful of journalists waited outside the chambers of the Santiago Appellate Court. After the rejection of two petitions to deprive Pinochet of immunity following the Supreme Court decision in July 2002 to temporarily dismiss proceedings for dementia, expectations were not high.

When the Appellate Court reporter announced that the judges had voted 14-9 to accept the request to strip Pinochet of immunity once more, family members burst into spontaneous applause and shouts of joy, echoed in greater volume by the 500 supporters gathered on the street outside the court.

The Pinochet defense team has 5 days to file an appeal, which will be heard by the Supreme Court within a month.

In the immunity hearing of December 2002 related to the Carlos Prats case, Appeals Court judges favoring removal of immunity numbered no more than five. Subsequently, in the Calle Conferencia case immunity hearing of October 2003, the number increased to 8 judges. The resounding vote in the Operation Condor case today may be an indication of a greater consensus in the Court of Appeals that they should not continue to evade prosecuting Pinochet for human rights crimes committed by the military regime he headed during 17 years.

Plaintiff attorney Eduardo Contreras, who also participated in three previous immunity hearings, believes that the evidence against Pinochet is more solid than in any of the previous cases. In fact, Chilean Code of Civil Procedure requires probable cause of participation in a crime in order to deprive an official of immunity.

Although the Appeals Court will not issue its written explanation for the decision for another week, attorneys speculate that a difference in emphasis may have been a factor. In Prats and Calle Conferencia cases, the Court ruled that Pinochet could not be deprived of immunity as former President due to his mental incapacity. In the Operation Condor hearings, attorney Juan Pavin pointedly reminded the judges that article three of the Code of Civil Procedure establishes that immunity hearings must be conducted on a case by case basis. Also, procedurally, factors such as conditions of health must be considered after immunity proceedings.

The sinister coordination of intelligence forces of six Latin American countries during the mid1970s known as Operation Condor was conceived and headed by the DINA. DINA director Manuel Contreras answered directly to Junta President and Army Commander-in-Chief Augusto Pinochet.

The Operation Condor case was filed on behalf of 19 Chileans who had been in Argentina and were either executed or disappeared after arrest. The first case, which occurred in May 1975, involved Jorge Fuentes Alarcon, Chilean courier of the MIR who was arrested with Argentine Amilcar Santucho, as their bus crossed the Paraguayan border from Argentina. Declassified U.S. State Department documents show that the head of Paraguayan intelligence immediately informed FBI agent Robert Scherrer in Buenos Aires. Scherrer then proceeded to inform intelligence officials in Argentina and Chile. Shortly thereafter, security agents from both countries traveled to Asuncion to participate in torture and interrogation of their respective fellow citizens. After enduring three months of torment, Fuentes was brought to Villa Grimaldi, the secret torture and detention center of the DINA in Santiago where he was last seen alive. The arrest of Fuentes in Paraguay triggered a sequence of arrests of Chileans in Buenos Aires. It also was a trial run for Operation Condor, which was formalized six months later in November 1975.

Supreme Court Postpones its Decision in the Sandoval Case

The Full Session of the Supreme Court met today to consider a motion to vacate filed by the defense of Manuel Contreras, sentenced in January 2004 along with other high ranking former officials of the DINA, for the abduction of Miguel Angel Sandoval Rodriguez.

The motion to vacate, known as recurso de casacion in Chile, is a legal instrument that seeks review of a ruling on the grounds of an error of law. The hearing grants each attorney a maximum of five minutes to plead his case.

Defense attorney Juan Carlos Manns filed for a motion to vacate on the grounds of alleged inconsistency in court application of Decree Law 2191, known as the amnesty law. The attorney for the military defendants asks the Supreme Court to issue an opinion to unify future decisions in human rights matters. He cited as example a case brought against his client Manuel Contreras that was dismissed in 1978 under the amnesty decree law.

Subsequently, plaintiff attorney Francisco Bravo pointed out that the case has no relevance for the current situation, as the Military Court dismissed it without ever investigating.

Plaintiff attorney Nelson Caucoto judge took the five minutes allotted him to affirm that "There are no contradictory sentences." On the contrary, he stated, "it has been absolutely resolved" that the amnesty law does not impede investigation of crimes. The fundamental point that both he and attorney Francisco Bravo stressed was that the Second Criminal Chamber, not the Full Supreme Court, has competency to hear the motion.

Upon conclusion of pleadings, Justice Hernan Alvarez announced that the motion to vacate would be postponed until deciding which instance of the Supreme Court should properly hear the appeal.

Should the Full Court defer to the Criminal Chamber, the hope for a positive resolution may be greater from those judges specialized in criminal law and with a high degree of conscience regarding the preeminence of international law such as the Geneva Conventions.


For more information, see
Analysis of Ruling in Miguel Angel Sandoval RodriguezCase

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