August 25, 2004
By Memoria y Justicia

In divided vote, this morning the Chilean Supreme Court upheld a lower court decision to strip Augusto Pinochet of immunity, opening the way for prosecution of the former dictator on twenty counts of aggravated kidnapping and other crimes commited under the aegis of Operation Condor.

In May the Santiago Court of Appeals found that "more than probable cause" existed that Augusto Pinochet had involvement as intellectual author of the aggravated kidnapping, illicit association, and torture of Chileans in coordination with other Southern Cone military regimes in the mid 1970s, a scheme known as Operation Condor. Today the Supreme Court, in a very close 9-8 vote, confirmed the lower court ruling.

In 2000 the Santiago Court of Appeals deprived Pinochet of immunity as lifetime senator for his role in masterminding a series of crimes known as the Caravan of Death. The Supreme Court upheld that ruling, but subsequently blocked prosecution on grounds that Pinochet was not in sound mind to stand trial. The removal of immunity was only valid for the Caravan of Death case, however. Later, the Court refused to deprive Pinochet of immunity to bring him to trial for the assassination of General Carlos Prats or the murder of Communist Party leaders in Calle Conferencia, again citing alleged health conditions.

The fundamental difference in the success of this present case, according to plaintiff attorneys, was that pleadings in Operation Condor immunity hearings shifted the focus away from health to remind the Court that procedurally the only issue that corresponds at that point is whether probable cause exists.

Stripping Pinochet of immunity for his status as former President is the first crucial step that opens the possibility that he can be prosecuted, but in no way ensures that the former dictator will come to trial. While confirming the lower court decision, four Justices strongly recommended that Appeals Court judge Juan Guzman order medical and psychological examinations before resolving the procedural situation of Pinochet. A group of human rights attorneys planned to approach Judge Guzman to urge him to proceed with the initial declaration prior to arraignment.

Defense attorney Ambrosio Rodriquez had opened the hearing Wednesday before the 17 Supreme Court Justices pleading res judicata, known in Chilean law as cosa juzgada. He contended that the issue at question had been settled previously in the Caravan of Death case, and his client could not be charged again. Rodriguez recognized the existence of Operation Condor, comparing it to an Interpol coordination to combat terrorism, but contended that Pinochet had no knowledge of its day-to-day workings and was not in a position to have prevented any crimes that may have taken place. As evidence of the alleged continuing incapacity of Pinochet, he referred to a letter written by a Miami television reporter who noted that Pinochet lost his train of thought during her interview with him a year ago.

During the intense four hours that followed, the team of plaintiff attorneys consisting of Francisco Bravo, Eduardo Contreras, Hiram Villagra, Sergio Concha, Juan Pavin, Juan Subercaseaux, and Hugo Gutierrez responded to the defense. Res judicata is inapplicable, they argued, because it is not the same case. A different set of facts and crimes comprise Operation Condor with the only common denominator being the defendant.

Francisco Bravo clarified that the Court of Appeals deprived Pinochet of immunity not because he was "President" but as head of the DINA. Manuel Contreras, former DINA director, has testified that he did only what Pinochet ordered. Sergio Concha brought home the point that the operative arm of Operation Condor was always the DINA. As Hugo Gutierrez indicated, Pinochet had knowledge of every Operation Condor action because he was its intellectual author and mastermind. Hiram Villagra described the tour Pinochet made in the weeks after the 1973 coup to Argentina and Paraguay as a trip that set the groundwork for what would be formalized as Operation Condor. Pinochet, he charged, personally made a phone call to assure clearance in the United States for the would-be killers of Orlando Letelier.

Attorney Subercaseaux posed the following questions to the judges: "At stake here is what we will teach future generations. Will we teach them that it is okay to torture 200,000 people? That you can murder 3000 people and get away with it?"

That the Supreme Court has allowed the once untouchable dictator to face prosecution suggests the possibility that future generations may learn that no one in Chile is above the law.

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