PART TWO
Chapter Three

War Tribunals

1. LAWS
   
   Section III of Book One of the Military Justice Code provides for the establishment of wartime military tribunals. Article 71 determines who exercises military jurisdiction and Article 73 declares that their competence on territory declared to be in state of assembly or state of siege is to begin from the moment a commanding general is appointed for an army which is to operate against the foreign enemy or against organized rebel forces. The regulation adds that as of that moment peacetime military courts no longer have jurisdiction.
   
   According to Article 418 of that same code, "a state of war or of wartime is understood to exist not only when war or a state of siege have been officially declared in accordance with the respective laws, but also when war exists in fact or a mobilization for war has been ordered, even though there has been no official declaration."
   
   From the text of Article 73 one may conclude that for wartime military tribunals to function enemy forces must be present if it is an external war, or organized rebel forces must be present, in the case of an internal war; and according to paragraph 2 of Article 419, "enemy" is understood to mean not only the foreign enemy but any kind of militarily organized rebel or seditious forces. Hence two different situations are being defined: foreign war and internal war (or internal disturbance) each with different requirements, but some common features. In both cases military court jurisdiction is being broadened, new kinds of crimes are described as a result of the "state" or "time" of war, and more severe sanctions are laid down.
   
   Combining the provisions of Articles 73 and 419, it may be concluded that in the case of internal war, wartime military tribunals should act only when militarily organized rebel forces are present.
   
   With regard to the war tribunals that operated after September 11, 1973, it should be recalled that Decree Law No. 3, which the junta issued that same day as it was assuming full governing powers over the nation, declares a "state of siege throughout the republic, with this junta acting as commanding general of the forces that will operate during the emergency."
   
   Decree Law No. 4 (also September 11) states that the provinces and departments named there are "in a state of emergency for the longest period envisioned in Article 31, paragraph 2, of Law No. 12927" and appoints particular officers to govern them. These officers are to have the powers established in Articles 33 and 34 of that same law. Decree Law No. 51 (October 2, 1973) authorized that a wide range of the powers of the commanding general be delegated to the commanders of divisions or brigades.
   
   Decree Law No. 5 (September 12), interpreting Article 418 of the Military Justice Code, declares that under the conditions existing in the country, the state of siege decreed as a result of internal disturbance is to be understood as a "'state of war' and that hence the punishments of such a period are to be in effect as established in the Code of Military Justice and other criminal laws, and all other of such legislation are also to be understood as in effect." For many crimes the changes introduced into Laws No. 17798 (Weapons Control) and 12927 (State Security) contemplate the death penalty, contrary to what had previously been the case. That same decree law adds to Article 281 of the Military Justice Code, in the paragraph on "outrage against sentinels, the flag, and the army," a clause stating that "when the security of those under attack requires it, the party or parties responsible may be killed in the act."
   
   Among other reasons, Decree Law No. 5 is based on the situation of internal disturbance affecting the country; on the need to repress as severely as possible actions committed against the physical integrity of the armed forces and police personnel and the general population, and on the desirability of granting greater discretion to military tribunals in sanctioning some of the crimes listed in Law No. 17798, in view of their seriousness and the frequency with which they are being committed. The competency of wartime military tribunals is accordingly broadened to include dealing with various actions for which that law provides sanctions.
   
   While the legal basis for the state of siege declared by Decree Law No. 3 is found in clause 17 of Article 72 of the 1925 Constitution, then still in force, nevertheless that clause granted the president of the republic only those powers listed in paragraph 3. Decree Law No. 5 is based on what is laid down in Decree Laws Nos. 1 and 3, but it does not offer legal foundations; in fact those decree laws regard the basis for the state of siege to be the fact that the armed forces believe that the situation is such that the nation's traditions make it imperative for them to act.
   
   From the preceding it is clear that those decree laws declare that the territory of the republic is in a state of siege or emergency or in a "state of wartime" as a consequence of the internal disturbance the country has been undergoing and of the other motivations noted above; they evade, however, the legal requirement that "organized rebel forces" or "militarily organized rebel or mutinous forces of any kind" be present.
   
   The foregoing makes clear that the decreed state of siege leads to a "state or time of war called preventive" rather than a real state of war, since those decree laws never pointed to, or based their decisions on, the existence of militarily organized rebel or mutinous forces. These observations and the terms of Articles 73 and 419 of the Military Justice Code enable us to state that this "preventive" state or time of war neither justified nor permitted the functioning of wartime military tribunals. Thus it may be concluded that the tribunals that acted in such fashion to punish actions committed prior to September 11, 1973 did so in opposition to the legislation then in force and in violation of basic principles of law.
   
   Nevertheless, it cannot be denied that besides wartime military tribunals, those that the law calls peacetime tribunals could act, provided that what is contained in Article 73 could be reconciled with the general requirements of law, and provided it were accepted that these latter could continue to deal with the cases pending before them when the state of war was declared, and could hear cases that arose as a result of criminal acts committed prior to that declaration, and hence that the wartime military tribunals were not able to hear those cases, in accordance with the terms of Articles 11 and 12 of the 1925 Constitution, then in force, and Article 18 of the Criminal Code.
   
   Decree Law No. 13 (September 20, 1973) was issued in order to clarify possibly contradictory positions. Among other justifications, it observed that "the complexity and extension of a large number of legal proceedings underway in the wartime or peacetime military tribunals as an extension of the military jurisdiction makes it impossible to subject them to the wartime investigation procedure." Hence it declares that "the meaning and scope of Article 73 of the Military Justice Code is to make wartime military tribunals responsible for hearing cases under military jurisdiction when they are initiated in a territory that has been declared to be in a state of alert or state of siege once the commanding general has been appointed. Those cases underway in peacetime military tribunals are to be dealt with and judged in accordance with military procedure, until they have all been concluded."
   
   The clear tenor of this decree law tends to corroborate what we have said: wartime military tribunals are competent to handle military trials begun on a territory declared to be in a state of assembly or of siege, subsequent to the appointment of the commanding general. As already noted, Decree Law No. 5 (September 11, 1973) published in the Diario Oficial on September 22, interpretatively stated that the state of siege declared as a result of internal disturbance was to be understood as the "state or time of war."
   
   Nevertheless, in violation of fundamental legal norms and essential ethical principles, the war tribunals and other military tribunals, acting during the "state or time of war" in accordance with this new legislation, applied the new sanctions to events that had taken place prior to their entering into effect. They were thereby explicitly contravening the provisions of Article 11 of the 1925 Constitution, which was then in effect, and Article 18 of the Criminal Code, which enshrines the universally accepted principle that criminal law is not retroactive.
   
   In submitting its report, this Commission expresses its condemnation of these violations of the law. In particular it notes that it was particularly improper and regrettable that in many instances the various war tribunals imposed the death penalty for actions that those accused had carried out before September 11, 1973, and before Decree Law No. 5, published in the Diario Oficial on September 22, 1973, went into effect.
   
   The Commission also believes that the wartime military tribunals were empowered to consider only events that took place after they were established. It further believes that Article 240, paragraph 2, of the Military Justice Code was not applicable since its requirements were not met, and it is at least not evident that the opinion or judgment of the commander-in-chief of the army or the commander of the area under siege had been obtained, nor that the general norm of paragraph 2, Article 82 of the Criminal Code (located in paragraph 5, Title II, Book One) was fulfilled.
   
   The Commission further expresses its indignation over the repeated failure to fulfill the provisions of Article 84 of the Criminal Code. The result was irreparable pain and suffering that has continued to this day in the form of a steadfast and just anger over the violation of a humane and noble legal obligation, namely that of entrusting to the family the body of a person who has been executed, whenever such is their request.
   
   
2. PROCEDURE GOVERNING WAR TRIBUNALS
   
   The provisions for how wartime military tribunals are to be set up and to function prescribe a hierarchical organization that is autonomous and independent of any other authority in ordinary jurisdiction. At the head of this organization stands the commanding general, who is endowed with the fullness of jurisdiction, which by its very nature and scope rules out any intervention by tribunals which are not themselves part of this hierarchical organization.
   
   The war tribunals are jurisdictionally subject to the commanding general of the particular territory, and he has all-embracing powers to approve, revoke, or change the verdicts of the tribunals and exercise disciplinary jurisdiction over them in accordance with the terms of Article 74 of the Military Justice Code (located in Section III, which deals with wartime military tribunals).
   
   Articles 82 and 86 of the Military Justice Code define those cases in which war tribunals are to be formed and the ways they are to be established under the various possibilities considered. Decree Law No. 3655 (1981), which replaced the single article that makes up Decree Law No. 3627 (also 1981), defines other such cases, stating that any crimes whatsoever in which as the main or related activity the result is death or violations of Articles 395 and 396, paragraph 1 of the Criminal Code, inflicted on persons mentioned in Nos. 1 and 2 of the Code of Civil Procedures and on members of the armed forces and police, and which, given the manner or circumstances of their perpetration, it can be assumed that the actions were committed against them as such, are to be tried by wartime military tribunals. This stipulation in the text is very clear, and it was always applied unhesitatingly.
   
   Section IV of Book Two of the Military Justice Code deals with the criminal procedure for wartime. Section V deals with the lawyers and officers of the armed forces and police who can act on behalf of the defense in the tribunals; it establishes that they are binding on the military, on the lawyers assigned, and on those designated by the prosecution.
   
   When the tribunal has been convened and when the place, date, and time have been designated, those accused will be advised, and they are to designate who will defend them; otherwise, the prosecutor will make the appointment. In the time between the convoking and holding of the tribunal, the defense is to be allowed to familiarize itself with all the evidence at the disposal of the prosecutor and to gather such evidence as it regards as helpful for the defense. It is to be permitted to communicate with the accused and shall not be hindered by any solitary confinement.
   
   The defense must present its case in writing, indicating the means to be used as proof and the list of witnesses and experts who will appear and give testimony in the hearing. The prosecutor is to give them enough advance notice to appear for the hearing.
   
   Once the tribunal is in session, the accused and the defender are to appear, and the defender must indicate whether he has any grounds for implicating or rejecting any member of the tribunal; if such exists and is accepted a replacement is to be appointed immediately.
   
   The prosecutor gives an account of the judicial investigation and reads the accusations. The accused or his defender reads the defense, and then the proof presented is accepted; the witnesses are to be interrogated separately, but the members of the tribunal, the prosecutor, or the defender may ask them to clarify or explain points that are doubtful in their statements. Should witnesses live far from the site of the trial, arrangements may be made to question them in writing.
   
   If the tribunal believes it necessary to examine some place or some object that cannot be brought in, one or more of its members may be commissioned to do so, with the aid of experts, should that be necessary. The prosecutor and the defender are to be present, and if it is judged appropriate, the defendant may be ordered to be present as well; meanwhile the tribunal procedure is suspended.
   
   Then the tribunal president orders everyone to leave the room, and the tribunal immediately proceeds to consider and resolve all issues presented; it is to decide whether the defendant is innocent or guilty and in the latter case is to dictate very precisely the punishment to be imposed.
   
   Proof is to be assessed in accordance with the general rules for trials, but in determining what really happened the court may make its most reasonable and honest assessment. The judge writes the verdict immediately, and in it he takes note of any dissenting opinions and their grounds. The accused and the prosecutor are personally notified, and the result, along with all the documentation, is made available to the general or commander for his approval or modification. The tribunal functions uninterruptedly and publicly, except when it is deliberating over its decisions, and when it may decide to do otherwise in particular cases.
   
   As can be seen, in accordance with the terms laid down in Sections IV and V of Book Two of the Military Justice Code, it can be said that the defendants have at their disposal suitable means for defending themselves adequately.
   
   It is worth noting that in accordance with paragraph 2 of Article 87 of that code, the rules of Articles 72, 73 (paragraph 1), 74, and 88 of the Organic Code for Tribunals are applicable to the decisions of war tribunals. These rules are laid down in paragraph 2 of Section V of the Organic Code for Tribunals which deals with "decisions by appeals courts." Article 1 deals with the quorum needed for it to function and make decisions. Article 2 states that at the second level [under appeal] the death penalty must be by unanimous consent of the tribunal, and that when there is only a simple majority, the immediately lesser punishment is to applied. Article 3 states that if half the votes favor a verdict of innocence or a lower punishment, such is to be the decision. Should there be a deadlock over which opinion is more favorable to the accused, the side on which the oldest member of the tribunal has voted prevails. Finally, when votes are scattered, those who have sustained the position most disadvantageous to the accused should opt for one of the others, and the voting process should continue until there is a necessary majority or a deadlock favorable to the accused.
   
   Thus it may be said that by virtue of Article 87(-2) of the Military Justice Code, these rules of the Organic Code for Tribunals must be applied in decisions made by war tribunals.
   
   The Commission reiterates its own position that the carrying out of sentences imposing the maximum penalty cannot have been based on what is laid out in Article 240(-2) of the Military Justice Code, which refers to immediate execution of a sentence, since in its obvious literal meaning the text refers exclusively to a time of foreign war. The reasons given and the tenor of that clause do not allow any other reading, and the provisions of Article 238 further corroborate this position.
   
   In those cases in which the war tribunals impose the death penalty, the norms laid down in paragraph 5 of Section III of Book One of the Criminal Code should have been observed, assuming that it was a common penalty applied to non-military defendants.
   
   Failure to reflect and weigh matters generally weakens respect for just procedure and a practice of justice that is independent, efficient, and free of negative concerns.
   
   
3. ACTIVITY OF THE WAR TRIBUNALS
   
   
   1. GENERAL REMARKS
      
      In accordance with Article 81 of the Military Justice Code, all crimes tried under military jurisdiction in time of war are to be handled exclusively in war tribunals.
      
      While it proved impossible to obtain the records of the proceedings of these tribunals, with the exception of trial document 11-73 in Puerto Montt, which the Chilean Air Force had in its possession, Commission members did obtain copies of many verdicts and other reliable documentation from the several regions which they visited. We will examine the activity of the tribunals and make relevant observations in the light of these copies.
      
      It should be noted that the Commission asked the army solicitor general for copies of the records of the trials heard by the war tribunals of Pisagua and other documentation connected to its investigation. That request was answered in Resolution No. 12900-16, dated October 8, 1990, which states that the army chief of staff "has advised that those trial records, were among those that were completely burned in a fire that broke out as the result of a terrorist attack on the Army Physical Education School on November 14, 1989, where some of the documentation of the army's general archive was located. This incident is under investigation by Military Prosecutor's Office No. 6 of Santiago." In concluding this discussion, we will offer a critical analysis of flaws in compliance with various legal norms governing the jurisdiction and procedures of war tribunals. Such norms include both those related to determining which acts are subject to punishment and how guilt is to be established and those for evaluating evidence, establishing the defense, and accepting or rejecting circumstances that might qualify the degree of responsibility attributed to those guilty.
      
      One especially serious set of circumstances should be noted immediately, however; they should be singled out and noted as running counter to the respect due to the rule of law and as offending the fundamental rights that the Constitution guarantees all persons. In Pisagua five people who were condemned to death and executed were supposed to have been taken before a war tribunal. Military Decree No. 82 (October 11, 1973) offered the only notice of the execution of five people in the detention camp in that city.
      
      It was impossible to obtain a copy of the sentence, if there was any, and according to the testimony of several detainees of that camp, far from being allowed to have representation in their own defense, the accused did not appear before any war tribunal. In short, this situation was unlawful, and the decree published in the newspaper El Tarapac  on October 26, 1973, was an attempt to justify it. That decree states that they "were found guilty because they confessed that they had committed the crimes of treason to country and espionage as found in Articles 252 and 254 of the Military Justice Code, and also of violating what is laid down in Article 1 of Law No. 12927 (State Security), by actively participating in subversive plans and infiltrating the armed forces to carry out their assigned missions."
      
      
   2. DETAILED EXAMINATION
      
      
      • The Commission has been able to determine that sixteen war tribunals were held in the city of Arica, and that they tried fifty-seven persons, eleven of whom were acquitted while the remainder were sentenced to various punishments of imprisonment and banishment for being guilty of the crimes envisioned in Article 416, Nos. 2 and 4 of the Military Justice Code; Articles 2 and 3 of Decree Law No. 77 (1973); Article 4 (b, c, d, f), of Law No. 12927 on state security; Article 6 (a, c, d, and f), and Articles 10 and 11 of that same decree law, and Articles 10 and 11 of Law No. 17798 (Weapons Control).
        
        
      • In Pisagua, besides the previously mentioned illegal and falsified tribunal known only through the decrees of October 11-12, 1973, there is evidence that three war tribunals were held and that they processed 147 people. According to trial record No. 4-73 on October 29, 1973, six of those persons tried received the death sentence for having committed the crime described in Article 245, No. 2, as related to Article 246 of the Military Justice Code, that is, the crime of treason. The commander of the prison camp at Pisagua changed the death penalty of two of those on trial to life imprisonment and upheld the maximum punishment for the other four. The rest were given life imprisonment, with the exception of one who was given twenty years imprisonment under maximum security. The commander lowered this latter sentence to ten years imprisonment and reduced one of the life sentences to twenty years. In addition to the crimes already mentioned, the tribunal believed that the crimes sanctioned in Articles 3, 6, 11, and 13, of Law No. 17798 (Weapons Control) as modified by Decree Law No. 5 (December 12, 1973, published in the Diario Oficial on September 22) had been committed.
        
        With the sentence in case No. 5-37 (November 29, 1973) the tribunal condemned two defendants to death, one for committing the crime sanctioned in Article 13, as related to Article 3 of Law No. 17798 (Weapons Control) and the other for committing the crimes mentioned in Article 2, No. 2, in relation to Article 254 of the Military Justice Code and Article 4-d, and Nos. 5 and 7 of Law No. 12927 (State Security). One of these death sentences was reduced to a prison term of five years and one day, in a sentence given by the commander of the zone under state of siege in the province of Tarapac†.
        
        Trial record No. 2-74 states that on February 19, 1974, the war tribunal sentenced to death four of those persons who had been tried for being involved in treason in accordance with Article 245, No. 2, as connected to Article 246 of the Military Justice Code; it sentenced the others who were accused of violating that same law and of the crimes described in Article 4 (d and f) of Law No. 12927 (State Security) to varying prison terms or internal exile. On February 11, the commander of the prisoner camp reduced two of the death sentences to life imprisonment, increased or reduced some of the sentences of imprisonment or internal exile; and acquitted seventeen of those sentenced and allowed sixteen of those who had been tried to be released unconditionally. He gave his approval to the rest of what the war tribunal had decided.
        
        
      • In Iquique a war tribunal was held to try two Carampangue Regiment soldiers who had deserted and taken their equipment and weapons. Upon being captured two months later they were tried in a war tribunal and sentenced to fifteen years of imprisonment for having committed the crimes described in Articles 348, 305, 355, and 321 of the Military Justice Code.
        
        
      • In Calama nineteen war tribunals are known to have tried thirty-four persons; five were acquitted and the rest received various sentences or exile for crimes described in Article 284 of the Military Justice Code, Article 440 of the Criminal Code, Article 3 of Decree Law No. 77 (1973), Articles 8, 9, 10, and 13 of Law No. 17798 (Weapons Control), Article 4, (a, b, c, and f), Article 6 (a, b) and Article 11 of Law No. 12927 (State Security).
        
        In trial record 11-73 one person is given the maximum punishment, which the commander of the zone under state of siege lowers to twenty years and one day. In trial record 46-73 the person receives the death sentence; when the division commander examines the sentence, he gives his approval but then lowers the punishment to life imprisonment for the crimes sanctioned in Article 4 (a and d) of Law No. 12927 (State Security) and Articles 3, 10, 11, and 13 of Law No. 17798 (Weapons Control).
        
        It is striking to note that three were found guilty of being accomplices in the crime of embezzlement of public funds as found in Article 233 of the Penal Code, even though there is no mention of those who were guilty of the crime itself.
        
        
      • In Antofagasta it is known that 190 persons were tried before thirty-five war tribunals; 156 were found guilty, and twenty-three were found innocent; the process was definitively halted for six of the accused in accordance with Article 408(-2) of the Code of Criminal Procedures, and it was temporarily halted for five of them, in accordance with Article 409(-1), of that code, since it had not been fully established that they had in fact committed the crime of which they were accused. The guilty verdicts were based on Articles 292, 293, and 294 of the Criminal Code, Articles 245, No. 2, 257, 276, 284, 299, No. 3 and 394, No. 3 of the Military Justice Code, Articles 8, 9, 10, 11, 13, and 15 of the law (Weapons Control), and Article 4 (b, c, d, and f) and Article 11 of the State Security Law and Article 3 of Decree Law No. 77 (1973).
        
        In trial record 347-73 two people were sentenced to death and executed for the crimes described in Articles 8, 9, and 13 of Law No. 17798, and Article 252 of the Military Justice Code.
        
        Other punishments imposed range from military life imprisonment to the lowest level of internal exile, as determined by the laws mentioned previously.
        
        
      • In Copiapó it is known that seventeen war tribunals were held to try forty-three persons; the only ones found innocent were two minors who acted without being aware of the crimes of which they were later accused. The sentences meted out were based on the provisions of Articles 443 and 446 of the Criminal Code, Articles 9, 10, and 11 of Law No. 17798, and Article 4 (a, c, d, e) and Article 11 of Law No. 12917.
        
        One irregularity in trial record 200-75 is the fact that a member of the tribunal also gave testimony on who the parties were and how the police had acted.
        
        In trial record 42-73 the defendant was sentenced to three years and one day of internal exile for various crimes described in Laws 12927 and 17798. As the result of a sentence given on September 14, 1988, those charges were lifted, since he was regarded as eligible for amnesty according to Decree Law No. 2919 (1978).
        
        
      • In the sixteen war tribunals held in La Serena it is known that 178 people were tried; twenty-six were acquitted, in four cases proceedings were halted temporarily, in four other cases they were halted permanently-although two of the people had been executed as a result of decisions made in other trials. In trial No. 159-73 four were found guilty of various crimes and although the local commander had given his approval, the head of the army's Second Division acquitted the defendant in what was called a verdict review given in response to orders from the Ministry of Defense and the Army Solicitor General on August 9, 1974.
        
        In trial No. 219-73 one of the defendants received a death sentence, which the local military commander subsequently reduced to a series of prison terms. He was found guilty of violating Article 252, No. 3 of the Code of Military Justice; Articles 4, 8, 9, 10, and 13 of Law No. 17798; Article 4 (a, c, d, f, and g) and Article 6 c of Law No. 12927 and Article 3 of Decree Law No. 77 of 1973.
        
        Thirty-seven people were tried in the five war tribunals known to have been held in Los Andes. Guilty verdicts were based on the terms of Article 248, No. 2 of the Military Justice Code; Article 4 (a, b, c, d, and f) of Law No. 12927 and Articles 8, 9, 10, 11, 12, and 13 of Law No. 17798.
        
        In war tribunal 97-73 the death penalty given to one of the defendants was lowered to life imprisonment when it was reviewed by the commander of the army's Second Division, who in fact considerably reduced a number of prison terms the tribunal had meted out.
        
        When the commander of the army's Second Division reviewed trial 3-74 in which two people had been given prison terms, he acquitted one of them, and permanently halted action against the other in accordance with the terms of Article 408, No. 7 of the Code of Criminal Procedure.
        
        
      • According to documents the Commission obtained, eighteen war tribunals were held in San Felipe; of the eighty-two persons tried, three were acquitted and one was a minor who was judged to have acted without full knowledge. The guilty verdicts were based on Article 399 and 446 of the Criminal Code; Articles 8, 9, 10, and 13 of Law No. 17798 and Article 4 (a, c, d, and f) and Article 6 (a, c, e, and f) of Law No. 12927. With regard to the activity of these tribunals it should be noted that:
        
        In trial record 22-73 the war tribunal expressly noted that it was not taking into account the changes in punishment introduced by Decree Law 5 (1973) since that law had been promulgated after the events being considered in the trial; likewise in trial record 45-73 the terms of that decree law were not applied for the same reason.
        
        In trial record 41-73 the war tribunal judged that the ordinary court system should deal with violations of Law No. 12927 committed before September 11, 1973, and thus it declared itself incompetent;
        
        In trial record 173-73 the war tribunal declared that it was not competent to try the violations, but the commander of the zone in state of siege determined otherwise and convoked another tribunal, which arrived at a guilty verdict; In trials 38-73 and 127-73 two people whom the war tribunals had found guilty of various punishable violations were subsequently acquitted by the commander-in-chief of the army's Second Division when he examined the verdicts.
        
        
      • The Commission found documents on one war tribunal held in Quillota, in which one person was tried and was found guilty of the crime sanctioned in Article 133 of the Criminal Code; the circumstances mentioned in Nos. 12 and 13 of Article 12 of that code were considered to increase responsibility.
        
        
      • It is known that forty-one war tribunals were held in Valparaiso and that 181 persons were tried; eleven were found innocent and the rest were sentenced to various prison terms and to internal exile for committing the crimes described in Articles 194, 196, 240, 250, 436, and 440, No. 1 of the Criminal Code; Articles 8, 9, 10, 11, and 13 of Law No. 17798; Article 4 (a, d, and g) and Article 7 of Law No. 12927.
        
        It should be pointed out that contrary to what generally occurred in war tribunals, namely that they made it very difficult to accept mitigating factor No. 6 of Article 11 of the Criminal Code, trials held in Valparaiso followed the procedure common in ordinary courts, and the result was a more positive approach to meting out punishment.
        
        During trial No. 846-78 (January 1978), those defending the accused invoked the terms of Decree Law No. 2191 (amnesty) but the petition was rejected because the verdict had not been given when the decree law went into effect and hence the accused had not been found guilty.
        
        
      • There is documentation for eleven of the war tribunals that were held in Tejas Verdes, in which fifty-six people were put on trial; four were acquitted and the rest were sentenced to different punishments of either prison or internal exile for having committed the crimes sanctioned in Articles 282 and 417 of the Military Justice Code, Articles 8 and 13 of Law No. 17798, and Articles 4f, and 6 (a and f of Law No. 12927. In trial No. 20-73 the two defendants were found guilty of having committed the crime envisioned in Article 4f of Law No. 12927, but in reviewing the verdict, the commander-in-chief of the army's Second Division acquitted them. In trial record 43-78 (which constitutes three pages) the crime was regarded as proven on no grounds other than a confession by the defendant. Moreover, the reference to Article 282 of the Military Justice Code is irrelevant; it should cite Article 283, since the crime was against a member of the armed forces.
        
        With regard to trial No. 18-73, through unofficial channels the Commission has been able to obtain a copy of the death sentence given to two people who were executed for having committed the crime sanctioned in Article 8 of Law No. 17798. That sentence is itself the only evidence that this trial took place, and its proceedings are known only through relatives of those found guilty and through witnesses who appeared before the Commission and stated that the defendants had no one to defend them and were not charged before any war tribunal.
        
        
      • The Commission has been able to obtain documentation on only forty-six war tribunals held in Santiago from 1973-1975. Of the 218 people tried, nineteen were acquitted, proceedings against one of them were halted because he had died (Article 408, No. 5 of the Criminal Procedures Code), and proceedings were halted temporarily against another, in accordance with Article 2 of that Code, since his guilt had not been proven. The grounds for the guilty verdicts and sentences were Articles 254, 274, 278, 280, 299(-3), 304(-3), 307, 314, 316(-2), 354, 415, and 416(-4) of the Military Justice Code; Articles 193, 235, 242, 436, 440, and 442 of the Criminal Code; Articles 5, 8, 9, 10, 11, and 13 of Law No. 17798; Article 4 (d and 1) of Law No. 12927 and Article 2 of Decree Law No. 77 (1973).
        
        In war tribunal record 1-73 of the air force four people were condemned to death, but when the commander reviewed the tribunal's verdict, he lowered these sentences to extended military jail terms.
        
        
      • Five war tribunals are known to have been held in Rancagua; of the eighty-two people brought to trial, proceedings against twenty-two were halted in accordance with the terms of Article 409, No. 1 of the Criminal Procedures Code. The rest were sentenced to varying prison terms for having committed the crimes defined in Articles 8, 9, 10, 11, 13, and 15, of Law No. 17798 and Article 4d and 6a of Law No. 12927.
        
        
      • Information was obtained on fourteen war tribunals held in San Fernando. Of the 108 people tried in these tribunals, six were found innocent while the remainder were given different sentences for having committed the crimes described in Article 356 of the Military Justice Code; Article 470, No. 1 of the Criminal Code; Article 4 (a, c, and f) of Law No. 12927 and Articles 5, 8, 9, 10, and 13 of Law No. 17798.
        
        
      • One war tribunal is known to have been held in Curic˘; nine persons were put on trial and were sentenced to various prison terms for having committed the crimes sanctioned in Articles 8 and 13 of Law No. 17798, in accordance with Article 4d of Law No. 12927.
        
        
      • Only four war tribunals are known to have taken place in Talca, and they tried twenty-two people. In trial record 1613-73 one of the defendants is given the death sentence for having committed the crimes described in Articles 416 and 354 of the Military Justice Code and other unspecified violations of Law No. 17798. The other defendants were sentenced for violating Article 284 of that Code and Articles 5, 6, 9, and 13 of Law No. 17798 and Articles 4b and 6b of Law No. 12927.
        
        
      • The Commission has documentation on the activity of eight war tribunals in Linares, which tried 139 persons. Eight of them were acquitted because their involvement in the crimes of which they were accused was not proven, and seventeen were acquitted because they had been sentenced in other trials for these same deeds. The grounds for the guilty verdicts were the provisions of Articles 184, 199, 304, No. 3, 354, and 416 of the Military Justice Code; Article 446 of the Criminal Code; Articles 8, 9, 10, and 13 of Law No. 17798, and Article 4a of Law No. 12927.
        
        
      • With regard to Cauquenes, the Commission was able to obtain only a copy of the sentence handed down by a war tribunal in trial record 1-73, in which eleven people were found guilty of the crimes described in Article 9 of Law No. 17798 and Article 4d of Law No. 12927.
        
        
      • Six war tribunals are known to have been held in Chill, and they tried sixty-one people; three defendants were acquitted and the proceedings against three others were temporarily halted. The grounds for the sentences were the terms of Article 281 (last paragraph), Article 350 of the Military Justice Code and Article 8 clause 2, and Article 10 of Law No. 17798.
        
        
      • The Commission obtained copies of sentences or other documentation connected with nine war tribunals held in Concepci˘n, which tried eighty-one defendants. Four of them were convicted and given the death sentence found in trial record 1645-73 for committing the crimes sanctioned in Articles 8, 10, and 13 of Law No. '17798 in time of war and in accordance with the terms of Decree Law No. 5 (1973). In various other trials four of the accused were acquitted, and proceedings against six others were temporarily suspended, in accordance with the terms of Article 409, No. 2 of the Code of Criminal Procedures. The grounds for the guilty verdicts and sentences are Articles 8, 10, 13, and 14 of Law No. 17798, Article 4f of Law No. 12927 and Articles 2 and 3 of Decree Law No. 77 (1973).
        
        
      • There is documentation on five war tribunals held in Talcahuano in which sixty-six people were put on trial; two of them were given a death sentence for committing the crimes defined in Articles 9 and 10 of Law No. 17798, and Articles 6c and 7 of Law No. 12927. Six of the accused were acquitted and the remainder were given varying prison terms for their involvement in the crimes defined in Articles 446, No. 3 of the Criminal Code, Articles 3, 8, 9, and 10 of Law No. 17798, and Articles 4d and 6c of Law No. 12927.
        
        
      • Two war tribunals are known to have been held in Los Angeles; ten of the thirty-one persons tried were acquitted and the rest were given prison terms for having been involved in the crimes described in Article 8 of Law No. 17798 and Article 4d of Law No. 12927.
        
        
      • The one war tribunal known to have taken place in Angol tried six defendants who were given prison terms for having committed the crimes described in Articles 8, 9, and 11 of Law No. 17798.
        
        
      • In the two war tribunals held in Victoria, four people were put on trial; one of them was acquitted and the others were found guilty of the crimes sanctioned in Articles 8 and 9 of Law No. 17798.
        
        
      • The four war tribunals held in Temuco tried thirteen persons, who were given prison sentences for committing the crimes described in Article 416, No. 4 of the Criminal Code, Articles 8 and 10 of Law 17798 and Article 4g of Law No. 12927.
        
        
      • The Commission found documentary evidence of a war tribunal in Traiguén which tried eleven people, one of whom was found innocent while the rest were given prison terms for being responsible for the crimes envisioned in Articles 121 and 122 of the Criminal Code and Articles 8 and 9 of Law No. 17798.
        
        
      • The Commission has copies of verdicts issued by seven war tribunals in Valdivia in which nineteen people were put on trial. Three were acquitted; proceedings against one were temporarily suspended in accordance with the terms of Article 409, No. 2 of the Code of Criminal Procedure and the rest were sentenced to prison terms or internal exile for having been involved in the crimes sanctioned by Articles 8, 9, and 15 of Law No. 17798 and Articles 4 a and 6 c of Law No. 12927.
        
        
      • The two war tribunals held in Osorno put eight people on trial and gave them prison sentences for committing the crimes sanctioned in Article 8 of Law No. 17798, Article 10 of Law No. 12927, and Article 2 of Decree Law 77 (1973).
        
        
      • The Commission has copies of two sentences issued by war tribunals in Puerto Montt in which thirty-eight people were put on trial. In trial record 11-73 six defendants were given death sentences for the crime of treason as envisioned in Article 248, No. 2 of the Military Justice Code. This sentence was approved by the commander of the zone under the state of emergency. According to that same record, one of the accused was set free unconditionally, and proceedings against the other were temporarily suspended in accordance with the terms of Article 409, No. 2 of the Code of Criminal Procedure.
        
        Before concluding this section, we should point out that fortunately in a number of war tribunals, especially those in La Serena and Los Andes, the commander of the army's Second Division, making use of powers delegated and instructions given by the attorney general's office by order of the Ministry of Defense, reviewed a number of sentences, and in many instances acquitted the defendants, lowered sentences, and applied legislation correctly in the sense that crimes committed before the declaration of a state of war could not be sanctioned in accordance with subsequent legal rulings.
        
        The Commission repeats that what this report states about the workings and decisions of war tribunals is based entirely on copies of sentences they issued, and on documentation obtained in visits to the various regions as well as that provided by the Vicariate of Solidarity and the Chilean Human Rights Commission. The Commission could only obtain and study trial record 11-73 for one of the war tribunals held in Puerto Montt, which it obtained in that city. The Commission also notes that just as it is claimed that a first war tribunal was held in Pisagua, there are similar claims that war tribunals were held elsewhere in the country. However there is no documentation for them and in fact there are good reasons for doubting that such tribunals were actually held. We have not dealt with them here, but they are presented case by case in the rest of this report.
        
        
4. OBSERVATIONS ON SENTENCES ISSUED BY THE WAR TRIBUNALS
   
   
   • As a first general observation, we should note formal and underlying flaws in the way the events are presented and established, and in the serious lack of a legal and doctrinal basis for the verdicts given. These flaws are notable in the factual basis used to establish that crimes have been committed, in determining the accusations against the defendants, in determining which punishments are to be applied, in arguments for the defense-especially those that might change the degree of responsibility of the defendants. Even though Section IV of Book II of the Military Justice Code does not speak about requirements for sentencing, the terms of Article 194 cannot be ignored. That Article provides standards for evaluating proof and declares that the court must generally observe the rules of procedure in this regard, although it grants it the power to rely on a reasonable and honest assessment of evidence gathered. It is clear that one way or another there is an obligation to weigh the elements of proof in the trial for that purpose; to do so entails taking into account all items of evidence and avoiding faulty analysis.
     
     As a rule the sentences issued by the war tribunals accept or state that the crimes were actually committed without stating which deeds constitute the crimes or which proofs establish that fact; hence whether such crimes were in fact committed remains in doubt. The legal basis for most of the sentences is not provided. The elements that constitute a crime, exactly which crime is being committed, and the basis in law or equity that make it possible to come to a just decision should all be set forth.
     
     
   • In those trials in which the punishments imposed are increased because the actions were committed in a state or time of war, in accordance with Decree Law No. 5 (1973), the approximate date of the actions is not stated; indeed in some instances in which the date is known it is not stated, in open defiance of the terms of the Constitution and Article 18 of the Criminal Code.
     
     
   • In some trials the confession of the accused is regarded as establishing that the crimes were committed, without any further evidence of a punishable action. This transgression of the law is utterly inadmissible for justifying a guilty verdict and sentence.
     
     
   • Sanctions for separate and multiple crimes are applied separately, disregarding the terms of Article 75 of the Criminal Code.
     
     
   • Circumstances diminishing responsibility are ignored, particularly those laid down in Article 11, No. 6 of the Criminal Code; the standards used in that regard are not what the legislator had in mind and are contrary to standard jurisprudence in this area. The factor diminishing responsibility listed in point 8 of that article is disregarded, even when the trial record indicates that indeed such conditions were present and should have been acknowledged. Even when there are clear extenuating circumstances, they are not taken into account in the argument, nor are they considered in the sentencing.
     
     
   • Judgments are often made merely on a reasonable and honest estimate, in disregard of what Article 194 paragraph 3 of the Military Justice Code very clearly says about reliable evidence.
     
     
   • Witnesses for the defense are ignored or not brought forth, or crimes are regarded as established by an investigation carried out by agencies that the law does not recognize for that purpose.
     
     
   • The existence of a crime is regarded as established by the summary investigation, but there is no mention of any documentary evidence of that investigation, nor is it spelled out as the law demands.
     
     
   • In Calama various war tribunals reject attenuating factors in accordance with the terms of Article 212 of the Military Justice Code, a provision that was abolished by Law No. 17266 (January 6, 1970).
     
     
   • In a number of trials the war tribunals themselves make decisions about who is a minor, disregarding the fact that a juvenile judge should make that determination, since Law No. 16618, the general law protecting minors, must be applied unless an exception must be made on the basis of a particular law.
     
     
   • The aggravating circumstance that in Article 213 of the Military Justice Code refers only to members of the military is applied to civilians.
     
     
   • In many war tribunals there was no appointment of a defense lawyer as required by Article 183 of the Military Justice Code, or if in fact a lawyer was appointed, he or she was not allowed to see the defendant, or a lawyer was assigned to defend several defendants in a situation in which the evidence was at odds, or the time periods were so short that it was impossible to prepare for the trial.
     
     
   • In many instances observations on reasons for doubting the accusing witnesses are ignored, or there is simply no judgment made on the matter.
     
     
   • In trial record 4-73 in Pisagua six defendants were sentenced to death, even though the prosecutor favored a lesser sentence. This is a violation of the terms of Article 73 of the Organic Code of Tribunals, which is applicable to war tribunals by virtue of Article 87, paragraph 2 of the Military Justice Code. The commander of the prisoner camp approved this sentence for four of those found guilty.
     
     
   • In two cases the primary punishment is that of being submitted to close surveillance by the authorities, which according to Article 23 of the Criminal Code is to be applied only as an accessory punishment.
     
     
   • In general it should be noted that the establishment of the facts is not in keeping with the proof that crimes have been committed nor with the sentences meted out.
     
     
   • The two policemen who were assigned to the police station in Algarrobo and who were executed are said to have been sentenced to death by a war tribunal in Tejas Verdes. However, there is no information on the establishment, activity, and decisions of this war tribunal. What is known is that they were arrested and executed the day after their arrest; what is not known is whether they were given defense lawyers and thus whether they received a just and proper trial in this respect.
     
     (We note that today, February 6, 1991, after this report has been prepared, the Commission received official request No. 12900/127 from the deputy head of the army's advisory committee in which he provides a summary copy taken from the book in which sentences are recorded of five sentences issued, one by the Military Prosecutor's Office of Calama and the rest by the Military Prosecutor's Office of Antofagasta. These documents could not be taken into account in this chapter nor in that devoted to examining cases of grave human rights violations that took place in that region).
     
     

p) Military Prosecutor's Office: The Chilean institution of Fiscalía Militar (Military Prosecutor's Office) holds broad powers pertaining to cases falling within the jurisdiction of military courts. The term "prosecutor" is used here because the military prosecutor represents the interest of the military institution. It should be noted, however, that the military prosecutor does not have the same functions as a United States public prosecutor, and, in fact, performs similar functions to that of a judge in the Chilean criminal courts. (See editor's note on "Initial Summary Investigation".) The military prosecutor files the claim or the suit and is responsible for investigating the case. If he establishes or has reason to believe that a crime was committed, he may preliminarily indict the alleged perpetrator, accomplice, or accessory. Then the military prosecutor may decide to imprison or release on bail the defendant. Upon concluding his investigation, the military prosecutor recommends to the presiding military judge (in peace time) or the war tribunal (in war time) that the case be dismissed or that an accusation be made against the defendant. The judge or war tribunal accepts or rejects the recommendation, and, in the case that an accusation is accepted, then delivers a final verdict and orders a sentence.

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Posted by USIP Library on: October 4 2002
Source: Report of the Chilean National Commission on Truth and Reconciliation
(Notre Dame, Indiana: University of Notre Dame Press, 1993), vol. I/II, Part Two, Chapter Three, 99-116.
Note: Digitized and posted by permission of the University of Notre Dame Press, February 22, 2000.