PART TWO
Chapter Four

Behavior of the Courts toward the Grave Human Rights Violations
That Occurred between September 11, 1973, and March 11, 1990

1. OVERALL ATTITUDE OF THE JUDICIARY TOWARD HUMAN RIGHTS VIOLATIONS
   
   This Commission believes it must deal with the posture of the judicial branch toward the most serious human rights violations; otherwise, it would be impossible to present an overall picture of what took place in this regard as its founding supreme decree requires it to do.
   
   During the period in question the judicial branch did not respond vigorously enough to human rights violations. That fact combined with other factors such as the conditions of that period, restrictions imposed by an array of special laws, and the general lack of resources, particularly help from the police, prevented the judicial branch from truly working to protect the essential rights of persons when those rights were jeopardized, threatened, or crushed by government officials, or by private citizens operating with the complicity or tolerance of those officials.
   
   The judicial power was the only one of the three powers or branches of government that continued to operate; the officials who took power on September 11, 1973 did not dissolve it or step in to control it. The concern of the new military authorities to maintain a structure or image of legality made them particularly cautious in dealing with members of the judiciary. As indications of this concern, we may note the assertion in Decree Law No. 1(-3) (September 11, 1973) that the junta would assure that "the powers of the judicial branch [remain] fully in force." At the same time, however, it noted that such would be the case only to the extent the situation allowed. That same concern for appearances was evident in the fact that the new authorities expressed their criticism of the behavior of some judges they regarded as sympathetic to the previous government only privately to the Supreme Court, which supervised all courts in the country during that period.
   
   Recognizing the atmosphere of confidence and respect of the new government toward the judicial branch, at the opening of the 1974 judicial year the president of the Supreme Court stated:

   ...I can emphatically assert that the courts under our supervision have functioned in the normal fashion as established by the law, that the administrative authority governing the country is carrying out our decisions, and that our judges are accorded the respect they deserve.

   Judging from his statement, the judicial branch could have adopted a more resolute stance in defending human rights, which were under assault. Nevertheless, while the court system continued to operate normally in almost all the realms of national activity whose conflicts reached the courts, legal oversight was glaringly insufficient with respect to the personal rights that were being violated by government agents to an unprecedented extent. The judiciary, which in view of the Constitution, the law, and the nature of its functions, was the government institution called to protect those rights, failed by not acting more forcefully. Moreover, they failed to do so even though from the beginning churches, lawyers, the victims' relatives, and international human rights agencies were furnishing the courts with information on actions by government officials that violated human rights.
   
   The country was surprised to see the courts take such a stance, for it was accustomed to regard the judiciary as a staunch defender of the rule of law. We may recall the historic statement the Supreme Court issued toward the end of the Popular Unity government, criticizing its various transgressions of the legal system in general, and specifically the way it dealt with court decisions.
   
   In order to fully grasp how far the upper levels of the judiciary system were from taking into account the very serious problem of how unprotected people were, we may cite the words of the Supreme Court president in his speech opening the judicial year on March 1, 1975, as he gave the annual report Article 5 of the Civil Code requires of him. On that occasion he said:

   Contrary to what unworthy Chileans or foreigners operating with a particular political aim have said, Chile is not a land of barbarians; it has striven to give strict observance to these rights. With regard to torture and other atrocities, I can state that here we have neither firing squads nor iron curtains, and any statement to the contrary is the product of a press that is trying to propagate ideas that could not and will not prosper in our country.

   He went on to deny that people had disappeared after arrest, and finally with regard to the work of the courts he said,

   As a result of appeals presented, the Appeals Court in Santiago and this Supreme Court have been overwhelmed with a large number of habeas corpus actions that have been introduced, alleging arrests made by the executive branch. The administration of justice has thereby been impeded, since the higher courts, particularly in Santiago, have been prevented from attending to urgent matters entrusted to them.

   Subsequently and even to the final years of the military government, the higher courts did not take advantage of the annual opportunity offered by Article 5 of the Civil Code to present to the president of the republic the problems they were encountering in effectively carrying out their duties to protect essential human rights. Consequently, this posture taken by the judicial branch during military rule was largely, if unintentionally, responsible for aggravating the process of systematic human rights violations, both directly insofar as persons who were arrested and whose cases reached the courts were left unprotected, and indirectly insofar as that stance offered the agents of repression a growing assurance they would enjoy impunity for their criminal actions, no matter what outrages they might commit. As a result the people of this nation still do not have confidence that the judicial branch as an institution is committed to defending their fundamental rights.
   
   The stance we have been describing varied somewhat over time throughout the various agencies of the judicial branch. In dealing with the period after September 11, 1973, we will note below the interpretation the Supreme Court made in order to avoid reviewing the decisions of the wartime military tribunals. Habeas corpus appeals made on behalf of people arrested for political reasons were rejected invariably until well into the 1980s, when the first dissenting votes were cast and some of these appeals were occasionally accepted.
   
   Only at the end of the 1970s did specially appointed judges [ministros en visita] carry out the first exhaustive investigations prompted by the discovery of skeletal remains. These cases ended up in the hands of the military justice system. The same thing happened to some investigations into those crimes that most shocked public opinion. Despite some lack of cooperation on the part of the police, in these instances special judges and normal trial judges were able to certify that crimes had taken place and sometimes that official troops had been involved; when the latter was the case, they declared themselves incompetent. Once the cases were in the military justice system, they did not advance, and the usual result was that proceedings were eventually halted. This was in marked contrast to the diligent investigations carried out when it was a matter of human rights violations inflicted on government troops by private citizens for political reasons.
   
   In any case, the Commission believes that whatever qualifications might be made, the judicial branch as a whole proved ineffective in both protecting human rights and punishing their violation during the period in question. On the other hand, the vigorous behavior of some individual judges has produced results that point the way toward the kind of behavior that should be expected.
   
   
2. THE STANCE OF THE JUDICIAL BRANCH TOWARD APPLYING THE ESTABLISHED PROCESSES MOST RELEVANT TO ITS OBLIGATION TO PROTECT HUMAN RIGHTS
   
   The judiciary had at its disposition two basic instruments for preventing or punishing such violations: habeas corpus and sanctions for guilty parties. Both institutions are important in a preventive sense. As will be explained below, the purpose of habeas corpus is to end an illegal detention and assure the integrity of the person detained. Moreover, to have assigned punishment to the guilty parties would have seriously limited the further occurrence of human rights abuses. The victims' families sought to employ both of these institutions from the outset and throughout this whole period.
   
   
   1. REACTION OF THE JUDICIARY TO HABEAS CORPUS
      
      The essence of the habeas corpus procedure is that the tribunal that accepts it undertakes the measures necessary to assure respect for the freedom and individual security of people who are detained. Among these means is the one from which it takes its name, "habeas corpus," which means that the person for whom the appeal is made is brought before the court.
      
      Throughout this period habeas corpus was completely ineffective. That is all the more serious since this was the period of Chile's brief independent life when it was most needed, inasmuch as from 1973 to 1988 Chile was living under states of exception in which fundamental rights were restricted.
      
      
      1. Applicable legislation
         
         The ineffectiveness of habeas corpus during this period was partly due to the flaws in the legislation regulating it. In this respect it should be noted that Article 4 of the Organic Code of Tribunals encourages the notion that by reason of the principle of separation of powers therein enshrined, judges could be understood to be prohibited from examining the reasons given by officials when they had people imprisoned, transferred, or exiled during states of exception.
         
         We believe that this position, which was always open to question and which prompted a certain amount of dissenting jurisprudence, could not be understood to mean that it was a matter of whim or that a judge was utterly forbidden to examine in any fashion the factual circumstances invoked to justify imprisonment or transfer. The existence of prior norms and already existing interpretations should at least be recognized. Unfortunately there was produced no analysis that might have taken into account the circumstances and questioned the absolute character of this doctrine, which given the seriousness of what was happening could have been changed. Hence that interpretation of the article constituted legal, doctrinal, jurisprudential support at least before the law for the rejection of many habeas corpus appeals.
         
         The matter was clarified in a manner adversely affecting the defense of human rights when Article 41, clause 3 of the 1980 Constitution explicitly prohibited a court which receives a habeas corpus appeal during states of exception from passing judgement on the grounds and factual circumstances that an administrative official had in mind in ordering the measure that prompted the habeas corpus action.
         
         
      2. Practice of the courts
         
         However, the lack of adequate legislation was not the only reason that made habeas corpus an ineffective tool for protecting people's personal freedom and individual security. Despite its flaws the existing legal framework allowed the court a broad margin for protecting an individual. This margin was generally not utilized, however. Indeed on many occasions people were left defenseless with no legal support whatsoever, and even in violation of the laws governing court practice. Among such violations we may note the following:
         
         
         1. The principle of "immediacy" was not applied
            
            This principle is enshrined in the 1925 Constitution, in Constitutional Act No. 3 of 1976, in the 1980 Constitution, and in Article 308 of the Code of Criminal Procedure, which sets a twenty-four hour period for a resolution on a habeas corpus appeal. The 1932 ruling ordering that a habeas corpus appeal should be decided before an unjust prison term becomes very long or is even fully served was not observed. There is evidence of cases in which it took fifty-five, fifty-seven, seventy days and so forth to decide on habeas corpus appeals. The fact that administrative officials delayed was no excuse for the judges, both because they had the power to act without reports, and because very seldom did they pressure those officials or set fixed periods for an answer.
            
            
         2. Many arrests without the requisite warrant were tolerated
            
            Under states of siege as envisioned in the 1925 Constitution, the power to order arrests rested exclusively on the president of the republic, and he was not empowered to delegate it. Decree Law No. 228 (January 3, 1974) empowered the interior minister to order arrests under the formula "by order of the junta," and hence it was possible to obviate the procedure of obtaining approval from the Comptroller's Office.
            
            The appeals courts whose mission it was to examine habeas corpus actions and to at least assure that the formalities of arrest were minimally observed (since they were unlikely to be able to delve deeply) did not respond to the statistically established fact that most of the arrests were carried out by members of the security forces acting without a warrant.
            
            The courts routinely delayed deciding on habeas corpus until the Interior Ministry sent the arrest order, at which point the detention was declared to have been in accordance with the law. They often accepted arrest orders that did not come from the Interior Ministry as valid. In the provinces, particularly Concepci˘n, they accepted such orders from provincial governors. When such matters occasionally reached the Supreme Court, instead of ordering the person to be set free immediately, it advised the Interior Ministry that the person had been arrested, copying the governor's report, and inquiring if the arrest order had been issued by the ministry. The order was then issued and the court proceeded to reject the habeas corpus appeal. After some time had passed, Decree Law No. 951 empowering provincial governors to order arrests was passed.
            
            The courts did not act on habeas corpus appeals in response to arrests carried out by the DINA, and later by the CNI. From the moment the latter was created in 1977, its power to arrest was questioned in many habeas corpus appeals. However, the courts made no decision, but rather waited until the person arrested was either set free, handed over to a court, or expelled from the country; at that point they rejected the habeas corpus appeal by virtue of the changed situation. When, by way of exception, the appeals court in Santiago examined a habeas corpus appeal in 1983 and ruled that the CNI did not have the power to carry out arrests and thus accepted the appeal, the response was Law No. 18314, which expressly granted the CNI the power to carry out arrests when the law on terrorist activities was being violated. The issuing of this law raised doubts about the validity and legality of the arrests the agency had carried out before that law went into effect.
            
            
         3. There was no effort to assure that restrictions on detention sites were observed
            
            The courts did not demand true compliance with the constitutional provision that no one may be arrested, preventively detained, or imprisoned except in his or her own house or in public sites designated for that purpose. During states of exception, the arrests carried out within the terms allowed by such states, were not to be carried out in prisons or other places set aside to house common criminals. For years there were secret prison sites to which officials of the judicial branch had no access.
            
            Even though they had to be aware of the existence of sites like the National Stadium, the Chile Stadium, the Air Force Military Academy, Villa Grimaldi, José Domingo Cañas 1367, Londres 38 and many other places in Santiago and the provinces-initially including sites belonging to the armed forces-where people were held and torture was common practice, the courts did nothing practical to remedy this unlawful situation nor even to condemn it, despite the claims made in the habeas corpus appeals that were continually being introduced.
            
            
         4. The courts did not exercise oversight to assure the full observance of the norms on being held in solitary confinement
            
            Solitary confinement is a measure that is strictly judicial, short term, and established by law, which judges may order only when it is necessary for the success of the court investigations. Not even under extraordinary circumstances does the legal system allow solitary confinement to be ordered by anyone outside the judicial branch, and the judiciary can do so only for those cases for which the law expressly authorizes it.
            
            During the years covered by this report, administrative solitary confinement was widely used as a punishment. During the 1973-1980 period there were cases in which people were held in solitary confinement for 109 days, 179 days, 300 days and up to 330 days. After the 1980 Constitution went into effect, administrative solitary confinement of even twenty days was common. When solitary confinement was ordered by a judge, military prosecutors commonly ordered decreed extensions one after another. In some cases people were held in solitary confinement for up to seventy-five days.
            
            There were few judicial decisions on the imposition of judicial and administrative solitary confinement. The judiciary chose to issue its decisions when the situations had been normalized; in other instances decisions simply made no reference to the solitary confinement mentioned in the habeas corpus appeal. In the case of administrative solitary confinement, the courts preferred to accept the claims of the Interior Ministry, which argued that the persons were not in solitary confinement, but were "prevented from having visitors for security reasons."
            
            A few decisions even accept administrative solitary confinement as valid. In a ruling given on July 30, 1974 in a habeas corpus appeal which in fact sought to protest an illegal solitary confinement, the Supreme Court noted that "just as arrest itself and its length (during a state of siege) depends exclusively on the judgement of the executive, it is likewise logical that the way it is carried out should depend on the same authority." The Supreme Court issued a similar decision on December 3, 1981, upholding the November 23, 1981 decision of the Appeals Court of Santiago, asserting that in a state in which there is danger that internal peace may be disturbed, administrative solitary confinement is lawful for dealing with cases of terrorism.
            
            International statistics on human rights violations in a number of countries around the world establish the clear pattern that the greatest number of deaths, disappearances, and tortures occur when those arrested are taken to secret detention sites or when they are held in solitary confinement over a period of time so that external signs of mistreatment may disappear.
            
            The failure to comply in a timely and thorough fashion with the constitutional and legal norms noted above was a crucial reason why habeas corpus appeals introduced in the courts failed to achieve results. It should be noted that the courts did not react vigorously enough to remedy the grave human rights violations that those appeals were seeking to address. Had the courts respected the constitutional requirement of acting immediately, or had they complied with the legal requirement to issue a decision within twenty-four hours, or exercised the legal power which is the essence of that appeal, namely to physically examine the person detained (habeas corpus), or finally had they fulfilled the requirement of the ruling that they make a decision before the evil of unjust imprisonment is allowed to take on major proportions, many instances of death, disappearance, and torture would have been prevented; furthermore, the perpetrators would have been put on notice that their actions were being rejected at least by one branch of government and that at some point they might be subject to punishment.
            
            
      3. Other factors
         
         In any case it should be emphasized that there were other parallel reasons for the ineffectiveness of habeas corpus besides those noted in the foregoing sections. Among these we may note:
         
         
         1. With regard to the police
            
            One very important factor was the lack of real cooperation from police agencies in investigating what had happened to people on whose behalf habeas corpus appeals had been filed. Consequently even though from 1978 onward many lower ranking judges and some appeals courts began to show more interest in protecting people who might be suffering human rights violations, that interest did not in fact really translate into true protection for their rights.
            
            
         2. With regard to the executive branch
            
            The fact that many judges were very willing to accept as credible the information that the executive branch offered with regard to people for whom habeas corpus appeals were being filed (that is, they were willing to accept the claim that the person was not jailed or imprisoned by the officials named in the document) was enough to have these appeals rejected.
            
            
   2. IMPUNITY OF THE VIOLATORS
      
      After a very rigorous examination, this Commission concluded that more than two thousand people were killed as a result of human rights violations attributable to government agents during this period, most of them as a result of political repression. It can be said that, a few exceptional cases apart, the courts did not investigate these events, which were violations of human rights, nor were guilty parties punished.
      
      In order to systematize to what extent judicial conduct helped allow the perpetrators of such violations to act with impunity, the following four situations may be noted.
      
      
      1. Weighing proof in accusations against government agents
         
         When called upon to decide on crimes committed by government agents, the excessive rigor with which the courts adhered strictly to formal legality in assessing the proof brought against the perpetrators sometimes prevented them from applying the appropriate sanctions. Had such excessive formal procedural rigor not been applied in determining whether government agents had been involved, they might have been found guilty in accordance with the actual facts of the matter. This Commission has assumed such to be the case in a number of cases on which it has gathered information.
         
         
      2. The courts' acceptance of official versions of events
         
         We have noted this situation in section 1.c where we indicated that this was one of the problems that the judiciary had to face with regard to habeas corpus appeals. We must now emphasize that the excessively passive stance of the courts, reflected in their acceptance of the explanations of events provided by government officials-explanations at variance with the seriousness of the case-helped shield those guilty from being brought to justice.
         
         One example is a housekeeper working at the house of a religious order who was killed in a DINA search. The court accepted the DINA's version without even interviewing the agents who were responsible for her death, even though it had been proven that they had opened fire and that no return shots came from within the premises.
         
         Initially the same was the case with the decision made on the disappearance of thirteen Communist leaders in December 1976. After only a few days the investigation was said to have been exhausted and thus closed. This decision was based on the Interior Ministry's claim that all the individuals in question had crossed the Andes on foot through Los Libertadores Pass en route to Argentina. Even though that resolution was revoked by the court, the investigation was halted three more times; the authenticity of the documentation provided by the Interior Ministry was never verified nor were the steps requested by the plaintiff carried out. Nevertheless, one of the investigatory judges appointed in this case made significant progress. He proved that the documents provided to show that the disappeared had left the country were falsified, and that there was no proof that they had left the country; he also ordered procedures that made it possible to prove that there was a conspiracy between uniformed troops and civilians who were kidnapping, torturing, and murdering people and that this conspiracy had budgets, funding, personnel, buildings and so forth. Moreover, it was proven that at least two of these people had been arrested by people involved in this conspiracy. The Supreme Court ended these investigations when it ordered the procedures in the case suspended by virtue of the amnesty law.
         
         
      3. Using the amnesty law in a way to halt investigation of the events it covers
         
         The courts have ordered that procedures be halted based on the amnesty laid down in Decree Law No. 2191 (Diario Oficial, April 19, 1978) whenever uniformed troops are involved in a case that falls under that law, arguing that the amnesty law prohibits investigation of the events it encompasses. That position disregards the argument derived from Article 413 of the Code-of Criminal Procedure, which orders that "a definitive halting of procedures cannot be rendered until the investigation that seeks to determine the facts of the case and the identity of the perpetrator has been exhausted."
         
         The person who served as minister of justice when Decree Law No. 2191 was passed has stated that in her own mind the intention was never that the courts could apply amnesty as they have done, that is, before concluding the investigation. Consequently it has been impossible to clear up the events with which the courts had begun to deal, and thus the circumstances of the accusations of killings, torture, and disappearance and whether those alleged to be either victims or perpetrators were either guilty or innocent have remained undetermined.
         
         Along with the frustration of those involved, the problem of many uniformed troops who were mistakenly or unjustly publicly mentioned as involved in events that constituted human rights violation should also be kept in mind. They also deserve to have their situation clarified.
         
         
      4. Failure of the Supreme Court to exercise its oversight over war tribunals
         
         By means of decisions handed down on November 13, 1973 and August 21, 1974 as well as others, the Supreme Court, ignoring solid arguments to the contrary, officially declared that the war councils were not subject to its oversight. By not exercising these powers over the war tribunals, as the provisions of the 1925 Constitution could have been understood, the Supreme Court was unable to assure that those courts really observed the regulations governing criminal procedure in wartime as laid down in the Military Justice Code. Consequently the Supreme Court was unable to insist that the war tribunals act in accordance with the law.
         
         
3. OTHER ACTIONS BY THE COURTS
   
   We could examine a number of other questionable practices of the courts, and especially the Supreme Court, which fueled the human rights violations that are the object of this report. Examples include the acceptance of secret laws to which the courts never objected; the legitimization of the abusive search operations in shantytowns, which in 1986 alone numbered 668, by rendering decisions on the appeals for habeas corpus and other constitutional guarantees introduced as a result; an excessively formal approach to interpreting the law; the acceptance of confessions obtained through torture as proof; the fact that judges who were forthright in pursuing human rights violations were punished and given poor ratings. It is beyond the possibilities of this Commission to examine these situations and others in a more detailed fashion.
   
   Nevertheless, what it has observed of these situations as a whole during the period that began on September 11, 1973, has led the Commission to the conviction that the judiciary's inability to halt the grave human rights violations in Chile was partly due to serious shortcomings in the legal system as well as to the weakness and lack of vigor on the part of many judges in fully carrying out their obligation to assure that the essential rights of persons are truly respected.
   
   

[ Back to top ]

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 Four, 117-126.
Note: Digitized and posted by permission of the University of Notre Dame Press, February 22, 2000.