PART THREE
Chapter One (A.2)

September through December 1973 (continued)

1. HUMAN RIGHTS VIOLATIONS COMMITTED BY GOVERNMENT AGENTS OR PERSONS WORKING FOR THEM (continued)
   
   
   2. CASES (continued)
      
      
      2. First Region-Tarapacá
         
         
         1. Overview
            
            In the Tarapacá Region, which includes what are now the provinces of Arica, Parinacota, and Iquique, the Commission examined thirty-five cases of grave human rights violations for which the government was responsible by reason of actions by its agents. These events took place between September 11, 1973 and early 1974.
            
            Troops from the Sixth Army Division took control of the region on September 11. Army personnel and police were involved in the events that ended in death or disappearance. The Chilean Navy was involved only in transporting prisoners from Valparaíso to Pisagua. Control over public order in the region was fully in effect as of September 11 itself, and there were no resistance actions, armed clashes or any other form of violence perpetrated by supporters of the overthrown government. Indeed, armed forces records register only one casualty in this area during the period in question.
            
            The victims were generally well known political activists who supported the government that had been in power until September 11, 1973. Several of them held important public positions in the region. Most were active in the Socialist party, followed by those active in the Communist party. Some were executed by order of war tribunals in which the legal norms that safeguard the basic rights of the accused were not respected. There were also attempts to justify some killings as necessary to stop prisoners from escaping. The Commission questions whether the former were lawful and proper and whether the latter were plausible and fitting, as will be noted below.
            
            There were other executions which took place without due process of law and also cases in which people were tortured to death. Likewise this account includes those people who were arrested in this zone and remain disappeared under circumstances in which it can be presumed that government agents were responsible.
            
            Repression also extended to relatives. Many wives of prisoners who were subsequently executed were also held under arrest at the Sixth Telecommunications Regiment in Iquique. Later the women and their families were forced to leave the city within twenty-four or forty-eight hours.
            
            A number of places in the region were used to hold political prisoners; in Iquique, the Sixth Telecommunications Regiment; in Arica, the Rancagua Motorized Infantry Regiment; and in Pisagua, the jail, buildings next to the theater, and a large shed. In all these places prisoners were tortured or subjected to other cruel, inhuman, and degrading treatment.
            
            The most important detention site was the jail in Pisagua. Prisoners from the Telecommunications Regiment at Iquique, and from a number of regional police stations, and also from Valparaiso were taken there (navy personnel took those from Valparaíso on the ship "Maipo"). At one point this old three-story building in the tiny seacoast town held around 500 prisoners, a number far exceeding its natural capacity. In the ten cells on the first floor, each two by four meters, prisoners were held in solitary confinement. On the second and third floors were eight cells of approximately four by ten meters, each of which held up to twenty-five prisoners. Women prisoners were transferred to a building next to the town theater, which was conditioned for that purpose. A shed the prisoners called the "supermarket" was also used. This Commission has received testimony and evidence enabling it to state that torture was used systematically in the Pisagua jail. An account of some of that torture is found in the general material preceding these region by region accounts.
            
            Newspapers generally reported the deaths, and in a considerable number of cases the families received official notification. In most cases the victims' bodies were not turned over to their mourners. Many were not even informed of the place of burial, or officials lied to them in this regard. Sometimes the very fact of death was denied. Six people whose cases are described below remained disappeared from the time of their arrest until 1990. In 1973 a high ranking officer speaking on behalf of the Chilean Army stated that these people had been released. Their relatives had been looking for them since that date.
            
            As a result of judicial investigations begun in Pisagua, in June 1990 a grave with nineteen bodies was discovered next to the cemetery. These people included the six disappeared persons mentioned in the previous paragraph and other people whom authorities had acknowledged to have been executed and whose families had been told officially that "they had been given Christian burial." The remains were found to be laid out in three layers that reflected the dates of their death. All the bodies were in sacks and bore a number of bullet wounds. Most showed clear and unmistakable signs that they had been blindfolded with their hands tied.
            
            The bodies of some people who were executed in the First Region have yet to be located.
            
            
         2. Cases of grave human rights violations that took place in the Tarapacá Region
            
            These episodes will be narrated in chronological order, with the exception of those pertaining to the war tribunals which will be treated together at the end of this section.
            
            On September 17, 1973, Luis Fernando ROJAS VALENZUELA, 49, was executed. The local newspaper for September 18, 1973 stated that "in compliance with the provisions of edict No. 24 of the military junta the citizen Luis Rojas Valenzuela was executed yesterday at 7:00 p.m. at the site of his arrest." According to this newspaper account, "yesterday the military patrol came to his house, and this individual immediately put up furious resistance to their mission. He was so enraged that he charged at one of the soldiers, hit him and tried to seize his automatic rifle." This account which, by its nature and the conditions of that period can only have come from, or been authorized by, the head of the military command, has enabled this Commission to come to the conviction that in this case, at the very least, government agents used undue force, since there is no reason that a military patrol making a search has to kill an unarmed person in order to subdue him or her. Moreover, the use of the word "execution" could indicate that Rojas Valenzuela had already been subdued and was killed in retaliation for his alleged angry reaction.
            
            The local newspaper in Iquique reported that on September 29, 1973, six "subversives" had been killed at the Pisagua prison camp as they were attempting to escape. "The security patrol ordered them to halt several times and aimed its first shots into the air, but since they continued to flee, they were shot down." That is how the following persons' deaths were announced:
            
            Juan CALDERON VILLALON, 25, an employee at the customs investigations department of the main customs office in Valparaíso who was an active member of the Socialist party. He was arrested in Valparaíso and transferred to Pisagua on the ship "Maipo."
            
            Nolberto Jesús CAÑAS CAÑAS, 48, an active Socialist who was a government representative in the fishing industries of the Northern Fishing Complex. He was arrested in Iquique and transferred to the Telecommunications Regiment and from there to the Pisagua prison camp.
            
            Marcelo Omar GUZMAN FUENTES, 34, a sanitation educator and administrator of the Iquique hospital who was active in the Socialist party. He voluntarily reported to the Telecommunications Regiment.
            
            Luis Alberto LIZARDI LIZARDI, 29, a port worker who was active in the Socialist party. He was arrested September 11, 1973 and was transferred to the Telecommunications Regiment and from there to the Pisagua prison camp.
            
            Juan JIMENEZ VIDAL, 42, a customs official in Valparaíso who was not known to be politically active. He voluntarily reported on September 13, 1973.
            
            Michel Selim NASH SAEZ, 19, a recruit who was fulfilling his military service in Iquique and was active in the Young Communists. He was discharged and arrested on September 11, 1973, and transferred to Pisagua.
            
            This Commission cannot accept the explanation that these people were killed while trying to escape, since it is very unlikely that they would have tried to escape while being transported to perform labor. The heavy military guard used in such transfers, the layout of the area, and the state of health of some of them-especially Cañas Cañas-as a result of the torture received, make it improbable that they tried to escape, and utterly unconvincing that the only way to prevent it was to kill them all. This idea is further reinforced by the numerous witness accounts given to this Commission to the effect that on the day they were supposed to have made such an escape attempt, the commander in charge of prisoners at Pisagua had asked for volunteers to work and many responded. However, the commander and the troops present selected the people who were taken and then killed, even though not all of them had volunteered and some of them were not physically in condition to do any type of work.
            
            This Commission thus comes to the conviction that Juan Calderón, Nolberto Cañas, Marcelo Guzmán, Juan Jiménez, Luis Lizardi, and Michel Nash suffered a grave violation of their human rights at the hands of government agents. The fact that the bodies were not handed over to their families only aggravates this situation.
            
            Since September 30, 1973, Jorge MARIN ROSSEL, 19, an EMPORCHI (Chilean Port Company) employee who was active in the Socialist party, and William MILLAR SANHUEZA, 42, a worker at Ferrocarrilles del Estado (state railroad company), have remained disappeared since they were arrested. Both were arrested in the city of Iquique some time after September 11 and transferred to the Telecommunications Regiment. Toward the end of September 1973 the Iquique newspaper reported that "By means of Edict No. 64, dated September 30, 1973, the commander of the zone under state of siege has ordered the arrest of two leftists who ran away from their detention site and had given orders for them to be shot on sight." According to the official account, the people mentioned had tried to run away from the Telecommunications Regiment in Iquique. There was never an official explanation of the whereabouts of these supposed fugitives and hence there is no official certification that they are dead.
            
            The members of this Commission find it implausible that two people held prisoner at a military regiment could have managed to run away while security measures were as severe as they were at that time. Nor was there any internal investigation of an event of this nature which at least should have implied negligence on the part of some soldier. It should also be kept in mind that many of the other people in this area who were said to have been released showed up in the common grave in Pisagua in 1990. Furthermore, Pedro Prado, the recruit who in official reports at the time was said to have been killed by Marín and Millar in their escape attempt, has now been declared to have died under other circumstances in a number of new and likewise official reports. This Commission has come to the conviction that both of these persons were arrested by government agents and disappeared at the hands of their captors, thus violating their human rights.
            
            On October 5, 1973, Manuel Heriberto ARAYA ZAVALA, 29, was arrested at his home by soldiers, and was taken first to the Telecommunications Regiment and then to the Pisagua prisoner camp. His wife received three letters from him sent from that camp, but there has been no information on his whereabouts since then. When the Chilean Army was consulted concerning Manuel Heriberto Araya's stay in the Pisagua camp and his subsequent whereabouts, it responded that it could not provide evidence since "by regulation it does not keep on hand documentation from that period." According to documentation obtained from the Civil Registry, there is no official notification of his death. This Commission holds the conviction that Manuel Araya Zavala disappeared at the hands of government agents who were holding him in custody.
            
            On October 20, 1973, the following three active Socialists were executed:
            
            Oscar Walter Pedro RIPOLL CODOCEO, 38, a metallurgical engineer who was an official at SERCOTEC (Technical Cooperation Service);
            
            Julio Gastón VALENZUELA BASTIAS, 28, a radio operator of the Arica-La Paz railroad line; and
            
            Manuel Francisco DONOSO DAÑOBEITIA, 26, a sociologist who was teaching at the Universidad del Norte.
            
            All three were arrested on October 9, 1973 and taken to the Rancagua Regiment in the city of Arica, where they remained imprisoned and in solitary confinement until October 18. Then they were taken to the investigative police headquarters. In the early morning of October 20 they were taken out by soldiers in order to be transferred to Pisagua.
            
            The next day the newspaper in Arica carried a news item from the military authorities which read: "A military commission transferring prisoners to Pisagua suffered an accident presumably as a result of mechanical problems of the vehicle causing it to overturn. The event took place forty kilometers south of Arica and all the passengers were killed. The list of those killed is as follows: First Sergeant Humberto Villalobos López, Private First Class José Martínez Albarracín, Oscar Ripoll, Waldo Sankán, Julio Valenzuela, and Manuel Donoso." The next day the newspaper reported that a rescue operation "led to the discovery that the prisoner Waldo Sankán was not among those killed. He had presumably run away, and in fact the very afternoon of the accident Waldo Sankán turned himself into military authorities. Sankán's statement has made it clear that the accident resulted from mechanical problems, and that the driver was unable to stop the vehicle from plunging into a ravine."
            
            Although the death of these persons has been presented as the result of an accident, the Commission has come to a different conclusion:
            
            
            • The newspaper stated that the prisoners in that vehicle, all active in the Socialist party, had been accused of having been involved in the "sinister Plan Z, which was going to be put into effect in Arica by means of a paramilitary organization of the former Socialist party, which was called AGP (Agitation and Propaganda)."
              
              
            • On the basis of testimony that it finds fully convincing, this Commission is able to affirm that Donoso, Ripoll, Sankán, and Valenzuela, with their hands tied and blindfolded, were taken from the investigative police headquarters in the early morning of October 20, 1973 in a station wagon. Forty kilometers down the road the car stopped, and the drivers got out, leaving the civilians inside. The drivers pushed the station wagon over the embankment into a ravine, where all the prisoners met their death except Sankán who miraculously survived.
              
              
            • Julio Valenzuela was already dying or perhaps dead. His death certificate gives the cause of death as a "bullet wound bursting the lungs."
              
              
            • The soldiers mentioned in the news report are not registered as having died. The army did not include them among the victims it reported to this Commission. This Commission holds the very firm conviction that Oscar Ripoll, Julio Valenzuela, and Manuel Donoso suffered a grave human rights violation at the hands of government agents who killed them in total disregard for the law.
              
              
            On October 21, 1973, Gerardo POBLETE FERNANDEZ, 31, a Salesian priest who was a philosophy teacher at the Salesian school in Iquique, was killed. The public relations department of the zone under state of siege in the province of Tarapacá published the following item in the newspaper El Tarapacá on October 25, 1973: "At 5:20 p.m. on Sunday October 21, 1973, after receiving a report of suspicious activity by people on the top floor of the Don Bosco School, the police reconnoitered the area and carried out a search of the whole building. In the course of the search they found a good deal of Marxist literature, heavy weapons, and some ammunition in Father Poblete's bedroom. For that reason they arrested and took away Gerardo Poblete Fernández, a priest, and Ricardo Francisco SalgadoTorres, an office worker, both of whom were teachers at the school. When they arrived at the headquarters Father Poblete slipped on a step and fell heavily to the pavement as he was getting down from the truck. He was handcuffed at the time. The consequences were not immediately apparent and so he was taken inside the police station where he was held in a cell while Salgado was interrogated. When he was summoned at 7:50 p.m. that same day, he was found unconscious in his cell. He was taken to the infirmary where it was determined that he was dead." El Tarapacá for that same day reported. "Both prisoners said they were with the Socialists, and supported the Popular Unity government. Father Poblete even said that his ideology was Marxist." This report contradicts the previous one, according to which he was never interrogated.
            
            Numerous very plausible statements given to this Commission by eyewitnesses make it possible to declare that Father Gerardo Poblete was not handcuffed when he was being driven in the police truck and that he did not fall onto the pavement after slipping from the step on that truck. Indeed, he entered the police station in normal physical condition; while he was there several of the guards insulted him and beat him with their fists with blunt instruments. This lasted for a long time until they killed him. Hence this Commission has come to the conviction that Father Gerardo Poblete suffered a violation of his human rights by government agents, who inside a prison area subjected him to interrogation and torture until they put an end to his life.
            
            On October 23, 1973, the newspaper in Arica reported that Luis Pedro SOLAR WELCHS, 18, had been executed. "In the early morning of October 23, 1973, Luis Pedro Solar Welchs, was apprehended by an army patrol inside a properly marked military installation. While the prisoner was being held in custody and awaiting interrogation, he suddenly tried to seize a guard's weapon with the clear purpose of shooting him, thus forcing another guard to execute him on the spot." This Commission does not accept the official account as presented, since it is unlikely that a person inside a military installation, who, according to the military's own story, was properly in custody, would try to seize his guard's weapon. Moreover, even if that were true, it is not reasonable to think that the way to stop him was to kill him. Hence the Commission holds the conviction that Luis Solar was executed by government agents in violation of his fundamental rights.
            
            On January 11, 1974, Isaías HIGUERAS ZUÑIGA, 39, a policemen at the Iquique jail who was an active Communist, was killed. He had been arrested and taken to the Telecommunications Regiment in Iquique and was later transferred to Pisagua. His wife was officially notified that her husband had died of a cardiac arrest. This report was given by the man who was then warden of the Iquique jail and was reconfirmed by the offices of the Sixth Army Division in that city. Isaías Higueras' wife received his remains in a sealed coffin. This Commission is convinced, especially in view of the many consistent eyewitness accounts it received, that he died as a result of the torture to which he was subjected by government agents, his guards, who beat him to death while he was imprisoned in Pisagua.
            
            On January 18, 1974, Nelson José MARQUEZ AGUSTO, 31, an office worker who was active in the Communist party, who had been arrested in Iquique, was executed in the Pisagua prison camp. Many credible and consistent eyewitness statements indicate that Marquez was emotionally disturbed as a result of the manner in which he was treated in prison. While the prisoners were out on an athletic field, Nelson Márquez "got up and jumped over a small wall around the field. There was only one soldier guarding all the prisoners and he was some distance away. The soldier came running and shouted out to him to come back. Márquez sped toward the area of the pier, no more than fifty meters from the field and hid under the pier. About forty-five minutes later soldiers came back with him, and they were brutally beating him as they did so... About two hours later there was a burst of fire not very far from the jail. One of the soldiers said that Márquez had been shot by firing squad." This Commission holds the conviction that after being recaptured Nelson Márquez was executed without any due process of law by government agents in violation of his fundamental rights. In 1990 his body was found in the common grave in Pisagua.
            
            On January 29, 1974, six people who had been arrested in Iquique in November 1973 and then taken to the Pisagua camp disappeared from that camp:
            
            Orlando Tomás CABELLO CABELLO, 44, a retail merchant who was not politically active. He was arrested by police from Iquique, turned over to the Telecommunications Regiment and later taken to Pisagua.
            
            Nicolás CHANEZ CHANEZ, 43, the owner of a trucking business who was not politically active. He was arrested, sent to the office of the investigative police in Iquique and from there transferred to Pisagua.
            
            Juan MAMANI GARCIA, 27, a truck driver who was not politically active. He was arrested by police, taken to the Telecommunications Regiment at Iquique and from there transferred to Pisagua.
            
            Luis Aníbal MANRIQUEZ WILDEN, 44, a retail merchant who was not politically active.
            
            Hugo Tomás MARTINEZ GUILLEN, 36, a retail merchant who was not politically active. He was arrested by police on November 2, 1973, and taken to the Telecommunications Regiment and then to Pisagua.
            
            Juan ROJAS OSEGA, 38, who was not known to be politically involved. He was arrested by police on November 1, 1973, and taken to the Telecommunications Regiment and then to Pisagua.
            
            What these people all had in common was that they had supposedly been involved in drug trafficking and contraband. These accusations were given extensive press coverage. After they had been arrested, none of these charges were proven in court.
            
            The official account provided in a military edict from the Sixth Army Division was that these people had been set free on January 29, 1974. Some of the families also received an official letter from the Chilean Army stating that their relatives had been released. Thus the wife of one of them received letter No. 3550-380, dated July 19, 1974, from the commander's office of the Sixth Army Division, which stated that Nicolás Chanez was arrested and transferred to Pisagua, "in order to investigate and determine who was responsible for an alleged violation of the Law on Weapons Control.... Once the matter had been investigated and it had been proven that he was innocent with regard to the law on weapons, he was released on the date noted above. If he has still not returned home, you should look elsewhere for the answer, or ask yourself, your own conscience as a wife who is familiar with her husband's activities."
            
            In 1990 their bodies were all found in the common grave at Pisagua. They had been put into sacks, their hands were tied, and they were blindfolded. This Commission holds the firm conviction that Orlando Cabello, Nicolás Chanez, Juan Mamani, Luis Manríquez, Hugo Martínez and Juan Rojas were not released, but were executed without any due process of law, and that government agents disposed of their bodies.
            
            War Tribunals
            

            According to official reports, four war tribunals took place in this region between October 11, 1973 and February 10, 1974. In those war tribunals twelve people were condemned to death. In order to examine these situations, the Commission believed it had to obtain all the relevant documentation; therefore, it asked the proper authorities for a complete copy of the decrees issued by the head of the zone under state of siege in the province of Tarapacá and for certain resolutions decreeing that particular persons had been set free. In response the Chilean Army has stated that "those trial records are, along with other documentation, part of what was destroyed in the fire caused by a November 14, 1989 terrorist attack on the installations of the army's Physical Education School, where part of the documentation of the army's general archive was located. This event is under investigation by the Sixth Military Prosecutor's Office in Santiago." Other formal requests to obtain possible copies of the most important trial documentation items were in vain. This Commission's report on these tribunals is thus based on the copies of the decisions it has been able to examine as well as statements made by some of their more important participants.
            

            First War Tribunal: October 11, 1973
            

            By means of Military Decree No. 82, dated October 11, 1973, the head of the zone under state of siege in the province of Tarapacá and commander-in-chief of the Sixth Army Division, reported that five people had been executed at the Pisagua prison camp. That document notes that a war tribunal had been held there on October 10, 1973 in order to try a number of defendants, five of whom were condemned to death. Those persons were:
            
            Julio CABEZAS GACITUA, 45, a lawyer and prosecutor with the Iquique Council for the Defense of the State [attorney general's office] who was not known to be politically active. His job was to coordinate activities aimed at monitoring and stopping drug traffic and contraband in the area. On September 14, 1973 he voluntarily reported to authorities after he had been summoned by an edict.
            
            José CORDOVA CROXATTO, 35, administrator of the Chilean Port Company in Iquique who was active in MAPU. He was arrested on September 11, 1973 at his workplace.
            
            Humberto LIZARDI FLORES, 26, who taught English at the Iquique campus of the University of Chile and was active in MIR. On September 11, 1973, he was arrested at the Instituto Comercial in Iquique.
            
            Mario MORRIS BARRIOS, 27, who worked at the investigations department in the customs agency and was not politically active. He had only recently been sent to the city of Iquique. He was arrested on September 1.1, 1973 at the hotel where he was staying.
            
            Juan VALENCIA HINOJOSA, 51, provincial head of ECA (Empresa de Comercio Agrícola-Company for Agricultural Trade) in Iquique who was active in the Communist party. He voluntarily reported to the governor's office on September 11, 1973.
            
            El Tarapacá for October 26, 1973 published a new military decree on these people, stating that all of them "were condemned because they had confessed that they were guilty of the crimes of treason to the country and espionage... and had violated the Law of State Security, and were actively involved in plans for subversion and to infiltrate the armed forces as part of missions they had been assigned."
            
            The accusation of the crime of treason to the country cannot legally be applied to civilians, but only to the military, provided that there is a state of war and an enemy in a state of belligerence. With regard to Mario Morris Barrios, that same news report states that "he was condemned for having confessed and for being guilty of the crime of seeking to bring the armed forces to revolt; for an attempt to kill several customs employees and for violating the Arms Control Law." When the Commission inquired of the National Director of Customs, he said that in accordance with the terms of the 1972 Law on Control of Firearms, agency employees are permitted to use such weapons and equipment in the manner laid down by the regulations of their institution.
            
            This Commission seriously doubts whether this war tribunal actually took place. In this instance it was not provided with a copy of the trial record or even of the sentence, nor was it possible to locate one. Furthermore, according to the word of people who were then being held at the Pisagua prison camp, the procedures later observed whenever a tribunal was held did not take place on this occasion. Generally speaking, the prisoners would come out to the field in front of the jail and would then be told that a tribunal had been set up, the names of the accused would be called out, and they would be grouped according to the punishment being sought for each one. They would meet the lawyer who was to defend them. None of these procedures took place that day. Moreover, the Commission has not encountered any defense offered by any lawyer in this first war tribunal which is supposed to have taken place.
            
            One witness who was also held prisoner at this camp was able to observe how when the five prisoners were finally taken to the Pisagua cemetery, they were executed, put into sacks, and laid in a pit. The bodies of the victims were never turned over to their relatives. They were all found this year, 1990, in the common grave in Pisagua. With the facts presented in this fashion, it is only reasonable for the Commission to presume that this war tribunal never took place. It has come to the moral conviction that Julio Cabezas, José Córdova, Humberto Lizardi, Mario Morris, and Juan Valencia were executed by government agents. There are indications that the fact that the lawyer Julio Cabezas worked as an official investigator of drug traffic and contraband may have had an important bearing on his death.
            

            Second War Tribunal: October 29, 1973
            

            On October 29 a second war tribunal was convened and it ordered the death penalty for four persons, who were executed at 6:00 a.m. October 30, 1973 at the Pisagua prison camp. On October 31, the newspaper El Tarapacá reported the execution and referred to the supposed involvement of those condemned to death in a plan aimed at bringing about civil war in Chile and stirring up rebellion within the armed forces. The following persons were thus executed:
            
            Rodolfo Jacinto FUENZALIDA FERNANDEZ, 43, a civilian pilot who was the regional secretary of the Socialist party. He was arrested on September 11, 1973 in his home and taken to the Carampangue Regiment, then to the Telecommunications Regiment and from there to the Pisagua prison camp.
            
            Juan Antonio RUZ DIAZ, 32, a customs official in Iquique who was active in the Socialist party. He voluntarily turned himself in at the Telecommunications Regiment.
            
            José Demóstenes Rosier SAMPSON OCARANZA, 33, a public relations official at the Iquique city hall who was an active Socialist. He turned himself in voluntarily to the Iquique police on September 21, 1973.
            
            Freddy Marcelo TABERNA GALLEGOS, 30, director of the ORPLAN (Regional Planning Office-now called MIDEPLAN-[Ministry of Planning]) office in Iquique who was an active Socialist. On September 16, 1973, he voluntarily reported to the Telecommunications Regiment.
            
            This Commission holds the conviction that the process by which these people were sentenced in this tribunal was illegal. The grounds for that conviction are the following points, above and beyond those characterizing all such trials:
            
            

            • The judges were not unanimous in their decision. In the sentence it is pointed out that the specially appointed judge-advocate "was in favor of sentencing the accused to ten years in prison without the possibility for parole since he believed that in this case it was appropriate to apply the norms of Article 107 of the Criminal Code inasmuch as this was simply an attempt, and they had in their favor the extenuating factor of their previous blameless conduct." This tribunal thus failed to observe a basic and established principle of law: that the death penalty can be applied only when all those involved in the sentencing agree on the matter.
              
              
            • The prisoners were condemned for crimes that were not duly proven, and of which they could not properly be accused. These four people on trial were sentenced for having committed the crime contemplated in Article 245, No.2, in connection with Article 246 of the Military Justice Code. At that time the former read: "The member of the military who entices Chilean troops or any troops serving the Republic to go over to enemy ranks or to desert the flag in time of war is to be punished with the most severe military punishment, namely death." Article 246 of that code stated that "if it is a non-military Chilean or an enlisted person who is guilty of the crimes contemplated in the previous article, the punishment may be lowered one or two degrees in accordance with the circumstances..."
              
              
            • The behaviors for which these people were put on trial, if they actually took place, were committed prior to September 11, 1973, and thus the requirement that the behavior of which they were being legally accused take place during wartime was not met.
              
              
            • Even if these actions were committed, they were not consummated. The sentence itself makes that clear in consideration 3: "That these actions, in the judgment of the war tribunal, constitute the crime described in Articles 245 No. 2 in connection with Article 246 of the Military Justice Code, to the degree of a frustrated attempt."
              
              
            • The only means of proof cited in the sentence to establish that those condemned were involved in such crimes, is the supposed confession of those who were put on trial. In this regard, it should be kept in mind that the evidence it has received enables this Commission to state that torture was used systematically during the interrogations that were conducted at the Pisagua prison camp, and hence in this case such proof is invalid.
              
              

            Even though there was a moral and legal obligation to turn over the bodies, their relatives never received them. Some of the relatives of those condemned to death received a letter from the Sixth Army Division dated October 30, 1973, in which they were told that"... today in Pisagua ---- was executed by order of a decision of the wartime military tribunals. They were given Christian burial in the Pisagua cemetery." Their mourners were never told exactly where they were buried. To this day their bodies have not been found. This Commission holds the conviction that Rodolfo Fuenzalida, Freddy Taberna, Juan Ruz, and José Sampson were executed by government agents in a procedure that, owing to a lack of due process of law, violated the rules for safeguarding the human rights of people on trial.
            

            Third War Tribunal: November 29, 1973
            

            In this tribunal, which took place on November 29, 1973, Germán Eladio PALOMINOS LAMAS, 25, a furniture maker in the city of Iquique who was active in the Socialist party, was sentenced to the death penalty. He was arrested September 23 by army troops, and was taken to the Telecommunications Regiment and then to the Pisagua prison camp. With regard to the crimes that he supposedly committed the sentence reads: "In his statement he acknowledges that he belonged to the AGP movement, along with ----. He goes on to say that his own work in this organization was to prepare molotov cocktails and another kind of explosive. He further admits that the organization's intention was to attack regiments and even to physically eliminate those persons who did not support the previous government. Thus the defendant Palominos has violated the provisions of the Law of Internal State Security. Consequently since the defendant Palominos has confessed that he was involved in the actions mentioned, he must be punished with the greatest severity."
            
            This trial did not observe the basic legal norms that ought to be respected in a proper trial both as a result of the general nature of all the war tribunals and specifically for the following reasons:
            
            

            • The defense lawyers did not have enough time to talk with the person they were defending or to study his file and the accusation against him.
              
              
            • Even though in this tribunal those handing down the sentence mention other means of proof besides a confession by the defendants, those means were not properly weighed in making the decision, and thus they failed to meet a basic requisite for any sentence.
              
              

            The sentence states,"... it is not true that the only proof against those accused is their own documented confession (cf. accusation on pp. 1 and 2; photographs on pp. 4 and 5; record of capture of weapons, helmets, explosives, molotov cocktails, nunchakus on pp. 3 and 66; statements by the accusers on pp. 67, 68, 69, 70, 71; statements by witnesses to the accusations on pp. 72, 95, 97, 98, and 99) and also with the various proofs contained in the files which are at hand in the form of separate notebooks." The tribunal was thus simply listing the supposed elements of proof without taking them into account as it should have done.
            
            In 1990 Germán Palomino Lamas's body was found in the common grave in Pisagua. His relatives had received the army notification mentioned above telling them that after execution he had been given Christian burial in the Pisagua cemetery. This Commission holds the conviction that German Palominos was executed by government agents on the basis of a trial that ignored the legal norms then in effect.
            

            Fourth War Tribunal: February 10, 1974
            

            The war tribunal held on February 10, 1974 condemned to death two active members of the Communist party:
            
            Alberto YAÑEZ CARVAJAL, 31, a prison official who at the time of his arrest in Iquique had been fired from his job. He was arrested January 5, 1974, and taken to the Telecommunications Regiment and from there to the Pisagua prison camp.
            
            Luis TORO CASTILLO, 34, a worker at the state railroad company. He was arrested on October 1, 1973 at his workplace.
            
            For the reasons of a more general nature that have already been mentioned with regard to war tribunals, and particularly for the following reasons it can be established that in this trial a number of irregular procedures took place in disregard for the basic rights of Yáñez and Toro.
            
            

            • The actions for which they were being tried are not the crimes for which they were condemned. That is, they were sentenced for the crime described in Article 245, No. 2, in connection with Article 246 of the Military Justice Code which reads: "The member of the military who entices Chilean troops or any troops serving the Republic to go over to enemy ranks or to desert the flag in time of war is to be punished with the most severe military punishment, namely death." Article 246 of that code stated that "if it is a non-military Chilean or an enlisted person who is guilty of the crimes contemplated in the previous article, the punishment may be lowered one or two degrees in accordance with the circumstances..."
              
              
            • Nevertheless, with regard to the actions of which those on trial were accused, the sentence reads, "... these people prepared a plan that was to have gone into effect should there be an outbreak of civil war, a coup d'etat, or the like. These maneuvers were called Plan 22 and their execution was to involve occupying twenty centers regarded as vital to the city of Iquique such as churches, public buildings, factories, and so forth. The plan also contemplated seizing customs vehicles and weapons from the prison service so as to reinforce the execution of the plan. In order to obtain more arms, the El Colorado police checkpoint and Infantry Regiment No. 5 Carampangue were to be attacked; the aim of this action was also to incite the civilian population to resist the armed forces, with the consequent innocent victims that would have thereby ensued." As is obvious, the actions attributed to the accused do not fit the crime of which they were found guilty and sentenced.
              
              
            • Just as was the case in the two previous tribunals, this court rejected defense lawyers' arguments that the only means of proof were the confessions made by the accused. The court record states, "The tribunal rejects such arguments because besides confession there are other proofs that a crime has been committed." The sentence does not even mention what these other proofs are. Given the evidence mentioned, this Commission has come to the conviction that Luis Toro and Alberto Yáñez were executed by government agents after a war tribunal which, in departing from the basic requirements of due process, violated the human rights of the accused. In 1990 their bodies were found in the common grave in Pisagua.
              
              

            Reading and analyzing the sentences of these war tribunals as well as the statements by lawyers who were involved in them, this Commission has been able to come to a conviction about the irregularities common to some of them, which we will now mention:
            
            

            • With regard to the defense, the legislation then in effect provided that the defender should state the defense in writing and indicate the means of proof he or she intended to employ and the list of witnesses and experts who were to testify. Articles 183, 184, 189, 190, 191 and other articles of the Military Justice Code then in effect granted all the guarantees and time periods the defense might need. The code even allowed the possibility of offering the proof either in the place where the tribunal was in session or elsewhere, in which case one of its members was to be delegated for that purpose.
              
              
            • The defense lawyers say that at least in the latter three war tribunals they had access to the file and to the accusation only a few hours before the tribunal was held. They were able to converse with the people they were defending for only a few moments and often they could not even contact them, since they had been officially appointed to defend a large number of defendants.
              
              
            • They also point out that in the latter three tribunals the arguments could neither be read nor presented to the court in written form, and they were only allowed to add a note on the argument they had prepared.
              
              

            Furthermore, Pisagua was a camp for prisoners of war and so only members of the armed forces and the defense lawyers were allowed access. Hence it was impossible for witnesses to enter, and that made it much harder to establish that the previous conduct of the accused had been blameless, an extenuating circumstance that should have affected the punishment being applied. According to what the lawyers say, at least in the second and third tribunals a statement sworn before a notary in which witnesses declared that the previous conduct of those on trial had been blameless was presented, but the tribunal rejected it as not in accordance with the law. Having examined the family background and antecedents of those whom the war tribunal condemned to death, this Commission can state ten of these twelve people had no criminal background whatsoever.
            
            

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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 Three, Chapter One (A.2.b), 258-272.
Note: Digitized and posted by permission of the University of Notre Dame Press, February 22, 2000.