OEA/Ser.L/V/II.34
REPORT
ON THE STATUS OF HUMAN RIGHTS IN CHILE Findings
of “on the spot” Observations in CHAPTER
VII ADMINISTRATION
OF JUSTICE BY THE WAR COUNCILS AND THE MILITARY COURTS
1.
One of the subjects of most serious concern to the Commission was, as has
been said, the function of military justice and, particularly, the extent of the
powers conferred on military courts as a consequence of the declaration by
decree-law of a “state of war.”
None of the articles of the Chilean Constitution refer to a “state of
war”, and still less to a “state of internal war.” However, the Military
Penal Code, whose original text dates from 1925, contains express provisions for
the case of war, which, while it is obvious that they were conceived for
application in situations of actual war, in a confrontation of forces contending
for the domination of a territory, they have been applied in this case, which
was unjustifiably defined as “internal war” although it does not have the
characteristics that the most accepted doctrine requires for recognition of a
state of “non-international war.”1
2.
While the Commission was in Chile, a number of War Councils were in
operation in various parts of the country by authority of those rules and
interpretations. The Commission felt it necessary to observe their procedures,
and to that end, the Chairman and Vice Chairman, Drs. Jiménez de Aréchaga and
Dunshee de Abranches, accompanied by staff member Dr. Holzman, went to the city
of Linares on July 31, where a War Council, which was in operation in the
Artillery School, was to hear a case against 67 defendants, for six of whom the
Military Prosecutor had requested the death penalty. This took place some 300
kilometers south of Santiago, in an area which had been the scene of violent
confrontation between the partisans of the political groups called “Unidad
Popular” and “Patria y Libertad.”
When the Commission representatives arrived at the court, the Prosecutor
had already recited the charges, and the trial of the two defendants for whom
the death penalty had been asked had begun. The defendants, who were considered
to have confessed to the offenses, were Hugo Alejandro Valdés y Fuentes, whose
defense counsel was Mr. Montealegre, and Mario Eleazar Mora Arévalo, whose
defense counsel was Mr. Bonilla. Counsels for the defense maintained that under
Chilean law a confession was only valid if it was made before the trial judge,
and that the defendants had not testified before the War Council. According to
their statements, they had “confessed” as a result of the use of violent
means by the arresting authority, and had then partially rectified their
declarations when they appeared before the Prosecutor. One of the defendants,
particularly, denounced having suffered “brutal tortures.”
The War Council was made up of seven members, one of whom the
“Auditor” was a civilian attorney, and the others were officers who were not
lawyers; two carabineros officers and one cavalry officer, and the others were
artillery officers. The Prosecutor also was an officer who was not a lawyer.
The trial took place in a large well-appointed room. The public was
limited to two members of our Commission, to the officers accompanying us, a
couple of photographers and perhaps one other person. Our attention was drawn to
the fact that we did not see any parents or friends of the accused in the room,
especially because these persons lived in the area.
When the first defendant entered the room in the company of his lawyer,
he remained standing while the Prosecutor read the summary of charges and the
penalty requested. The accused was allowed to be seated, and the court
recognized the defense counsel, who made a long and detailed statement. In his
accusation, the Prosecutor antedated the “state of war” to September 4,
1970, despite the provisions of Decree-Law Nº 5.
3.
According to the statements made to the Commission by lawyers whom it
interviewed, defense counsels have a great deal of difficulty in contacting
their clients sufficiently in advance of the trial and have very little time to
examine the dossier, so that they usually prefer to tape record the contents of
the dossier and work with the recording later.
The Commission was informed from the same sources, that, while the
Prosecutors usually comment extensively on the clearly political content of the
case in their accusations, this is absolute forbidden to the defense. In one of
the trials attended by the Chairman and Vice Chairman of the Commission, this
prohibition reached the following extreme: When a defense counsel had stated
that the offense of his client was without any doubt a “political offense,”
the Chairman of the War Council reminded him in severe terms that defense
counsels were forbidden to “speak of politics.”
4.
After the statement of the defense counsel and after deliberation by the
Council behind closed doors, the accused were questioned, first by the Chairman
and then by other members of the Council and by the Prosecutor. Defense counsels
were also permitted to question them.
The cases attended by the Commission representatives (between 3:00 in the
afternoon and 10:30 at night) involved two young former students. They were
Socialist Party members who had been invited to travel to Cuba a few months
before the September events. According to the version of the accused, which was
not questioned by the Prosecutor, both of them were invited so that they could
learn about the new organization of the universities in Cuba, observe the
progress of agrarian reform, visit workers' housing, etc. Both of them said
that, after arriving in Havana, they were taken by bus to a house on the
outskirts, eight to ten kilometers from downtown, where they noted that there
was a military guard at the door. Their passports and plane tickets remained in
possession of the person who invited them and accompanied them on the trip. The
following day, they were surprised by the news that they were to “undergo
instruction,” which consisted of loading and unloading pistols, rifles and
machine guns of various origins and brands, the use of explosives and simulated
attacks against a small railroad station and a bridge. This lasted for 45 days,
at the end of which they were returned to Chile. Both of them acknowledged that,
for the weapons practice and other training activities, they were provided with
“overalls”, like those used by mechanics, but differing from each other.
They were asked by the Prosecutor why they had not refused to receive military
instruction, which was not on the trip schedule, and why they did not leave
Cuban territory. Both of the accused explained that they were in no position to
rebel, since they were on foreign territory, stripped of all support, and had
neither passports nor money. They said that the only thing they could do was to
submit to the program, and that they had been taken by surprise by it.
The Prosecutor interpreted these events as consorting with the enemy in
time of war, the use of uniforms of a foreign army, and treason against their
country. The possession of small arms was interpreted to mean that the accused
had the mission to attack the Chilean armed forces, paralyzing the action of the
Linares Artillery School, destroying those forces, and replacing them by their
own forces. He stressed the accusation against one of the defendants of the
crimes of possession of explosives and belonging to private militias, for which
he had already been tried by another court. The accusation was based on Article
248, 2, of the Military Code of Justice, 107 of the Penal Code, and 245, 4, of
the Military Code of Justice, the texts of which refer exclusively to the case
of international war.1
5.
It cannot be predicted when a sentence may be rendered in these trials.
The judgment may take months, during which time the Prosecutor's request for
capital punishment hangs over the accused and their families.
It must also be borne in mind that the War Council's sentence may be
reviewed by the Commander in Chief of the region, who may, without being
required to give the reasons for his decision, decrease or increase the penalty,
as explained in the previous chapter. It therefore follows that the defense can
concentrate all of its efforts on showing that circumstances have not occurred
permitting the imposition of a life sentence, where this was the sentence for
the offense alleged by the Prosecutor, only to find that in the end his client
had received the death penalty, for reasons or circumstances that were not
analyzed in the course of the proceedings.
A few days after this trial, other War Councils imposed death penalties.
It should be noted that these penalties were commuted to life imprisonment.
6.
During their missions to the cities of Linares and Concepción, and their
visits to the prisoners at the Talcahuana Naval Base (Second Naval Region) and
Quiriquina Island, Professor Abranches and Dr. Holzman were informed that in the
Third Military Court District in Concepción, death sentences had been executed
in cases that might involve the retroactive application of special laws on the
state of war.
For that reason, during the visit to Concepción on August 1, 1974,
Professor Abranches asked the Commander of the Third Army Division, Colonel
Luciano Días Neira (Subrogate), to make the necessary arrangements to examine
the dossiers of the cases tried by the War Councils, including those cases where
the death penalty had been carried out. In response to that request, the
Commission representatives were introduced to the “Auditor”, Mr. Gonzalo
Urreloja Arrau, who now has the rank of General, and who has a law degree. The
judge offered to make arrangements for the Commission representatives to be able
to read some of the dossiers of completed cases on the following day.
Among the dossiers provided to the Commission representatives for
examination were Roster Nº 1645-73, a case against José Isidoro Saldías and
16 other persons arrested on September 25, 1973, in Casas Cementario de Lola,
accused of violating Law Nº 17.798. The most relevant sections of the dossier
will be indicated below.
The facts of the case are set forth in Part Nº 5, where the accused are
charged with stealing, beginning September 9, 1973, a total of 1 000 Nº 6
dynamite caps and 5 000 sticks of dynamite (Samsonite C or EP 38) intended for
the Pilpilco coalmines. These materials were stored in the house of the accused,
Mr. Saldías, at Nº 51 Carrera, by order of Deputy Luis Fuentealba, and were
allegedly used on September 17, 1973, for the preparation of bombs.
Page 11 of the dossier contains the decree signed by General Washington
Carrasco, providing that: “An indictment be drawn up by the Prosecutor's
Office.” The opinion of the Military Prosecutor begins on Page 87, and
describes the alleged actions of the accused and the relevant legal provisions.
On October 15, 1973, General Washington Carrasco signed a new decree
providing that the case be brought to trial and that a War Council be
constituted. Appointed as Chairman of the Council was Mr. Gonzalo Urreloja Arrau,
who was then a Lieutenant Colonel serving as “Auditor”.
The prisoners were notified in the Concepción Public Jail on the same
date (Pages 102-116). The accused, Carlos Gajardo, stated that this
participation in the events had occurred before September 11 (Page 118).
When the defense counsel for the prisoners was appointed, he presented an
extensive defense, based on two substantive points: a)
The incompetence of the War Council, based on the allegation that the
events had occurred before September 11, so that the War Council would
not be competent to judge them based on special legislation subsequent to that
date;
b)
Partial negation of the alleged events (Pages 123 to 211).
The sentence bears the date of October 18, 1973, and its substantive part
begins by rejecting the plea of incompetence, based on Art. 73 of the Military
Code of Justice, which provides:
From the time of the appointment of the Commanding General of an army
that is to operate against a foreign enemy or against organized rebel forces,
the competence of peacetime military courts shall cease and that of wartime
military courts shall begin, throughout the territory declared in a state of
assembly or of siege.
Decree-Law 13 of September 20, 1973 states:
Article 1: The meaning and scope of Article 73 of the Military Code of
Justice is to confer on wartime military courts jurisdiction over military legal
proceedings initiated in a territory declared in a state of assembly or of siege
subsequent to the appointment of the Commanding General. Cases that began in
peacetime shall be subject to the cognizance and jurisdiction of peacetime
military courts, pursuant to peacetime procedures, until their definitive
termination.
The sentence thereupon develops considerations to justify the
applicability to the specific case of legislation subsequent to September 11,
including a citation of the doctrinary opinion of MAGGIORE (Penal Law T. 1, p.
203).
The dossier concludes with the acquittal of the accused, Rolando Soto,
Emilio Sánchez Medina and Pedro Vegas, and the conviction of the other accused
persons. Danilo González Mariones, Bernabé Cabrera Neiva, Isidoro Carrillo
Torneria and Wladimir Aranega Contreras were sentenced to death for the
following crimes: a) organization of combat groups armed with bombs; b) illegal
manufacture of explosives and other illegal materials, all in time of war. Two
of the accused were sentenced to life imprisonment, and four others to ten years
in prison.
On October 21, 1973, General Washington Carrasco endorsed the sentence,
except with respect to two sentenced to lesser terms (Page 236).
The dossier does not give the date or manner of execution of the death
penalty applied to the four persons indicated. The “Auditor” orally informed
Professor Abranches that “probably” the execution occurred in the Concepción
Public Jail itself, by a firing squad composed of the jail guards. The dossier
contains no document registering the implementation of the sentence, and
consequently the way in which it was executed was not recorded.
The dossier closes with four death certificates (Pages 250 to 253). [ Table of Contents | Previous | Next ] 1
Article 245 Military Code of Justice, contained in Section II of the
Code, which is entitled “Treason, espionage and other crimes against the exterior
sovereignty and security of the State” (our underlining) shall receive
sentences ranging from a major military prison term to death…”4”. A
member of the armed forces who, when the country is in a state of war or
when mobilization has been decreed, purposely rends useless roads
railroads, telegraph communications…destroy beacons, signal lights or
buoys…weapons, munitions or any other war material… or in any other
way maliciously hamper the operations of the army or facilitates those of
the enemy.” Article 248, contained in the same Section II, says that a
sentence ranging from the maximum major prison term to death shall be
applied to… “2”. Anyone who, in the event of war or for the purpose of
abetting the enemy or adversely affecting Chilean troops, performs an action
of commission or omission that is not covered by the appropriate articles
and that does not constitute any other crime expressly penalized by the
law.” Where this last article uses the terms “enemies” and
“Chilean troops”, it seems to confirm the conclusion deriving from Title
II and a reading of all of articles 244 to 258, which is that all of these
provisions refer exclusively to international war. Article
107 of the Chilean Penal Code provides that “a Chilean who fights
against his country under enemy flags shall be sentenced to a maximum
major prison term or death.”
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