OEA/Ser.L/V/II.66
Doc.17
9 September 1985
Original:  Spanish

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

Case of Mario Lagos Rodríguez and Nelson Herrera Riveros

          96.          A recent case in point of an alleged clash considered by the Commission is that of Messrs. Mario Lagos Rodríguez and Nelson Herrera Riveros, who were killed on August 23, 1984 in Conception by security forces.

          97.          Messrs. Nelson Herrera Riveros and. Mario Lagos Rodríguez were riding in a Talcahuano-Conception bus, license plate UCR-065, driven by Pedro Segundo Aguayo Aguayo.  This vehicle was stopped in the Vega Monumental de Concepción by police officers in uniform and in plain clothes, who forces the passengers to get out of the bus by using a tear gas bomb.  When Nelson Herrera Riveros and Mario Octavio Lagos stepped down with their hands above their heads, Mario Lagos was shot down by the police although he offered no resistance.  On seeing what had occurred, Nelson Herrera attempted to flee and was also wounded by shots fired by the police and subsequently died.  This version was corroborated by the judicial statements made by the driver of the bus and is deduced from the post mortem examinations made by the Medical-Legal Institute.

          98.          The official version given by the Office of the Intendant of the VIII Region states, in the pertinent part.

…Members of the CNI succeeded in locating two terrorists…, who when they were going to be apprehended got into a taxi bus of the Concepción-Talcahuano route, license plate 4CR-065 of Talcahuano, driven by Pedro Segundo Aguayo Aguayo, and proceeded to take hostages from among the passengers, who included a number of children.  After a spectacular chase along Avenida Prat the bus was intercepted and, during an extended exchange of shots, all the passengers were rescued unharmed.  The subversive criminals were hit by bullets and one of them died on the spot and the other, during the journey to the local public medical service.

The terrorist, who was carrying a 9 mm caliber pistol and a 38 caliber revolver, attempted, during the kidnapping of the passengers, to blow up the taxi-bus but were unsuccessful because of the prompt intervention of members of the security forces who subsequently de-activated the bomb.  [33]

          99.          For his part, Monsignor José Januel Santos, the Archbishop of Concepción, requested the Concepción Appeal Court to appoint an investigating judge to clear up these contradictory events.  When substantiating his request he stated that “the alleged clashes have caused a very great commotion in the area, since the official version does not agree with what the witnesses have stated”.  [34]

          100.          The Commission adopted a resolution on this case during its 65^th session.

          e.          Deaths caused by indiscriminate and excessive violence

          101.          This type of crime against the right to life is due to the use by security forces of disproportionate measures in suppressing public demonstrations, as a result of which the death of a number of persons has occurred.

          102.          The vigorous quelling of public demonstrations has been used especially against persons during the “national days of protest” that have been taking place in Santiago since May 1983.  In its 1982-1983 Annual Report, the Commission expressed concern about the incidents that had occurred in 1983 in Chile, where between May and September of that year alone about 40 persons died as a result of disproportionate actions of the Army and Carabineros.  [35]

          103.          In the following year the Commission again stated that during the period covered by that Annual Report--October 1983 to September 1984--many deaths attributable to governmental authorities consisted of those caused by the quelling of the days of protest.  In the view of the Commission, such deaths had been the result of the excessive measures used by the agencies responsible for public order, which had on occasion affected passersby or mere spectators as well as persons who were in their homes.  [36]

          104.          An important case that occurred during the day of protest that was held on September 4 and 5, 1984 was that of the French priest, Andre Jarlan, who died as a result of bullet wounds inflicted while he was in his home in a working class community.  The investigating judge, Hernán Correa de la Cerda, who investigated the case, reached the conclusion that the person responsible for the shots that caused the death of Father Jarlan had been a Carabinero.  The courts have not yet punished any one for this serious crime.

          105.          According to the information available to the Commission, 55 persons reportedly died in 1983 and 1984 as a result of the undue use of weapons during those mass demonstrations; 24 in 1983; and 29 in 1984.  During the last protest demonstration on September 4 and 5 1985 10 persons were killed.

          f.          Summary Executions

          106.          Although most of the deaths attributable to the Government of Chile, especially during the recent years covered by this report, have been the result of situations described earlier, some cases have also occurred in which deaths by summary executions have been imputed to officers of the police or security forces either directly or indirectly.  Of these crimes the one which has caused the greatest agitation in Chile affected Messrs. Manuel Guerrero Ceballos, Santiago Nattino Allende, and Jose Manuel Parada Maluenda.  Furthermore, this case is important because it is the first case which, involving opposition leaders, has lead to an investigation now, it has not been possible to determine who were the assassins of the opposition leaders.  [37]

Case of Manuel Guerrero Ceballos, Santiago Nattino Allende

And Jose Manuel Parada Maluenda

          107.          On March 28, 1985, a little before 2 o’clock in the afternoon, publicist and draftsman Santiago Nattino Allende, was kidnapped in the sector of Badajoz and Apoquindo streets in the Comune of Las Condes in Santiago.  By a group of persons who forced him to get into a beige colored automobile which witnesses identified as a four-door Chevette without license plates.

          108.          On March 29, 1985, Jose Manuel Parada Maluenda, an official of the Vicaria de la Solidaridad, and Mr. Manuel Guerrero Ceballos, a teacher at the Colegio Latinoamericano, were kidnapped by three armed individuals who were also travelling in an automobile without license plates, at the entrance of the Colegio Latinoamericano.  Mr. Leopoldo Muñoz, a teacher at that school, who came to the defense of the persons concerned, was shot and seriously wounded.

          109.          On the following day the corpses of Nattino Allende, Parada Maluenda and Guerrero Ceballos were found with their throats cut on a rural road near Santiago.

          110.          The full Supreme Court, in response to a petition of the Ministry of Interior, designated Mr. Jose Canavas Robles Special Investigating Judge in charge of the investigations to clarify these crimes of kidnapping and murder.

          111.          After four months of judicial investigations directed by Mr. Canovas Robles, the investigating judge, he issued important judicial resolutions which, in addition to reflecting the progress made in the investigations and the responsibility of the Corps of Carabineros of Chile, had important political repercussions in Chile.

          112.          The resolutions of Judge Canovas had also important political effects in the country: the resignation of General Cesar Mendoza from the office of Director General of Carabineros and from the Government Junta;  the resignation of General Carlos Donoso, Director of Order and security of Carabineros; the involuntary retirement of the fourteen Carabineros compromised in the judicial resolutions; the dissolution of DICOMCAR, the repressive apparatus of the Carabineros; the appointment of a new Director General of the Carabineros, General Rodolfo Stange, and the reorganization of the structure of that institution.

          113.          On August 1, 1985, the investigating judge issued three resolutions:  (a) he decided to declare himself incompetent to continue to have cognizance of the proceedings, taken into the account the fact that there were serious, precise and concordant presumptions that led him to conclude that personnel of Carabineros were involved in the crimes that were the subject matter of the proceedings;  (b) he decided to indict two officers of the Carabineros as perpetrators of the crime of falsification of a public document, consisting in altering flight logs of the helicopter they piloted at the time of the kidnapping of Jose Manuel Parada and Manuel Guerrero;  the same resolution stated that that helicopter was involved in the crime; and (c) he decided to issue an order of arraigo against seven officers and five non‑commissioned officers of the Carabineros since there were well founded suspicions of their participation in the crimes investigated.

114.          Pursuant to those resolutions, the proceedings were transferred to the Military Court of Santiago, the competent court in the opinion of the Investigating Judge, since the case involved common crimes committed by Carabineros in the course of their duties.

115.          On August 5, General Samuel Roias, the Military Judge, decided not to

accept jurisdiction, arguing that “admitting that Mere is sufficient evidence in the records to accuse personnel subject to military jurisdiction,” it is incumbent in the case to apply the Antiterrorist Law which, because it has a special procedure, is not within the jurisdiction of the Military Courts. He justified that assertion in that “it can be concluded with certainty that the criminal acts committed have endeavored to cause an intimidating effect of terror on the population, consisting in nullifying its expression of dissent with the conduct of national life”. On this basis, he rejected jurisdiction and returned the case file to the Investigating Judge.

116.          On August 6, Judge Canovas Robles decided to accept to continue to conduct the proceedings.  Because, although he maintained his idea of incompetence “it is advantageous to define exactly and investigate thoroughly in particular the responsibility of each one of the officials accused in the crimes being investigated, who are subject to military jurisdiction”.

117.          In continuing to conduct the proceedings, the Investigating Judge, on August 26, had Patricio Zamora Rodriguez, a Carabinero Captain in active service and Hector Diaz Anderson, and a Captain in retirement, arrested and held incommunicado.  Two days later, he arrested and held incommunicado Julio Luis Omar Michea Muñoz, a Colonel of the Carabineros and former Chief of the Department of Internal and External Affairs of the dissolved DICOMCAR. On August 29, he adopted the same measure against Guillermo Washington González Betancourt, a Major of the Carabineros. Finally, on August 30, Minister Canovas indicted seven former officials of the Carabineros as presumptive perpetrators of the crime of kidnapping. The indictment affected Colonel Julio Luis Michea and Colonel Luis Fontaine, Mayor Guillermo Gonzalez Betancourt, Captain Hector Diaz Anderson and Captain Patricio Zamora, in addition to two non‑commissioned officers whose identities were not revealed.  Then he declared himself incompetent to continue to try the case

118.          In his declaration of incompetence, Judge Canovas pointed to the responsibility of DICOMCAR in those events and in that respect stated in part of his declaration:

Indeed, it follows from the information so far gathered that that section of Carabineros, originally had an eminently internal purpose but recently its work was preferably focused on the pursuit of all subversive activities.  Acting not only in an eminently preventive activity, which is the essence of the work of the Carabineros, but it had even come to enter a field foreign to its normal functions.  Exceeding the limits of the law as is shown by the many accusations that the ordinary and the military courts have had and have cognizance of and to which reference is made in the records.

119.          In his declaration of incompetence, Minister Canovas also said:

That despite there having been furnished facts that from the outset demonstrated the involvement of uniformed police in the facts being investigated, the Military Judge did not accept jurisdiction over the proceeding and returned it to the ordinary courts.

The present trial Judge did not insist on that occasion on his incompetence and did so both because it was not advisable in that initial stage to hold up the investigation and because he had convinced himself of the need to further investigate the aspect of responsibility.

120.          The Commission hopes that the case presently under investigation will terminate with the identification and sanction of the persons guilty of carrying out such a condemnable act.

E.  ARRESTED PERSONS WHO HAVE DISAPPEARED AND

ARE PRESUMABLY DEAD

a. The concern of the IACHR for arrested persons who have disappeared

121.          In its First Report on the Situation of Human Rights in Chile, the IACHR expressed concern about the status of many persons who had disappeared in that country following arrest.  On that occasion the Commission pointed out that this was one of the factors that was causing Chilean families great anxiety and distress. [38]

122.          That concern has been reiterated in all the subsequent reports of the Commission, both the special reports on Chile and the annual reports to the General Assembly. [39]

123.          The spread of the practice of the forced disappearance of political dissidents in Chile and the alarming adoption of it in other countries led the Commission to refer the topic of detained persons who have disappeared to the supreme organ of the Organization.

124.          In its several annual reports, the Commission has stated its position on this extremely serious violation of human rights. Thus it has pointed out that there are many cases in different countries in which the government systematically denies the arrest of persons. Despite convincing evidence furnished by the complainants to prove their allegations that those persons have been deprived of their liberty by police or military authorities and in some cases that they are or have been imprisoned in specified places of detention. [40]

125.          The Commission has added that this procedure is cruel and inhuman and that, as experience shows, disappearance is not only an arbitrary deprivation of liberty but also an extremely serious threat to personal integrity, safety, and the very life of the victim. In the view of the Commission, disappearance may be a method used to prevent the application of the legal provisions established for the defense of individual freedom, physical integrity, the dignity, and the very life of man. In practice this procedure renders invalid the legal rules enacted in recent years in some countries to prevent illegal arrest and the use of physical and mental duress against the persons arrested.  [41]

126.          In addition, the Commission has repeatedly indicated the need for the fate of the arrested persons who have disappeared to be clarified and for their relatives to be informed of the status of those persons. It has likewise recommended the establishment of central arrest registers and has also recommended that arrests be made solely by duly identified competent authorities and that the persons arrested should be held in places intended for that purpose.  [42]

127.          For its part, the OAS General Assembly, in several resolutions, [43] has emphasized the need for that practice to be immediately stopped in the countries in which forced disappearances have occurred. It has also urged the governments to take the necessary steps to determine the whereabouts of those persons. In addition, at the proposal of the Commission, the two most recent OAS General Assemblies declared that the forced disappearance of persons in America is a crime against humanity.

128.          For the purposes of spelling out the concept of the detained-disappeared detainees.  The Commission in this report will use the definition it has employed in other reports or resolutions, that is, it will refer to the status of those persons who have been apprehended by armed personnel --at times in uniform-- who usually say that they belong to.  Some branch of the public authority, in operations that are significant and coordinated in both deployment and manner of execution and who subsequent to their arrest have disappeared without any word of their whereabouts.  [44]

b. Extent of the phenomenon of disappearance in Chile and time span its application

129.          The Inter-American Commission on Human Rights like, all human rights agencies.  Both international and Chilean, is unable to provide an exact figure of the number of disappeared detainees since in not all the regions of Chile are the families affected are unable to take steps to report the cases of disappearances that affect them.  This situation has become evident when it has been possible to clear up the status of some persons who have disappeared.  As occurred in the above-mentioned cases of the finding of bodies in Lonquen, Mulchen, and Yumbel, in which the investigations resulted in the identification of a larger number of victims than was reported earlier.

130.          The Vicaria de la Solidaridad of the Archdiocese of Santiago has so far succeeded in documenting 668 cases of persons whose arrest followed by disappearance has been reported.  [45]

131.          For its part, the Government of Chile has stated that “after a patient and careful effort on the part of both the Courts and the administrative authorities and of the International Committee of the Red Cross”, it has a consolidated list containing “600 names of persons who have allegedly disappeared”.  [46]

132.          The list of 668 persons provided by the Vicaria de la Solidaridad may be broken down by year and by region as follow:

133.          However, it should be borne in mind that the method of disappearance was again used in 1984 in the case already examined in the section on the death by torture of Juan Antonio Aguirre Ballesteros.

          c.          General characteristics of the practice of disappearances

          134.          A study of the cases of disappearances that are reasonably well documented leads to the conclusion that two methods have been used in carrying them out.  In the first stage, up to February 1974 the disappearance appears to be the consequence of the widespread repression throughout Chile.  In those first 5 months the persons responsible for the kidnappings were regular members of the Armed Forces --principally soldiers and Carabineros-- who did not hide their identity or the kidnapping itself.  Generally speaking, those agents belonged to the uniformed police force of the sector or were members of a known military unit. [47]  The other method employed in the execution of the disappearance began to be used in early 1974 with the establishment of the National Intelligence Directorate (DINA), an agency that was endowed with an infrastructure of secret agents, vehicles that it was not possible to identify, clandestine premises, and de facto impunity for the acts of its agents. Although in the following four years DINA was to act as the central agency principally responsible for the disappearance of persons, subsequent evidence indicates that it was not the only agency involved.  [48]

          135.          The victims of those initial disappearances that occurred during the months immediately after the military coup were supporters of the government that had been overthrown, although they were not necessarily active members of political parties.  For example, many were trade union leaders, campesinos who had benefited from the agrarian reform, local leaders, and even persons who were reported by neighbors to be 11extremists”.

136.          With respect to the way in which the operations against dissidents that culminated in their disappearance were carried out, the Commission will deal in particular with the period from the beginning of 1974 to the end of 1977, in which disappearance continued to be a previously planned systematic method.

137.          An analysis of the political affiliation of the victims makes it possible to find a significant coincidence in the successive stages this period covers.  Thus, this method was initially and primarily used against members of the Movimiento de Izquierda Revolucionario (MIR).  As shown by the fact that a large percentage of the persons who disappeared during 1974 and the early months of 1975 had belonged to that movement.  [49] In late 1974 and during the first half of 1975, this method was primarily used against members of the Socialist Party. Towards the end of 1975 and throughout 1976, the disappearance of arrested persons was employed primarily against members of the Communist Party, as shown by the fact that, of the 109 who disappeared in 1976, 78 had been militants of that party.

138.          According to the information and testimony available to the Commission, a common feature of the kidnappings of the persons arrested, whether they were carried out in the home of the person arrested.  His workplace, or in the street, was that it was impossible for the victim to defend himself, given the clandestine manner in which the kidnappings generally took place, and their execution with the aid of armed persons who ensured the impunity of the perpetrators.

139.          We should recall here the case of Carlos Humberto Contreras Maluje, who threw himself in front of a public bus to force a formal detention by the CNI, and who had subsequently to be kidnapped by a large number of security personnel off a street in downtown Santiago. This may explain why the case of Contreras Maluje was one of the few in which the application for a writ of amparo was taken up by an Appeals Court. it should, however, be pointed out that the application for amparo was heard when the applicant had already been dead for some days. [50]

140.          There were also a few cases in which the kidnapping by military personnel took place in full daylight. The military subsequently turned the victim over the DINA, where all traces were lost. However, the fact that there were eyewitnesses meant that those that took part in the kidnapping could appear before the courts.  One of these few cases was that of Jose Orlando Flores Araya, a 19 year-old high school student, who was detained in the “Cuatro Alamos” Industrial School in Maipu, during the morning of August 23, 1974, in the presence of his classmates and the teaching staff.  [51]

141.          However, the largest group of kidnappings was carried out in the victim's home at night, taking advantage of the fact that the agents could move around freely during the curfew and the rest of the police force could do nothing to impede their movements. Two of the many individuals who were kidnapped under these circumstances and who subsequently disappeared were Washington Cid Urrutia [52] and Vladimir Arias Vega. [53]

142.          When the victim was detained at his place of work, the DINA agents made sure that there were no witnesses. This was the case of a professor at the Catholic University of Chile, Alejandro Juan Avalos Davidson.  Mr. Carlos Bombal Otaegui, Chief of Staff of the Rector of the Catholic University, stated to the First Military Court.  In criminal case 692-79 that “on Monday, November 13, 1975, two DINA officials, whose names I do not know, came to see the Rector and asked for information about Professor Avalos Davidson. The Rector instructed me to put them in touch with the Director of the Academic Unit in which Professor Avalos worked.  I left the Rector's office, and as I was about to make a telephone call from another office, the two officials stopped me and told me merely to turn over the information the university had on a confidential basis ... and not to make the phone call, since the orders were to detain Professor Avalos, without witnesses”. [54]

143.          If the individual was detained in the street as part of a previously organized plan to take in a political leader, it was made to seem as though the detention was not for political reasons. This was the case with Jose Weibel Navarrete, who was dragged out of a bus: in order to kidnap him and take him off the bus, they alleged that he had stolen something, but he had not. [55]

144.          According to many coincident reports received by the Commission, after being seized the persons kidnapped were taken to secret premises under the direction of DINA, or joint commandos, to be interrogated. Many died as a result of the torture inflicted on them during their captivity.

145.          In accordance with those reports, the secret premises that were used for the interrogation of the persons who subsequently disappeared were;  the DINA premises located at No 38 Londres Street; the DINA building located in Jose Domingo Cañas Street; the Cuatro Alamos building; and the Terranova Barracks, also known as Villa Grimaldi.

146.          It is in order to point out that the investigating judge, Servando Jordan, charged with the investigation of some disappearances repeatedly requested that the records of admission to those premises be shown to him, which he was never able to achieve during his investigation.  Since the Ministry of Interior, the Ministry of National Defense, and the National Intelligence Agency--the, successor of DINA--denied knowing of the existence of such records.

147.          As stated, many of the persons seized died as a result of the torture they underwent during their captivity. In other cases, in which there was a previous decision to eliminate them, they were executed by other means.

148.          In some cases the finding of the bodies of persons, who had been arrested bearing unmistakable signs of torture, as was the case already examined of Marta Ugarte Roman.  Coupled with the many attestations and reports received by the IACHR, confirm that torture, to the point of causing death, was usual during interrogation. If the persons arrested did not die during those interrogations, DINA took a decision about their fate, which could include their elimination. Information recently furnished makes it possible to point to three basic methods that were used for eliminating the persons that disappeared. use of helicopters to throw persons who had been previously drugged into the sea‑, others were burned and buried in the locality of Peldehue; and others were killed and thrown into the Maipo Ravine.

149.          The Inter-American Commission on Human Rights received, in particular between 1974 and 1978, a substantial number of reports, which alleged the forced disappearances of persons, and it, adopted the pertinent resolutions on those cases.  [56]

          d.          Attitude of the Government

150.          The Government initially acknowledged the fact that persons were missing in Chile but attributed that phenomenon to the clashes which, according to that Government, were continuing. In its observations on the First Report on the Status of Human Rights in Chile of the Inter-American Commission on Human Rights, the Government of Chile stated:

Given the nature of the events which occurred in Chile on September 11 and the following days, when adherents of the former government blindly shot at troops and the troops were obligated to return fire, the fallen and disappeared on both sides were many.  Until today, there exist cases of soldiers, who. Due to the actions of the extremist, have not been located.  Thus, one can put in perspective that what occurred in Chile was not part of a normal situation, and, it is impossible to try to apply the norms and procedures of a non-convulsive situation to these events.  In some exception cases, and owing to the heat of battle, a small number of persons have disappeared.

Furthermore, it is useless to point out that in many cases persons who have been considered disappeared are found to be underground carrying about acts against the Government or have surreptitiously abandoned the country.  That is to say, the Government of Chile finds itself in the position of having to respond adequately to accusations, which would require it to carry out a census of all the extremist who are underground in Chile and all the Chilean who are abroad.  It is not necessary to point out the futility of carrying out such a measure.  [57]

          151.          Later, in reports furnished to international organizations such as United Nations  [58] and the IACHR  [59], the Government argued that most of the persons who it was alleged had disappeared were not in that situation since in some cases they had never had legal existence; other alleged missing persons had died legally or in armed clashes either in Chile or abroad.  [60] In addition, some of those persons whose disappearance was attributed to it had sought asylum, had left the country or were detained or had even been released after being arrested.

          152.          It should be mentioned that in one of the annexes accompanying the report of the Government to the United Nations, Enrico Sergio Astudillo Alvarez, NELSON Hernandez Flores, Oscar Hernandez Flores, Jose Manuel Herrera Villegas, Jose Manuel Maureira Muñoz, Rodolfo Antonio Maureira Muñoz and Segundo Armando Maureira Muñoz are mentioned as persons who had died--and therefore had not disappeared.  All those persons were mentioned by the Government as persons admitted to the Medico--Legal Institute and identified by that service in 1973 when they had never had that status since their bodies were found in the Lonquen Mine five years later.

          153.          In most of the replies to request for information by the Commission, the Government limited itself to stating that it had no information or that the persons concerned were not detained.  In one case, that of Miguel Angel Acuña Castillo (Case No. 1850), the Government, in Note No. 1236 of January 17, 1975 even acknowledged that Mr. Acuña Castillo had been detained under the powers granted it by the state of siege.  So far, Mr. Acuña Castillo continues to be missing.

154.          In view of the evidence of the disappearances and the irrefutable evidence presented to it, especially by the Roman Catholic Church, in June 1978.  The Government, through the Ministry of the Interior, expressed to the Cardinal Archbishop of Santiago and the Chairman of the Catholic Episcopal Conference of Chile its willingness “shortly to clarify the fate of each one of the persons whose disappearance has been proven before competent agencies”.

155.          Subsequently, the Minister of the Interior, in a speech broadcasted nationwide on June 15, stated that “whatever the specific truth in each situation the Government will explore any serious information that may be presented to it regarding any particular case”.

156.          In response to that promise of the Government to investigate the cases of the missing detainees, several bishops of the Roman Catholic Church sent letters to the Minister of the Interior containing background information on hundreds of concrete cases of missing detainees.

157.          Up to the date of the approval of this report, the Ministry of the Interior has not given an answer on the cases submitted by the Chilean Bishops.  In contrast, in April 1978, the Government enacted Decree Law No 2.1981 whereby it granted a full amnesty that covered persons who had participated in forced disappearances of detainees.

158.          It should also be mentioned that, in November 1984, the Commission, when taking note of the document “Observations of the Government of Chile on the Chapter of the 1984 Annual Report of the Inter-American Commission on Human Rights”.  Learned that the Government of Chile, with the cooperation of the International Committee of the Red Cross, had conducted an investigation to clarify the situation of persons allegedly missing in Chile between 1973 and 1978. In view of the importance of that investigation and of the background information on which it had been based, the Commission, by a note dated November 27, 1984, wrote to the Minister of Foreign Affairs of Chile, requesting him to send it a copy of the above-mentioned investigation. Up to the date of the approval of this report, the Government of Chile has not replied to that request.

e.          The Judiciary

159.          Since the phenomenon of the disappearance of arrested persons has emerged in Chile.  The courts of justice have been provided with, complete information on the facts by the timely petitions, filed by relatives of the victims and human rights institutions, that they take the necessary measures to terminate this horrible practice.

160.          In the period in which the disappearances occurred, hundreds of applications for amparo and of complaints and criminal charges were presented for the purpose of clarifying the status of the persons who had been arrested and whose whereabouts were not known. A large number of those arrests were proven before the courts by witnesses who had been present at the arrest and, in some cases, through statements even of members of the Armed Forces who had taken part in the arrests.

161.          However, in general, the courts were not capable of achieving the timely correction of the serious abuses committed by authorities who, in violation of the legal rules in force, were not observing the laws relating to the requirement of a written warrant of arrest.  The obligation to arrest only in public places, the limitation of the arrest to strict time limits, and especially the duty not to inflict physical pain and torture.

162.          Generally speaking, the courts accepted the petitions of the government that they not directly request information on the arrested persons from DINA and they have never visited the secret premises in which it was reported that the persons arrested could be found.  Of the thousands of applications of amparo filed, very few were accepted and, in the case of persons who disappeared, it may be stated that none of them succeeded in saving their lives.  As a result of the prompt acceptance of an application for habeas corpus;  since even the only one that was accepted for a disappeared person--that relating to Carlos Humberto Contreras Maluje--it did not prevent his continuing detention by his captors and, finally, as admitted by a former member of the Air Force, his death.

163.          When on various occasions the Supreme Court was requested to appoint a judge to investigate the disappearances, it invariably rejected those petitions. [61]

164.          Thus, in the judgment of October 13, 1976, when taking a decision on the petition of the Vicar of Solidarity of the Archdiocese of Santiago, Father Christian Precht, dated August 20, 1976, for the appointment of an investigating judge to investigate the disappearance of 383 persons between September 11, 1973 and June 30, 1976, the Supreme Court, by 8 votes to 5, [62] decided that it was not in order to accede to the petition 11since the investigations are being carried out satisfactorily”.[63]

165.          Only on March 21, 1979, when the practice of disappearance had ceased, did the Supreme Court decide to accept, in part, a petition the Episcopal Vicars of the Archdiocese of Santiago had filed on November 3, 1978, the purpose of which was the appointment “for special investigations of a judge in each one of the Courts of Appeal of Iquique, Antofogasta, Copiapo, Valparaiso, Santiago, Rancagua, Talca, Chillan, Concepción, Temuco and Valdivia so that in their respective jurisdiction they might assume responsibility for judicial investigations aimed at establishing the circumstances of the arrest, the place or places in which the persons arrested had been taken after being arrested, the place or places in which they had remained and at present remain, deprived illegally of their freedom, their present status or the fate of the missing persons” whom the petition identified and who numbered 651

166.          As stated, the Supreme Court accepted that petition only in part since it did not accede to the appointment of an investigating judge in the Courts of Iquique, Antofogasta, Copiapo, Valparaiso, Talca, Valdivia and, with respect to the cases in Santiago, excluded those being processed in the Courts of the departments of Pedro Aguirre Cerda, San Bernardo y Talagante of that province.

167.          The Commission is convinced that if the Judiciary had promptly exercised the powers with which it is endowed to protect the life, safety and freedom of persons, the disappearance of persons would not have occurred in Chile or, at least, would not have reached the dimensions it did.

168.          What has been said does not imply a disregard of the worthy role played by some judges who were able zealously to investigate the facts submitted to them.  Unfortunately, those investigations, which produced undeniable evidence of the participation of members of the Armed Forces and or police, were carried out years after the events and their results have not succeeded in affecting the impunity of those who were directly responsible for those disappearances.

f.          Human rights organizations

169.          To conclude this section, the role played by institutions directly concerned with this serious and painful matter will be described.

170.          The importance the Inter-American Commission on Human Rights has attached to the problem of disappearances in Chile and, in general, to the forced disappearance of arrested persons, which was brought to the attention of the supreme organ of the Organization, has already been mentioned at the beginning of this section.

171.          Mention must also be made of the efforts of the United Nations, through successive General Assembly resolutions on the protection of human rights in Chile, which have been expressing the concern of the international community about the lack of progress in clarifying the fate of disappeared persons and its discouragement in the face of the refusal of the Chilean authorities to accept their responsibility for the large number of persons that have disappeared for political reasons.  In addition, the topic of disappearances in Chile, in the ambit of the United Nations, has been considered by the Commission on Human Rights and the reports of the Working Group of that Commission, the Special Rapporteurs and the Expert appointed by the Commission on Human Rights in March 1979.

172.          Disappearances in Chile have also been a matter of concern to many non-governmental organizations, both Chilean and international, which have insisted on the need for the authorities to thoroughly investigate the matter and to assume the responsibilities that may be incumbent on them.

173.          Nevertheless, it has been the Roman Catholic Church, which from the time the disappearances began that has played the most active role and for that purpose has committed all its moral prestige in sponsoring the individual and general petitions of the victims. First, the Pro Paz Committee and then the Vicaria de la Solidaridad of the Archdiocese of Santiago submitted hundreds of applications for habeas corpus and criminal complaints in connection with detainees whose arrests were denied by the authorities.

174.          Later, as was seen, the religious authorities of various denominations made fruitless petitions to the Supreme Court to appoint an investigating judge to investigate the disappearances.

175.          In June 1978 the Cardinal Archbishop of Santiago and the President of the Roman Catholic Episcopal Conference of Chile, after holding an interview with the Minister of Interior, succeeded in getting the Minister to undertake promptly to clarify the fate of the persons whose disappearance had been proven.  As a result, and in order to supply the Minister of Interior with the corresponding background information, in the second half of 1978, a large number of bishops sent the Minister of Interior several letters in which they provided him with full background information on the persons who had disappeared subsequent to their detention.  These letters, together with background information on 478 missing persons, are those that gave rise to the seven-volume publication entitled Where are they?, published by the Vicaria de la Solidaridad.

176.          At present the Vicaria has compiled the most complete information on disappearances in Chile and has been able to document 668 unsolved cases of disappearances.

f.          Final considerations

177.          The problem of the fate of a large number of Chileans who, after their arrest, have disappeared, is one of the most serious aspects of the state of human rights in Chile.

178.          It is true that the practice of the disappearance of arrested persons which began on September 11, 1973, ended in Chile in 1977; however, the fact that the Government has not taken the necessary measures to clarify the status of the disappeared persons means, in the view of the Commission, that the problem is not solved. To that must be added the fact that not a single person has been sentenced for so criminal practice.

179.          Also of concern to the Commission is the fact that the method of forced disappearance, which was widely used during four years, could again emerge. The arrest in September of 1984 of Juan Antonio Aguirre Ballesteros by Carabineros, the denial of that arrest despite the many eyewitnesses to it, the tortures inflicted on him, his subsequent death and the lack of investigation of those facts and of the punishment of the persons responsible, characterize a practice, which was thought to be over.

180.          The Commission, therefore, believes that until the problem of disappeared detainees is solved in Chile and family members of those persons are informed in detail of their status and until measures are taken to ensure that those extremely serious practices can never again occur, this problem will continue to deeply affect the unity and reconciliation of Chilean society.

F.          CONCLUSIONS

181.          The extensive account given in this chapter permits the IACHR to draw the conclusion that the right to life has been seriously violated in Chile throughout the period covered by this report. The magnitude of those violations has been determined by a clear political orientation since its victims have been to a very large extent persons that support political positions opposed to the Government or have expressed their disagreement with it in their public activities.

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