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

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

 D.          THE RIGHT TO DUE PROCESS AND MILITARY
JURISDICTION IN CHILE 

a.          Legal Aspects

104.          Article 11 of the 1925 Constitution prescribed that no one could be sentenced unless he had been legally tried in accordance with a law promulgated prior to the act upon which the trial was based.  For its part Article 12, provided that no one could be tried by special commissions, or otherwise than by the tribunal the law appoints and has previously constituted.

105.          The 1980 Constitution embodies the right to due process in Article 19 (3) as follows:

All person have the right to legal defense in the manner indicated by law and no authority nor individual may impede, restrict or perturb the due intervention of an attorney, should it have been sought.  As regards the members of the Armed Forces and Public Order and Security this right will be governed, in connection with administrative and disciplinary matters, by the relevant norms and their respective bylaws.

The law shall provide for the means whereby legal counsel and defense may be granted to those who should have been unable to obtain them on their own.

No one can be judged by special commissions, but only by the tribunal specified in the law and provided such tribunal has been established prior to the enactment of said law.

Sentences decreed by a court vested with jurisdiction must be based upon previous legal proceedings.  It will be the responsibility of the legislator to establish, at all times, the guarantees for a rational and just procedure.

The law cannot presume de jure criminal responsibility.

No crime shall be subject to penalties other than those prescribed for by a law enacted prior to the perpetration of the crime, except in cases where new legislation might benefit the interested party.

No law may establish penalties for crimes, which have not been expressly described therein.

106.          As may be seen, the formulation contained in this article significantly improves that of the 1925 Constitution.  Thus, it specifically recognizes the right of the accused to have adequate legal assistance and broadly and comprehensively guarantees the exercise of the functions of the defending attorney.  Also, the presumption of innocence receives explicit recognition at the constitutional level, as does the principle of the application of the most favorable law, the requirement of precise legal characterization of the punishable acts, and the non-retroactivity of the penal law.

b.          Acts subject to military jurisdiction

107.          The Commission found it pertinent to address the treatment of acts subject to military jurisdiction from the point of view of the legal instruments in force prior to the 1973 military coup: the Code of Military Justice, the State Security Law, and the Arms Control Law.  There follows discussion of the various instruments issued by the Government Junta amending the aforementioned instruments: Decree Laws Nos. 5, 559, 640, 3,425, 3,627 and 3,655; the new regulations that have created criminalized new acts and made them subject to the jurisdiction of the military courts: Decree Laws Nos. 77, 81, 604 and 1,009, together with Law No. 18,314.  Lastly, the report will discuss Law No. 18,342 which amended the legal instruments that existed before September 11, 1973 and created new crimes subject to the jurisdiction of the military courts.

108.          It has already been stated that before the 1973 military coup, the scope of military criminal jurisdiction in Chile was particularly broad.  Three reasons have been adduced to explain this fact: first, that the classification of criminal acts in the Code of Military Justice includes crimes that may be committed by civilians; second, that it may include common crimes committed by military personnel or by civilians employed by the Armed Forces, under a given set of circumstances; and third, that military law extends to civilians as partners in crime, accessories or by means of a combination of crimes.

109.          This broad military jurisdiction derived from the provisions of the Code of Military Justice was extended even further by legal instruments enacted prior to the 1973 coup; the 1958 State Security Law and the 1972 Arms Control Law.  These laws were partially amended after 1973, and will therefore be discussed first.

110.          Law No. 12,927 of 1978, the State Security Law, gave peacetime military courts jurisdiction over the crimes listed in that law whenever those crimes were committed by military personnel, or jointly by military personnel and civilians.  If the crimes were committed by civilians, the appropriate Appeals Court took jurisdiction.  The crimes described in the Law are crimes related to national sovereignty and the external security of the State, in expansion of Title I of Book II of the Penal Code and Title II of Book III of the Code of Military Justice.

111.          The State Security Law also lists acts harmful to the internal security of the State, without prejudice to the provisions of Title II of Book II of the Penal Code and other related laws.  Thus, this law penalizes those who incite to or induce subversion of l’ordre public “or an uprising against, resistance to or the overthrow of the constituted Government”; those who perform similar acts with respect to the Armed Forces or the Carabineros, to incite them to indiscipline or to disobey the orders of the legitimate authorities.  It also penalizes those who meet to propose the overthrow of the constituted Government or to conspire against its stability, those who form private militias, and “public employees in military orders or of the Carabineros” who disobey orders given by the constituted Government.  It also declares that it is a crime to spread or foment theories intended to “destroy or alter by violent means the social order or the republican and democratic form of government”, as well as acts intended to spread tendentious or false information for the purpose of harming the democratic and republican order, the constitutional order or the security of the country.

112.          On the matter of l’ordre public, the State Security Law sanctions those who would provoke public disorder or acts of violence intended to upset public order, those who do public offense to the symbols of the nation or to the constituted authorities, those who incite to halt or destroy public service facilities, those who advocate or publish propaganda about theories that promote crime or violence as means of achieving political, economic or social reform, and those who commit certain acts related to the possession and transportation of weapons.  This law also contemplates crimes that harm the normal course of national life, including strikes against public services and lockouts that would have the same effect.

113.          Decree Law No. 5 of September 22, 1973, as indicated in Chapter II of this report, interpreted Article 418 of the Code of Military Justice, to make a state of siege declared on grounds of internal commotion to be the equivalent of the “state or time of war”.  It also added a final paragraph to Article 26 of this Law No. 12,927, which gave jurisdiction over the principal crimes listed to wartime courts, when a state of war, exists, regardless of whether the accused or guilty parties are civilians or military.  The same decree law increased the sentences established in this law during wartime.

114.          Subsequently, Decree Law No. 559 of July 12, 1974 again amended the State Security Law to include new crimes.  Thus, new Article 5 (a) sanctions those who make an attempt on life or physical security for the purpose of altering the constitutional order or public safety. New paragraphs (c), (d) and (e) were added to Article 6, to provide that it is a crime against ' l’ordre public to destroy, paralyze or halt the operations of public service facilities or personnel and of certain major industries; to destroy or impede access to bridges, streets and highways, and to poison water or food that is for public consumption.

115.          Law No. 17,798 of 1972 on Arms Control provides that the crimes contemplated therein shall come under the jurisdiction of the peacetime military courts (Title II, Book II of the Code of Military Justice).  This law puts under the control of the Ministry of Defense all firearms, no matter what the caliber, munitions, explosives, and chemical substances listed in the Regulatory Provisions and all plants for the manufacture, storage or deposit of such material.  It also sets out the sentences to be imposed on those breaking the law, and the jurisdiction, competence and procedure applicable to cases described therein.

116.          The initial modification of the Arms Control Law came with Decree Law No. 5 of September 22, 1973, in order to raise the sentences.  As indicated above, this Decree Law permits wartime military jurisdiction.

117.          Decree Law No. 2,156 of April 25, 1978 made new changes in this law. In this case, the changes establish the circumstances under which there is no criminal liability for the crimes set forth therein.  Articles 9 and 11--which penalize those possessing arms or other items contemplated in the law without having registered them, or those bearing weapons without the relevant license--were amended to set fines if the circumstances or background of the case showed that the accused would not use the weapons to attack the Armed Forces or to violate public safety; if the background were able to establish that the conduct of the accused was “irreproachable”, the court could override or hand down a judgment of not guilty.  It will be seen that the new provision allows an entire group of people to bear or possess arms without the corresponding legal controls.

118.          In discussing the regulations enacted by the Government Junta to create new categories of crime, reference must first be made to Decree Law No. 77 of 1973 on political recess, which dissolves and prohibits the existence of certain political parties.  Violations of this prohibition, in time of war, are heard by the military courts.  Peacetime military courts have jurisdiction if the crime is committed jointly by military personnel and civilians.

119.          Decree Law No. 81 of 1973, on clandestine entry, penalizes those who disobey a public appeal made by the government for reasons of state security, and those who enter the country in clandestine fashion.  The sentence to be imposed for this latter crime, which is new, is the maximum jail sentence (15 years and one day to 20 years) to death.  Jurisdiction over this crime belongs with the military courts.

120.          Decree Law No. 604 of 1974, on prohibited entry into the country, prevents a broad category of persons, both Chilean and foreigners, from entering the country.  Violators will receive the maximum jail sentence.  Military courts have jurisdiction over the crimes described in this decree.

121.          Decree Law No. 640 of September 10, 1974, which systematizes the provisions on states of emergency--subsequently amended by Decree Law No. 1,009 of 1975--states that when a state of siege is declared on the grounds of domestic or external warfare or internal unrest to the degree requiring internal defense, the wartime military tribunals would begin to operate.  Whenever the state of siege is declared to be one of internal security or simple commotion, the peacetime military courts would operate.  But even in that case, the wartime military tribunals would hear those crimes contemplated in Articles 4 and 5 (a), 5 (b) and 6 (c) and (d) of the State Security Law.

122.          Article 4 of Decree Law 1,009 of 1975 grants military courts jurisdiction over crimes listed therein.  Article 2 creates the following crimes:

A person who gives or transmits orders, instructions, information or preparation for the perpetrations of a crime against the security of the State shall be sentenced to any degree of a lesser jail sentence, internal exile or exile.

A person who is carrying documents in cipher or code and who does not give a satisfactory explanation of its contents and origin shall be deemed to be the perpetrator of this crime.

During the existence of a state of emergency, the corresponding court may increase the sentence by one or two degrees.

If the act in question were to warrant a more severe sentence under general regulations, it is preferable that those regulations be applied.

123.          Article 3 penalizes with the same sentence those who, in full knowledge that a person is fleeing from the law or the authorities, lodge or hide that person or facilitate his flight when the action should be subject to the law or the authorities is based on reasons of State security.

124.          Decree Law No. 1,775, published in the Official Gazette of May 20, 1977, amended Article 6 and 158 of the Criminal Code of Procedure, and established that any examination or survey of military or police facilities should be done through the military courts of the corresponding jurisdiction.

125.          To this are added new methods of assigning jurisdiction to military courts, especially when the Military Prosecutor typifies a specified act as a military offense, which is sufficient to substitute the natural judge.  It should also be noted that the war-time military courts have been reestablished and operate in times of peace without the essential factual presuppositions character is tic of that time, namely: (a) existence of a state or time of war, whether war has been officially declared or when it exists de facto or mobilization for it has been ordered (Article 418 of the Code of Military Justice) and (b) appointment of a General in Chief of the Army, who is to operate against the foreign enemy or against organized rebel forces (Article 73 of the same Code).12

126.          Law No. 18,134, which defines terrorist’s acts and fixes the penalties for them, was published in the Official Gazette of May 17, 1984.  It refers to the Law on State Security for the jurisdiction of the competent courts: the respective appeals court when the offense is committed by civilians and the peace-time military courts when it is committed by civilians and military personnel.  In accordance with this law, persons who commit offenses against the life or physical integrity of the President, his spouse, ascendants or descendants and in general against any civil or military official of the State, as well as against the ecclesiastical authorities and persons internationally protected, their spouses, descendants or ascendants, where appropriate, fall its provisions.

127.          In accordance with this Law No. 18,314, persons who, in the commission of an offense, use the elements included in the provisions of the law on the control of weapons and those that attack aircraft also commit terrorist crimes.  Also considered a terrorist act by the law is kidnapping with a view to imposing demands on the authorities, provided for in Article 5 (b) of the Law on State Security: the placing of bombs; offenses against communication facilities, dams or installations or elements intended for the provision of public services; the poisoning of products intended for the consumption by the population; attacks on transportation facilities for revolutionary or subversive purposes; and the dispatch of letter or parcel bombs.

128.          Also considered a terrorist crime by this law is association or organization for committing any of the offenses provided for in it; public incitement to the commission of any of those acts; the giving or receiving of instruction or teaching for those purposes; defense of terrorism, of a terrorist act, or of a person who “appears” to be participating in it.  This law also defines as a terrorist act the serious threat of committing any of the crimes envisaged in it and malicious provocation of commotion or serious fear in the population through information about the preparation or execution of terrorist acts.

129.          Law No. 18,342 of September 26, 1984 amended the Code of Military Justice, the Law on State Security, and the Law on Control of Weapons and again expanded the jurisdiction of military courts. This law also created new offenses.

130.          Article l (1) of that law expanded Article 5 (1) of the Code of Military Justice, which provides that the procedures for “military offenses” are within the jurisdiction of military courts.  To that end, the above-mentioned provision of the Code states that “military offenses” means those “provided for in this Code or in special laws that submit the trial of its infringements to military courts”.  In view of the addition introduced by Law No. 18,342, the “proceedings for military crimes” must be understood to include those “for terrorist acts when the person affected is a member of the Armed Forces or Carabineros'.

131.          Article 1 (2) of the Law examined also amended Article 5 (3) of the Code of Military Justice, which provides that the military courts will have jurisdiction over “proceedings for common crimes committed by military personnel” in specified circumstances:

during the state of war, being in the field, in active service or on the occasion of it, in barracks, camps, bivouacs, forts, military works, stores, offices, premises, foundries, workshops, factories, parks, academies, schools, vessels, arsenals, lighthouses and other establishments or premises of the Armed Forces.

132.          The amendment introduced by Law No. 18,342 adds to the jurisdiction of the military courts the proceedings for common crimes committed by military personnel in “military or police premises”. Article 1 (34) of this law specifies that “military or police premises means any duly delimited space, vehicle, vessels or aircraft in which a military or police authority performs his specific functions”.  [11]

133.          Article 1 (22) of Law 18,342 also amended Article 208 of the Code of Military Justice, which stipulates as a circumstance exculpating members of the Armed Forces from penal liability “the use of weapons when there is no other rational means of fulfilling the order received”.  According to the amendment, other exculpatory circumstances are added and are established for Carabineros, namely, the following:

To make use of their weapons in their own defense or in the immediate defense of a foreigner to whom, by reason of his office, they must give protection or assistance.

To make use of their weapons against a prisoner or arrested person that is fleeing or does not obey the warnings to halt.

To make use of their weapons against a person or persons who disobey or try to disobey a judicial order that that military personnel is ordered to carry out and after having notified them of their obligation to respect it.

134.          Article 1 (23) of Law 18,342 provides a special penalty for persons who attack a member of the Armed Forces, in his capacity as such.  The military penalty is 61 days to 3 years’ imprisonment.  This penalty is applied for the sole fact of the attempt since it will be in order even though the victim is not injured.  Paragraph 30 of this article, for its part, characterizes the same offense in the event that the victim is a Carabinero acting in his capacity as such and stipulates the same penalty.

135.          Article 1 (24) of this Law creates a new offense for the protection of members of the Armed Forces when it penalizes the person who “threatens, in writing, or by any other means the Armed Forces, one of their members, units, divisions, arms, classes or specified corps”.  Article 1 (31) of this Law characterizes the same offense in the event that the victim is a Carabinero or units or divisions of that institution.

136.          The same paragraph 24 increases the penalties established for the crimes of insults or slander “orally”, in writing, or by any other means of the Armed Forces, one of their members, units, divisions, arms, classes, or specified corps from 1 to 60 days of imprisonment at present provided for to 61 days to 10 years of imprisonment, forced relocation or exile.  Paragraph 31 of the article likewise increases the penalties when the Carabineros, one of their members, units or divisions are insulted or slandered.  [12]

137.          Article 4 of Law 18,342 provides that persons who publicly insult the National Anthem commit a crime against public order, punishable under the Law on State Security (Article 6, item b). [13]

138.          The foregoing statement reflects a clear and sustained tendency to expand the jurisdiction of the military courts in Chile.  That jurisdiction, comprehensive in and of itself in the period prior to September 11, 1973, has been covering a wide range of acts, especially when they are performed under the state of siege.  This process has gradually eroded the jurisdiction of the ordinary courts and has been marked by a clear ambivalence.  On the one hand, it has incorporated into military jurisdiction a group of political acts performed by civilians--such as clandestine entry into the country or activities connected with the recess of political parties, for example--through the corresponding characterization or the introduction of new forms of assignment of subject-matter jurisdiction.  Furthermore, jurisdiction over common crimes has been transferred to the military courts for the sole fact that they have been executed by military personnel or members of the security forces or because' they have been committed in military or police establishments.  This ambivalence cannot but adversely affect the exercise of the right to a fair trial, especially if it is collated with the changes introduced into the composition of the military courts and the way in which they have decided certain cases submitted to them, which is the subject matter of the following sections.

C.          Composition of Military Courts

139.          The independence of the courts and judges from the Executive is one of the fundamental conditions of the administration of justice. Permanent tenure (inamovilidad) and appropriate professional training are prerequisites for ensuring independence and the correct performance of the difficult functions they are charged with.  The presence of these requirements is evident in the composition of the courts, and therefore they will be taken into account in the following section.  It will analyze separately the membership of the peace-time military courts and the war-time military courts.

140.          The Code of Military Justice establishes the structure and composition of Peace-time military courts in Book I. Title II. Article 13 stipulates that this military jurisdiction will be exercised by the courts of the corresponding Armed Forces, the prosecutors, and the military courts of appeals and the Supreme Court.  For its part, Article 16 assigns permanent jurisdiction to the Commander-in-Chief of the corresponding military unit in the territory under his command.  As may be seen, he is a in military officer active service, subordinate to his authorities and, therefore, lacking functional independence, especially if account is taken of the fact that the executive, legislative and constituent powers are concentrated in the Commander-in-Chief of the Armed Forces.  In his capacity as an official in active service he also lacks permanent tenure and, in addition and for reasons of his profession, this officer does not have the legal training required of a judge.

141.          With respect to the Military Courts of Appeal, its membership was amended by Decree Law No. 1,769 of April 30, 1977.  In the earlier system, this Court was composed of two judges of the Santiago Appeals Court, a retired Assessor General of the Army, and an Assessor General of the Carabineros in active service or in retirement and an Assessor General of the Air Force in active service or in retirement.  The Assessor General of the Army and the two judges of the Appeals Court enjoyed permanent tenure and constituted the majority of the Military Court of Appeals.

142.          The above-mentioned Decree Law amended the membership of this Court and provided that it would be composed of the two judges of the Appeals Court, of the Assessors General of the Air Force and of the Carabineros, and of a Colonel of the Assessor’s Office of the Army, all on active service.  With this amendment, three of the five members of the Military Court of Appeals lack permanent tenure and are subordinate to their military commanders.

143.          These limitations deriving from the structure and composition of the military courts can only be justified by the truly exceptional nature of the situations in which these courts must act.  The widespread and virtually routine intervention of peace-time military courts in the consideration of a very broad category of acts necessarily constitutes an abuse of the purposes for which they are envisaged.  Even so, not only the existence of exceptional and limited situations in time and space justify the intervention of these courts; there must also be clear institutional interrelationships that make it possible to control both the elaboration of rules for assigning them jurisdiction and the exercise of the powers with which they are invested.  None of these elements are present in Chile today and hence the exercise of the right to justice is seriously impaired as a result of the broad role these peace-time military courts are called upon to play.

144.          With respect to the war-time military courts they are included in Book I, Title III, of the Code of Military Justice.  As far as this report is concerned, Article 71 of the above-mentioned Code provides that in time of war military jurisdiction is exercised by the General in Chief, by the prosecutors, the courts martial and the assessors.  In accordance with Article 72, military jurisdiction embraces; the national territory declared to be in a state of alert or siege, either because of external attack or internal disturbances.

145.          It should be recalled that the declaration of the state of siege in the event of internal disturbances is the responsibility of Congress, in accordance with the provisions of Article 72 (17), second paragraph, of the 1925 Constitution. [14]  When Congress had been dissolved and the Government Junta had assumed the exercise of the Legislative Power, it declared the state of siege because of the existence of internal disturbances.  To reaffirm the jurisdiction of the war-time military courts, Decree Law No. 5 interpreted Article 418 of the Code of Military Justice to make the state of siege decreed equivalent to the “state or time of war”.  This situation persisted, as already noted, until September 9, 1975.

146.           Article 73 of the above-mentioned Code, for its part, stipulates the time from which the war-time military courts will enter into operation: when a General in Chief of an Army is appointed to operate “against the foreign enemy or against organized rebel forces”.  The full exercise of military jurisdiction is incumbent upon that General-in-Chief and in the use of it he will be entitled “to order the trial by military examining magistrate of all those individuals he deems responsible for an offense; to order the formation of courts martial that are to try them; to approve, revoke or amend the sentences they hand down and to order the fulfillment of any sentence” (Article 74 of the Code of Military Justice).  In accordance with Article 75 of that Code, amended by Decree Law No. 51 of October 2, 1973, the General in Chief may delegate those functions to the Commanders of the respective military units.

147.          Decree Law No. 3, which declared the state of siege, stipulated that the Government Junta was assuming the status of General-in-Chief that would operate during the emergency. Decree Law No. 8, for its part, delegated the jurisdictional powers of the General-in-Chief to the Commanders of the operating units mentioned in Decree Law No. 4, which established the state of emergency throughout the country.

148.          Article 81 of the Code of Military Justice provides that it is incumbent on the Courts Martial, in single instance, to try all the offenses that war-time military courts are entitled to try.  These courts martial are composed of an assessor and six members--all military personnel in active service--appointed by the General-in-Chief or by that officer to whom he has delegated jurisdiction.  Once a judgment is handed down by those Courts Martial, it will be referred to the General-in-Chief or Commander that had convened the Court Martial, as the case may be, so that he may approve it or amend it and then see that it is carried out, as stated above.

149.          As may be seen, the serious limitations peace-time military courts suffer from are further accentuated in the case of war-time courts.  The lack of independence of those who exercise military jurisdiction in this case is obvious and there is a complete lack of permanent tenure or legal training.  For its part, the Supreme Court declared it incompetent to try on appeal the judgments handed down by the Courts Martial, as explained in this chapter.  The lengthy period during which they were in operation, added to the acts submitted to their jurisdiction pursuant to provisions issued by the Government Junta, show the serious violation of the right to a fair trial resulting from the exercise of the jurisdiction assigned to them.

d.          The Ambivalence of Military Courts

150.          Earlier the Commission referred to the ambivalence that has marked the process through which the jurisdiction of the military courts has been progressively extended.  As was shown, that ambivalence results, on the one hand, from the inclusion of political acts into the ambit of military jurisdiction, although they are performed by civilians, and submits to it, on the other hand, common crimes that are committed by personnel of the security forces or in military or police establishments.  The consequence of this phenomenon has been a differentiated treatment by the military courts according to the agent they are charged with trying.

151.          With respect to proceedings before those courts against civilians that oppose the Government, the various and clear irregularities they have incurred, to the detriment of the accused, will be considered in the following part of this section.  However it is in order to refer at this point to the decisions of the military courts handed down in proceedings against members of the Armed or Security Forces.  Since it is impossible to deal exhaustively with this matter, the Commission will limit itself to summarizing some cases in point.

152.          The “Lonquén” case, for example, the general elements of which were presented in Chapter III of this Report, involved the arrest and death of 15 persons that occurred during the period immediately following the military coup of 1973.  Two investigating judges were appointed to investigate the facts.  The first of these, in 1975, transferred the records to the military courts when he was informed that the victims had been taken to the National Stadium and that SENDET had not indicated whether they had reached their destination.  The second investigating judge, appointed in 1978, pursued the investigations until he identified the persons presumed guilty and, because they belonged to the Corps of Carabineros, handed over the records to the military courts.

153.          On July 2, 1979, the Military Examining Magistrate issued indictments against eight Carabineros for the crime of unnecessary violence (Article 330 of the Code of Military Justice).  The relatives of the victims requested the Examining Magistrate to amend the characterization made and to accuse the eight Carabineros of the crime of aggravated homicide, kidnapping, and falsification of a public instrument.  The accused, in turn, requested that they be allowed to avail themselves of the amnesty granted by Decree Law No. 2,191 of 1978.  The military examining magistrate released the accused Carabineros on bail and the military judge of Santiago dismissed the proceedings against them in application of the amnesty granted.

154.          The case of the 18 campesinos arrested in the commune of Mulchén, between October 5 and 7, 1973, who were subsequently killed by their captors, is also a clear example of the way in which the military courts act. In connection with this case, it should be pointed out that, in April 1980, the Concepcion Appeals Court appointed an investigating judge to investigate the facts that gave rise to it.  The judge appointed concluded his investigations in December of that year and reported that there was sufficient evidence to confirm the existence of the event in, which military personnel, Carabineros and civilians allegedly participated.  The investigating judge fully identified three Carabineros as participants in the commission of the crimes of arbitrary arrest, maltreatment followed by death of persons, and illegal searches and also specified the participation of a sergeant of the Mountain Regiment of Los Angeles, as well as of 9 civilians.  The charge also stated:

That, according to the declarations of the witnesses in the case, the armed group carried a pre-established list of the persons who were to be arrested and killed, but no clash took place and there is no reliable evidence of left-wing extremist political activity…

155.          Since there were well-founded presumptions concerning the existence of the facts and the participation in them of members of the security forces, the examining magistrate declared himself incompetent and delivered the records to the military courts, where they were processed as Case 446-81 of the Office of the Prosecutor of the Army and Carabineros of Los Angeles.  On January 7 1983, the Military Judge of Los Angeles issued a decision dismissing the proceedings because he was of the opinion:

That, notwithstanding the various steps taken during the summary proceedings, there are not sufficient legal grounds in the case to identify the possible perpetrators, accomplices, and accessories after the fact of such disappearances and deaths, and therefore no person has been indicted or tried.

The Military Judge added that;

Since the accused military personnel, police and civilians had not been tried or convicted in this case, the amnesty established in Decree Law No. 2,191 of 1978 applied to them.

156.          It cannot but be noted that the Military Court did not indict the persons identified by the examining magistrate, as prescribed by Article 274 of the Code of Criminal Procedure.  Apparently, this occurred because it was not possible to determine who were the perpetrators, in which case it is clearly inconsistent to apply the provisions of Decree Law No. 2,191 on Amnesty.  The way in which the Military Court acted in this case, not only contradicts the proceedings of the investigating judge, but also suffers from serious irregularities in the internal logic of the result reached in an extremely serious case like that of Mulchén.

157.          The case of the teacher Federico Renato Alvarez Santibañez is another revealing example of the way in which the Military Courts have acted in specific situations.  The victim  [15] was arrested by CNI agents on August 15, 1979 and died on the 21st of that month.  After an application for amparo was filed on his behalf with the sitting Military Examining Magistrate, this official was informed by telephone by the CNI Director that the teacher Alvarez Santibañez was detained “in a barracks that cannot be identified for security reasons”.

158.          On August 20, 1979, the victim was taken to the office of the Military Examining Magistrate and was seen by his wife and his lawyers in a deplorable physical condition.  In view of that statement the Military Examining Magistrate decided to send him incommunicado to the penitentiary instead of referring him to a hospital.  Mr. Alvarez Santibañez died on the following day, a victim of the torture to which he had been subjected during his detention.

159.          At the request of the Vicario de la Solidaridad, an investigating judge was appointed to investigate the death of the teacher Alvarez Santibañez.  On August 28, 1979, the wife of the victim filed a criminal complaint with this judicial officer for the commission of the crime of homicide, among others.  For her part, the mother of Alvarez Santibañez filed a disciplinary complaint against the Military Examining Magistrate accusing him of having failed in his duty by not having taken the immediate measures required by the condition of the victim when he was brought before him.

160.          When the pertinent investigation was carried out, the examining magistrate concluded that the facts could constitute the crime of homicide committed by military personnel in active service and, therefore, transferred the records to the Military Courts.  The Military Appeals Court charged with the case decided in November 1980 to accept the decision of the Office of the Third Military Prosecutor, in which the trial of the accused in the case of the teacher Alvarez Santibañez was rejected on the grounds that:

although... the existence of the crime of unnecessary violence is proven, there does not appear, on the other hand, to be any well-founded presumptions that specified persons participated in that crime as principals or accessories before, during of after the fact.

161.          With respect to the disciplinary penalty requested against the Military Examining Magistrate, the Military Appeals Court rejected the petition, which decision was confirmed by a majority of the Supreme Court.  [16] The Commission finds it unbelievable that the Military Court could conclude that the commission of the crime of “unnecessary violence” against the teacher Alvarez Santibañez while he was detained in the custody of the National Intelligence Agency was proven and that it could not identify the perpetrators.

162.          A final case the Commission has deemed pertinent to include in this section is that relating to the proceedings before the Military Courts against General Manuel Contreras--Director of the National Intelligence Directorate (DINA)--, Pedro Espinoza Bravo, and Armando Fernández Larios, also of that service, on the grounds that the use of falsified passports in the operation that culminated in the death of Mr. Orlando Letelier had been proven.  When the extradition of the accused was rejected by the Supreme Court, the accusation of falsification of a public instrument, which resulted from the proceedings in that case, remained outstanding.  To solve this question, case 192-78 was heard by the Military Court of Santiago.  That Court had handed down a judgment on December 30, 1980.  In it, the Court took over the considerations of the Military Prosecutor, according to which the falsification of public instruments is an exigency arising from the nature of the activities characteristic of an intelligence service, since to reveal the true identity of its officials would endanger them and make it difficult for them to perform their functions. Consequently, that act, although it fits the description of the offense, was not unlawful since it meets “the basic exigencies of the life of a duly organized contemporary society”.

163.          The judgment concluded with the dismissal of charges against the accused.

164.          The Commission considers it necessary to state that this judgment of the Military Court that assumes that argument has a clear juridical effect: it places the members of the security services of Chile above the most elementary rules of positive law, and thus violates the principle of equality before the law embodied in Chilean legislation and all the international instruments to which Chile is a state party.

165.          The account given of the extension of military jurisdiction in Chile, the composition and functions assigned to Military Courts and the way in which they have decided some cases enables the Commission to conclude that the system established violates the right to a fair trial and radically affects the principle of equality before the law.  The Commission is also of the opinion that, in practice, the actions of those courts have served to provide a veil of formal legality to the impunity enjoyed by the members of the Chilean security forces when they have been involved in flagrant violations of human rights.

166.          The experience of the Commission leads it to believe that, in addition to the immediate exigencies of justice, it is also advisable for the very integrity and prestige of the Armed Forces that their own courts take upon themselves the prompt and severe punishment of the persons responsible for those violations. This is also a fundamental requirement for the stability of the democratic regime that will inevitably have to be installed, and constitutes the only valid evidence that, when those violations of human rights have occurred, they are the result of the actions of isolated individuals and not of governmental policy.  So far, however, the Commission regrets that it is unable to point to the existence of cases that indicate that the Chilean Military Courts are acting in that direction.

e.          Procedure in the Military Jurisdiction

167.          As already pointed out in the preceding part of this section, the military jurisdiction has taken on significant importance in Chile.  In that jurisdiction, that corresponding to war-time military courts should be distinguished from that corresponding to peace-time military courts.  In this regard the regulation of the two types of courts, in accordance with the pertinent provisions of the Code of Military Justice, will be presented and some of their actions will be described.

i.          The war-time procedure

168.          As pointed out above, since September 11, 1973 and up to September 9, 1975, the state of siege was assimilated to the state on time of war, with the jurisdiction, procedures, and penalties characteristic of that time.  Full jurisdiction in time of war is vested in the Commander-in-Chief of the Army, who delegates his attributions to various generals that commanded divisions or brigades.

169.          The war-time procedure is regulated in Book II, Title IV, of the Code of Military Justice; that procedure is characterized by being brief and summary.  Once the holder of the jurisdiction becomes aware of the commission of a crime over which he has jurisdiction, he orders the military examining magistrate to investigate the corresponding case and the magistrate has a period of 48 hours, which may be extended, in which to complete his assignment.  Once the investigation is completed and the summary proceedings closed, the Military Examining Magistrate submits it to the Commander, together with an opinion in which he indicates the persons responsible for the crimes and the punishment that should be imposed on them.  If the Commander is of the opinion that a trial is in order, he issues a resolution establishing the criminal facts and orders the convocation of a Court Martial that will try the accused and appoints six officers in active service to constitute it, and the day in which it will sit. The Court Martial also includes an Assessor who is a lawyer.

170.          From the time of the appointment of the Court Martial until it meets, the defense counsel is entitled to examine the file in order to prepare his defense.  The Code of Military Justice does not stipulate a minimum period in which the lawyer may prepare the defense and therefore the grant of that period is at the discretion of the military chief that convokes the Court Martial.  When the day of the trial arrives, the Court Martial is constituted, the Military Prosecutor gives an account of the summary proceedings and formulates the charges, after which the lawyer presents the defense and any evidence he may have offered is taken.  Then the Court Martial deliberates in secret, weighs the evidence in good conscience and issues a judgment, which is immediately notified to the accused and to the Military Prosecutor and the file is sent to the appropriate general or commander for approval or amendment.

171.          This process, which has been briefly described, suffers from many irregularities.  In the first place, it should be pointed out that the defense counsel cannot intervene or request steps to be taken during the summary proceedings, which permits the Military Examining Magistrate to accumulate evidence without any counterbalancing evidence whatsoever and even to support his accusation on secret documents to which the defense does not have access.

172.          Finally, the war-time military procedure makes no provision for appeal, contrary to all the principles of due process.  The Supreme Court, as already stated, declared that it lacked competence to review on appeal the judgments of Courts Martial, basing itself on the fact that the Code of Military Justice gives “full jurisdiction” to the Commander in Chief of the Army and disregarding Article 86 of the 1925 Constitution, which stipulated that “The Supreme Court has direct supervision, correctional and economic, over all the Tribunals of the Nation...”.  To dispel doubts, the 1980 Constitution, in Article 79, expressly excludes war-time Military Courts from the supervision of the Supreme Court.

173.          This trial without appeal particularly affects the guarantees of due process, in that the power to try and apply the law is given, as pointed out in the preceding section, to a court composed of military personnel without legal training of any kind who, in addition, lack an essential attribute of every judge; permanent tenure and, consequently, independence.  Although it is true that the judgment of the Court Martial is not binding on the superior officer that convoked it, this does not constitute a sufficient guarantee for the accused:  His fate depends on the judgment of a general in active service, in command of troops and directly subordinate to the President.  This military chief, furthermore, may convert an acquittal into a verdict of guilty.

174. War-time military courts, with the above-mentioned procedure, regularly operated in Chile between September 1973 and September 1975.  Since then and until March 1978, these courts tried only certain offenses defined in the State Security Law. Recently, Guillermo Rodríguez Morales was brought before the Military Courts on August 27, 1981, accused of a long list of offenses including the murder, on July 16, 1981, of Carlos Tapia Carrasco, a CNI official. On October 9, 1981, the Court Martial sentenced the accused to life imprisonment.  On the following day, the Commander-in-Chief of the II Division of the Army confirmed the sentence.

175.          At present Jorge Palma Donoso, Carlos Araneda Miranda, Hugo Marchant Moya, Marta Soto Gonzalez, and Susana Capriles Rojas, accused of the murder of General Carol Urzua and his two aides, are subject to a Court Martial.  The Military Prosecutor has asked for the death penalty for the first three.  On March 19, 1985, the Supreme Court rejected an appeal of unconstitutionality of Decree Law No. 3.655, which has served as a basis for the trial of the accused.

ii.          Peace-time procedure

176.          With respect to the peace-time military courts, the pertinent procedure is regulated by Book II, Title II, of the Code of Military Justice.  The principal objection is the already mentioned lack of independence of these courts, to which must be added the fact that the accused do not have the right to request steps to be taken during the summary proceedings because they are secret.  The writ of amparo may be presented against the arrest warrant of the Military Prosecutor and is heard only by the Military Appeals Court.  The principal guarantee of these trials is that the judgment of the military chief may be reviewed by the Military Appeals Court and by the Supreme Court.

177.          The Examining Magistrates of the peace-time military courts must complete their investigation within a period of 20 days, which may be extended.  The defense counsel has only 5 days in which to reply to the charges, which, added to the fact that he has been prohibited from intervening during the summary proceedings, places the accused at a disadvantage.  It should be pointed out that there are persons who have been deprived of their liberty for more than 3 years, with the case in the state of secret summary proceedings, for example, Fermin Montes Garcia, Mario Muñoz Espinoza and Eduardo Arancibia Ortiz.  In other cases, because of the slowness of the actions of the Military Examining Magistrate the final sentence was shorter than the time the accused were in preventive detention.  This is the case, for example, of Juana Aguilera Jaramillo, who was detained for more than 3 years, only to be sentenced to 102 days of imprisonment.

E.          CONCLUSIONS

178.          The presentation set forth in this chapter allows the Commission to state that the independence of the Judiciary has been seriously undermined by means of the Government Junta’s ad hoc exercise of the constitutional and legislative powers which it has assumed, thereby seriously damaging the right to justice set forth in the international instruments to which Chile is party.  The Commission also considers that the right to justice has been weakened by the self-limitations which the judiciary has imposed upon itself, failing to exercise supervision over all the courts in Chile --including the military courts--applying in a mechanical and formalistic manner the legislation emanating from the Government Junta and demonstrating a reluctance to investigate the serious human rights violations which have been presented or which arose during the processing of the cases presented to the ordinary courts.  The Commission considers also that the Judiciary has demonstrated serious negligence in the processing of petitions, which have been submitted to protect the individual liberty and security and even the life of many persons opposed to the Government.  This attitude, by omission, has benefited the condemnable practices of the Government in relation to the above mentioned rights.

179.          The Commission, however, cannot fail to recognize that notwithstanding the negative conditions reigning in Chile during this period which have had their effect on the Judiciary, some of its members have demonstrated a high level of responsibility and independence, which permits the Commission to continue to hope that the Judiciary will again assume its traditional role of the defense of basic rights of man and recover the prestige which it duly merited and enjoyed in the past.

180.          The Commission also considers that the above information evidences a clear and sustained tendency to augment the jurisdiction of the military courts in Chile, which, added to the composition and functions of these courts and the manner in which they have decided certain specific cases, permits the conclusion that the established system violates the right to justice and profoundly affects the principle of equality before the law.  The Commission further considers that, in practice, the actions of these courts have served to provide veneer legality to cover-up the impunity, which the members of the Chilean Security Forces enjoy when they are found to be involved in flagrant violations of human rights.

181.          The Commission also considers that, although at the normative level progress has been made as regards the 1980 Constitution and the right to due process, in practice, the Chilean Government has committed serious violations of fundamental principles related to the observance of that right.  Whereas the initial hours of this political period have been superseded, during which the military tribunals sentenced a large number of persons to very long prison terms, and even to death, without respecting the most elementary norms of due process, the continuation of the jurisdiction of these tribunals to the present time, and that of the court martial during peace time, clearly damage the norms of due process.  The procedures carried out by both kinds of military tribunals charged with judging a broad range of offenses are in blatant contradiction not only with the international instruments to which Chile is party, but also with the Constitution of 1980.  All the above permits the Commission to declare that the rule of law, at present, does not exist in Chile, which has permitted the occurrence of the serious violations which have been described in this report.

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