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THE JUDICIARY UNDER THE DICTATORSHIP
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BOWING TO MILITARY COURTS
Throughout the military regime, the jurisdiction of the martial court broadened while the civilian court's authority was increasingly subject to unchallenged restrictions and intrusions.
Mandate of the Military Court
Military Court Structure
Fernando Torres Silva, the "Iron Prosecutor"
Crimes Under Military Court Jurisdiction
War Councils
The Supreme Court Abdicates to the Military
In December 1973, the Supreme Court contributed to the military courts' dominance by resolving that it lacked disciplinary jurisdiction over military courts in time of war. This self-limiting posture later became law in the Constitution of 1980. The high court also accepted the imposition of statutes preventing civil judges from conducting procedures or inspections on military or police property and failed to challenge the participation of active duty military officers on the highest court of the military justice system, the Martial Court.
Mandate of the Military Court
The Vicaria of Solidarity noted in 1977 that "[the regime] made use of the military justice system to endow its decisions with a certain respectability."
Military courts have different authority in times of peace or war. But the definition of a state of war also has several variables. Chile is in "wartime" not only when war has been officially declared, but also when wartime mobilizations are ordered without a formal declaration or when a State of Siege is declared.
The laws DL 3 -state of siege- and DL 5 -internal disturbance qualifying as war time- defined, during the early days of the military government, a state of war for the country, in which the adversaries, or perceived adversaries of the military regime were "the enemies within."
Military law is based on the defense of the nation against internal and external enemies, and this, in conjunction with the National Security Doctrine, adopted by Chile's military regime, granted military courts the responsibility of judging crimes which perceived to pose a threat to internal peace.
Military Court Structure
During peace time, the military justice system is comprised of three levels. The lower courts are the "juzgados" of each branch of the Armed Forces. The "juzgado" is comprised of judge which is the military commander of each zone and an "Auditor," who must be an attorney and may be either civilian or military. However, the military judge has the power to overrule the Auditor.
The appellate-level court is the "Martial Court of the Army, Air Force and Carabineros." This tribunal is composed of Auditors from the Air Force and Carabineros, an Army colonel, and two judges from the Santiago Court of Appeals. The two civilian magistrates are appointed each year by a draw of lots among Appeals Court judges. The three military members of the court are active duty officers and answer to their respective commanders.
The Navy has its own Martial Court, headquartered in Valparaiso. It is composed of four judges, two of whom are members of the Valparaiso Court of Appeals and two others who are Naval officers.
In peacetime, the Supreme Court comprises the third and highest level of this system, although the Army Auditor General sits on the court in cases over which the Martial Court has jurisdiction.
In war time, the military justice system consists of a single tribunal: the War Council. As previously noted, the 1980 Constitution in its Article 70, however, stripped the Supreme Court of any authority over the War Council.
Jurisdiction over Civilians
Unlike judiciaries in most European, North American, as well as many Latin American nations, where martial courts exist only to discipline Armed Forces personnel for crimes under the military code, Chile's military courts have had jurisdiction over civilians since the enactment of the 1925 Military Justice Code by the de facto government of Carlos Ibañez del Campo.
Chilean jurisprudence established military jurisdiction over infringements of the Military Disciplinary Code as well as the Military Penal Code. The Military Disciplinary Code only governs military personnel, but crimes that violate the Military Penal Code, may involve military or civilians. Unlike other nations, the Chilean Constitution does not specifically mention the military courts, nor does it establish limits to their jurisdiction.
Although military courts were authorized to judge civilians prior to the military coup of September 11, 1973, these types of trials were infrequent before this date. After the coup, however, the jurisdiction of military courts over civilians was expanded to such an extent that the majority of persons judged by military courts after September 1973 were civilians as opposed to military personnel. The surge in cases heard by military courts was also a result of modifications to the military justice code and the creation of political crimes in new laws which military courts were mandated to enforce.
On March 1, 1989, Supreme Court President Luis Maldonado unexpectedly criticized the military justice system during the inauguration of the last judicial session under military. To the surprise of military prosecutors, including Fernando Torres Silva, present for the ceremony, Maldonado recommended stemming encroaching military jurisdiction. Civilians, he noted, comprised 80 percent of all cases tried in military courts, a fact which, according to Maldonado, "not only impinges upon civilian court jurisdiction but also results in loss of defendants' procedural guarantees."
So great was the demand upon military lower courts that in 1988 they grew from three to six, requiring new quarters within Carabineros police premises on Antonio Varas Street in Santiago. At least another seven special courts, housed in a building on Zenteno Street previously occupied by three civilian courts, were also created in Santiago to investigate specific cases.
A former member of the Martial Court, Alberto Chaigneau, complained in 1989 of case overload. "Military courts have become extraordinarily over-burdened. When I was president of the Martial Court in 1981, we never worked more than three days a week. We never had more than five cases at a time. Today the court has an additional 19 civilian cases and works five days a week."
Fernando Torres Silva: The "Iron Prosecutor"
Army prosecutor Fernando Torres Silva, a University of Chile law school graduate whose thesis was on "La jerarquía militar," (Military Hierarchy), began his law career working in the military courts during the Popular Unity. Immediately following the coup, Torres Silva participated in the War Councils which tried prisoners perceived to be opponents to the military regime. From there, he began working as legal counsel to Pinochet and as Legislative Office director. Just as the DINA's director Manuel Contreras was the visible countenance of state terrorism during the early years of the regime, Torres Silva became the representative of the military government's well-honed practice of judicial repression against its opponents.
The enactment in the 1980s of constitutionally mandated states of emergency and a body of decreed laws added a new component to the regime's state terrorism. Although homicides, torture, imprisonment and harassment continued in use, judicial repression and persecution, in the hands of Army Prosecutor Fernando Torres Silva, became a powerful element of the regime's stock of weapons against its opponents. Torres Silva's zeal for prosecuting the regime's opponents and human rights defenders earned him the name "el Fiscal de Hierro."
Arrests, raids and searches, and long periods incommunicado, designed to locate and break down the regime's opponents were common operational strategies practiced by Torres. In the late 1980s, Torres' image as the regime's relentless fighter against subversion was frequently projected to Chileans on their television screens and on the front page of morning newspapers, as in November 1987 when he exhibited what he claimed to be a list of 120 members of the Manuel Rodriguez Patriotic Front (FPMR) he indicted.
Among Torres' well-known operations, were:
- The 1987 raid on the San Martin Traumatology Clinic ordered by Torres Silva and which resulted in the confiscation of 8,000 medical files and 3,000 x-rays. At the time, the Medical Professional Society Ethics Committee director Carlos Trejo said of Torres Silva, "He is a person who does not hesitate at any means to reach his goals... and moves obsessively in search of success..."
- The 1986 assault on the Vicaria of Solidarity. What in 1986 began as a case against Manuel Rodriguez Patriotic Front (FPMR) members who assaulted a bakery in April of that year became an all-out assault on the Vicaria of Solidarity. When during the investigation of the case, Torres learned that Vicaria doctor Ramiro Olivaro and attorney Gustavo Villalobos had assisted a wounded FPMR member, he ordered both of them, as well as other Vicaria staff, jailed. Olivares spent more than a year in prison, until the Supreme Court overturned the charges and released him, delivering Torres an unexpected defeat. In the meantime, Torres unsuccessfully tried to confiscate the Vicaria's files, prompting the Catholic human rights advocacy office to publicly denounce the prosecutor for exceeding his authority.
Vicaria attorney Roberto Garreton, in 1988, said, "Torres continues raiding, arresting and pressuring as he wants... Now he has taken 8,000 medical files and I imagine he will order 8,000 people to testify because he presumes that any wounded person is a terrorist."
Torres' virtually boundless investigative powers were exercised in the most important cases brought under the Anti-Terrorism Act, such as:
- the case involving the FPMR Carrizal Bajo arsenal, discovered in August 1986. In the course of this operation, Torres refused to bring before the judge 24 defendants who were believed to have been tortured. The Supreme Court ordered that he present them before judge Rene Garcia, and their testimonies led the judge to publicly denounce the practice of torture in Chile, earning him a reproach from the high court.
- the kidnapping on September 1, 1987 of Colonel Carlos Carreño.
- the September 7, 1986 assassination attempt against Augusto Pinochet.
Torres Silva Promoted
In December 1988, Torres was promoted to Auditor General, the highest position within the military justice system. He thereby became military representative on the Supreme Court for cases involving members of the Armed Forces. On that occasion he was asked why he had chosen to be an attorney for the Army. Torres responded: "Because the Army... represents order, which is the nation itself, and maintains the values that formed Chile as a nation."
Crimes Under Military Court Jurisdiction
In addition to the military crimes that properly pertained to the martial courts -rebellion, sedition, and abandonment of duty- several new statutes and amendments to existing law expanded martial court jurisdiction. On the other hand, the civilian Courts of Appeals and the Supreme Court heard almost exclusively cases related to infraction of the State Security Law.
Not only did the legal foundation change, but also the concept of the Armed Forces itself acquired another connotation after the enactment of the 1980 Constitution. While the Constitution retained the basic characteristics of the military as professional, hierarchical, disciplined and "obedient institutions," Article 90 of the new Constitution formalized the perception of the Armed Forces as "essential for National Security" a concept which had guided the military since the day of the coup.
This changed concept introduced an ideological role for the Chilean military as the "moral guardians" of society and explains the incorporation of numerous crimes political in nature under military court jurisdiction.
Examples of political crimes assigned to military court jurisdiction include the following decree laws (D.L.):
* D.L. 77 - 1973, disbanded political parties of the left, declaring them to be illegal.
* D.L. 81 - 1973, later superseded by Law 18.315, sanctioned disobedience to authority and clandestine entry into the country.
* D.L. 604, prohibited entry into the country of individuals, who, in the government's opinion, represented a danger to the State.
* D.L. 640, of 1974, regulated states of emergency, and vested wartime authority to martial courts even when State of Siege was in its eased third degree stage of protection to internal security.
* Law 18.314, known as the Anti-Terrorist Law, defined as terrorism a list of 19 crimes that not only included acts of violence against state authorities and their families, military and military chaplains but also adherents of doctrines "suspected of propagating violence," such as members of the outlawed Communist and Socialist parties, as well as their supporters defined as "apologists for terrorism."
New crimes
Law 18.342, of September 26, 1984, introduced a new type of crime to the military justice code. Articles 282 and 416 of the law created the crime of offense against a member of the Armed Forces and Carabineros, even if physical injury was not caused.
Modification of existing crimes in the military justice code:
Article 284 which previously established the crime of offense to the flag or military institutions was replaced with "he who offends, threats or injures by speech, writing or any other medium," the Armed Forces or its members... [shall be] punished with prison, relegation, or exile... in its lesser degree", which is from 541 days to 10 years.
According to the Vicaria, from 1987 to 1988, alone, more than 50 people were charged in Santiago military courts for crimes of offense to the Armed Forces and to Carabineros (Art 4170), largely journalists, political leaders, priests, and other public opinion leaders. Among these were:
* Fernando Paulsen, assistant director of Analisis magazine, in the First Military Court
* Vicaria lawyers Roberto Garreton and Mariana Allendes for an article in Mensaje magazine, in the Second Military Court
* Fortin Mapocho daily editor and journalist Felipe Pozo and Gilberto Palacios; Analisis editor Juan Pablo Cardenas, sociologist Tomas Moulian, Apsi editor Sergio Marras, and Cauce journalist Patricio Acevedo.
War Councils (from the Rettig Report)
Immediately after taking control, on September 12, 1973, the Junta's Decree Law 5 proclaimed a state of siege due to internal disturbance, (interpreted under Article 418 of the Military Justice Code as state or time of war) and thereby convoked the war councils. Decree Law 13, of September 17, 1973 also gave wartime military tribunals authority over actions that occurred prior to the military coup.
War Councils were convened by military commanders, who had the power to approve, revoke or modify sentences. Article 79 of the Constitution of 1980 put War Council decisions out of reach of the Supreme Court. This was particularly ominous because the War Council was comprised of seven persons, all in active military service, only one of whom had to have legal training.
Certain aspects of the procedures infringed greatly upon the right of the accused to an impartial and fair trial:
• The court record was secret and the defense attorney could only view it a few days or, in some cases, a few hours before the Council was convened.
• The prosecutor used any and all proof and testimony he deemed convenient but the defense could not refute or debate any of the charges.
According to Art. 196 of the Military Justice Code, any "lack of respect" displayed by the defense could be punished by suspending the session. If the "lack of respect" was so serious that it impeded the Council's work, the defense could be expelled and the session continued without him.
These procedures and the composition of the single war time military tribunal violated international treaties and conventions signed by Chile, including the International Pact of Civil and Political Rights, which Chile ratified in 1976. Decisions made by military courts - often affecting fundamental civil rights - also impinged upon the Pact. The Pact says no one may be arbitrarily deprived of the right to enter his/her own country but DL 81 stated that all exiles who engage in political activity could become subject to the military courts, should they return to their country.
The 1991 report of the National Truth and Reconciliation Commission observes that war council sentences generally presumed crimes to have taken place "without determining the facts or proof that accredit these as crimes, thus leaving a doubt as to whether a crime actually occurred." The legal basis for sentences, the report notes, is omitted from the majority of war council rulings.
Examples of War Council Resolutions
* Pisagua War Council, (August 30, 1974) vs. Freddy Marcelo Taberna and others: The accused were charged with membership prior to the coup in a "paramilitary organization, the AGP, within the Socialist Party, to plan armed action in opposition to a military coup." The council says the AGP intended "to destroy military and police personnel who did not subscribe to their cause and install a dictatorial regime with support of other Popular Unity parties" and infiltrate units of the Armed Forces. On September 11, 1973, one defendant allegedly was found to carry two pistols, while another allegedly had concealed revolvers and explosives.
One of the defendants, mayor of Iquique at that moment, was found innocent of charges by the war council, but "the Commander-in-chief" affirmed that he could not be absolved because he had Socialist Party documents in his possession, and was sentenced under Art 4 to five years internal exile. Other sentences included: 1 to 10 years in prison, 1 to 20 years in prison, 5 to life imprisonment, and 7 sentenced to death penalty.
Freddy Taberna, Jose Sampson, Juan Ruz, and Rodolfo Fuenzalida, all members of the Iquique Socialist Party executive board, were sentenced to death and shot October 30, 1973.
However, in July 1998 Juan Enrique Sinn Bruno, former Army captain who participated in the Pisagua War Council, publicly revealed that the war council had originally issued only prison sentences. The night of October 29, 1973, he says, prison camp director Col. Ramon Larrain ordered war council members to change the sentences to capital punishment. The four prisoners were shot early the next morning. Their bodies were never found, and they are considered disappeared to this day.
Larrain is now deceased, but, in any case, Sinn suspects that the order actually originated with the provincial Army commander of the time, retired general Ernesto Carlos Forestier.
* Antofagasta War Council (August 14, 1974) vs. Ramon Luis Sepulveda and others: A group of 28 Chuquicamata workers were charged with holding clandestine meetings to organize slowdowns and other job actions in order to, in the words of the war council ruling, "organize resistance so as to later overthrow the current government." The ruling goes on to state: "Some of the prisoners were heard in meetings or even outside of meetings to use such expressions as ' the military massacre striking workers,' 'when they move up the curfew, it's because they are afraid of us,' 'the government is screwing things up,' 'I don't work to feed hungry-faced cops and drunken soldiers.'"
In addition one of the prisoners was accused of writing on the bathroom walls "Pino, Pinochito, te queda poquito," (Pino, Pinochet, you don't have much time left), signing, "La Resistencia."
Fifteen were absolved but most of the other 13 were sentenced under Art. 4 to 3 years in prison or 4 years of internal exile. Others were sentenced under Art. 284 for injury to members of Armed Forces, to up to 70 days in prison.
* Osorno War Council, (May 11, 1976) vs. Emilio Francisco Ruiz and others: Sixteen people were charged with attempting to reorganize an illicit political party, the Socialist Party. Ruiz was sentenced to 3 years and a day for illicit association.
continue:
Dissidence within the Judiciary
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