Global Policy Forum

Appeals Court Decision May Open the Door for Prosecution

By Steve Anderson

In a decision that took the nation by surprise, a Santiago court ruled late last week that former dictator Augusto Pinochet was mentally competent to stand trial and ordered a criminal investigation into his role in the 1973 disappearance of two brothers in southern Chile.

The decision by the Seventh Bench of the Santiago Court of Appeals contradicts a previous ruling by the Supreme Court and a recent decision by the same Court of Appeals that found Pinochet too mentally ill to be subjected to court proceedings. Pinochet, now 89, has used the defense of mental illness successfully for the past seven years to avoid standing trial in Chile for human-rights violations allegedly committed during his 17-year dictatorship. He is regularly hospitalized just prior to important court decisions concerning him. Pinochet used the same mental illness argument to avoid extradition following his arrest for human-rights violations on the order of Spanish Judge Balthazar Garzón while in London in 1999.

Thursday's decision explicitly dismissing the defense of mental illness reflects the ongoing quandary of Chile's judiciary in its struggle to deal with Pinochet's human rights legacy. On June 6 the Fourth Bench of the same Santiago Court of Appeals dropped legal proceedings against Pinochet in the Operation Condor case, citing mental incompetence. But just last week the Santiago Court of Appeals, voting as a whole, stripped Pinochet of his immunity in the Operation Colombo case (ST, July 7), even though his defense attorneys argued that he was mentally ill. And in early June the same Court of Appeals stripped him of his immunity in the Riggs Bank case, notwithstanding his mental illness defense, thus allowing investigation of alleged financial crimes to continue (ST, June 8).

The make-up of the three-member panels that review cases on appeal and the slow evolution of the court's composition since Chile's return to democracy could explain the judiciary's contradictory decisions in Pinochet's prosecution. Before handing control of the government back to civilians in 1990, Pinochet stacked the Supreme Court and the nation's Appeals Courts with judges that had been strongly supportive of his regime. Older judges were given bonuses to retire early, so that younger, pro-Pinochet judges could replace them. During the past 15 years, pro-Pinochet Supreme Court justices have slowly relinquished control of the judiciary, forced out by a law mandating retirement at age 75 and a law that increased the number of Supreme Court justices.

But new judges on the Supreme Court – named by the President from a slate of five judges recommended by the Court itself – must be vetted by a traditionally conservative Senate. As a result, negotiations between conservative senators and the President have often resulted in Pinochet-friendly appointments. The Senate remained decidedly right-wing during the initial years of the transition to democracy because of its "designated senators" and the binomial majoritarian election system, which awarded a disproportionately high number of senate positions to Chile's rightist parties, more than they would receive in a conventional election system.

The Fourth Bench of the Santiago Court of Appeals, which dismissed charges against Pinochet for mental health considerations last month, is led by Judge Alfredo Pfeiffer, strongly identified with the Pinochet regime. But the Seventh Bench of the Court of Appeals, which overturned the mental health defense last week, is led by Judge Carlos Cerda, who has been at the forefront of investigations into Pinochet-era human rights violations. In last Thursday's formal decision, Cerda wrote that "Pinochet's behavior … has been incompatible with his alleged mental state," making all medical arguments on his behalf unacceptable. The former dictator has proved himself capable of overseeing secret million-dollar bank accounts, as revealed by recent investigations into Pinochet's banking activity at Riggs Bank, Citigroup's Private Bank, the Bank of Chile and many other banks and shell companies around the globe.

In the same case on Thursday, Cerda sentenced six Carabineros policemen to 10-year jail terms for their role in the 1973 disappearance of Héctor and Guido Barrí­a Bassay in the Region X community of Rio Negro. Cerda's ruling made detailed reference to international human-rights laws and specifically rejected application of the 1978 Amnesty Law imposed during the Pinochet dictatorship. Plaintiff's attorney Hugo Guitiérrez praised the decision, saying it was a powerful endorsement for prosecution of Pinochet-era crimes, and "shows how Pinochet can be linked to crimes that occurred in even the most remote areas like Rio Negro."

The probity of Chile's judiciary, or lack thereof, has been headline news in recent months, and its failure for so many years to bring Pinochet to trial for human-rights violations is a direct cause of the low opinion the general public has of the judiciary system. In a recent poll of poor Santiago residents, the judiciary was viewed as the second-most corrupt institution in the country, second only to the congressmen (ST, July 8). Another poll, reported in this Sunday's El Mercurio, showed similar results (Ed. Note: See today's News Briefs). Judge Juan Guzmán, who first began prosecuting Pinochet in 1998 and has received international recognition for the courage of his efforts, has also openly criticized the judiciary's spinelessness in dealing with the Pinochet cases (ST, June 7).