Pinochet Trial Delayed Over Senility Question

by Gustavo Gonzalez

Pablo Rodriguez, the head of the legal team for Pinochet, who ruled this country with an iron fist from 1973 to 1990, said he would ask the Santiago Appeals Court to order "the broadest expert opinions" on Pinochet's health, to have him declared physically unfit to stand trial.

Pinochet's lawyers, family and followers were upset by Guzman's decision on Sept. 25 that the elderly former army chief must undergo psychological tests, arguing that it would be humiliating for him to be declared mentally unfit for trial based on a diagnosis of senility.

The attorneys for Pinochet -- who on Aug. 8 was stripped by the Supreme Court of the immunity from prosecution he enjoyed as a life senator -- are thus seeking a reversal of Guzman's order that the 84-year-old former army chief be examined by psychiatrists with the Legal Medical Service.

The judge, who is presiding over 170 human rights cases against Pinochet, had originally set Oct. 9 as the date for the former de facto ruler to testify, in order to determine whether he would be tried in connection with the kidnapping of 19 political prisoners.

The kidnappings were allegedly committed by the "caravan of death," a special military mission that travelled around the country killing political prisoners after the September 1973 coup d'etat that overthrew socialist president Salvador Allende.

But Pinochet's defense attorneys insisted that before he testify, medical exams should determine whether he was physically fit to be tried, in order to guarantee him a "fair trial."

On Sept. 25, Guzman ordered Pinochet to undergo psychological tests by forensic doctors, who are also to determine whether physical exams are necessary.

The judge stressed that his decision defended a right of the accused, while invoking the principle of "procedural economy," which indicates that legal proceedings should not be prolonged if there is a chance that the defendant is unfit for trial.

But while Guzman based his decision on Chilean jurisprudence, which only accepts mental disorders as grounds for calling off a trial, Pinochet's defense attorneys have invoked constitutional guarantees and international human rights treaties in favor of the former dictator.

Lawyer Rodriguez said the defense would ask the Appeals Court to order tests in order to determine "whether the circumstance of standing trial would jeopardize his physical integrity."

Guzman ordered that the pyschological exams be carried out "as soon as possible." But the announcement that Pinochet's defense counsel planned to file an appeal means the tug-of-war over the medical exams will be lengthened by at least a month.

In legal circles it is said that the medical exam issue will not be cleared up before November, unless an appeal for reversal prospers before Guzman himself, and he orders physical exams. But that is not likely, say analysts.

Ricardo Rivadeneira, another lawyer for Pinochet, insists that Guzman incorporate, as an exhibit in the proceedings, the exams carried out in January by three British doctors in London, who reported that the elderly former dictator suffered a long list of physical ailments, including diabetes, heart problems, and a bad knee, as well as memory loss and senility.

The exams served as the basis for British Home Secretary Jack Straw's decision to release Pinochet on humanitarian grounds, rule out his extradition to Spain, and allow him to return to Chile on March 3, after 503 days under house arrest in London.

While Rivadeneira maintains that the British exams are a sound precedent regarding Pinochet's state of health, Guzman sees them as lacking in legal significance, given the fact that they served as the basis for an administrative or political decision taken by Straw.

A week after Pinochet returned to Chile, Guzman launched his attempt in court to get the former dictator stripped of parliamentary immunity, in order to try him in connection with the crimes committed by the "caravan of death."

The military mission, which executed some 70 political prisoners in October and November 1973, was ordered by Pinochet as commander-in-chief of the army.

A lawsuit filed against Pinochet by the Communist Party in January 1998 prompted Guzman to open a legal investigation into the "caravan of death," which established that 19 of the victims were still missing.

Based on the results of the inquiry, the judge determined that the 19 were victims of kidnapping, rather than homicide, and ordered legal proceedings against the head of the mission, retired general Sergio Arellano Stark, and his immediate subordinates, later expanding the charges to Pinochet as "co-author" of the crimes.

The classification of the 19 cases as kidnappings, rather than homicides, enabled the judge to get around the 1978 amnesty law introduced by Pinochet, which continues to protect those who committed rights abuses from March 1973 to March 1978.

A few months ago, the remains of two of the 19 missing men were identified in the city of Cauquenes, some 450 kms south of Santiago.

On Sept. 25, Guzman also brought legal action against Arellano Stark, retired brigadier-general Pedro Espinoza and retired colonel Marcelo Moren on homicide charges, in connection with the two victims whose remains were found in Cauquenes.

The judge thus suggested a reinterpretation of the amnesty law, according to which it would not be applied until the legal investigation establishing criminal responsibility and, eventually, leading to a sentence, was complete.

The interpretation followed up to now by the courts, civilian as well as military, was that the amnesty would be applied as soon as the date of the victim's death was established.

The lawyers for the plaintiffs in the case of the "caravan of death" argue, meanwhile, that the amnesty cannot be invoked because the Geneva conventions, which declare that crimes against prisoners of war have no statute of limitations and fall outside the reach of any amnesty, have legal precedence.

Although in Chile no civil war occurred in the wake of the coup, the dictatorship did declare a "domestic state of war," under which it set up military tribunals that tried political prisoners, who were later executed by the "caravan of death."