Pinochet Declared Unfit For Trial

by Gustavo Gonzalez

The court's decision was based on the alleged "moderate dementia" of the former de facto president.

President Ricardo Lagos, a center-left socialist, said "the courts have demonstrated equanimity, independence and autonomy," and he exhorted all Chileans to respect the ruling that "for some will be motive for satisfaction, (while) for others it will be a motive for frustration."

Though the ruling officially represents a temporary delay of the proceedings until the health of the 85-year-old retired general improves, attorneys from the defense and the prosecution alike have indicated they believe it is the end of a process that formally began in January.

The case would only be reopened following a new report by forensic doctors that certifies Pinochet has overcome "the moderate grade vascular dementia" that was diagnosed in January -- highly improbable given his advanced age.

According to Chilean law, health grounds are not reason enough to preclude a trial unless the accused suffers from "insanity or dementia."

On Aug. 8, 2000, the Chilean Supreme Court removed Pinochet's legal immunity as senator-for-life. Then, on Jan. 29, 2001, judge Juan Guzman charged the former dictator as an accessory in 57 homicides and 18 kidnappings of political opponents committed in October 1973 -- one month after the bloody Pinochet-led coup -- by an army mission known as the "caravan of death."

The ruling issued by the sixth chamber of the Santiago Appeals Court removes the charges against Pinochet. On the three-judge panel, justices Amanda Valdovinos and Cornelio Villarroel voted in favor of the dismissal, while Hugo Dometsch voted against.

Valdovinos reported that they had voted on the case a week ago, but kept the decision in strict confidence before making it public today, once the drafting of the 35-page text was completed.

Pinochet is thus free of the charges without having proven himself innocent, while judge Guzman continues forward with proceedings against retired Gen. Sergio Arellano and other top officials involved in the "caravan of death" nearly 30 years ago.

During the 17-year Pinochet regime, government security forces committed 3,190 political assassinations, of which 1,198 were forced disappearances, according to a 1991 report by the Truth and Reconciliation Commission.

Health reasons had once before saved the former Chilean dictator -- when the British Home Office sent him back to Santiago instead of continuing with his extradition hearings to Spain for trial on human rights charges. Pinochet was held under house arrest form Oct. 16, 1998, to March 2, 2000.

The former dictator had spent a few days last week at the Military Hospital for an oral infection reported to have caused other health complications, and reached the point that rumors were circulating over the weekend about his death.

On July 7, an impromptu meeting was held at the home of Defense Minister Mario Fernandez, involving President Lagos and the armed forces commanders, Gen. Ricardo Izurieta, of the army, Vice Adm. Miguel Vergara, of the navy, Gen. Patricio Rios, of the air force, and Gen. Manuel Ugarte, of the carabineros (militarized police).

Unofficial reports indicated that the leaders met to discuss the legal proceedings against Pinochet, though Justice Minister Jose Antonio Guzman stressed that the government did not hear of the Appeals Court ruling until July 8, just like the rest of the population.

The prosecution team will present a complaint against judges Valdovinos and Villarroel before the Supreme Court of Justice with the uncertain hope that the highest court will find some procedural defect that would annul the lower court's ruling.

Hugo Gutierrez, one of the prosecution lawyers, exhorted international justice authorities to reopen the cases against the former dictator in countries like Belgium, France and Spain, because in Chile, "unfortunately, justice cannot be achieved."

Carmen Hertz, attorney and widow of one of the victims of the "caravan of death," commented that "it is a defeat for justice in Chile, for the end of impunity and for the deepening of the country's democratization."

Viviana Diaz, meanwhile, president of the Association of Families of the Detained-Disappeared, charged that the Appeals Court ruling is "ludicrous" because, in practice, the former dictator has been absolved without having been tried.

"The courts remain on the side of the murderers" and have lost the potential for rehabilitation from the attitude they took at the beginning of the dictatorship, when they refused to accept any petition for legal protection in favor of the detained-disappeared, added the human rights activist.

For its part, the co-governing Socialist Party said in a statement that the temporary dismissal of the case against Pinochet "affects Chile's international prestige (in that) it establishes his impunity for crimes against humanity that are punished in the world today."

The party's declaration points out that the Pinochet case is emblematic in the world as far as universal judgement of crimes against human rights.

"Unfortunately, with this resolution, the Chilean courts of justice place themselves against the international effort that sanctions and condemns such serious crimes," says the statement.

The London-based human rights organization Amnesty International expressed its frustration with the Chilean court's decision, saying that "despite growing international consensus that heads of state must not escape prosecution when they are accused of crimes against humanity, worldwide expectations of justice are often stalled by long and protracted proceedings."

The ruling in this case "this means that the extremely serious charges against Pinochet related to the "caravan of death" may now never be heard, denying the possibility of a measure of justice to those who died and disappeared during that operation, and to their families."

Human Rights Watch (HRW), based in New York, also condemned the Court of Appeals decision.

"It's a terrible disappointment for Pinochet's thousands of victims that he may never have to face trial," said Jose Miguel Vivanco, executive director of HRW's Americas Division.

"But the fact that he was arrested in England, that he was charged in Chile despite his self-amnesty, and that the truth about his personal involvement in atrocities was revealed, has advanced the cause of justice in Chile and the world," he added.

Vivanco maintained that "the Pinochet case marks the beginning of the end of impunity for the worst state crimes."

"Pinochet will probably end his years at home, but would-be dictators should pause and ponder on his destiny. His arrest in London changed history. Now history will give the final verdict on his rule," he concluded.