ADMINISTRATION OF JUSTICE BY THE WAR COUNCILS AND THE MILITARY COURTS
1. One of the subjects of most serious concern to the Commission was, as has been said, the function of military justice and, particularly, the extent of the powers conferred on military courts as a consequence of the declaration by decree-law of a “state of war.”
None of the articles of the Chilean Constitution refer to a “state of war”, and still less to a “state of internal war.” However, the Military Penal Code, whose original text dates from 1925, contains express provisions for the case of war, which, while it is obvious that they were conceived for application in situations of actual war, in a confrontation of forces contending for the domination of a territory, they have been applied in this case, which was unjustifiably defined as “internal war” although it does not have the characteristics that the most accepted doctrine requires for recognition of a state of “non-international war.”1
2. While the Commission was in Chile, a number of War Councils were in operation in various parts of the country by authority of those rules and interpretations. The Commission felt it necessary to observe their procedures, and to that end, the Chairman and Vice Chairman, Drs. Jiménez de Aréchaga and Dunshee de Abranches, accompanied by staff member Dr. Holzman, went to the city of Linares on July 31, where a War Council, which was in operation in the Artillery School, was to hear a case against 67 defendants, for six of whom the Military Prosecutor had requested the death penalty. This took place some 300 kilometers south of Santiago, in an area which had been the scene of violent confrontation between the partisans of the political groups called “Unidad Popular” and “Patria y Libertad.”
When the Commission representatives arrived at the court, the Prosecutor had already recited the charges, and the trial of the two defendants for whom the death penalty had been asked had begun. The defendants, who were considered to have confessed to the offenses, were Hugo Alejandro Valdés y Fuentes, whose defense counsel was Mr. Montealegre, and Mario Eleazar Mora Arévalo, whose defense counsel was Mr. Bonilla. Counsels for the defense maintained that under Chilean law a confession was only valid if it was made before the trial judge, and that the defendants had not testified before the War Council. According to their statements, they had “confessed” as a result of the use of violent means by the arresting authority, and had then partially rectified their declarations when they appeared before the Prosecutor. One of the defendants, particularly, denounced having suffered “brutal tortures.”
The War Council was made up of seven members, one of whom the “Auditor” was a civilian attorney, and the others were officers who were not lawyers; two carabineros officers and one cavalry officer, and the others were artillery officers. The Prosecutor also was an officer who was not a lawyer.
The trial took place in a large well-appointed room. The public was limited to two members of our Commission, to the officers accompanying us, a couple of photographers and perhaps one other person. Our attention was drawn to the fact that we did not see any parents or friends of the accused in the room, especially because these persons lived in the area.
When the first defendant entered the room in the company of his lawyer, he remained standing while the Prosecutor read the summary of charges and the penalty requested. The accused was allowed to be seated, and the court recognized the defense counsel, who made a long and detailed statement. In his accusation, the Prosecutor antedated the “state of war” to September 4, 1970, despite the provisions of Decree-Law Nº 5.
3. According to the statements made to the Commission by lawyers whom it interviewed, defense counsels have a great deal of difficulty in contacting their clients sufficiently in advance of the trial and have very little time to examine the dossier, so that they usually prefer to tape record the contents of the dossier and work with the recording later.
The Commission was informed from the same sources, that, while the Prosecutors usually comment extensively on the clearly political content of the case in their accusations, this is absolute forbidden to the defense. In one of the trials attended by the Chairman and Vice Chairman of the Commission, this prohibition reached the following extreme: When a defense counsel had stated that the offense of his client was without any doubt a “political offense,” the Chairman of the War Council reminded him in severe terms that defense counsels were forbidden to “speak of politics.”
4. After the statement of the defense counsel and after deliberation by the Council behind closed doors, the accused were questioned, first by the Chairman and then by other members of the Council and by the Prosecutor. Defense counsels were also permitted to question them.
The cases attended by the Commission representatives (between 3:00 in the afternoon and 10:30 at night) involved two young former students. They were Socialist Party members who had been invited to travel to Cuba a few months before the September events. According to the version of the accused, which was not questioned by the Prosecutor, both of them were invited so that they could learn about the new organization of the universities in Cuba, observe the progress of agrarian reform, visit workers' housing, etc. Both of them said that, after arriving in Havana, they were taken by bus to a house on the outskirts, eight to ten kilometers from downtown, where they noted that there was a military guard at the door. Their passports and plane tickets remained in possession of the person who invited them and accompanied them on the trip. The following day, they were surprised by the news that they were to “undergo instruction,” which consisted of loading and unloading pistols, rifles and machine guns of various origins and brands, the use of explosives and simulated attacks against a small railroad station and a bridge. This lasted for 45 days, at the end of which they were returned to Chile. Both of them acknowledged that, for the weapons practice and other training activities, they were provided with “overalls”, like those used by mechanics, but differing from each other. They were asked by the Prosecutor why they had not refused to receive military instruction, which was not on the trip schedule, and why they did not leave Cuban territory. Both of the accused explained that they were in no position to rebel, since they were on foreign territory, stripped of all support, and had neither passports nor money. They said that the only thing they could do was to submit to the program, and that they had been taken by surprise by it.
The Prosecutor interpreted these events as consorting with the enemy in time of war, the use of uniforms of a foreign army, and treason against their country. The possession of small arms was interpreted to mean that the accused had the mission to attack the Chilean armed forces, paralyzing the action of the Linares Artillery School, destroying those forces, and replacing them by their own forces. He stressed the accusation against one of the defendants of the crimes of possession of explosives and belonging to private militias, for which he had already been tried by another court. The accusation was based on Article 248, 2, of the Military Code of Justice, 107 of the Penal Code, and 245, 4, of the Military Code of Justice, the texts of which refer exclusively to the case of international war.1
5. It cannot be predicted when a sentence may be rendered in these trials. The judgment may take months, during which time the Prosecutor's request for capital punishment hangs over the accused and their families.
It must also be borne in mind that the War Council's sentence may be reviewed by the Commander in Chief of the region, who may, without being required to give the reasons for his decision, decrease or increase the penalty, as explained in the previous chapter. It therefore follows that the defense can concentrate all of its efforts on showing that circumstances have not occurred permitting the imposition of a life sentence, where this was the sentence for the offense alleged by the Prosecutor, only to find that in the end his client had received the death penalty, for reasons or circumstances that were not analyzed in the course of the proceedings.
A few days after this trial, other War Councils imposed death penalties. It should be noted that these penalties were commuted to life imprisonment.
6. During their missions to the cities of Linares and Concepción, and their visits to the prisoners at the Talcahuana Naval Base (Second Naval Region) and Quiriquina Island, Professor Abranches and Dr. Holzman were informed that in the Third Military Court District in Concepción, death sentences had been executed in cases that might involve the retroactive application of special laws on the state of war.
For that reason, during the visit to Concepción on August 1, 1974, Professor Abranches asked the Commander of the Third Army Division, Colonel Luciano Días Neira (Subrogate), to make the necessary arrangements to examine the dossiers of the cases tried by the War Councils, including those cases where the death penalty had been carried out. In response to that request, the Commission representatives were introduced to the “Auditor”, Mr. Gonzalo Urreloja Arrau, who now has the rank of General, and who has a law degree. The judge offered to make arrangements for the Commission representatives to be able to read some of the dossiers of completed cases on the following day.
Among the dossiers provided to the Commission representatives for examination were Roster Nº 1645-73, a case against José Isidoro Saldías and 16 other persons arrested on September 25, 1973, in Casas Cementario de Lola, accused of violating Law Nº 17.798. The most relevant sections of the dossier will be indicated below.
The facts of the case are set forth in Part Nº 5, where the accused are charged with stealing, beginning September 9, 1973, a total of 1 000 Nº 6 dynamite caps and 5 000 sticks of dynamite (Samsonite C or EP 38) intended for the Pilpilco coalmines. These materials were stored in the house of the accused, Mr. Saldías, at Nº 51 Carrera, by order of Deputy Luis Fuentealba, and were allegedly used on September 17, 1973, for the preparation of bombs.
Page 11 of the dossier contains the decree signed by General Washington Carrasco, providing that: “An indictment be drawn up by the Prosecutor's Office.” The opinion of the Military Prosecutor begins on Page 87, and describes the alleged actions of the accused and the relevant legal provisions.
On October 15, 1973, General Washington Carrasco signed a new decree providing that the case be brought to trial and that a War Council be constituted. Appointed as Chairman of the Council was Mr. Gonzalo Urreloja Arrau, who was then a Lieutenant Colonel serving as “Auditor”.
The prisoners were notified in the Concepción Public Jail on the same date (Pages 102-116). The accused, Carlos Gajardo, stated that this participation in the events had occurred before September 11 (Page 118). When the defense counsel for the prisoners was appointed, he presented an extensive defense, based on two substantive points:
a) The incompetence of the War Council, based on the allegation that the events had occurred before September 11, so that the War Council would not be competent to judge them based on special legislation subsequent to that date;
b) Partial negation of the alleged events (Pages 123 to 211).
The sentence bears the date of October 18, 1973, and its substantive part begins by rejecting the plea of incompetence, based on Art. 73 of the Military Code of Justice, which provides:
From the time of the appointment of the Commanding General of an army that is to operate against a foreign enemy or against organized rebel forces, the competence of peacetime military courts shall cease and that of wartime military courts shall begin, throughout the territory declared in a state of assembly or of siege.
Decree-Law 13 of September 20, 1973 states:
Article 1: The meaning and scope of Article 73 of the Military Code of Justice is to confer on wartime military courts jurisdiction over military legal proceedings initiated in a territory declared in a state of assembly or of siege subsequent to the appointment of the Commanding General. Cases that began in peacetime shall be subject to the cognizance and jurisdiction of peacetime military courts, pursuant to peacetime procedures, until their definitive termination.
The sentence thereupon develops considerations to justify the applicability to the specific case of legislation subsequent to September 11, including a citation of the doctrinary opinion of MAGGIORE (Penal Law T. 1, p. 203).
The dossier concludes with the acquittal of the accused, Rolando Soto, Emilio Sánchez Medina and Pedro Vegas, and the conviction of the other accused persons. Danilo González Mariones, Bernabé Cabrera Neiva, Isidoro Carrillo Torneria and Wladimir Aranega Contreras were sentenced to death for the following crimes: a) organization of combat groups armed with bombs; b) illegal manufacture of explosives and other illegal materials, all in time of war. Two of the accused were sentenced to life imprisonment, and four others to ten years in prison.
On October 21, 1973, General Washington Carrasco endorsed the sentence, except with respect to two sentenced to lesser terms (Page 236).
The dossier does not give the date or manner of execution of the death penalty applied to the four persons indicated. The “Auditor” orally informed Professor Abranches that “probably” the execution occurred in the Concepción Public Jail itself, by a firing squad composed of the jail guards. The dossier contains no document registering the implementation of the sentence, and consequently the way in which it was executed was not recorded.
The dossier closes with four death certificates (Pages 250 to 253).
1 Article 245 Military Code of Justice, contained in Section II of the Code, which is entitled “Treason, espionage and other crimes against the exterior sovereignty and security of the State” (our underlining) shall receive sentences ranging from a major military prison term to death…”4”. A member of the armed forces who, when the country is in a state of war or when mobilization has been decreed, purposely rends useless roads railroads, telegraph communications…destroy beacons, signal lights or buoys…weapons, munitions or any other war material… or in any other way maliciously hamper the operations of the army or facilitates those of the enemy.”
Article 248, contained in the same Section II, says that a sentence ranging from the maximum major prison term to death shall be applied to… “2”. Anyone who, in the event of war or for the purpose of abetting the enemy or adversely affecting Chilean troops, performs an action of commission or omission that is not covered by the appropriate articles and that does not constitute any other crime expressly penalized by the law.”
Where this last article uses the terms “enemies” and “Chilean troops”, it seems to confirm the conclusion deriving from Title II and a reading of all of articles 244 to 258, which is that all of these provisions refer exclusively to international war.
Article 107 of the Chilean Penal Code provides that “a Chilean who fights against his country under enemy flags shall be sentenced to a maximum major prison term or death.”