Will the trial in Temuco be an act of justice or a politicized ritual?
Social science and policy analysts have described the novel approach labeling the acts performed by the military government installed in Chile as of September 1973 -following the military coup against President Salvador Allende- as “bi-polar behavior”.
On the one hand, government-sponsored liberal economic policies under the dictatorship inspired by the Chicago School, promoted personal initiatives, a diminishing role of the State, an opening to international markets and other such measures. These strategies continued under the civilian governments in the 1990’s, which were largely responsible for the country’s economic takeoff. Chile’s outstanding economic development is nowadays acknowledged worldwide.
In another perspective, the so-called “guerrilla war,” especially in the 1970s, was waged militarily. Undoubtedly, serious human rights violations were committed against left-wing government opponents. Thus, activists or sympathizers of such revolutionary ideologies were detained, tortured and killed. Many persons disappeared following such detention procedures never to show up or known of their whereabouts to this date.
Chilean judges have acted particularly severely with the military accused of such crimes. Some of the main perpetrators, then heads of state security and intelligence service organizations, now quite aged, were condemned to serve many years in prison; in fact, more than their lifetimes. On this year’s 40th anniversary of the 1973 military coup, the Chilean judges issued a joint statement asking for a public forgiveness for failing, during the military government years, to fulfill their role of protecting citizen’s rights by unduly dismissing habeas corpus remedies filed by the victims. The judges swore “never again” to incur in such ‘weaknesses’.
Some of such human rights lawsuits filed against the military –some of whom were very young at the time of the military coup- are still open in the expectation of bringing them to justice on account of their presumed involvement in such violations decades ago. Certain judges base such legal actions on a juridical opinion ascribing collective criminal liability by the sole fact of the accused individuals having been members of the armed forces during the dictatorship. Individual responsibility is thus replaced by collective guilt. The presumption of innocence is replaced by the presumption of culpability.
Such a frame of mind (in line with social or juridical-political orientations, particularly prevalent during wars, various types of conflagrations or during periods subsequent to civil wars) calls for generic sanction mechanisms by way of reparation toward the victims. They strongly affect the vanquished or some of its members now subject to adverse public opinion and reproach. Its justification is to prevent the future occurrence of such behavior. Affixing collective guilt on whole groups is reminiscent of the totalitarian pseudo-legality.
Proof of the above is the recent criminal trial against 25 former military, ordered by the city of Temuco’s Prosecution Judge, Álvaro Mesa, collectively charging them for facts that occurred in the year 1973, at the time when they performed various functions incumbent upon their military profession in different area units.
As defense attorney for one of those former military charged in Temuco and as a University of Chile Professor, I emphasized these points in a recent opinion column: José Luis López Blanco,“Collective Criminal Liabilities” (Ed.Microjuris.com, November 15, 2013). I quoted Prof. Deborah Tollefsen, author of “The Reasonableness of Collective Liability” -La Razonabilidad de la Culpa Colectiva- Midwest Studies in Philosophy, 2006) who states that the liability of persons shall always be of an individual nature and based on their own actions. It is also worth quoting Hannah Arendt, the great American, German-Jewish born, political thinker who, in her work called “Collective Liability” holds that the concepts of liability and guilt are not applicable to entire groups or collectives, regarding the German People.
In the same vein, Professor Vladimir Tismaneanu, a Romanian-born, American political scientist, highlights the supreme value of freedom and personal liability. Tismaneanu has repeatedly criticized the collective liability forms established in various dictatorial regimes. In 2006, Tismaneanu chaired the Romanian Truth Commission regarding the crimes of the communist regime in that country appointed by the country's President, Traian Basescu. Assessing individual responsibility is the foundation for fairness in justice. Each individual involved in the November 1973 events at the Temuco garrison (when seven Marxist guerrillas lost their lives) should be judged on his own record. Memories of all those involved should be examined and compared carefully before judgment is passed.
Most disturbingly, we deal with a judicial discrimination affecting the trial of those former Chilean military. The latter are the only ones being tried according to the country’s old criminal justice system, which was emphatically replaced ten years ago for its arbitrariness with the current one, based on the constitutional guarantees of the party being accused.
According to the old system –nowadays applied exclusively to former military personnel- the judge is empowered to make certain decisions “in conscience” and deny the accused party’s right to be apprised of the circumstances and accusations filed against him. In other words, the judge has the omnipotent attributes to investigate, accuse and condemn. Because of the lack of a pre-established investigation deadline, a person so charged may be indefinitely subjected to a criminal court; which, in and by itself, unquestionably constitutes a conviction, given the sheer labor, family and social effects that it entails. Under these circumstances, the trial in Temuco risks to become more of a politicized ritual than a genuine act of justice.
José Luis López Blanco is a Chilean lawyer and professor of Law at the Universidad de Chile. He lives in Santiago and he can be reached at his e mail: [email protected].