by Pascale Bonnefoy M. y John Dinges (Lea aquí el artículo original en español)
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Military prosecutors took jurisdictional control of the deaths of 785 victims or probable victims of political repression from the very day of the military coup until the end of 1973, according to the records of the Servicio Médico Legal (SML). However, these deaths–which they were legally obliged to investigate–fell into a black hole: according to the 1973 case status books of the Second Military Court that ArchivosChile was able to review, no investigation was ever opened.
Prior to the coup, the criminal courts were responsible for investigating cases of violent deaths as possible homicides. The police report that usually accompanied the corpse indicated the place of death or discovery, which defined which criminal court had jurisdiction to investigate.
Although the new military authorities left the civilian judicial system intact, as of Decree Law No. 5 of the Military Junta of September 12, the military courts began to operate in wartime.
In fact, from day one, the criminal courts were moved to hear the vast majority of the cases of bodies filled with bullets that arrived by the dozens at the morgue.
By the end of 1973, 890 deaths from political repression arrived at the Instituto Médico Legal (IML, or Santiago morgue), corresponding to confirmed victims (by the Rettig Commission) or potential victims (according to ArchivosChile’s research). According to the records of the Servicio Médico Legal (SML) obtained by the Transparency Law, only 99 cases appear under the jurisdiction of the criminal courts. The other 90 percent of the deaths were bodies sent by military prosecutors, according to the morgue’s entry book of the deceased (known as the Transfer Book), where morgue officials wrote down the details of each deceased person who entered the morgue. In 14 cases the records do not indicate which court or prosecutor’s office took legal jurisdiction.
There were many other deaths in that period that had nothing to do with the violence of the military coup: suicides, traffic accidents, delinquency, common murders and others–about nine a day–that were part of the “normal” existence of a large city.
How was it determined from one day to the next, and in advance, which cases would fall under the jurisdiction of military prosecutors and which deaths would be investigated by criminal courts? How was it known whether a man shot in the street had died as a result of military action or was it a common crime? The military authorities seemed to have it clear: 785 bodies sent by military prosecutors’ offices are victims of human rights violations confirmed by the Rettig Commission (670), or probable unconfirmed victims (115). In only 14 cases in that period did military prosecutors’ offices assume jurisdiction over deceased persons who were not victims of repression.
Of the total number of victims referred by the military prosecutors’ offices, 755 were from the Second Military Prosecutor’s Office, 23 from the First Military Prosecutor’s Office, and seven from the Aviation Prosecutor’s Office. All, without exception, had died of gunshot wounds. Of these, only 28 of the deceased were members of the Armed Forces or Carabineros, and therefore the military courts, in normal times, would have had to investigate their deaths anyway.
ArchivosChile investigated whether there were any verbal or written orders, either from the military garrison to the morgue or from the new military authorities of the SML to its officials, explaining the fact documented in the records that almost all the deceased from gunshot wounds were referred by military prosecutors. No such evidence could be found.
Civilian or military prosecutors?
The arrival of the first two politically executed at the SML on the day of the military coup seems to offer a clue. They are also the first to appear as “remitted” by the Second Military Prosecutor’s Office in the Transfer Book.
The bodies of Ariosto Zenteno Araneda, 17, and Claudio De la Fuente Castillo, 21, both shot at 3:30 p.m. that afternoon and found in the street, according to their autopsy reports, arrived at the morgue at 8:00 p.m.
In those reports consulted by ArchivosChile, the medical examiner Dr. Exequiel Jiménez, who performed the autopsy on De la Fuente, noted: “Cadaver sent by the Military Garrison”. Dr. José Luis Vásquez, who performed the autopsy on Zenteno, noted: “Sent by telephone order from the Military Garrison”.
The “provenance” of the two cadavers was registered in the Transfer Book as “telephone orders from the Military Garrison”.
Another person executed during the military coup in Santiago arrived a little later. This time, the Transfer Book recorded him as having been sent by the First Military Prosecutor’s Office. He was the secretary of the CTC union, Hernán Castillo Calcagni, 40 years old. He died of a gunshot wound on the day of the coup at 10:15 a.m., according to the autopsy report. He was the first mortal victim of the coup in Santiago whose remains arrived at the morgue.
From then on, and with very few exceptions, all deaths from gunshot wounds that arrived at the morgue were recorded under the jurisdiction of a prosecutor’s office, almost always the Second Military Prosecutor’s Office. On the other hand, in the case of deaths resulting from traffic accidents or stabbings, for example, the criminal courts maintained their jurisdiction to investigate, as evidenced in the Transfer Book.
What were the consequences of this system of jurisdictional control?
Without knowing the actual motives, it is clear that this system served to ensure that cases of political repression were not investigated by civilian courts. And the de facto result was to facilitate total impunity for those responsible for these crimes.
The commander of the Santiago Garrison was General Herman Brady Roche, who was also the commander of the Internal Security Jurisdictional Area Command (CAJSI) in the capital, which ordered and directed military operations. The CAJSI reported directly to the Commander-in-Chief of the Army, General Augusto Pinochet, and operated from the headquarters of the 2nd Army Division–also commanded by General Brady–located on the sixth floor of the Armed Forces building on Zenteno Street.
General Brady was also head of the Zone under State of Siege and judge of the Second Military Court of Santiago, and, therefore, he was legally responsible–within the legal logic of the regime–for the decision to give the order to investigate the hundreds of violent deaths that appear under his jurisdiction in the records of the SML.
The books of the Second Military Court consulted by ArchivosChile reveal that no investigation was ever ordered. No action was taken, either to investigate or to justify the decision not to do so.
One of the main military prosecutors at the time, who requested anonymity, acknowledged the obligation to investigate, but justified the inaction because no one officially denounced the deaths.
“The normal procedure was that Carabineros or a relative of the victim would notify a court of the death. When the court was notified, it would have to order an investigation. This was valid for both civilian and military courts. Someone had to report the death or disappearance of the person. As long as the fact was not reported to the military judge, no prosecutor was appointed and, therefore, there was no investigation,” he said in an interview with ArchivosChile.
In any case, military and civilian courts had the possibility and the legal responsibility to open an investigation ex officio, without waiting for a complaint, upon learning of a violent death.
But the military prosecutors’ offices did not do so when they began to receive hundreds of autopsy reports that made the causes and circumstances of death of 785 people even clearer. In other words, not even the prosecutors’ offices complied with the very legality imposed by the military junta when it took control of the country.
To the renowned jurist José Zalaquett, professor at the Law School of the University of Chile, the explanation seems implausible:
“The military prosecutor, who requested that his name be withheld, cannot, of course, ‘justify’ the inaction on the grounds that no one had denounced the deaths. This is a legal and moral absurdity, of course, which cannot be justified. But his implicit assertion that, if any death had been reported, they would have investigated professionally, is even more implausible, since the prosecutors were subject to the policy and command of the government, even more so in those first months of repressive frenzy”.
No more business as usual
One of the aberrations caused by the massive repression was that after September 11, the bodies no longer arrived at the morgue according to the usual procedures, in which a court would give the judicial order to remove the body of a deceased person from the public street, and the corpse would come with a police report indicating the court that would be responsible for investigating it.
After the coup, the bodies were dumped during the night at the entrance of the SML; they were taken directly to the morgue in military trucks, or were picked up on the street by officials of the SML. Almost none of them had a police report. This is confirmed by the Transfer Book itself: the column where the police report number should have been entered is practically empty.
However, morgue officials could not insist on compliance with normal procedure.
“The corpses were brought in by apparently military personnel who forced their way into the morgue. ‘Here we come to leave them!’ they would announce. And if asked about the police report, they would order: ‘Just take the bodies!’ What was the porter of the service going to do in front of people who were threatening, sometimes without uniform and armed? That’s how the bodies were brought in without a police report,” Gilberto Rudolph, who was legal advisor to the SML in September 1973, told ArchivosChile.
Rudolph also offered an explanation for the designation of the military prosecutor’s offices as “remitting” the bodies of those shot. In order for the SML to release the body to the next of kin or for the service itself to transfer it to the cemetery, it needed judicial authorization. The military prosecutor or judge of the crime was asked to sign and stamp a standard form authorizing the autopsy, the registration of the death and the delivery of the body.
But since almost none of the bodies came with a police report indicating which court would have jurisdiction, Rudolph recalls that the morgue workers themselves had to decide. According to the former legal advisor, the officials “deduced” that if the bodies were brought to the morgue by the military, then they were under the jurisdiction of the military justice system.
“Since they did not have a report and you had to get a court order to deliver the body, the assistants called them in their jargon ‘prosecutor’s corpses’. It was not that the prosecutor’s office had sent the body, but that the box had to be filled. All the corpses that arrived without a police report were called ‘fiscalía’, because they were reported to the military prosecutor’s office. Those that came with a police report corresponded to the criminal courts. We had no other alternative,” Rudolph said.
Sending autopsy reports to the courts was handled by the administrative office of Thanatology, headed by Nancy Smith. Melentina Hernández worked there, an official who, among other things, stamped and sent these autopsy reports to the courts and prosecutors’ offices a couple of times a week, she says.
In an interview with ArchivosChile, Hernández stated that all the autopsy reports were sent to the appropriate courts, including the military prosecutors. “It was the duty of the Service to constantly send autopsy reports. It did not wait for the court to ask for them. They were carried by the postman and recorded in the dispatch book,” she says.
One of the SML drivers at the time, interviewed by ArchivosChile, who asked not to be named, said that the autopsy reports were sent periodically, and that he and an assistant would personally drop them off. “We had to go up to the building and the soldiers would clear the way for us. We would deliver the reports and leave,” he said.
Although someone in the prosecutor’s office must have received the hundreds of autopsy reports sent by the SML, the former military prosecutor claims not to remember seeing them, despite the fact that the overwhelming majority (755 of 785) of them were addressed to his office.
And even if the SML had sent an autopsy report of a victim to the military prosecutors, he said, it was lost in limbo: “If a prosecutor was instructed to investigate by the military judge, he would have requested the autopsy report from the SML. But if the SML sent those autopsy reports to the military prosecutor’s office and they were not associated with any case (i.e. a ROL number), the person receiving those reports in the prosecutor’s office would have no one to refer them to,” the former military prosecutor argued.
The incomplete administrative records of the SML at the time confirm that some reports were sent and reveal that on only two occasions between September and December 1973 was there a request for an autopsy report from a prosecutor’s office. Both were in November 1973 and came from the Aviation Prosecutor’s Office. In no case was information regarding autopsies requested by the Second Military Prosecutor’s Office under General Brady.
If the military judge considered that it did not fall within his jurisdiction, he could have declared himself incompetent so that another tribunal or court could take over. By not doing so, he assumed by omission that those implicated in the crimes were military personnel, and therefore, he had jurisdiction over those cases.
But General Brady took neither of these actions. Or if he ever ordered an investigation, he left no paper trail at the Second Military Court under his command.
The only short-lived attempt to investigate the deaths was made by the Homicide Brigade of the Investigative Police two weeks after the coup. According to the administrative records of the SML reviewed by ArchivosChile, on September 25, 1973, the Investigative Police sent an official letter to the SML requesting “a list of the deceased as of September 11, 1973”. There is no record that this letter was answered.
 Of these 99, fourteen were John Does (NN).
 Although they are not officially considered victims of political repression, the fact that these 115 people died of gunshot wounds and their bodies were referred by military prosecutors indicates a high probability that they were. Of the total, 71 cases were NN, therefore it was impossible for the Rettig Commission to classify them as such.
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