por Pascale Bonnefoy M. (Lea aquí el artículo original en español)
- READ MORE: Execute first, judge second
As soon as the military coup took place in 1973 and the Military Junta issued Decree Law No. 5, declaring that the state of siege imposed the day before was to be understood as a “state or time of war”, the “wartime military tribunals” began to operate in Chile.
This meant that, unlike peacetime military tribunals, the accused in courts martial did not have the same guarantees and rights, neither of defense nor of appeal, as established in the Code of Military Justice.
In peacetime, military tribunals consisted of Military Courts that corresponded to Army divisions (for example, the II Military Court of the II Army Division in the case of Santiago)[6] The Military Judge ordered a summary and prosecutors from the different Military Prosecutor’s Offices in the country investigated (in 1973, in Santiago there were the First and Second Military Prosecutor’s Offices). The military prosecutor would then submit his report and propose an indictment to the military judge. The judge could accept or modify the prosecutor’s opinion and issued the indictment. The accused then had an opportunity for defense and two instances of appeal: the Court Martial and the Supreme Court; the latter included an Auditor General of the Army for this purpose.
No right to appeal
However, with the operation of the “wartime tribunals” there was in fact no right to appeal. The 1925 Constitution, still in force after the military coup, explicitly established that the Supreme Court maintained supervision over all courts in the country, including military tribunals. Shortly after the military coup, however, the Supreme Court relinquished its supervisory role over the wartime military tribunals. In the first appeal brought before it by a court-martial in November 1973, the Supreme Court ruled that it had no jurisdiction over wartime military tribunals. Thereafter and with this precedent, the Supreme Court excluded itself from the supervision of these tribunals that it was entitled to under the constitution.[7] The Supreme Court’s jurisdiction over military tribunals in wartime is not limited to the military courts.
According to the Code of Military Justice, in “wartime,” the “General in Chief” of the zone (in the case of Santiago, General Hermann Brady Roche) appointed ad hoc military prosecutors who “shall initiate and substantiate all proceedings for crimes committed within the territory they occupy or in which the forces to which they are attached operate, until they are ready to be submitted to the corresponding War Council.”[8] In wartime, there were no military tribunals.
“In wartime there were no permanent courts,” states a former military prosecutor of the time. “The First and Second Military Prosecutor’s Offices still physically existed and continued to process cases initiated before September 11, but for the purposes of wartime justice, there were only ad hoc designated prosecutors. The Military Judge was still hearing previous cases as a military judge and with the usual procedures, and on the other hand, he was assuming supreme wartime functions.”
The decision of the Court-Martial was final, according to the Code of Military Justice.
General Brady, Military Judge of Santiago, was at the same time Commander of the II Army Division and of the Santiago Garrison, and Chief of the Zone under State of Siege. In that capacity, he was in charge of the Internal Security Jurisdictional Area Command (CAJSI) corresponding to the Second Army Division in the capital.
The CAJSI operated from the II Army Division Headquarters, then on the sixth floor of the Armed Forces building on Zenteno Street.
From the CAJSI, under the orders of the Commander in Chief of the Army, General Augusto Pinochet, the military operations in Santiago were ordered and directed, which resulted, between September 11 and December 31, 1973, in 785 deaths whose cases fell under the jurisdiction of the military prosecutors’ offices.
As ArchivosChile was able to confirm, the military prosecutors did not investigate any of these cases.
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[1] In 1973, there were seven Army Divisions in the country and therefore seven Military Courts, the Navy had four Military Courts and the Air Force only one, in Santiago.
[2] The 1980 Constitution confirmed this de facto situation. Chapter VI on the Judicial Branch, Article 79, established: “The Supreme Court has the directive, correctional and economic superintendence of all the nation’s courts. Excepted from this rule are the Constitutional Court, the Elections Tribunal, the regional electoral courts and the wartime military courts.” The reform to the Constitution in 2005 eliminated the reference to wartime military courts.
[3] Article 80 of the Code of Military Justice.
READ MORE:
- Investigation Overview: The Bureaucracy of Death – Executions in Chile 1973
- Inside the Instituto Médico Legal (I): Bodies at dawn
- Inside the Instituto Médico Legal (II): “Cursory autopsies”
- Inside the Instituto Médico Legal (III): From the morgue to the cemetery
- Political Executions: 150 new cases?
- Crossed identities and bodies without names at the Registro Civil
- The black hole of the military prosecutors’ offices
- Military Courts: Execute first, judge second
- Wartime Tribunals: Absolute authority
- The silence of the cemetery
- The strange case of the two Luis Curivils
- Victor Jara and Littré Quiroga
- Bodies floating in the Mapocho River
- Allende suicide: Forensic reports July 19, 2011
