Top Court Talk: Chilean Supreme Court Highlights

The Chilean legal system lacks stare decisis. According to article 3 of the Chilean Civil Code, legal decisions have binding force only on the specific cases for which they were written. On this basis, Chilean legal scholars have built the “legal decision narrow force” theory—depriving even the rationale behind decisions any legal force. This thesis has been confirmed by the Supreme Court itself a couple of years ago. This brief explanation is necessary to understand the kind of cases I highlight for the Chilean legal context. These cases are not relevant because of their binding force or impact on the legal system, but because of their important impact on the Chilean transitional democracy.

The “Military Junta”—headed by Pinochet—passed an amnesty decree on April of 1978, declaring the amnesty of all crimes committed between September 11th of 1973, and March 10th of 1978—the Junta’s most violent period.

The first set of cases I consider were filed before Chilean courts (early 1990s) seeking criminal responsibilities for perpetrators, faced an emphatic rejection from courts. Resting on the amnesty decree, courts declared they had no faculty to investigate these violations. In spite of the plaintiffs’ arguments about the inapplicability of the decree in these cases—according to Geneva Conventions—the Supreme Court ruled that these conventions were applicable only in cases of international wars, “but not for internal conflicts.”

A second set of cases were decided under an interpretation of the decree promoted by former President Patricio Aylwin, who urged courts to investigate and to determine who were the criminal offenders, but to finally dismiss such cases on the basis of the amnesty decree. According to this interpretation the amnesty decree forbids criminal responsibilities, but does not forbid investigations directed to determine who were (at least politically) responsible for human rights violations.

In a third set of cases (beginning by mid 1996) Chilean courts established criminal responsibilities in spite of the amnesty decree. Courts that convict perpetrators have followed two different ways—a situation that persists until now.

(1) On the one hand, courts have accepted the primacy of the international law of human rights over domestic legislation. In deciding landmark cases on human rights violations, the Supreme Court has held that:

States are under the duty of adopting all legislative measures in order to establish criminal sanctions to those who commits, to those who have committed, or to those who have ordered to commit serious crimes against humanity, as defined in Geneva Conventions (Rol No 3125-2004, March 13th, 2007).

In this case the Court overruled its decisions from the 1990s—where it held that Geneva Conventions where supposedly applicable only in international wars—by saying that:

It is not admissible that the same people who declared the existence of a war [the “Military Junta”] to use its consequences against the regime opposition. . . expects now to step back in order to ignore the legal and international consequences of that declaration concerning the sanctions imposed for those cases by the Geneva Conventions (Id.)

In this case the Supreme Court held that domestic legislation couldn’t serve as an excuse to break international agreements reached with other nations and organizations. So that if a State wants to guarantee impunity based on domestic legislation, it is not only breaking international agreements, but also failing to recognize international law primacy in deciding crimes against humanity.

This doctrine has been repeatedly held by the Supreme Court, particularly resting on the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968). In deciding a new case on March of 2007 the Supreme Court settled that:

Taking into account the amnesty decree, defendants have argued that its approval sought to resolve those social conflicts that remained from the dictatorship . . . [we have to acknowledge that] using that decree in cases of gross human rights violations would be against international treatises and conventions ratified by or country (Rol No 6528-2006, March 18th, 2007).

(2) On the other hand, courts have argued that kidnapping is a crime which may be charged so long as the murder of the missing individual cannot be proved. There are several cases where the Supreme Court has declared the inapplicability of the amnesty decree while bodies do not appear. Under this doctrine the decree may have force only once the bodies are found or once the murders are proved—which has taken several perpetrators to start declaring their murders.

The Supreme Court recently declared that:

It is not possible for this court to apply the amnesty decree, since we have no notice about the exact date in which the kidnapping would have been committed . . . in fact, the crime is still being committed (Rol No 1427-2005, January).

Chilean courts do not regularly make decisions on the basis of international law. In spite of the rich and broad evolution several areas of human rights have had, Chilean courts do not pay that evolution any attention. Though this situation may be explained considering “Chilean legal culture,” the important fact is that a change has began in human rights landmark cases—those filed by relatives of those disappeared and killed by the Pinochet regime. Chilean courts have started to look and consider Chile’s international obligations in deciding these landmark cases, having an important impact on the political system.