The Chilean judiciary has gradually overcome various legal, political and cultural obstacles to achieve systematic prosecution of crimes against humanity committed by state agents during the 1973-1990 dictatorship. Recently, however, a new obstacle has arisen: defendants appeal to the Constitutional Tribunal, claiming that the criminal procedure used to convict them (a written, inquisitorial system since superseded by an adversarial system) violates constitutional rights. Although most of their arguments are weak and poorly structured, the most persuasive one has found support in some dissenting judicial opinions. This challenges legal rules limiting the freedom of triers of fact to assess evidence, allowing convictions based on indirect evidence or judicial presumption. This paper argues that this argument is fallacious and largely rhetorical and shows how the applicable rules are in fact compatible with the right to due process and the presumption of innocence.
The recent Chilean experience of accountability, particularly the prosecution of direct perpetrators, has had to overcome various obstacles such as amnesty, statutory limitations, and the existence of a court addicted to the military regime. But, since 2015 the Chilean Constitucional Court began to emerge as a mechanism to obstruct the progress of human rights trials. This has been noted by the defenses, which have sent almost sixty cases to the tribunal. These cases have shown excessive delays, sui generis interpretations, a very low admissibility standard, and even interference with the faculties of the Chilean Supreme Court, being the most flagrant example the “Cerro Moreno” Case. This paper argues that this practice of the court, contradicting its resolutions of the 2005-2015 period, violates various international obligations, constituting a true mechanism of impunity, and will discuss the ways to overcome this.
Among the ethical and legal problems that arise from the perpetration of crimes of enforced disappearance, one of the most pressing issues is the satisfaction of the need to find missing persons alive or to recover, identify and return their human remains to their family members. Nowadays, the problem of missing persons searching seems to appear more on the agenda of important international humanitarian and human rights bodies. Also, several States have implemented the search as a public policy. This paper will aim to diagnose the current search model in Chile and reflect critically on the possibility of implementing a humanitarian model that complements the search conducted by the courts.
2018 saw the 20th anniversaries of the ‘Pinochet case’ and the Rome statute, both critical to post-WWII atrocity crime accountability. Post-1945 global governance architecture, the bedrock of the ICJ project, is however under siege. Some African states propose regionalised alternatives, making Latin America an object of interest: its decades-long transitional justice experience has produced uniquely exacting regional system standards and a proliferation of late domestic prosecutions. Chile has been part of this punitive turn, reinterpreting amnesty and prosecuting scores of former regime agents. Focusing on criminal, civil, and policy responses to disappearance, this paper argues that the resultant transliteration of international human rights principles into domestic prosecutorial practice, meshing political exigencies with normative justice imperatives, has been the most longstanding and important “Pinochet Effect” of all, offering object lessons for other latitudes.