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OEA/Ser.L/V/II.74 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION CASE
NO 01a/88 CASE
9755 CHILE September
12, 1988 HAVING SEEN:
1.
The various communications received by the Inter-American Commission on
Human Rights reporting that on the morning of July 2, 1986, during a protest
demonstration called by groups in opposition to the Government of Chile, the
youths, Rodrigo Rojas DeNegri and Carmen Gloria Quintana Arancibia, were
arrested in a neighborhood of Santiago by an army patrol, searched, beaten, held
within proximity of inflammable material, sprinkled with fuel, set on fire, and
taken to a place on the outskirts of the city where they were unable to receive
medical care, and there they were abandoned.
2.
The subsequent death of Rodrigo Rojas DeNegri on July 6, 1986, as a
result of burns received.
3.
The intervention of the 19th Criminal Court of Santiago, which received,
on July 3, 1986, at 12:15 a.m. and 12:45 a.m. testimony from the victims
(Appendix 1), who stated that a group of military personnel had willfully set
fire to them. This statement was
later corroborated by Carmen Gloria Quintana in Montreal, Canada, on March 12,
1987 (Appendix 2).
4.
The transfer of judicial records to the 15th Criminal Court of Santiago,
which orders Department OS-5 of the Carabineros Police to conduct an
investigation, and the report prepared (Appendix 2A).
5.
The request by the Minister of the Interior calling for the appointment
of an Ad Hoc Judge of the Santiago Court of Appeals to investigate the
complaint, and the ensuing appointment of Judge Alberto Echavarria Lorca, who
took charge of the proceedings on July 7, 1986.
6.
The information conveyed to the Supreme Court Judge of the 19th Criminal
Court by Brigadier General Carlos Ojeda Vargas, Commanding General of the
Santiago Army Garrison, on July 9, 1986, to the effect that there were no
military forces in the sectors area and the events occurred (Appendix 3),
contrary to statements made by the very same military officer in an internal
summary administrative investigation of the Army that Regiment No. 10, Libertadores,
(Appendix 4) was operating in the area.
7.
The official statement by the Commanding Officer of the Santiago Army
Garrison on July 18, 1986, which states the following: 2.
Notwithstanding the findings of initial reports and information received,
which showed no involvement on the part of institutional personnel in the events
in reference, it may be concluded from subsequent inquiries that certain Army
personnel did intervene in those events.
In fact, according to that information, on July 2, while an army patrol
was keeping the public peace, it came upon a group of people attempting to
disturb the peace and carrying inflammable material in containers designed for
that very purpose. Among those
persons were Carmen Gloria Quintana and Rodrigo Rojas DeNegri.
Also, according to information provided by the persons referred to in the
paragraph below, when one of the containers of inflammable material was knocked
over by one of the persons detained, the clothing of those persons caught fire,
and was extinguished with blankets that the military were carrying.
As a result, the Commander of this Garrison has ordered the arrest of the
three officers, five non-commissioned officers, and 17 conscripts, who allegedly
participated in the events in reference, and this afternoon, officially
communicated this information to the ad hoc judge, Alberto Echavarria
Lorca, and placed the aforementioned personnel at his disposal so that he might
investigate their possible participation and degree of responsibility, if any,
in accordance with the law. 8.
The request by Rodrigo Rojas’ mother, Mrs. Veronica DeNegri, and the
Bar Association of Chile that the Inter-American Commission on Human Rights
appoint a special commission to investigate the circumstances surrounding the
events denounced “in the face of the absence of findings from judicial
inquiries in similar cases.” 9.
The transmittal of that request to the Government of Chile and that
Government’s refusal, dated August 13, 1986, to accept the Commission’s
investigation since it was “a case that is clearly sub judice, it is
being fully investigated …,” and therefore it “is clear that internal
remedies have by no means been exhausted…” 10.
The judgment of the ad hoc judge, dated July 23, 1986, in which he
cites statements made by seven military personnel making up the patrol as a
basis for his ruling, and considers: a)
that on July 2, Rodrigo Rojas De Negri and Carmen Quintana Arancibia were
arrested by an army patrol that was ensuring the flow of traffic, and held
temporarily at the place where they were arrested, side by side, and near
material that could easily be ignited, which is what happened as a result of a
movement made by the girl, whereupon one of the containers fell and broke
causing serious burns to the two and the subsequent death of the former; and b)
that no effort was made to find immediate medical attention for the injured that
were not conducive to their getting that attention. Second.
That those facts constitute the crime of manslaughter of Rodrigo Rojas De
Negri and serious injury to Carmen Quintana Arancibia, which are criminal acts
that are so defined and punishable under Art. 490 of the Penal Code.
On the basis of this reasoning, the ad hoc Judge Alberto
Echavarria Lorca charged Lieutenant Pedro Fernandez Dittus, who was leading the
patrol, as the alleged author of that manslaughter and acquitted all the other
military personnel. 11.
The decision of the ad hoc judge, also dated July 23, 1986,
whereby he declares himself incompetent to continue to try the case since
military personnel were involved, and transfers the records to the Military
Judge. 12.
The appeal of the ad hoc judge’s decision by representatives of
family members of the victims of which the Military Appeal Court took
cognizance, and concluded in its ruling of August 12, 1986, after evaluating 24
testimonies, that: … the existence of the crimes of unnecessary violence resulting in
the death of Rodrigo Andrés Rojas DeNegri and serious injury to Carmen Gloria
Quintana Arancibia has been proven, and are punishable under the first and
second numerals of Article 330 of the Code of Military Justice; The Military Appeal Court decided to try Lieutenant Pedro Fernández
Dittus for these crimes. 13.
The following events, which have affected persons involved in the trial
and which were brought to the attention of the Government of Chile by the
Commission in due course: a.
The arrest of Pedro Martínez Pradenas, witness, on August 22, 1986, on
orders from the military prosecutor, when he was summoned by that prosecutor to
testify on the 25th of August. Subsequently, this witness was indicted under the
Arms Control Law, since the prosecutor felt he had been involved in acts that
occurred on the day of the events. b.
The abduction, also on August 22, 1986, of Jorge Sanhueza Medina,
witness, by unidentified civilians. Jorge
Sanhueza Medina was pressured so that he would change his incriminating
testimony against the military personnel, but in regard to this situation, the
Government limits itself to saying that there has been no denunciation by Mr.
Sanhueza in relation to those facts. c.
The proceedings filed on September 1, 1986, against the attorney of the
family members of the victims, Mr. Héctor Salazar, at the First Office of the
Military Prosecutor for defamation of the Armed Forces following statements he
made to the press at which time he said that with the Military Appeal Court’s
verdict “… it has been established that the second version given by the Army
does not correspond to reality. I
believe that the high command of the Chilean Army owes the courts and the
country the truth.” The
Commission should note that the Government of Chile never forwarded the basic
documents that gave rise to those proceedings before the military justice system
and which the Secretariat repeatedly requested. d.
The attempted abduction, on September 12, 1986, of the attorney of family
members of the victims, Mr. Luis Toro, by a large group of unidentified and
heavily armed persons late at night at his place of residence. 14.
The decision of the ad hoc examining magistrate of January 29,
1987, amending the assessment of the Military Appeal Court and going back to the
characterization of the facts as manslaughter and serious injury. 15.
The promotion of Pedro Fernández Dittus to the rank of captain of the
Army. 16.
The removal from office of Colonel René Muñoz Bruce, Commanding Officer
of Regiment No. 10 Libertadores for having been informed of the events
that gave rise to the denunciation and hidden that information from his
superiors. 17.
The secrecy in which the judicial proceedings in progress have been
shrouded, with the exception of a brief period at the beginning of January 1987,
despite repeated requests by the attorneys of the injured parties to gain access
to information concerning the case. 18.
Repeated statements by high government officials, including statements
made by President Pinochet and his wife, absolving military personnel of
responsibility and attributing the events denounced to a national and
international conspiracy. 19.
The observations made by the complainant concerning the numerous
communications from the Government of Chile in this case, and especially, the
official statements by that Government during the General Assembly of the
Organization of American States in reference to the events that are the subject
of this case. Those observations
were conveyed to the Government of Chile on February 16, 1988, which was given
thirty days within which to reply. 20.
The note from the Government of Chile, dated March 7, 1988, expressing
its view that the complainant’s observations concerned its statement before
the General Assembly and not the proceedings relevant to the case, and that the
preparation of observations required a longer period than the thirty days.
That note further reiterates that at issue was “a case that is clearly sub
judice,” and therefore “the internal remedies have by no means been
exhausted…” 21.
The observations of the Government of Chile in resolution 01a/88,
provisionally approved by the IACHR during its 72nd session, and forwarded on
March 30, 1988. CONSIDERING:
1.
That the denunciation received meets the formal admissibility
requirements established under Article 32 of the Regulations of the Commission.
2.
That there is sufficient proof that on the morning of July 2, 1986,
Rodrigo Rojas DeNegri and Carmen Gloria Quintana were arrested by an army patrol
in a neighborhood in Santiago, Chile, in the course of a protest demonstration.
Violence was used in the arrest, and the patrol seized inflammable
material that was going to be used in building a barricade.
The two persons in question were burnt and taken to a rural road by the
army patrol where they were abandoned.
3.
That the discrepancy between the versions of what happened concerns how
the fire that caused serious burns to Carmen Gloria Quintana and the death of
Rodrigo Rojas started; whereas the victims in question and some witnesses
maintained that the fire was intentionally set by a member of the patrol after
the head of the patrol had soaked the two parties in question with fuel, the
members of the patrol maintained that the fire was accidentally started by a
movement made by Carmen Gloria Quintana.
4.
That there are direct indications that would lead one to accept the
veracity of the version that the fire was deliberately started after two victims
were doused with fuel, as they told the Judge of the 19th Criminal Court, and
according to the report prepared by Department OS-7 of the Carabineros
Police, which discounts the possibility of the fire having started accidentally,
and states that the burns could not have been as they were if the clothing had
not been soaked with fuel.
5.
That the patrol’s conduct in transferring the victims to a distant
rural road between 14 and 17 kilometers from the place of the events, and
leaving them there in a situation where it was virtually impossible for them to
get the kind of help they needed would lead one to believe that the members of
the patrol were aware that they had committed a punishable act, and there can be
no logical validity to the explanation that they left them there because the
services of the patrol were needed elsewhere in the city.
6.
That the repeated denial on the part of the military authorities of
participation by military personnel in the events would confirm this
interpretation, and that once these events could no longer be covered up, they
devised the version of the accidental fire, which could have been reported
immediately, were the version true.
7.
That the remedies of domestic law in this case cannot be considered to be
pending, for the following reasons:
a.
More than twenty months have elapsed since the events that are the object
of this case transpired, but as of March 23, 1988, date of the provisional
approval of this resolution, there has been no indication of accountability, and
it could, therefore be considered that there has been an unwarranted delay in
the judicial decision under the provisions of Article 37.c of the Regulations of
the Commission, which would make it possible to waive the requirement of the
exhaustion of domestic remedies;
b.
The clearly arbitrary manner in which Judge Echavarria Lorca assessed the
evidence, purely on the basis of the testimony of seven members of the patrol
and ignoring all the other evidence and the serious distortion of the facts
revealed in the expression “… they were released…” used in the verdict
calling for the trial of Lieutenant Fernández Dittus for the commission of
manslaughter and serious injury and acquitting the rest of the patrol, all of
which would constitute behavior that is at odds with the obligation of any
magistrate to safeguard the rights of citizens and see to the proper observance
of the law;
c.
The various irregularities pertaining to legal process inherent in the
military justice system in Chile, which the Commission has discussed in detail
in Chapter VIII of its 1985 Report on the Situation of Human Rights in Chile,
wherein it states the following: “… the actions of these courts [military] have served to provide a
veneer of legality to cover up the impunity which the members of the Chilean
Security Forces enjoy when they are found to be involved in flagrant violations
of human rights.” In the case under examination, these irregularities pertaining to legal
process inherent in Chilean military justice are reflected in the abusive
recourse to secrecy in the conduct of the proceedings.
The situation that has thereby arisen has made it virtually impossible to
gain access to basic elements of the trial and allows the military authorities
to control the evidence submitted. The
Commission is, therefore, led to believe that the provisions of Article 37.2.b
concerning the nonexistence of due process of law should be applied in this
case. d.
The very small proportion of military or police personnel who have been
convicted in Chile for numerous denunciations of human rights violations, which
gives reason to believe that the delay in judicial proceedings in this case
could become yet another device for assuring the impunity of the perpetrators of
a crime that is so reprehensible, especially when one takes into account
Lieutenant Fernandez Dittus’ promotion to the rank of Captain, and the freedom
he enjoys while such extremely serious accusations are under investigation.
Added to this are the statements made by high-level Chilean authorities,
including the President himself, exonerating the military officers involved, and
indication of the negative attitude that exists as regards inflicting the
punishment that hose responsible for so condemnable an offense deserve. 8.
That the long period that has lapsed since the events giving rise to the
present case occurred and publicity they have received both in Chile and abroad
lead the Commission to believe that the Government of that country has incurred
in an unwarranted delay by not submitting a response to the claimant’s
observations as requested and that, in any event, the Government may make such
observations as it may deem pertinent when this resolution is forwarded to it,
in accordance with the provisions of Article 53.2 of the Regulations of the
Commission. 9.
That the early request forwarded to the Government of Chile that the
Commission be allowed to investigate this case in situ was denied then
and again 15 months later, in identical terms, giving cause to believe that the
Government of Chile has not provided the necessary cooperation in enabling the
Commission to have direct knowledge of the material involved in the proceedings. 10.
That the observations of the Government of Chile on the resolution
concern the need for prior exhaustion of domestic remedies without invalidating
the considerations set forth in paragraph 7 above, especially if one takes into
account that five months have already elapsed since the provisional approval of
resolution 01a/88, and more than 26 months since the events that are the motive
for Case No. 9755, without any judicial decision having been taken on the
matter. 11.
That among the factual aspects mentioned by the Government of Chile in
its observations, some are impossible to verify, since, as that very
communication acknowledged, they are covered by the secrecy of the preliminary
proceedings. Others are definitely
incongruous, as for example in the case of the abduction of witness Sanhueza
Medina, with regard to which the only reference made is to his possible
participation in acts of violence, or show a mindless lack of understanding of
the events, as for example when the Government states that Carmen Gloria
Quintana left Chile of “her own free will,” when she left for Canada to
undergo specialized treatment for severe burns received. Wherefore: THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES,
1.
To declare that the Government of Chile has violated Rodrigo Rojas
DeNegri’s right to life and Carmen Gloria Quintana’s right to personal
integrity, recognized in Article I of the Declaration of the Rights and Duties
of Man, through acts committed by its agents when they arrested the victims in
question, soaked them with fuel and deliberately set the fire causing injury to
them, after which they abandoned them on a rural road.
2.
To declare that the Government of Chile has violated the right to a fair
trial upheld in Article XVIII of the American Declaration of the Rights and
Duties of Man by not providing a judicial remedy to protect the rights of the
injured parties.
3.
To recommend to the Government of Chile that it adopt the necessary
measures to proceed expeditiously to determine the responsibility of the
perpetrators of so reprehensible an act and to subject those persons to proper
punishment to avoid the future recurrence of such condemnable crimes.
4.
To recommend to the Government of Chile that it proceed to make amends
for the material damage and moral injury caused to Carmen Gloria Quintana and
the family of Rodrigo Rojas DeNegri.
5.
To publish the present resolution in the Annual Report, for the purposes
provided for in Article 63.g of the Regulations of the Commission.
6.
To transmit the present resolution to the Government of Chile and to the
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