Human Rights Quarterly - Vol.5, No.4, 1983, pp.510-533

Stages of Repression and Legal Strategy for the Defense of Human Rights in Chile: 1973-1980
Hugo Fruhling (Translated from Spanish by Frederick Woodbridge, Jr.)

I. INTRODUCTION

This article analyzes the legal strategy for defending human rights in Chile since 11 September 1973 when the process of constructing and institutionalizing the authoritarian state began. The tactical changes in the legal defense of political dissidents conducted by a group of lawyers assisted by the Catholic Church are outlined and linked to changes in the government's repressive tactics.[1] This article does not examine the social and political forces that led to the repression in Chile. Instead the objective is to describe the different stages of governmental human rights violations, relating changes in government repression to the strategy for the legal defense of human rights.

An analysis of the way in which the courts were used in Chile and the effect that the legal defense had during different stages of repression reveals information about the way an authoritarian state works. The organized presence of lawyers defending victims of political repression in the courts is not unique to Chile. But in Chile it is especially significant because of the institutional and human resources invested in it and the impact it had on the internationalization of the Chilean human rights situation. For reasons enumerated in this article, the continuous recourse to the courts met with some success and even managed to limit the freedom of action of the government's repressive apparatus. Legal defense activities from 1973 to 1978 enjoyed public notoriety through press coverage of major cases. For [511] each act of repression, a response was prepared to bring a suit or an appeal before the courts. In the case of disappearances and the permanent use of constitutional "states of emergency' to inhibit the exercise of individual rights, judicial action was part of a political strategy designed to keep similar incidents from recurring.

The repression that began on 11 September 1973 cannot be understood without reference to the Allende government's experiment in socialism from 1970 to 1973. Especially during the first stage, repression was aimed at destroying the social and political organizations that had supported Allende in an attempt to prevent another socialist regime in the future. Allende's presidency also made important sectors of the bourgeoisie aware of the need to alter the strategy of capitalist development the country had followed from 1930 to 1970. What began as an idea of economic transformation shared by only a small group of technocrats and businessmen with strong links to international financial interests[2] gradually prevailed inside the government. The aim became one of building a market economy in an authoritarian state, and a change in the political values of the society was needed.[3] To implement this, large doses of coercion were required. It was necessary to modify democratic values at every level of society in such a way that the past would be forgotten and the individual would turn back to the sphere of his private relationships. Thus the repression was aimed at the twin goals of heading off any possibility of socialist resurgence and of implanting a new social structure. Although these goals were constant, the methods, intensity, and scope of repression changed.

The methods of repression, which included courts-martial, ordinary trials, repressive laws, and various illegal disappearances and killings, changed in response to the political needs of the moment, long-term political necessities and pressures from hostile international public opinion. The intensity of the repression was greatest during the installation of the military government, at least somewhat due to the legitimacy and social support which the military coup had at that time.[4] The repression gradually became more selective not because of greater respect for human rights, but because of the decrease in legitimacy caused by the repression itself, the [512] need for efficiency, and international political and economic pressures. The scope of the repression, measured in terms of the number of groups affected by it, also underwent modifications. As the intensity of the repression decreased, the scope of it increased so that it came to affect not just leftists, but also groups connected with centrist political parties that had not been actively opposed to the new government at first.

II. THE FIRST PHASE OF REPRESSION: SEPTEMBER 1973-JUNE 1974

A. Characteristics

The first phase began with the military coup on 11 September 1973 and lasted until June 1974 when the Bureau of National Intelligence (DINA) was officially created. Some of the characteristics of the first phase, however, did remain in force during at least part of the second one. This period was characterized by an outright war against the left. During the first phase of repression, the use of force was unlimited and highly irregular. There were no limits on who was a potential victim, nor were there limits on the methods used or the punishment handed out. All members or followers of the Popular Unity Coalition were targets, regardless of their importance or connection to the overthrown government. Many people were detained on mere suspicion of having belonged to a leftist group. The repressive methods were unpredictable. Some persons were judged by courts-martial; others were summarily executed without trial or remained in detention indefinitely. In some cases, methods would even be changed suddenly with regard to a person once an initial decision had been made about that person's punishment. For example, in the city of Calama many people who had been condemned to prison terms varying from sixty days to twenty years immediately after the military takeover, were shot on orders from higher up on 19 October 1973.[5] This also shows the lack of rules governing the carrying out of the sentences which depended more on the disposition of the local military leader than on the prisoner's participation in the incidents with which he was charged. In rural areas some shootings were the direct result of local landowners' pressure and their identification of persons they thought to be especially dangerous.

At this stage, the repression lacked a centralized direction which caused some inefficiency. All three branches of the armed forces and the local police participated in the detentions and housebreakings. But this did not result in effectiveness because some persons were wanted by one branch of [513] the armed forces, but not by the others. Persons in danger in a given provincial capital might find themselves safe in Santiago.

The military was omnipresent and Santiago was an occupied city. The visibility of the repressive apparatus heightened the political opposition's fears. The militants and followers of the parties grouped under the Popular Unity coalition were psychologically and physically breaking down due to the uncertainty as to who might be persecuted. All of this aided the government in its attempt to quash the opposition.

B. Repressive Means and the law

Despite the lack of legal or moral limits to state violence during the first phase, the state did invoke preexisting military law when using repressive powers. The military used existing legal devices meant for wartime in order to carry out its goals by declaring a state of emergency and a state of siege.[6] This permitted the most serious infractions of interior state security to be judged by military courts. In addition, authority to assume full military jurisdiction in the territories was delegated to the commanders in chief of operating units all over the country by Decree No. 8 which was published in the official newspaper of 12 September 1973. The powers delegated included those of Article 77 of the Code of Military Justice which make military laws binding on civilians accompanying the Armed Forces as well as "all inhabitants of occupied territories."

Using repressive legislation meant for wartime and treating the population as inhabitants of occupied territory were to a great extent responses to practical necessity. There was no time to draw up comprehensive legislation to replace that which already existed in order to grant the Armed Forces the power it needed to destroy the Popular Unity parties. Thus military laws and the Code of Military Justice were used as if they were a Penal Code.

The methods of repression most widely used during this phase were executions without trial, detentions for indefinite periods and courts-martial. In the very beginning, courts-martial were used to judge and punish people who had been in positions of responsibility in the Allende government. Many others who had been detained under the authority granted to the government by the state of siege were not tried. Courts-martial were the most adequate method of repression to demonstrate that guilt existed and that violations had to be heavily punished. But the military trials during the first weeks were summary in nature, showing no effort to maintain even an [514] appearance of legality. Generally proof of charges was legally insufficient and there was slight possibility of defense.[7] Virtually no news was published about the trials.

At the end of 1973, however, the press began referring to the courts-martial, creating a hostile climate with respect to the defendants by accusing them of being extremists. The press suggested that the courts-martial were strictly legal and the sentences were just. The press pointed out the thoroughness of the military prosecutors and the difficulty of their investigations.[8] It also asserted that the trials were carried out because of the violation of ordinary laws or of provisions peculiar to the Code of Military Justice.[9]

During the first phase, some legal actions were brought for political purposes also. The most important of these was the suit initiated by the Air Force prosecutor's office on 14 September 1973 alleging infiltration of the Air Force by people loyal to the Allende government. This trial, known as FACH 1-73 involved a three-month investigation and resulted in a five-volume report. During the investigation, the sixty-four accused persons were tortured; two died and one became insane.[10] Although the government lawyer requested the death penalty for six of the defendants, it was never applied.

The defendants were accused of meeting with Allende government officials prior to the military coup and aiding that government. In order to make its case, the prosecution developed a three-part argument. First, it asserted that the Allende government had lost its legitimacy by undertaking illegal actions before its demise. Any organization attempting to support the illegitimate government thus had an illegal purpose. Second, the prosecutor declared that a state of war had existed in Chile even before the coup. He based his argument on Popular Unity attempts to encourage everyone to defend the Allende government by any and all means. By arguing that the state of war preceded the coup, the prosecutor sought to establish the authority of the post-coup military court to judge events that had occurred prior to the official declaration of war. Third, the prosecutor categorized "all the parties and political movements that were part of the so-called Popular Unity, including each and every militant"[11] as enemies for the purposes of the case. This reasoning permitted Air Force officers to be accused of treason for revealing military secrets and orders to the enemy (Article 245 § 1 Code of Military Justice) and for divulging maps, documents, or other written material to persons in violation of Article 257 of the Code. [515]

Every part of the prosecution's legal argument at the FACH 1-73 trial had a political purpose. It was intended to give the public an impression of Popular Unity as enemies of the nation and also to convince international public opinion that the trials were carried out justly and with full legal guarantees. Unlike other courts-martial, therefore, this one was opened wide to both Chilean and foreign journalists.

C. Institutionalization of the Defense: The Committee of Cooperation for Peace (COPACHI)

Immediately after the coup d'etat, clandestine opposition to government repression developed. Individual actions by Catholic priests who sought asylum for persecuted union leaders or intellectuals is one example.

The Catholic church with the support of other churches first initiated a group to defend Chilean citizens in early October 1973. The Committee of Cooperation for Peace (COPACHI) was formally organized when representatives of the different churches came together to sign the Committee's constitution, which set forth its goals.[12] A Lutheran bishop representing the World Council of Churches and a Catholic bishop were co-presidents. Representatives from each church made up the Board, which met regularly until conflict between COPACHI and the government developed.

At the beginning COPACHI had no resources; it was only able to offer advice to the persons who sought its help and wanted to leave the country.[13] Within a few weeks a small legal aid group was organized to aid workers fired for political reasons and to work on the legal defense in the courts-martial. This group operated in the ad hoc labor courts created by the government to hear appeals from the firings[14] and in the military courts already discussed. By the beginning of November 1973 the legal aid group had eight persons working in headquarters provided by the Catholic church. The World Council of Churches and other international groups provided financial support to COPACHI.

It soon became apparent that COPACHI needed to be strengthened institutionally in order to confront the government for what appeared to be a long-term effort. The active forces in strengthening COPACHI included Catholic priests who worked in COPACHI, a few progressive bishops in [516] Santiago, a Lutheran bishop and a few professional persons who were associated with Christian Democratic splinter parties. They decided to publicize COPACHI's activities to inform those who might need its aid by putting an advertisement in Santiago newspapers at the beginning of November. This insert announced that COPACHI had been created by the Catholic, Evangelical, Orthodox, and Jewish communities to aid workers by providing advice about their labor problems.[15] These notices continued to be published with some regularity.

Although COPACHI was immediately attacked by some for intentionally tarnishing the image of the government abroad,[16] the government's response was less hostile. In November 1974 the COPACHI directors met with the Minister of Interior to assure the government that their committee had no political objectives. Following the meeting, the directors were told that the Ministry would give the lawyers working for COPACHI information about detainees.

The Committee grew spectacularly, from eight employees in November 1973 to 108 in August 1974 in the City of Santiago alone.[17] Although there were no defined hiring criteria., many of COPACHI's employees were from the political left. But the lawyers included Christian Democrats, independents, and liberals, some of whom aided COPACHI at the request of the Church. Thus the Committee facilitated teamwork by lawyers despite their opposed political tendencies. This was especially significant in light of the fact that the Christian Democrats and the Left had been antagonists between 1970 and 1973.

COPACHI investigated a broad range of rights violations. They assisted workers who had lost their jobs as well as university students who had been expelled. A relocation department was created to organize trips out of the country for those who feared police persecution. In January 1974 the Cornmission of Solidarity and Development was organized to give advice to laid-off workers who had started small businesses.

Open opposition between COPACHI and the government did not develop until May 1974 when it was announced that the Mexican daily newspaper Excelsior had published portions of an internal COPACHI document listing fundamental rights violations in Chile. When this occurred, the government stopped viewing COPACHI as merely a humanitarian organization and instead considered it part of the opposition. Although both the government and the Church had wanted to avoid an open confrontation, the government now began working to isolate the Catholic Church in its defense of human rights. In response, the Catholic Church stood behind its representatives on the Committee. [517]

D. Legal Defense Work During the First Phase

During the first phase, the major legal activities of COPACHI involved providing legal defense at the courts-martial proceedings. Although COPACHI was involved in attempts to locate detainees and in the filing of habeas corpus petitions during the first months following the coup, the courts-martial cases were the first extensive, public forum for COPACHI's defense of rights violations.

Prior to COPACHI involvement, defense lawers were either hired privately by the interested families, were appointed by the court, or were law students doing their required clinical work. Many of these lawyers, especially those in the provinces or those appointed by the court, were ideologically sympathetic to the military judges. For this reason, the defense offered in early cases often amounted to little more than requesting more lenient sentences than those sought by the prosecution.

COPACHI first became extensively involved in the defense work during the FACH 1-73 trial when it handled approximately one-third of the cases. COPACHI was also involved in other cases tried before military wartime tribunals for alleged crimes punished in the Code of Military Justice such as treason, promoting sedition, or other actions which aided the enemy or were deleterious to Chilean troops (Article 248, Military Code of justice). In these cases the defense lawyers developed a coherent argument based on four basic points. The first and most important point was that there could be no enemy of the state unless there was a state of war. Prosecutors cited Article 419 of the Code of Military Justice in support of the fact that an enemy existed "from the moment that [a force] has undertaken security work against it." The defense argued, however, that this implied the existence of a de facto clash such as actual war. For such a state to exist, the defense argued, more than a violent situation was necessary. Instead an actual confrontation between military forces which affected state sovereignty was necessary. Therefore, prior to the September 1973 coup, the situation which the Code of Military Justice defined as war had not existed and consequently there could not have been any enemy.[18] In addition, the defense argued, the enemy referred to in the Code of Military Justice was necessarily an enemy of the Chilean state. It was clear, they argued, that defense of the government which headed the Chilean state could not possibly constitute an attack on the state. People holding office in the Popular Unity government could not therefore be punished for their activities in defense of the government.

The second part of the defense argument was that the enemy referred to in the Code was, by definition, an external or foreign enemy. Thirdly, they argued that according to Articles 259 and 260 of the Code, the mere fact that [518] there were military actions did not necessarily mean that there was a state of war. These articles provided for military actions in situations that do not amount to war. Therefore, the mere fact that the Armed Forces were attacked or engaged in military operations did not conclusively indicate that there was a wartime situation. Finally, the defense argued that the charge of treason was only appropriate during a state of war and for the reasons already noted, such a state of war had not existed before the September 1973 military coup.[19]

These defense arguments were aimed at refuting the factual bases alleged by the military prosecutors that the followers of Allende were guilty of treason for their activities prior to the military takeover. Although they were made as part of a formal legal argument, the defense position had a strong democratic flavor to it. They asserted, for example, that the existence of divergent political forces did not indicate that there was war and that a political opponent was not necessarily an enemy. In this sense, the defense sought to distinguish competitive democratic political conflict from war. The defense sought to establish that political antagonisms were not synonymous with war and that mere criticism of the Armed Forces was not an attack on the state and national sovereignty.

In the beginning these arguments had little effect. There is some possibility that the defense may have influenced the courts-martial to hand down somewhat more lenient sentences in cases involving egregious violations of elemental legal principles. An equally important facet of the legal defense was that it gave the defendants some contact with the outside world. The lawyer was a person who could articulate the dissident's voice to the outside world merely because of his right to appear in court.

During this first phase many prisoners were indefinitely detained under authority granted to the government by the declared state of siege. In order to assist these people, COPACHI initiated some legal actions in the ordinary courts. Although the ordinary courts were recognized as being profoundly conservative, they were also viewed as the last vestiges of the liberal democratic state and had remained practically unscathed since the military coup.

The initial attempt to use habeas corpus petitions came immediately after the coup when the Court of Appeals of Santiago denied petitions in favor of several Allende government ministers.[20] Not until March 1974 was another attempt made. At that time, the Committee filed a collective motion for habeas corpus in favor of 131 persons whose date of detention had been determined but who had not been located. Although the main goal of the motion was to end arbitrary detention, an important secondary goal was to [519] publicize the government's repressive tactics within Chile.[21] In the petition which was drafted by a Lutheran bishop, a priest, and a rabbi the humanitarian work of COPACHI was explained. The petition requested that the court safeguard the liberty and physical safety of persons in danger by granting the petition or by ordering their presentation before the court that had jurisdiction. They also requested that a visiting officer of the court be designated to inspect some of the places where the parties could be found. The writ was accompanied by a file for each of the 131 cases containing per-sonal information about each detainee, the date and circumstances of his detention and the identity (if known) of the organization that had detained him.

The court asked the government for information concerning the arrests but denied all of the other requests. Nonetheless, the habeas corpus petition was important because it opened the way for appeals to the ordinary courts by those seeking to determine the whereabouts of detainees or alleging illegality of an arrest. They were also important because they marked the first time that the judicial process was used to denounce the repression both nationally and internationally.

The habeas corpus petitions also marked the appearance of the principal arguments that were to be used constantly to denounce the illegality of the government's actions. The invocation of presidential state of siege powers was attacked as the legal basis on which the courts grounded their refusal to control the detentions. The petitions argued that no constitutional norm authorized placing persons incommunicado or keeping them under arrest in secret locations.

Although the denial of the petition was affirmed by the Supreme Court on 31 January 1975, COPACHI lawyers continued to use the habeas corpus petitions in other cases as a means to obtain official recognition of government detentions. The petitions also served the purpose of notifying the government that the detentions were not regarded as legitimate and that those detained had some support. As many as 1,568 petitions were filed in 1974 alone. Although this may seem to be a rather limited response to the repression, there was no other available response at that time.

III. THE SECOND PHASE OF REPRESSION: JUNE 1974-AUGUST 1977

A. Characteristics of the Second Phase

The second phase began on 17 June 1974 when the Bureau of National Intelligence (DINA) was created and apparently empowered to arrest people [520] and keep them in detention in secret locations. The creation of DINA represented an important change in the organization of the repressive apparatus and in the way the repression was carried out. It also marked the beginning of General Pinochet's tenure as undisputed leader of the government. DINA gradually increased its power during this period as it became an instrument of Pinochet. During this period repression was necessary to aid in the capitalist rebuilding of Chile which led to increased unemployment and decreased salaries.

During the second phase it became necessary to centralize and specialize the repressive apparatus. Although this centralization was partially a result of the concentration of executive power in the President, it was also dictated by the need for centrally located information and for relieving the military of its involvement in internal repression. This centralization was established over a period of time and succeeded only after some clashes between DINA and Air Force Intelligence during late 1974 and early 1975.

The intensity of repression as measured by large numbers of detentions, disappearances, and deaths continued at a high level until 1977. Coercion did become more selective, however, and instead of directing repression at anyone who had participated in leftist activities, victims were selected with greater care. Members of clandestine parties were now arrested. This greater selectivity was used to avoid the high cost involved in random coercion which did not clearly distinguish the differing importance of its victims. Greater selectivity also permitted an appearance of greater normalcy in economic and government administrative activities.

Increased selectivity also had an important effect on governmental stability because it created greater certainty among the population as to who had something to fear and who could be relatively reassured as to their personal security. Participants in solidarity-oriented Church activities or in opposition parties or those who openly expressed their disagreement with the authoritarian order were subject to repression. On the contrary, those who had abandoned all political or trade union activity and submerged themselves in personal day-to-day activities, could feel safe with the passage of time. Such a policy encouraged passivity on the part of former political militants.

The new selective type of repression continued to have one primary goal. It sought to destroy leftist parties' organizations. To achieve that goal, priorities were established, with repression initially concentrated on those political groups who might carry out some type of armed resistance, such as the MIR, the Socialist party, and especially the Communist Party. This did not prevent the detention of other parties' militants. During 1974 and 1975 persons who disappeared after being arrested belonged mainly to the MIR and to a lesser degree to the Socialist and Communist parties. In 1976 however, there was a remarkable increase in the disappearances of Com- [521] munist Party members.[22] The personal characteristics of arrested persons who later disappeared demonstrates the selectivity that characterized the second phase. Many of them occupied important political positions in their respective parties. Some were militants who were directing or had directed mass movements. Others were simple party members, important for their personal activities, or suspected of being able to give information about the organization of their parties.

During the first phase, repressive actions were carried out openly: public agents did not hide themselves, acting in daylight, arresting people in their homes and in front of their families. Such publicity surrounded violent government action in the second phase as well, but it was used to portray extremists as people who had no rights or to accuse political enemies such as the Church and human rights organizations of conspiratorial objectives. Repression was no longer carried out openly. Detentions now took place with no witnesses, when the victim was not in the company of relatives or friends. Those detained were now interrogated in secret, unknown locales. The precautions taken in the detentions, the secrecy that shrouded the place where the prisoner was interrogated, the fact that his detention was never acknowledged and that he disappeared for days on end (or forever) illustrate the new type of repression. Although certain acts of repression were publicized, the major part of the population could remain uninformed about government repression if they wished. If important social classes, such as the middle class, remained aloof from or unaware of the repression, they would be less likely to oppose the regime.

This new caution and secrecy resulted somewhat from international and internal Church pressure which obliged the government to respect some formalities in carrying out its repression. In order to avoid pressure exercised through legal action, the government denied the detentions, changed their dates, and used other subterfuges. The central objective was to maintain the fiction that normalcy had returned while keeping potential enemies on notice as to what was permitted.

During the second phase a wider range of political parties was the target of government repression. Centrist political elements critical of governmental economic and political leadership were the focus of attention. The government was also seeking to silence Christian Democratic critics of governmental human rights violations because it knew that such criticism could fall upon receptive ears in western countries. This broadening of the repression began in October 1974 when a former Christian Democratic deputy was arrested for making declarations against the junta and when the former vice president of Chile was prohibited from returning to Chile. In [522] November 1974 a former senator was expelled from the country for having made statements to Agence France Presse concerning the need to restore human rights in the country.[23]

The Church and the human rights institutions it supported were included in the broadening scope of repression. A significant number of COPACHI members were arrested during 1975 and the head of the COPACHI legal department was expelled at the beginning of 1976. The Committee and its successor organization were also attacked in the press. Thus, repression reached all those religious or political organizations that questioned government policy.

Although disappearances became more frequent during this phase and the government frequently denied any knowledge of such incidents, there were some signs of greater leniency. In courts-martial and other trials, the defense could begin to count on greater guarantees, the sentences were less severe, and beginning in 1975 it was possible to request that prison sentences be commuted to exile. Interrogations and coercive methods which had been closely linked to military prosecutors were gradually taken over by DINA.

B. From the Committee on Cooperation for Peace to the Vicariate of Solidarity

COPACHI was a meeting place for people of different political persuasions fighting for human rights from the second half of 1973 until its dissolution at the end of 1975. As such, COPACHI became one of the principal arenas for the clash between Church and government despite the fact that the Church hierarchy encouraged the Committee not to go beyond the limits of governmental tolerance. Government animosity was aroused nonetheless. The Committee provided information to the Church, to international organizations, to embassies and to the international press corps about government repressive actions. In addition, Committee activities facilitated organization among those persons affected by the repression. The Family Members of Detained and Missing Persons Group was formed in July 1975. This group, together with the Group of Political Prisoners' Families were the first public organizations with political objectives created after the coup.

Conflict between the government and COPACHI came to a head in late 1975. Between September and November various officers and priests linked to COPACHI were detained, seven workers were visited in their homes by security forces and the government forbade the Committee's co-president from returning to Chile.[24] On 11 November 1975 General Pinochet ordered [523] COPACHI dissolved because it was an organization that disturbed public order.[25] Although Cardinal Silva did accept the dissolution, he made it clear that the different churches would continue "the charitable and religious work carried up until then by the Committee,"[26] thus giving support for the continuation of the Committee's task under the Church's protection.

The news of the Committee's dissolution mobilized those sectors affected by the repression. Persons who had previously turned to the Cornmittee such as families of prisoners and missing persons visited the Vicars of the Church in Santiago to impress upon them how defenseless they were without COPACHI.[27] Committee workers also requested that the Church create an organization to replace COPACHI.

Faced with that situation, the Santiago Church decided to create the Vicariate of Solidarity as an integral part of the Church that would assume legal defense and human rights tasks. The ecclesiastical nature of the Vicariate caused some changes in work methods, but the pluralistic and nonreligious character of its personnel made it an anomalous institution within the Chilean Church. Legal defense was to be the center of the Vicariate's work, and it also continued to be a link between international opinion and Chilean society. Because the Vicariate received its greatest economic, moral, and political support from the international community and the government was worried about international public opinion, the government refrained from acting against the Vicariate. To have acted against the Vicariate would have implied giving up all possibility of dialogue with Western European and United States organizations adverse to the Chilean regime, a step which the government was unwilling to take.[28]

C. Legal Defense of Human Rights During the Second Phase

Beginning with the March 1974 collective habeas corpus petition discussed above, the defense maintained a constant policy of appeals to the judiciary. Through different appeals and judicial actions, demands were made to review courts-martial sentences, to limit the freedom of action of the security forces and to put an end to detentions that were not justified by the state of siege as it was defined in the 1925 constitution. The legal defense strategy developed during the first phase and discussed above was apparently successful in the second stage of the FACH 1-73 trials that began in January 1975. In this trial against nineteen persons accused of treason, sedition, and [524] disregard of military duties, the defense lawyers were granted an unusually long time to present their case. In the end the court declined to find that treason in wartime had been committed. Apparently the panel concluded that for those crimes to have been committed it was necessary that war had been previously declared, as the defense had argued. Although the Military judge later modified the sentence, it remained significant that the rational arguments based on statutory interpretation could have achieved such recognition by those judging dissidents.

Legal action was also undertaken in order to seek review of the military courts' sentences. This was done by bringing an appeal for review (recurso de queia) seeking to correct errors or abuses allegedly committed by the wartime military courts. Initially the Supreme Court denied several of these appeals on the grounds that the courts-martial were subject to military jurisdiction. The defense then tried to force the court to act by presenting an appeal for review from a judgment pronounced by a military court, together with an appeal challenging the constitutionality of granting exclusive jurisdiction to the military courts. They argued that Article 74 of the Code of Military justice which made courts-martial subject to military jurisdiction was in conflict with article 86 of the constitution that established the final authority of the Supreme Court over every national court without exception.[29] The court avoided any decision on the constitutional question.[30] Although the ultimate goal was not accomplished, the defense was successful in initiating debate among lawyers about these issues. [31]

Habeas corpus petitions were used to challenge detentions carried out beginning in 1974 by DINA. The legal arguments used were that constitutional norms had to be observed. The habeas corpus action was used not only to put an end to arbitrary arrests, but also to obtain written proof of a person's detention in order to make his later disappearance more difficult. Once a habeas corpus action was brought, the Court of Appeals requested information from the different authorities who might have carried out the detention. If detention was admitted, that admission acted as a safeguard for [525] the imprisoned persons. The habeas corpus petitions were thus used effectively to protect political prisoners. Some judicial officials, including the President of the Supreme Court, considered them a political weapon against the government.[32]

The habeas corpus petitions were rejected except in rare cases, however, and even in those cases they did not result in freedom for the detainees. In 1974 when two petitions were granted, the government merely corrected the formal errors committed in connection with the detention. The way in which this was done is illustrated by the case of Marla Andres Plana. On 5 November 1974 a habeas corpus action was brought on Plana's behalf. The following day, the court ordered the Ministry of Interior and the Commander in Chief of the military zone concerned to produce information about Plana. The Ministry of Interior denied that Plana had been detained but the Commander in Chief acknowledged that she was a detainee and that the decree ordering her arrest was being processed. In court, it was alleged that this was sufficient proof of the illegality of her detention because the decree had not been signed prior to arrest by a competent authority. Therefore, the petition was granted 18 November 1974, but the court did not order her immediate release.[33] On 22 November the Ministry of Interior promulgated two successive decrees: one ordering her release and the second ordering her immediate arrest. Thus the government corrected its formal error and was able to continue detaining Plana. Although the legal result was not achieved, the case was significant, for it established the right to require a legally sufficient order for any arrest.

With a few exceptions, however, court action in 1974 and 1975 produced no positive results. A 1976 report by the Vicariate of Solidarity analyzed the reasons for this. It concluded that courts interpreted the lack of a proper arrest order not as evidence that the detention was illegal, but instead as evidence that the person had not been detained at all. The courts reached this conclusion by assuming that the government was always telling the truth when denying a given detention had taken place and that a detention could not occur without an arrest order. The report also recognized the lack of initiative of the courts in gathering information and using their rights of inspection when processing habeas corpus petitions.[34] The courts simply sent the [526] requests for information to the Ministry of Interior and accepted whatever answer it provided to them as true.[35]

Even where legal action failed to produce the release of detainees it was useful in providing and disseminating information about the government's repressive policies. Victims of repression or their families made formal denunciations of governmental actions in the form of sworn statements, notarized, and presented to the courts. Thus the courts were informed and the number of persons who knew about the activities of DINA was increased, giving increased credibility to national and international criticisms of the human rights situation in Chile. The complaints also made the accusations into objects of investigation, and gave an empirical measure of the detentions or torture. If the Church or a human rights organization merely revealed the number of judicial complaints filed, they could not be accused of involvement in an international smear campaign.

The court action also brought pressure to bear on other state organizations to reveal information that otherwise would have been unattainable. In more than one case testimony was submitted to the courts from witnesses who had been detained along with a person whose detention was denied by the government.[36] In some cases files suggesting the participation of security personnel in a person's disappearance were handed over during a trial.

When the Vicariate of Solidarity was created in 1976, judicial action underwent important advances by challenging in ever greater detail the legality of certain government measures. Similarly, the different judicial techniques were used more efficiently by filing in several courts at the same time. An example of the change was in the arguments used in support of granting habeas corpus petitions. Generally the defense argued that the petition should be granted because of the aggravating circumstance in connec-tion with the arrest itself. In most instances the petitions were denied when such an argument was advanced because habeas corpus could not be based on aggravating circumstances of the arrest, but only on the arbitrariness of the arrest itself. The defense finally prevailed in one case where it made such an argument in 1976.[37] This created the possibility of creating more favorable precedents in the case law of the courts.

The Vicariate of Solidarity also decided to challenge the legality of the continuing states of constitutional exception which permitted political [527] dissidents to be punished without a trial. This presented a clear challenge to the executive because it involved an effort to use the judiciary as a check on executive actions. it was argued that renewing the states of constitutional exception every six months violated the spirit of the constitution and the power of the judiciary by permitting punishment to be inflicted administratively.[38] Therefore, detention ordered by virtue of powers granted for six months had to be renewed by a new order when that period expired. This position was adopted by one Minister reviewing one of the habeas corpus petitions.[39]

Anew type of legal action involved requesting the Supreme Court to appoint special visiting ministers for the investigation of disappearances. These petitions had been formulated by COPACHI as early as 1974, or by the Vicariate or the families of victims. Most of them were rejected. The Supreme Court merely repeated the official governmental version of the facts, i.e., that the missing persons had simply joined the clandestine opposition.[40] Nonetheless in all of these petitions, dissenting opinions were cast suggesting that greater influence was being achieved in the courts.

In August 1976 the Vicariate of Solidarity prepared an exhaustive, fully documented, empirical report on the detentions prior to each person's disappearance. This report was submitted to the Supreme Court which rejected it. The Vicariate then requested that the Supreme Court revise its decision in light of forty new instances of disappearances in July and August 1976.[41] Nonetheless, the Court rejected the petition again. The report was also to be published in four volumes in order to refute the denials of the Chilean delegate to the United Nations concerning the use of disap-pearances as repressive measures.

Amore aggressive legal technique was possible beginning in 1976. Prior to that time, when the government denied that a person had been detained and the habeas corpus petition had been rejected, the file was simply sent to a criminal court for investigation as if it were a common criminal case. In such circumstances, the families of the victims were not permitted to participate in the proceedings or to be a party to the action. Beginning in 1976, however, these complaints were made personal suits, allowing a direct criminal action by the families of persons affected by the crime. The family [528] members could speed up the investigations to bring the allegedly guilty into the action as defendants.

During the first repressive stage, most lawyers participated in legal defense activities for humanitarian reasons without viewing their actions as a means of limiting the repression or of preparing a return to democracy. During the second phase, however, the defense was aimed not only at protecting individuals' lives, but also at bringing pressure to bear on the government by challenging and denouncing it. In some respects the legal defense acted as a public substitution for political opposition. For example, in conducting its defense, the lawyers stressed the democratic spirit of the legislation then being used repressively and tried to emphasize that the courts were not merely impartially enforcing legislation already in force before the military government came to power. The legal defense substituted political opposition to some extent during this period at least partly because the time was not yet ripe to attempt any political mobilization against the repression. In addition, legal defense acted as the political opposition because it was one field in which a combined effort of the entire spectrum of political opposition was possible.

The legal defense work was also important because it played an essential role in revealing information about the government's repression. Each governmental version of deaths could be compared with the version given by the COPACHI or the Vicariate. The revelation of information was particularly important in stimulating international denunciation of the Chilean situation which grew considerably between 1974 and 1977. International pressure led to the enforcement of rules obliging security organizations to observe certain formalities when arresting someone. The pressure also led to the progressive release of the political leaders of Popular Unity arbitrarily arrested immediately after the coup. The Church also joined in denouncing Chilean human rights violations as a result of the stories of victims as told in the courtroom or revealed through court investigations.[42]

The security forces acted with greater secrecy and discretion as a result of the publicity produced by court actions. Although this made DINA much more invulnerable to investigation, it also isolated it from important sectors within the regime. In some cases the activities of DINA came to be an embarrassment to the government. Every denunciation that pointed out a violation of the legal system convinced the more moderate supporters of the government that it was necessary to control the security forces, and to put an end to the more extreme repressive methods. [529]

IV. THE THIRD REPRESSIVE PHASE: AUGUST 1977-1980

A. Characteristics of the Third Phase

The third repressive phase began in August 1977 when it was announced that DINA would be dissolved and replaced by the Department of National Intelligence (CNI). The third phase was characterized by a recognition that the attempt to destroy opposition forces would fail and it was necessary to replace the policy of destruction by a policy of containment. A policy of containment meant that there would be great fluctuations in the intensity of repression, depending on the degree to which the opposition mobilized. Thus, detentions were greatest in months when the opposition took to the streets or when there were protests in the labor sector or by university students. The government responded flexibly to challenges by the opposition. Compared with the first three years of military rule the intensity of repression was generally low, but it increased whenever the opposition increased in force. An example of this was in 1978 when protests against the labor leaders appointed by the government became intense in Chuquicamata and a massive protest movement began. The government ordered the state-owned Copper Mining Corporation to fire the heads of the movement and then declared a state of siege in the province.[43]

The fact that the policy of destruction of the opposition was replaced by one of containment did not mean that death disappeared completely during this phase. At the beginning of 1978, various leaders of the Leftist Revolutionary Movement (MIR) died in alleged clashes with security forces. Those deaths continued with a certain regularity, demonstrating that with respect to the MIR there was no policy of "control" but a continued policy of annihilation.

Another characteristic of this third phase was the progressive legal institutionalization of the use of force. The state of siege was declared at an end in March 1978; a state of emergency, however, was maintained, which included some of the powers that the government had had under the state of siege.[44] The military wartime courts ceased functioning. The decrease in discretionary power to punish dissidents was qualified by the countless exceptions that finally ate away the rules. To begin with, the laws were constantly modified to meet new challenges from the opposition. Those [530] changes generally increased the government's discretion to penalize members of the opposition. In March 1980, for example, in an attempt to prevent demonstrations in the streets, the military junta authorized the Interior Minister to ban persons without having to state the reason. During the first eleven months of 1980, up to 100 persons were exiled to remote regions of the country.[45]

Countless punishments for which there was no legal sanction continued to be used frequently. Among these types of informal repression, torture was especially important, as was confinement in secret locales and campaigns in the media accusing persons or institutions formed by political dissidents of being subversive.

B. Legal Defense during the Third Phase

Legal defense obtained its greatest successes during 1978. For the first time those court cases involving hundreds of missing persons were accompanied by constant denunciations and challenges to the governrment that could not be repressed. From 1977 to 1979 the Families of Detained and Missing Persons Group made their plight public. The Catholic Church intervened directly, trying to act as a mediator between the Group and the government. The government refused to begin an investigation of the case, in spite of the fact that some pro-governmental sectors of the media had even requested it.[46] The government's resistance caused the Catholic Church to withdraw, publicly stating that the majority of missing, persons were possibly dead and that their death had most likely been at the hands of governmental agents.[47]

Also in 1978 corpses were found in an abandoned mine in the Lonquen area. Thanks to information provided by the Vicariate of Solidarity concerning the detainees and missing persons of the area, it was determined that the bodies were those of persons detained and shot immediately after the coup. An appellate judge on the Court of Appeals of Santiago investigated the case, but once military participation in the incidents had been established, the perpetrators were investigated by military courts instead of the ordinary [531] courts.[48] The Lonquen case established the truth of the information provided by the legal department of the Vicariate. From that moment on, the Vicariate became a source of information for the national newspapers, including the pro-government papers. There was no longer any doubt that the missing persons in fact existed despite the government's assertion that they had been the natural victims of a violent situation that had equally affected both pro-government and leftist persons.

Legal defense advanced further in its ability to check the government's actions. Legal denunciations went beyond the mere procedural obligations in each case and provided the courts with an overall vision of the abuses involved in the repressive process. An example is the case filed against the former director of DINA by many families of detained and missing persons with the aid of Vicariate lawyers, but without official support of the Vicariate.[49] The fact that the former director was accused of planning the disappearances and of having put himself above the law indicated that the respect for former officials and the public fear of them had seriously diminished since 1975 or 1976. Members of the government regarded the complaint as an attempt to demoralize the government.

In another petition presented by Vicars of the Church in Santiago to the Supreme Court, the security services were directly accused of responsibility for the disappearances of dissidents.[50] The petition stated that people were aware that political prisoners had disappeared and that it was up to the judiciary to investigate the disappearances as a group because all the cases were part of one general scheme of repression.[51] In March 1979 the Supreme Court named several visiting judges to investigate disappearances throughout the country. This initial success eventually proved to be a failure, however, when the visiting judges began to declare themselves incompetent and transfer the investigation of the disappearances to military courts.

During 1977 and 1978 the legal defense was successful in bringing the reality of the disappearances before national public opinion. During 1979 and 1980, legal defense continued to play an important part in limiting [532] governmental arbitrariness as evidenced by the fact that there was a decline in the use of the more extreme forms of repression. When political opponents did die while in governmental hands, it was no longer so easy for the government to deny or ignore the incident. An example of this is the case of Federico Alvarez Santibañez who died following torture in August 1979. What made Santibañez's case different is that instead of simply denying that Santibañez had been detained, the government called for an investigation of his death. This came about because his wife sought legal advice when he was detained and she brought a habeas corpus action together with a complaint for illegal arrest. The military prosecutor with whom the complaint was filed asked the CNI whether Santibañez had indeed been detained. When he was told that the detention had taken place, it became impossible for CNI to deny the detention later. Santibañez was presented to the military prosecutor in terrible physical condition days later and he died soon afterwards. Although an investigation was launched, the investigation did not determine the guilt of any of the CNI agents.

Generally the legal defense suffered a relative loss of political importance during 1979 and 1980. This was partly the result of the progressive development of other types of human rights defense during this period, as illustrated by the creation of new institutions such as the Chilean Commission for Human Rights. It was also due somewhat to the fact that the political opposition was now concerned with putting an end to the authoritarian order instead of merely trying to contain repressive activities. In this context legal defense occupied a secondary position in providing limited protection to those who participated in the opposition. Constant changes in the legal system also led to a decrease in the possibilities for legal defense. Once the more extreme forms of repression had been limited and replaced by others, the government molded the legal system constantly, in reaction to every judicial success of the opposition. In 1980, for example, the constitution was rewritten, giving constitutional status to the application of administrative sanctions and depriving the judiciary of competency to strike those sanctions down. In so doing, the government was trying to close the avenue of legal defense for the opposition. However, should the authoritarian state experience a serious deterioration, legal actions on behalf of human rights should regain their former political importance.

V. CONCLUSION

Several conditions permitted the legal defense in Chile to be politically relevant in the struggle to limit governmental power. First, the centralization of the legal defense under ecclesiastical protection meant that it was possible to gather information about the repression, to plan judicial strategy, and to study the content of repressive legislation. Second, the legal defense played an important role because the political opposition had decided to adopt [533] peaceful means in its struggle against the government instead of violence. If the opposition had adopted a different strategy, the organizational and human investment in the legal defense would have been minimal and the Church might have found it difficult to offer its support to the defense. The limited degree of organization and mobilization of the political opposition also contributed to the importance of the legal defense. Once the opposition took on goals above and beyond the mere containment of the repressive policies, legal defense became secondary. Finally, the legal defense would not have been possible without the judicial institutions to which appeal was possible. Although it was clear that the institutions were not impartial, their mere existence permitted some possibility that the truth would come out, that the security apparatus would be limited and that lives would be saved.

The principal goals of the legal defense in Chile were (1) to contribute to the respect for human rights, (2) to create a forum for public denunciation of the existing situation, and (3) to bring out the truth. In order to achieve these goals, the legal defense notified the security forces that there was interest in the fate of detainees and that the situation of each detainee was being closely followed. It was necessary to bring as many legal actions as possible in order to make the detainee's situation known within the ranks of the judiciary. Information obtained had to be passed on to the international organizations dedicated to the protection of human rights. Finally, through investigation by the courts or by information gathered by relatives or friends of victims, the legal defense tried to obtain the truth, or the nearest possible approximation of the truth. This method of legal defense produced forces that worked against the government's repressive policies, including international public opinion and some moderate sectors within the government. In some cases the legal defense also brought out the truth which clashed with the secrecy in which DINA wanted to remain shrouded during the second phase of repression.

Ultimately, however, the legal defense was thwarted by the constitutional changes noted above. Slowly, the state closed the breach that had been kept open by legal argumentation. Now it is clear that the reopening of the breach and the fight against the injustice of the situation must be accomplished by entirely different strategies.

[1] The use of the term legal defense in this article refers to the exercise of legal actions on behalf of persons whose individual rights have been curtailed for political reasons.
[2] Concerning the ensemble of dynamic processes that allowed the economic project supported by that group to be imposed, see Tomas Moulian and Pilar Vergara, "Estado, ldeología y Políticas Económicas en Chile: 1973-1978," Colección Estudios CIEPLAN 3 (1980), 65. See also Moulian and Vergara, " Políticas de Estabilización y Comportamientos Sociales: La Experiencia Chilena, 1973-1978," Apuntes CIEPLAN 22 (1979).
[3] On the cultural concepts expressed in governmental speech, see José Joaquin Brunner, "La Concepción Autoritaria del Mundo," Documento de Trabajo FLACSO (1979).
[4] Note that in Chile, as in other South American countries in which an authoritarian order was established, the break with the previous political order received the explicit or implicit support of large sectors of the middle classes and of the political center. See Edmundo López Hucke, "Los Actores Políticos en Chile," Documento de Trabajo CINDE (1977), 16-19. See also Arturo Valenzuela, The Breakdown of Democratic Regimes: Chile (Baltimore: The Johns Hopkins University Press, 1978).
[5] Information about the trial and later execution of the defendants was given to me by members of the Group of Families of Victims of Political Execution.
[6] The state of siege and the state of emergency were declared in Decree/Laws Nos. 3 and 4, published in the Official Bulletin, 18 September 1973. Decree/Law No. 5 declared in turn that the state of siege would be considered as occurring under wartime conditions and gave some of the powers of appellate judges to those of the military tribunals operating under wartime conditions. It was published in the Official Bulletin, 22 September 1973.
[7] An example among many others was the military trial under wartime conditions of Fredy Taberna, Rodoifo Fuenzalida and others in October 1973 in the town of Pisagua.
[8] El Mercurio, 20 November 1973.
[9] El Mercurio, 26 October 1973; 30 November 1973.
[10] Those who died were Alberto Bachelet Martínez and José Espinoza Santio. The person who became demented was Pedro Zunini Silva. See "Dictamen del Fiscal" in case no. JM-1-73 first part, 340 and "Sentencia del Consejo de Guerra" at the term of the same trial, 108.
[11] "Dictamen del Fiscal," 15.
[12] Minutes of the Organizational meeting of the Committee of Cooperation for Peace in Chile, reproduced in "Committee of cooperation for Peace in Chile: Chronicle of Its Two Years of Work and Solidarity" (1975, mimeographed), annex no. 12.
[13] Interview with Father Fernando Salas, first Executive Secretary of the Committee of Cooperation for Peace.
[14] Decree/Law No. 32 published in the Official Bulletin, 4 October 1973, established that complaints resulting from firings had to be made before a special court consisting of a judge competent in labor matters, a representative of the armed forces or police, and a labor inspector.
[15] La Prensa, 5 November 1973.
[16] See, e.g., letter published in El Mercurio, 4 November 1973.
[17] "The Committee of Cooperation for Peace in Chile: A Task that Must Continue" (without date, mimeographed), 1, 22.
[18] See, e.g., transcript of the pleading in case FACH 1-73 1 st part, on behalf of josé Olivares Maturana. There is a copy in the files of the Vicariate of Solidarity.
[19] Pleading on behalf of Mario O'Ryan in Vicariate files.
[20] The first habeas petition used was that of Bernardo Leighton on behalf of Carlos Briones, Clodomiro Almeyda, jorge Tapia, Claudio Jimeno, Oscar Weiss, Luis A. Carflas, and Alvaro Morel.
[21] I was informed of the objectives of the appeal by former employees and lawyers of the Committee of Cooperation for Peace.
[22] The description of the disappearances that occurred in 1976 can be found in ¿Dónde Están?, vol. II (Santiago: Talleres Gráficos Corporación Ltda., 1979).
[23] Ercilla 2053 (4 December 1974), 9-11.
[24] HumbertolagosSch., La Libertad Religiosa en Chile, los Evangélicos y el Gobierno Militar (Santiago: Vicaría de la Solidaridad, 1978), 48-49.
[25] The letter that General Pinochet addressed to the Cardinal is reproduced in "Committee of Cooperation for Peace in Chile," note 12 above, annex no. 1.3.
[26] Ibid., annex no. 1.4.
[27] See internal [in house] document, "Ambiente en Torno a la Disolución del Comité de Cooperación para la Paz en Chile" (1975, mimeographed).
[28] Internal document, "Sobre la Vicaría de la Solidaridad en la Presente Coyuntura" (no date, mimeographed), 5.
[29] Appeal for review brought before the Supreme Court on behalf of the defendant José Olivares Maturana, Appellate Case (rol) No. 7916, filed on 2 October 1974.
[30] The 1925 Constitution established in Article 86 that the declaration of inapplicability for reasons of unconstitutionality lay only if there existed a cause pending before that or another court. Therefore the motion for a declaration of unconstitutionality must logically be decided before the motion for review. The court, to avoid deciding the constitutional question, did the opposite: it rejected the appeal for review based on Article 74 of the Code of Military justice and then abstained from deciding constitutionality of that article on the ground there was no case or controversy. The decision was handed down on 10 October 1974.
[31] The truth is that the polemics among lawyers had begun some time before. See, e.g., R. Peña, "La Corte Supreme y los Tribunales Militares," Revista Chilena de Derecho 1, 3-4 (Chilean law Review) June-August 1974), 381-86; Daniel Schweitzer, 'Jurisdicción de la Corte Supreme," Revista de Derecho Procesal 9-10 (Procedural Law Review) (lst and 2d semesters 1975).
[32] "Exposición del Presidente de la Corte Suprema, Sr. Enrique Urrutia Manzano, al 1naugurar el Nuevo Año Judicial," in Revista de Derecho Jurisprudencia y Ciencias Sociales 72 (1975), 15-16.
[33] Lawyers and employees of COPACHI went to the Tres Alamos camp to request that the court order be carried out. There, they were informed by the officer in charge that he only would carry out orders from the National Secretariat for Detained Persons. See "Declaración Jurada de don Fernando Guzmán Zanartú y Marcos Duffau Urrutia, Abogados del Comité de Cooperación para la Paz en Chile ante el notario Público don Demetrio Guttiérrez con fecha 10 de Noviembre de 1974," in the case file.
[34] Vicariá de la Solidaridad, Presentación al Presidente de la Corte Suprema (Santiago: Vicariá de la Solidaridad, 1976).
[35] On 27 March 1975, at the Government's request, a full Supreme Court agreed to instruct the Courts of Appeals not to give direct orders to DINA. The agreement can be found in Vicariá de la Solidaridad. Presentación al Presidente de la corte Suprema (Santiago: Vicariá de la Solidaridad, 1978), annex no. 2.
[36] The case of the detention and subsequent disappearance of Cecilia Cabriela Castro Salvadores and of her husband Juan Carlos Rodríguez Araya can also be cited. Despite the fact that their detention was consistently denied by the authorities, the sister of Juan Carlos, Cecilia Rodríguez Araya, remained with Cecilia Castro for 12 days. She was later released.
[37] The petition involved was the habeas corpus petition presented on 9 April 1976 on behalf Juan Adolfo Parvo and his wife Victoria Villagrá Aravena.
[38] One of the cases which used that argument was the habeas petition on behalf of Raimundo Elgueta Pinto filed on 12 July 1976.
[39] Ibid. The minority opinion of Judge Retamal maintained that if the state of siege required renewal, renewal was also necessary for the measures taken by virtue of its being in force.
[40] In his speech inaugurating the 1976 judicial term, the President of the Supreme Court - with no proof - asserted that the files of pending cases revealed that some of the so-called disappeared persons had left the country, that others would be indicted, and finally, that others were common criminals who would soon be brought to trial. The speech was published in the Official Bulletin, 6 March 1976.
[41] This information was published in lnforme Sobre 415 Casos de Desaparecidos, 5 vols. (Santiago: Vicaría de la Solidaridad, 1976).
[42] For ananalysis of the evolution of the Church with respect to human rights violations ,see Brian H. Smith, "Old Allies, New Enemies: The Catholic Church as Opposition to Military Rule in Chile, 1973-1979" (Paper delivered at workshop "Six Years of Military Rule in Chile," Washington, D.C., 1980), 22-24.
[43] See Hoy 67 (6 September 1978), 11-12.
[44] Pursuant to the new legal situation that came into force on 11 March 1978, the detentions without cause were reduced to 5 days, and later increased to 20 days, after which the detainee had to be placed at the disposition of an ocrdinary or military court. The executive's right to expel people from the country was maintained, as was its right to stop people from entering. The right of the chiefs of those zones declared in a state of emergency to control the press was also maintained.
[45] C.J.F., "Situacion de los Derechos Humanos en Chile," Mensaje 296 (Jan.-Feb. 1981), 32-34.
[46] After a long hunger strike by families of the disappeared persons, the Ministry of the interior made a public declaration on 15 June in which it denied any detention of the disappeared persons by security forces, affirming that "[t]he Government will investigate any serious information that is bought to its attention concerning any specific case," Hoy 56 (21 June 1978), 13. After that declaration, several Catholic Bishops sent information concerning persons who disappeared from their territory. The Ministry of the Interior never answered the Bishops' letters.
[47] The Permanent Committee of the Chilean Episcopal Conference, "Detenidos Desaparecidos," 9 November 1978, Mensaje 27 (December 1978), 823.
[48] A reproduction of the files from the trial can be found in Máximo Pacheco Gómez, Longuen (Santiago: Editorial Aconcagua, 1980).
[49] The complaint was filed in July 1978 with the 10th Criminal Court of Santiago and signed by ten lawyers. The Criminal Magistrate wiih whom it was filed declared himself incompetent immediately, arguing that the defendants were under military jurisdiction.
[50] The petition was from November 1978 and one of its parts states: "The phenomenon of the disappearances of persons following their detention is not the result of isolated occurrences nor of chance incidents, rather it is the result of concerted action in which principally an organization such as DINA came to acquire absolute power over persons and even over courts of justice." The petition was reproduced in Cuadernos Jurídicos 9 (September-Oct.-Nov. 1979), 82.
[51] The petition, see ibid., 75-96, asserted that there existed new circumstances that would render absolutely necessary the granting of the petition including the fact that there was a new consensus as to the reality of the disappeared persons and that the disappearances were a result of action by government security forces.