Los Angeles Times
December 1, 2004
Santiago: Carmen Hertz has never lost faith in the liberating and equalizing power of the law.
Days after the 1973 coup here, she pleaded before military judges for the release of her husband, an official in the deposed government. She won. But then a general arrived with orders from Augusto Pinochet, Chile’s new dictator.
Her husband was executed.
In the years that followed, Hertz and a small circle of lawyers have continued to paper the courts with complaints, petitions and writs of habeas corpus. More than three decades later, they are tantalizingly close to turning the tables on their old foe.
Pinochet may soon stand trial in a Chilean court in at least one of several major legal cases against him winding their way through the courts here.
“Pinochet has become a political corpse and a moral ruin,” said Hertz, 56. “Justice is something we have achieved in small doses. It’s a long road that we’ve been traveling for 31 years.”
The legal noose around the 89-year-old Pinochet has tightened dramatically in the last few months, thanks to a series of damning revelations about the former dictator’s finances and declining support among his conservative faithful.
Ten thousand people were executed or tortured to death during the coup against Chile’s democratically elected leftist president, Salvador Allende, and in the 17 years of dictatorship that followed. But like Al Capone, the American gangster imprisoned for tax evasion, Pinochet may finally be convicted not of a violent crime, but financial transgressions.
Hertz is a complainant in a case that seeks to have Pinochet tried on criminal charges of “illicit enrichment.” A U.S. Senate investigation this year found that the dictator had squirreled away millions of dollars in Washington-based Riggs Bank.
Under Chilean law, any injured party can become a complainant in a criminal case, with a right to call witnesses before an investigating judge. Hertz claimed that the Riggs report was evidence that Pinochet was hiding funds from Chile’s tax authorities and thus cheating the public.
She said she filed her complaint because the Chilean government was slow in taking action.
“When a dictator possesses absolute power, as Pinochet did, without any accountability or oversight, they inevitably seek to enrich themselves,” Hertz said. “In the past, the Council for the Defense of the State [equivalent to a state attorney’s office] has declined to act on Pinochet’s finances. So we filed our complaint.”
Three months after Hertz filed her complaint in July, Chilean tax authorities announced they too would file one.
In recent years, a similar pattern has repeated itself in legal cases related to the alleged crimes of Chile’s former military rulers: Human rights attorneys file a lawsuit, which prompts the government to take action.
“The Chilean government is made up of people who bend easily to political pressures,” said Eduardo Contreras, a Santiago attorney. “In all these years since the transition to democracy, the government has never helped us.”
Contreras, a former congressman in Allende’s Popular Unity government, filed the first criminal complaint against Pinochet in 1998. “Back then, no one gave us a chance to win,” he said. “The newspapers didn’t even write about it.”
By all accounts, Pinochet is unrepentant. In a television interview last year, he said he considered himself Chile’s “patriotic angel.” Underlings, he added, were responsible for the “excesses” of his dictatorship. In one recent court appearance, he told a judge he still takes the time to personally balance his checkbook.
That admission came in questioning in the financial case — or the “Pinochecks” scandal, as it is known here.
Pinochet is also facing charges in connection with Operation Condor, the plan by which South America’s dictators shared intelligence and exchanged prisoners during the 1970s and ’80s. He is also charged with ordering the 1974 slaying of Carlos Prats, a dissident army general killed by a car bomb along with his wife while in exile in Buenos Aires.
Every day seems to bring a new revelation or a setback to Pinochet’s team of at least half a dozen lawyers. Many were high-ranking government officials during the dictatorship.
“Gen. Pinochet has never stolen a peso from anyone, much less the Chilean state,” said Pablo Rodriguez, head of Pinochet’s legal team. “Never has a concrete accusation against him been proven. It’s all speculation.”
Still, the charges have eroded Pinochet’s support among Chile’s still-powerful conservative elite, who once openly revered him as a Reaganesque figure who stood up to the “communist threat” of Allende’s government.
“The Chilean ruling class has turned against Pinochet because murder and torture is one thing, but stealing private property is another,” Contreras said.
Over the years, Contreras and Hertz have slowly whittled away at the daunting array of legal protections that surrounded the former general when he stepped down as head of state in 1990. The judicial battles have played out in dozens of courtrooms, including some in Madrid and London, with many setbacks and victories for both sides.
Now they’re awaiting a key ruling in the Operation Condor complaint – whether the frail former dictator is mentally competent to stand trial.
For Hertz, the legal pleadings began when she was 25, an idealistic but inexperienced attorney horrified to see tanks in the streets rolling over the rule of law.
Hertz and her husband, Carlos Berger, had traveled to northern Chile to work at a government radio station. Berger was arrested after broadcasting for a few hours on the day of the coup.
She went to a specially convened “war council” to argue for his release. The military judges gave Berger a 60-day sentence but said it would be shortened and that Berger would soon be released.
Unbeknown to Hertz, Gen. Sergio Arellano Stark had been dispatched to the concentration camps in northern Chile where Berger and other leftist activists and members of the Allende government were being held. Arellano ordered the execution of 72 people, including Berger, in what came to be known as the Caravan of Death.
Hertz went into exile, but returned two years later. Like many other human rights lawyers here, she worked in a Catholic legal-aid group that assisted families of political prisoners, many of whom had been “disappeared.”
“We filed literally thousands of writs of habeas corpus,” Contreras said, referring to the petition that brings a detained person to court to examine the legality of his detention. “Not one was successful.”
A new, democratically elected president took power in 1990, but Pinochet remained head of the Chilean military until his retirement in 1998. In that year, the Chilean government gave him a new title: Senator for Life. That post came with an important legal protection – all legislators in Chile are immune from criminal prosecution.
Hertz won an important legal victory in 2000 when lawmakers voted to strip him of his congressional immunity in the complaint she filed in the Caravan of Death case.
But Pinochet avoided prosecution on those charges when the Chilean Supreme Court ruled in 2002 that he was mentally unfit to stand trial.
Now many observers believe the judge hearing the Operation Condor case will decide that Pinochet is competent to stand trial. Both Contreras and Stark are attorneys for the complainants in that case.
“Pinochet has helped us a great deal with his actions,” Contreras said, referring to Pinochet’s interview and his admissions in the court appearance over his financial affairs. “With all of that, we’ve been able to show that he’s not crazy or suffering from dementia.”
But even if the judge doesn’t find Pinochet competent to stand trial in the Operation Condor case, all the other complaints against the former dictator will remain open.
There are about 600 in all.