Jaime Couso. “Judicial Murder in Chile: Patterns, Cases, and Doctrines for Prosecuting Jurists,” in Transitional Justice and the Criminal Responsibility of Judges. Edited by Claudia Cárdenas Aravena, Jaime Couso Salas, Florian Jeßberger, Milan Kuhli, pp. 61-73. London: Routledge, 2025.
Summary: This chapter examines the feasibility of grounding attribution of criminal responsibility to judges for judicial behavior in respect of the repression practiced by the Chilean dictatorship of 1973–1990. Various cases and patterns of that period are analyzed, drawn from both military and ordinary courts. In each, some defect in the performance of the judicial function is identified that may be relevant to establishing the unlawfulness of the associated judicial conduct. In addition, some arbitrary sentences issued by peacetime military tribunals could also provide grounds for attribution of criminal responsibility to judges for illegal deprivation of liberty. On the other hand, criminal responsibility of judges from the regular court system may be affirmed where the openly hostile attitude of the Supreme Court truncated even those limited contemporaneous attempts to pursue criminal responsibility that did occur. This behavior on the part of the Supreme Court amounts to criminal concealment. Where judicial protection of victims was thereby hindered, a qualified hypothesis is that the judges involved could face criminal responsibility, whether for their instigation of homicide and aggravated kidnappings perpetrated by omission or for indirect perpetration of the same. Finally, a judge’s voluntary failure to adopt measures that would have prevented, or at least hampered, kidnappings, torture, and homicides could be prosecuted under the hypotheses of perpetration or of aiding and abetting by omission, causality, and intent can be hypothetically established.