Juan Guzmán Interview: Conversations with History; Institute of International Studies, UC Berkeley

Confronting Chile's History: Conversation with Juan Guzman, Chief Judge, Court of Appeals, Santiago, Chile; 4/17/01 by Harry Kreisler
Photo by Jane Scherr

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Being a Judge

You were appointed a judge by Salvador Allende. Tell us that story, when he called you in to talk about the possible appointment.

I was working here in San Francisco in 1970, a little bit before the elections, the '70 elections in Chile. I was going to vote for the conservative candidate. That was Alessandri. I already had the connection to get into the Ministry of Foreign Affairs, and went to Chile to vote, as a good citizen, before having the post and before having knowledge of what was going to happen. Well, when I went to Chile, I voted in Santiago; I took a bus to Viña del Mar, where my parents lived. And when I saw my mother's face, when I arrived at Viña, I realized that my candidate had lost. Then I couldn't get into the Ministry of Foreign Affairs. I don't know whether I had the vocation, but I thought that the fact of being the son of a diplomat would help me in my career. I mean, I had some background for that.

I found myself without a job, being thirty years old, being married and waiting for a daughter -- my wife was expecting a daughter. I worked as a clerk for two years. During those two years, I was trying to enter the judicial system. I did start as a judge in the town of Panguipulli. That's about 1,000 kilometers south of Santiago. The Court of Appeals gives lists to the president of the candidates that the courts have chosen. Well, there were only four candidates, and three of us were put on the list that was sent to the president. And nobody was appointed for several months.

So then I went to speak to the president. I found a way to get to him, and said, "Look," -- well, I said it in a nice manner. But to make the story short, I said, "Mr. President, why do you take so much time in naming somebody, in appointing a judge here? I need work. I want to work as a judge. And you don't make any decision at all." He smiled and he said, "Look, I know you. You are the son of a friend of mine, Juan Guzmán Cruchaga, and he is not in my favor. I know he didn't vote for me. I don't think you voted for me, either." And I said, "You're right, I didn't vote for you."

"And then you want me to appoint you?"
"Yes," I said. "I want to be a judge, and I think I could be, with time, perhaps, an honorable judge."
He said, "Look, if you promise me something, I will appoint you."
And I said, "Well, what is that promise, Mr. President?"
"If you promise never to punish hunger, then I will appoint you."
"I promise, Mr. President." I was appointed judge that day.

We should explain to our audience, who may not know the history of your country, that Salvador Allende was the first communist/socialist president of the country, and he had just been elected. And shortly thereafter he would be overthrown and killed in a coup. We'll talk about that later because it actually relates to your current work.

So you went on, and then you worked your way up through the judicial system.

Yes.

Explain to me the difference between your judicial system and ours. In your country, a judge can be presiding, but also assumes the prosecutorial function.

That's right. Until 1926, we had the prosecutor that did the investigation, and he made the accusation. And then there was a judge that dictated, or pronounced sentence. Well, after many problems with the economy, our country decided that the prosecutor and judge should be just one. He was going to be a judge, but the judge was going to prosecute, to investigate during a part of trial, or the pre-trial that's called sumario -- it's secret and inquisitorial. And that judge has to archive the case or indict the person if there is sufficient evidence to do so. Afterwards, he has to finish the investigation, get to the end of it, and, finally, he has to accuse. And once he accuses, the real trial starts, where the defendant answers the accusation and then we receive evidence in that part of the trial, and, finally, after the term to receive evidence, the sentence is pronounced, and the judge dictates his verdict.

So the defense attorneys just defend the defendant against the charge, and the prosecution doesn't have to make a case because the indictment indicates that there is enough for a prosecution?

That's right.

Is it hard wearing these two hats? On the one hand, you're preparing the case and reaching a conclusion, but then you're saying, "But, wait, there may be more." It's the defense's job to then bring forth that evidence that would exonerate the defendant.

It is a very difficult job. It's like being an orchestra conductor -- you're doing everything. But you get accustomed to doing it. At first, it seems practically impossible. But the moment you have to dictate your verdict for the final decision, the judge unfolds a little bit. And the law is very severe. When you impose a penalty on a person, the judge has to have the conviction, the absolute conviction that there is a crime or a misdemeanor that has been committed, and that that person should be punished, that he is responsible. I mean, the judge has to have the absolute conviction.

During the prosecution and during the trial itself, many times the judge does not have the absolute conviction. I'll tell you why. First, to be able to indict a person, there have to be three factors. One of them is that the suspect has to be interrogated. Second, that the crime or misdemeanor must be established by evidence. And, third, that there should be presumptions that that suspect may be responsible. That's the difference. Afterwards, the judge has to have the conviction that he is responsible. So then it's a very different state of mind, really.

To detain a person, you have to have lesser conditions than to indict. Afterwards, to accuse, you have to have more conviction than to indict. And afterwards, to finally dictate sentence and have a penalty imposed, well, he has to have absolute conviction. So it's not so hard to understand after all.

So one way to look at this is that it's the education of a judge over time about a particular problem. In other words, the initial part of his learning process, he feels there's enough to go on, to proceed.

That's right, yes.

But by the end, after he's heard the defendant's case made by his lawyers, then he's in a better position to reach a conclusion, which is definitive.

Yes, that's the best way you could explain it. There are other factors. There are so many cases a judge has to deal with, and besides his work as a judge, he has other administrative tasks. It's very difficult for him to have a thorough control of what's happening. We work with lots of clerks, as a judge in the first instance. So then many times you have just interrogated the person, you have studied what the clerks give you when they ask you, "We think that there is enough evidence to indict. Could you study it, Mr. Judge?" "Yes, sir." Take it home. Perhaps two days later you forget the name of the person you have indicted, and then that occurs when you have to study whether to accuse him or not. And finally, the moment when you really do a very, I would say, complete study of all the case, would be the moment when you really are prepared to take the decision, the final decision.

Are there juries in Chile?

No. No, no. That's for rich countries.

Because the prosecution is done in that way, does it make prosecutions less political? Judge Guzman at the Court of Appeals in Santiago, 1999The comparison I make is to the United States, where prosecutors are often running for public office, and therefore they have an interest in their political future to bring prosecutions which they might not bring in a process like the one you're describing.

Yes, I think it's less political. I think it's, in a way, more professional. Less political because the judges are not running for office in the first part of the work, let's say, in the prosecution or in the investigation. They are just judges, they're not running to be elected, you know. I would say it's very professional. We have a career. Our judges, the ones who reach the Supreme Court, have been always more than thirty years in their career. I've been thirty years already, or a little bit more. I would say it is more professional, in the way that the man that takes the full decision is a professional. He is a lawyer. He is a judge. And he's ... well, juries are not ... they could be very emotional. If there's a good lawyer that convinces the jury one way or the other, sometimes you don't know whether, let us say ... it is a legal decision, but I think it's less professional; it could be more emotional.

Where you're dealing with juries.

Yes.

So helping us understand what it is a Chilean judge does, what does it take to become a judge? What are the characteristics that a Chilean judge has to have to be able to lead a process like this?

Well, first of all, he has to have a vow of poverty. Second ...

You're not paid well, is that the idea ... ?

Not as well as the other lawyers.

I see, okay.

Second, you have to study during a period of time in the Judicial Academy. Before the time when I entered, you had to be working as a lawyer or having the title of a lawyer during two years to be able to get the job of judge in some far, little town of our country. Most of the judges started that way, and have conditioning. And the character, well, I think if you're not aggressive as a person, perhaps you're not going to be a good lawyer, and then it's better perhaps to work as a judge.

I see. It sounds like there's a lot of discipline and patience required in this work, and also a tolerance for ambiguity, as we say.

That's right. That's right. And lots of patience, as you say. Now, for example, I worked over seventeen or eighteen years as a member of the Court of Appeals. It's very much like the Court of Appeals in the States. And there you have to have lots of patience, hear lots of things that have nothing to do, sometimes, with the trial. And you have to study a lot, to try to make better decisions.

About how many cases ... I know in the present situation, you have a particularly important case, but, generally, in an appeals court, without a historically important case, how many cases are you handling in a given year?

I would say in Santiago, for example, around 7,000 cases a year in each chamber -- there are eight chambers in our Santiago Court of Appeals.

Wow.

Yeah, it's a lot.

Every day you have hearings, I would say around twenty-five hearings a day. You know, it moves fast. It's a good job. There are lawyers who give us all the information who work for the judiciary system. They are called relatores. They have to study all the cases. It's a very, very difficult job because they have to give all that information to three judges who have to make the decision. And then ... well, answering your question, we hear some twenty to thirty, perhaps, hearings a day, and sometimes 6,000, 6,500, 7,000 cases a year [in each chamber]. Besides the relatores, the courts also hear the lawyers who defend each party.

What is the hardest thing about being a judge?

Perhaps the solitude of the job. I think that's the hardest thing. You know, when you have to make your decisions according to your own conscience and according to the facts and how you consider the law has to be applied to every case. So I think the judge's solitude is what is the most difficult thing to handle.

What is the most satisfying part of the work?

The most satisfying part, I would say, is making a just decision. Especially, if it's a new matter, if you've studied a lot, and if you've created something. You know, sometimes when you don't have jurisprudence in a certain matter, and you innovate and you do it well, that I think would be one of the biggest satisfactions a judge could receive. You don't expect to be a producer of happiness as a judge. You have to apply law, and most of the time you're not going to grant all that somebody wants. In a great measure of time, you're ruling against people, imposing penalties and condemning people, for example, to pay alimony, ordering people to go away from the house they occupy when they don't pay their rent. I mean, it is a very, very difficult career. So I would say the most gratifying part is the intellectual part, the intellectual work you do and the study you have to do for that.

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