Frequently Asked Questions

Cabello v. Fernández Larios

What is this case all about?

On October 17, 1973, Winston Cabello Bravo, who had been a well-regarded regional planning official in the ousted Chilean government of President Salvador Allende, was murdered by or at the orders of members of a Chilean military delegation known as the “Caravan of Death” in the city of Copiapó, Chile. The murder took place some five weeks after General Augusto Pinochet launched the military coup d’etat on September 11, 1973 that placed General Pinochet in power.

In this case, Mr. Cabello’s mother, sisters, and brother, all U.S. residents since the 1970s, seek to establish the responsibility of a Chilean former army officer, Armando Fernández Larios, for his role in the killing. Fernández Larios was one of several officers in this military delegation believed to have ordered or carried out the killings of more than 70 civilians during a journey by helicopter throughout Chile in late September – October 1973. This military group has become known as the “Caravan of Death.” Criminal charges against General Pinochet in Spain and in Chile were based on his alleged role in ordering the Caravan’s journey of death. However, Pinochet escaped liability after being found mentally unfit to stand trial by the Chilean courts. Accordingly, the civil trial will mark the first time any member of the “Caravan” will stand trial for responsibility for any of the killings perpetrated during its journey.

Who was Winston Cabello?

Winston Cabello was a 28-year old regional planning official for two northern Chilean districts, Atacama – Coquimbo, in the coalition “Popular Unity” government of President Salvador Allende at the time of the Pinochet-led coup against the elected Allende government in September 1973. Cabello was highly regarded in Copiapó, the northern city in which he lived and worked: in addition to being chosen for a position of significant responsibility in the Allende government for his intellect and role as a mediator between diverse political groups, he played guitar with a local folkloric music group and had been a star Copiapó soccer player. Cabello refused to identify himself with any particular party, preferring to maintain his political independence.

Cabello was detained on September 12, 1973, the day after the coup d’ etat, and held in the Copiapó miltary garrison without ever being formally charged with any offense. He was held for five weeks without incident until the evening of October 16, 1973, when the “Caravan of Death” arrived in Copiapó. On that evening, Cabello was taken from the garrison and killed along with 12 other civilian prisoners also detained after the coup.

Who are the plaintiffs?

The plaintiffs – Zita Cabello Barrueto, Karin Moriarty, Aldo Cabello, and Elsa Cabello – are the sisters, brother, and mother of Winston Cabello, respectively. The Estate of Winston Cabello, through its personal representative of Zita Cabello Barrueto, also is a plaintiff in the action.

Soon after Winston Cabello’s murder, Cabello’s sister Zita Cabello Barrueto and her husband Patricio, who also had been detained in Copiapó and forced into internal exile, fled to the United States in 1974. The rest of the Cabello family followed in 1978. All eventually became U.S. citizens, except for Aldo Cabello, who is a legal permanent resident.

Zita Cabello Barrueto is a professor in economics and currently a scholar in residence at Mills College in Oakland, California. Mrs. Cabello Barrueto has worked intensively to discover the truth surrounding her brother’s murder and to examine how political violence occurs in the hope of providing lessons for the future. She self-produced and directed a documentary entitled “Never Again Shall We Say ‘Never Again,’” which examines the atrocities committed by the Pinochet regime and how these crimes have been dealt with in the post-Pinochet era. Mrs. Cabello Barrueto traveled several times to Chile to talk with family members of disappeared persons and military officers stationed in garrisons visited by the Caravan of Death. Many of these persons had never before spoken to anyone about their experiences. During this process, Mrs. Cabello Barrueto gathered detailed information about the activities of the Caravan, which she shared with Chilean Judge Juan Guzman, conducting a judicial investigation of the Caravan of Death, and with Spanish attorney Juan Garces, a private prosecutor in the Spanish case against Pinochet.

Zita Cabello Barrueto, a resident of Foster City, California, was born on November 1, 1946, and is 56 years old. She earned an economics degree from the University of Chile in 1989. Mrs. Cabello Barrueto arrived in the United States in 1974, and later became a United States citizen. After working as a janitor and at various other jobs, Mrs. Cabello Barrueto earned a Ph.D. in Latin American Studies and Economics at the University of California at Berkeley in 1989. She served as a lecturer in economics and Latin American studies at the University of California at Santa Cruz, and is a Visiting Scholar with the Women’s Leadership Program at Mills College in Oakland, California. She is married and has two sons with her husband Patricio Barrueto: Felipe Barrueto and Roberto Barrueto.

Aldo Cabello graduated in 1968 as a civil engineer from the University of Chile at Santiago and later became a professor there. He earned a Master’s degree in statistics while in the United States and is the owner of "Babyworld" – an infant clothing and accessory store in Oakland, CA. Mr. Cabello was born on August 4, 1944, and is currently 59 years old. He arrived in the United States in 1978, and is a legal permanent resident. Aldo Cabello is married to Cristiana Cabello, and has three daughters, Connie, Lorena, and Daria. Mr. Cabello recently presented his family’s case to members of the Chilean community in exile on September 12, 2003, during a commemoration of the 30^th Anniversary of the Pinochet-led coup, at La Pena Cultural Center in Berkeley, California.

Karin Moriarty is a business technology manager in the University Planning Office of Stanford University, as well as a dancer and choreographer. Mrs. Moriarty was born on May 29, 1960 and is presently 43 years old. Mrs. Moriarty emigrated to the United States in 1978, and graduated from the University of California at Berkeley with a Bachelor’s Degree in Dramatic Arts and Dance in 1986. She is married to Steve Moriarty and has an 11-year-old daughterIsabel. She is the Artistic Director of Dance-Is-It, a Bay Area based dance group, and recently choreographed and directed a performance at the Stanford University Museum’s Summer Exhibition, The Changing Garden: Four Centuries of European and American Art.

Who is the defendant?

Armando Fernández Larios is a former Chilean Army and secret service officer who served as one of the members of the “Caravan of Death,” responsible for the killing of Winston Cabello. At the time of the “Caravan,” Fernández was a second lieutenant in the Chilean army. Soon after the Caravan, he began serving as an operative in the Chilean secret police, known as the DINA (the Dirección de Inteligencia Nacional). He later was promoted to the rank of Major. He was born in the United States on September 18, 1949 to the son of a former Chilean military attaché to the U.S., but lived and took citizenship in Chile. Fernández Larios retired from the military and DINA in 1987, and was then admitted to the U.S. He presently lives in Miami, Florida, where he reportedly schedules cars for service in an auto body shop.

What role do Plaintiffs allege Fernández Larios played in the murder of Winston Cabello?

Plaintiffs claim that Fernández Larios either directly participated in Winston Cabello’s murder, or that he at least provided assistance to or conspired with other members of the Caravan and local officers who carried out the killing. Fernández admits that beginning in October 1973, he accompanied General Arellano Stark on the Caravan of Death, and that he became aware during the Caravan’s journey that civilians had been killed in the cities where the Caravan had stopped. Testimony provided to Chilean courts and in public interviews by Chilean journalists implicates Fernández in killings and torture in many of the cities in which the Caravan stopped. While evidence suggests that Fernández may himself have murdered Winston Cabello, Plaintiffs claim in the lawsuit that Fernández is at least liable as an accomplice or co‑conspirator for having willfully participated in the Caravan’s mission to torture and kill certain civilian detainees in Copiapó and elsewhere in Chile.

What do plaintiffs and CJA hope to achieve with this case?

The Cabello family seeks justice, first and foremost, for themselves and for all those whose loved ones were killed by the Caravan of Death. The perpetrators of such crimes should not be able to find safe haven in the U.S.

Plaintiffs view this case as part of a larger effort to document, acknowledge, and assign individual responsibility for human rights violations committed under the banner of “state security” during the Pinochet regime. These abuses, in fact, were tools of repression and terror against a peaceful civilian populace.

Finally, the plaintiffs believe that impunity is one of the biggest obstructions to the development of emerging democracies, especially in countries that have recently experienced periods of state-sponsored human rights abuses. By pursuing this case against Fernández Larios, plaintiffs hope that they can lend solace and encouragement to people in Chile and elsewhere who feel justice has been left behind in the transition from dictatorship to democracy.

Why a Civil Suit?

A Chilean amnesty law prevents Fernández Larios’ prosecution in Chile, and U.S. criminal laws do not permit prosecution for summary killings committed abroad, or for torture committed abroad before November 1994. Two federal statutes, however, permit human rights victims or surviving relatives to bring civil claims against perpetrators from other countries who are found in the U.S. The civil suit brought by Cabello family, therefore, is the only avenue available to the family to pursue justice against Fernández Larios. The plaintiffs have not asked for any specific monetary award.

(See also further explanation below).

How many people were killed or disappeared in Chile during the Pinochet years (1973-1989)?

Between September 11, 1973 and March 1990, when General Pinochet stepped down as head of state, approximately 2,603 people were executed, killed by torture, or “disappeared.” In addition, there were 423 “victims of political violence” (people killed while demonstrating and/or protesting) and 103 victims of political assassination by armed opposition groups. Source: The National Commission of Truth and Reconciliation, and its successor, the National Corporation for Reparation and Reconciliation.

Why wasn’t the case filed in Chile?

A 1978 amnesty law prevents charges from being brought in Chile against Chilean officials for crimes or cover-ups committed by officials under General Pinochet at any time between the military coup on September 11, 1973 and March 10, 1978, when a state of siege was lifted. Accordingly, relatives of most victims of the Caravan generally do not have a remedy in Chile. Chilean courts have, however, allowed cases to proceed in which the bodies of victims have never been recovered on the ground that these cases involve “continuing crimes” not covered by the amnesty law. As Winston Cabello’s body was located in 1990, the Cabello family cannot bring a legal action in Chile against those responsible for his death. Both the United Nations General Assembly and the Inter‑American Commission on Human Rights have criticized the amnesty law. Since Pinochet’s attempted extradition from the UK to Spain, Chilean courts have recognized that continuing violations such as disappearances are not covered by the amnesty law, and a number of cases involving human rights abuses during the 1973-78 period have been brought. It is only during the past year that these cases have been brought to trial and convictions obtained. The amnesty law has no legal effect in the United States.

The Chilean courts dismissed charges against General Pinochet in 2002 for his role in the Caravan of Death after finding him unfit to stand trial owing to alleged mental and physical deficiencies. It appears unlikely that the Chilean courts now will bring any of the other participants in the Caravan of Death to trial. The Cabello family’s case, therefore, stands as the first, and possibly only, case in which a Caravan participant will be required to face justice for his role in the Caravan.

What is the significance of this case?

This is the first case anywhere in which a member of the Caravan of Death is facing trial for their participation in the atrocities the Caravan committed. The case has historic importance because the Caravan of Death represents perhaps the most identifiable and notorious set of killings committed during the Pinochet era. Indeed, Pinochet’s arrest in London in 1998, which came to symbolize justice for all of the abuses committed, was based on his responsibility for the killings and disappearances committed during the Caravan of Death.

What is CJA?

The Center for Justice and Accountability is a non-profit international human rights organization based in San Francisco that works to hold human rights abusers accountable. CJA represents survivors of torture and relatives of victims of summary killings in claims in U.S. courts against human rights violators who live in or visit the U.S. CJA also provides information to U.S. government agencies to help them pursue, prosecute, and deport human rights abusers within the U.S., and advocates for appropriate legislation and policies to ensure that human rights violators may be held accountable. CJA was founded in 1998 with initial support from Amnesty International USA and the United Nations Voluntary Fund for the Victims of Torture. CJA is now independent from Amnesty International USA, although both organizations continue to cooperate on many projects. CJA receives substantial pro bono support from law firms, lawyers, professors, translators, and private investigators around the country.

Who is on the legal team?

All members of the legal team representing the plaintiffs are providing their services without charge. Trial Counsel on the case are Robert G. Kerrigan of Kerrigan, Estess, Rankin & McLeod, of Pensacola, Florida, and Leo Cunningham of Wilson, Sonsini, Goodrich & Rosati (WSGR), headquartered in Palo Alto, California. Additional WSGR attorneys working on the case include Nicole Healy, Jenny Lynne Dixon, Natalie Bridgeman, and paralegal Kristina Baldwin. Joshua Sondheimer, CJA’s Litigation Director, is representing the Center for Justice & Accountability and Professor Patty Blum, CJA’s Legal Advisor and Director of the International Human Rights Law Clinic at UC Berkeley, is serving as an expert on international law.

What is the legal basis of the suit?

The Alien Tort Claims Act, adopted in 1789, gives survivors of egregious human rights abuses, wherever committed, the right to sue persons responsible for the abuses in U.S. federal court. Since 1980, the law has been used successfully in cases involving torture (including rape), extrajudicial killing, crimes against humanity, war crimes, and arbitrary detention. The Torture Victim Protection Act, passed in 1991 and signed into law by President Bush in 1992, gives similar rights to U.S. citizens and non-citizens alike to bring claims for torture and extrajudicial killing committed in foreign countries. The perpetrator generally must be served with the lawsuit while they are present in the United States in order for the court to have jurisdiction.

Can you give examples of other, similar trials?

The first case brought under the ATCA for human rights abuses was Filartiga v. Peña-Irala. In 1976, the father of a young man who had been tortured and killed in Paraguay while in police custody saw the police inspector involved in his son’s torture and killing walking the streets of Manhattan. The father called the INS, and the INS arrested the police inspector for overstaying his visitor’s visa. The father and sister brought a claim against the inspector, and in 1980, the U.S. court in New York upheld their claims, opening the way for other claims using the Alien Tort Claims Act to be brought.

One of the most publicized cases in recent years was the case against former Philippines President Ferdinand Marcos. After he was voted out of power, he found safe haven in Hawaii. Eventually, a U.S. jury found him responsible for the torture and murder of Philippine dissidents, and ordered his estate to pay nearly $2 billion to his victims.

In July 2002, CJA won a $54.6 million judgment against two Salvadoran generals, both former Ministers of Defense, who had retired to Florida in 1989. A jury in West Palm Beach, Florida, determined that the generals bore command responsibility for the torture of CJA’s clients – three Salvadoran refugees who now live in the United States. This case was the first case in which a jury found commanders liable under the doctrine of “command responsibility.” This doctrine provides that commanders may be held liable for failing to take measures to prevent or punish abuses they knew or should have known were being committed by their subordinates.

Have plaintiffs been able to collect on their judgments?

There have been few successful efforts to collect damages awarded to plaintiffs in these suits because most of the defendants have either been visitors who did not keep assets in the United States, or individuals who lived in the U.S. but who did not have any significant assets. CJA intends to devote its efforts to ensuring that Fernández Larios pays any judgment against him. The judge in CJA’s case against the Salvadoran generals ordered an investment firm to turn over to plaintiffs’ attorneys, on plaintiffs’ behalf, more than $200,000 held in an account by General Vides Casanova.

How does CJA find cases to file?

CJA works with survivor communities, human rights organizations, and torture treatment centers throughout the United States to help torture survivors seek legal remedies for their injuries. In addition, CJA does outreach to the over 500,000 refugees in the U.S. who have endured some form of torture. Victims are often reluctant to come forward because they were so traumatized that they still find it difficult to discuss their ordeals, and they are often scared about potential repercussions for themselves or for family members who remain in their country of origin. Along with this Chile case, CJA has filed cases on behalf of plaintiffs from East Timor, El Salvador, Bosnia, China, Honduras, Haiti, and Iran.

Why a civil suit? Why not a criminal prosecution?

Only government prosecutors have the authority under the U.S. legal system to initiate a criminal prosecution – neither private citizens, nor organizations like CJA, have the authority to file a criminal case. There are several federal laws that allow for criminal prosecution of certain grave human rights abuses like torture, genocide, war crimes, and terrorism. However, the U.S. Department of Justice (DOJ) does not believe that it has the authority to bring criminal charges in this case. The U.S. law that gives jurisdiction to U.S. courts to hear criminal cases of torture wherever committed was signed into law in November 1994. The DOJ maintains that it can only prosecute criminal acts committed after that date, due to the prohibition on ex post facto application of criminal laws. The plaintiffs’ claims against defendant Armando Fernández Larios are for crimes committed in October 1973, and so the DOJ would not initiate a torture prosecution against Fernández. CJA has provided legal authority to the Justice Department which establishes that prosecution for torture committed prior to 1994 would not violate the ex post facto prohibition.

Regardless, to date, the DOJ has not brought any criminal prosecutions of torturers under the 1994 law. The DOJ tried to bring its first prosecution in March 2000, pursuant to a tip from CJA, when a Peruvian security agent believed to have tortured people in Peru in 1996-97 visited the U.S. However, the FBI released the man after the State Department gave its opinion – which was widely criticized - that the Peruvian had diplomatic immunity.