DANIEL SALÍ VERA ET AL.
On October 6, 1999, the Inter-American Commission on Human Rights
(hereinafter "the Commission" or "the IACHR")
received a petition lodged by the Center for Justice and International
Law (CEJIL), the Corporación de Derechos del Pueblo (CODEPU) and a Chilean
conscientious objectors' group called “Ni
Casco ni Uniforme” (NCNU) (hereinafter
"the petitioners"). The petition alleges that the State of
Chile (hereinafter "the State" or "the Chilean
State") violated Articles 1(1), 2, 11 and 12 of the American
Convention on Human Rights (hereinafter "the Convention" or
"the American Convention") to the detriment of Cristián
Daniel Salí Vera, Claudio Salvador Fabrizzio Basso Miranda and Javier
Andrés Garate Neidhardt.
The petitioners allege that the State denied the alleged victims'
right to conscientious objection, thereby directly violating their right
to freedom of conscience and religion and their right to privacy.
In so doing, the State did not comply with its obligation to
respect the rights protected under the Convention and to ensure their
free and full exercise. The
State is not raising any objection alleging a failure to comply with the
admissibility requirements. It
considers that there has been no violation of Articles 1(1), 2, 11 and
12 of the Convention, as the alleged victims have not been summoned
before a court or been penalized in any way for their failure to perform
their mandatory military service. The
State also contends that the obligation of military service is a
limitation of rights that the American Convention itself authorizes.
After analyzing the parties' positions, the Commission concludes
that the petition is admissible under Articles 46 and 47 of the American
Convention, and decides to continue with the analysis of the merits of
II. PROCESSING BEFORE THE COMMISSION
The original petition was received at the Commission on October
6, 1999, and transmitted to the Government on October 14, 1999, which
was given a period of 90 days in which to submit information.
The Commission sent another communication to the State on April
25, 2000, reiterating the request for information and setting a period
of 30 days for the State to respond.
On June 5, 2000 the State requested a 60-day extension to respond
to the petition. On June 7,
2000 the Commission advised the State that the maximum time period
allowed under Article 34(6) of the Commission's Rules of Procedure had
already expired. It therefore asked the State to submit its observations
within as short a time as possible.
The State submitted its observations on July 11, 2000.
The Commission transmitted that information to the petitioners
and set a time period of 30 days for the petitioners to respond.
On October 10, 2000 during its 108th regular session,
the Commission held a hearing to discuss the admissibility of the
On December 7, 2000 the Commission received the petitioners'
brief, containing their observations on the State's response.
In that communication the petitioners added the Servicio
de Paz y Justicia (SERPAJ) as another co-petitioner.
On December 13, 2000 the Commission transmitted the pertinent
parts of that brief to the State, and set 30 days as the time period for
it to send its comments. On
January 18, 2001 the Commission received a communication from the State
asking for a 30-day extension to answer the petitioners' observations.
That extension was granted on February 2, 2001.
The Commission received the State's observations on May 23, 2001
and forwarded them to the petitioners on May 25, 2001 setting a
one-month time period for the petitioners to submit their observations.
The petitioners' response was received on June 25, 2001 and
transmitted to the State on July 17 of that year.
The State was given one month in which to present its
observations. On August 31
the Commission received a final communication from the petitioners.
THE PARTIES' POSITIONS
The petitioners' position
The petitioners allege that under Chile's current laws, once the
alleged victims reached the age of 18 they were compelled to do
mandatory military service. The
petitioners contend that in December 1998, before the State put together
the list it publishes in March of each year containing the names of
those citizens who will be called into active military service, each of
the alleged victims filed individual requests with the Oficina de
Partes del Departamento de Reclutamiento de la Dirección General de
Movilización del Estado de Chile, wherein they expressed their
conscientious objection to mandatory military service and to their
The petitioners state that the alleged victims never received any
reply to their requests and that despite their express conscientious
objection, their names were included in the regular list of individuals
called to start their compulsory military service.
The three young men were ordered to report at 8.00 a.m. on March
18 and 19, 1998, to begin the normal period of compulsory military
Concerning the requirement of exhaustion of local remedies, the
petitioners point out that the alleged victims filed an appeal with the
Santiago Appellate Court seeking protection of their right to freedom of
conscience, recognized in Article 19(6) of the Constitution of Chile.
On March 22, 1999, the Santiago Appellate Court declared their
appeal inadmissible, whereupon the alleged victims filed an appeal with
the court asking it to reverse its own decision.
The Santiago Appellate Court rejected this appeal on March 29,
The petitioners argue that the facts stated in the petition tend
to establish a violation of the right to freedom of conscience of the
young Salí, Basso and Garate, inasmuch as they have been subject to
restrictive measures that might impair their freedom to maintain their
beliefs as regards the manner in which they carry forward their life
plan. The petitioners
further contend that this constitutes an arbitrary interference in the
private life of the alleged victims, inasmuch as "the right to
privacy constitutes an area of moral autonomy within which every
individual can develop, without arbitrary interference, all those issues
that are a manifestation of one's free will and that represent that
individual's particular personal identity."
The petitioners also contend that the fact that there are no laws
to protect the alleged victims' situation is itself a violation of
Article 2 of the American Convention.
Lastly, they argue that by failing to provide grounds to allow
conscientious objectors to be exempt from military service, the State is
violating its duty to ensure the rights recognized in the Convention,
particularly its duty to effectively protect the right to freedom of
B. The State's position
The State has not raised any objection alleging failure to comply
with the remedies under domestic law or the other requirements for the
admissibility of this petition.
The State also acknowledges that Chilean domestic law does not
provide any guarantee to those persons who believe that they cannot
perform compulsory military service by reason of conscientious
objection. During the
hearing held to discuss the admissibility of the case, the State
explained that in order to allow conscientious objection a
constitutional amendment would be required, and that such a process is a
complex one. On the other hand, the State reported that the military
service system is undergoing reform, that, in principle, military
service would become voluntary, and that the State would resort to a
conscription by drawing only if the volunteer system failed to achieve
the minimum number of enlistments necessary.
This process would treat everyone the same.
As to the specific case of the young Salí, Basso and Garate, the
State contends that thus far none of them "has received any summons
from the Armed Forces or from a military or civil court; nor have they
been threatened, coerced, followed, prosecuted, deprived of their
liberty or subjected to any civil, administrative or criminal sanction
for the reason that is the cause of the petition in question."
The State therefore considers that the complaint is unfounded and
unwarranted and should consequently be rejected on the grounds that it
does not tend to establish facts that constitute violations of the
The State also contends that the American Convention provides
that limitations on freedom of conscience are allowable, for certain
reasons, security being one of them, as stipulated in Article 32(2) of
the American Convention. It
also asserts that military service does not require a person to do
anything contrary to his/her innermost beliefs; “it is simply military
preparation or training for a predetermined period of time.”
The State argues that military service does not violate the right
to a privacy since it does not constitute arbitrary or abusive
interference in a person's private life; instead, that it is governed by
law and is part of the cultural background of the young people who must
ANALYSIS ON COMPETENCE AND ADMISSIBILITY
The Commission's competence ratione
personae, ratione loci, ratione temporis and ratione materiae
Under Article 44 of the American Convention, the petitioners are
entitled to lodge petitions with the Commission. The petition refers as
the alleged victims to persons whose Convention-recognized rights Chile
undertook to respect and ensure. As
for the State, Chile has been a party to the American Convention since
August 21, 1990 the date on which its instrument of ratification was
deposited. The Commission,
therefore, has competence ratione
personae to examine the petition.
The Commission is competent ratione loci to examine the petition because the latter alleges
violations of rights protected in the American Convention that were said
to have occurred within the territory of a State party to the
The Commission is competent ratione temporis inasmuch as the obligation to respect the rights
recognized in the American Convention and to ensure their free and full
exercise was already binding upon the State at the time the facts
alleged in the petition are said to have occurred.
Finally, the Commission is competent ratione materiae because the petition denounces violations of human
rights protected by the American Convention.
Exhaustion of remedies under domestic law
Under Article 46(1) of the American Convention, one of the
requirements that must be met for a petition to be admissible is that
the remedies under a State's domestic laws have been pursued and
exhausted. The State, however, did not raise any preliminary objections
alleging a failure to exhaust domestic remedies.
The Commission therefore considers that with respect to this
petition, the Chilean State did not claim during the initial proceedings
the failure to exhaust the remedies under domestic law.
The Inter-American Court of Human Rights has
established that, in order to be timely, the objection asserting failure
to exhaust domestic remedies must be raised during the first stages of
the proceeding; otherwise, it is to be presumed that the interested
State has tacitly waived the use of that objection.
The Inter-American Commission considers, therefore,
that in this matter, the Chilean State waived the objection asserting
failure to exhaust domestic remedies, as it did not raise that
objection, either within the established time periods or at the first
opportunity it had during the proceeding, which would be in its response
to the petition that started the process.
Time period for filing the petition
In the petition under study, the Commission has established that
Chile tacitly waived its right to raise the objection asserting failure
to exhaust domestic remedies. Therefore,
the requirement set forth in Article
46(1)(b) of the American Convention is not applicable.
However, the Convention’s requirement that domestic remedies be exhausted is
independent of the requirement that the petition be lodged within six
months following the judgment exhausting domestic jurisdiction.
The Inter-American Commission must therefore determine whether
the petition was lodged within a reasonable period of time.
In this respect, the Commission notes that the original
communication was received on October 6, 1999.
The decision of the Santiago Appellate Court confirming the
inadmissibility of the appeal seeking protection of a violated right is
dated March 29, 1999. Given
the particular circumstances of the petition under study, the Commission
considers that the former was lodged within a reasonable period of time.
Duplication of proceedings and res
There is nothing in the case file to suggest that the subject
matter is pending in another international proceeding for settlement or
is substantially the same as one already examined by this or another
international body. Therefore,
the requirements stipulated in Articles 46(1)(c) and 47(d) of the
Convention have been met.
Characterization of the facts alleged
The State requested the Commission to declare the petition
inadmissible on the grounds that the petition does not state facts that
would tend to establish a violation of the American Convention.
The State based its contention on the fact that none of the
victims had been threatened, coerced, followed, prosecuted, deprived of
their liberty or subjected to any civil, administrative or criminal
sanction, the inference being that no harm had been done to the alleged
The petitioners contend that the fact that the authorities have
issued no summons does not mean that no harm has been done.
They also assert that the violation of the Convention lies in the
fact that the law does not recognize conscientious objection, not in any
consequences that failure to abide by a law may have.
They further contend that the fact that there are amnesty laws
for those who do not serve the mandatory military tour of duty shows
just how serious the situation is.
The Commission considers that this is not the proper stage in the
proceedings to determine whether or not the American Convention has been
violated. For purposes of
admissibility, the IACHR has to determine whether the facts stated in
the petition tend to establish a violation of rights set forth in the
American Convention, as required under Article 47(b) thereof, and
whether the petition is "manifestly groundless" or
"obviously out of order," as paragraph (c) of the same Article
The standard by which to assess these extremes is different from
the one needed to decide the merits of a petition.
The IACHR must do a prima
facie evaluation, not to establish the existence of a violation but
rather to examine whether the petition states facts that tend to
establish a potential or apparent violation of a right guaranteed by the
Convention. That examination is a summary analysis that does not imply
any prejudgment or advance opinion on the merits of the petition.
By establishing two clearly separate phases -one for
admissibility and the other for the merits- the Commission's own Rules
of Procedure reflect the distinction between the evaluation the
Commission must make to declare a petition admissible, and the
evaluation required to establish a violation.
The extensive argument made by the State is in itself proof that
the petition is not "manifestly groundless," that it is not
"obviously out of order" or that it does state facts that tend
to establish an alleged violation.
Indeed, the State's response is itself cause for a more in-depth
examination of the petition in the merits phase of the proceedings.
On the other hand, the Commission considers that, prima
facie, the petitioners have met the tests stipulated in Article
47(b) and (c).
Accordingly, the Commission considers that the petitioners'
allegations concerning violations of the right to freedom of conscience
and religion and the right to a privacy, as well as the failure to adapt
domestic legislation to the international commitments the State
undertook, could tend to establish violations of the alleged victims'
rights recognized in Articles 1(1), 2, 11 and 12 of the American
The Commission concludes that it is competent to examine the case
presented by the petitioners alleging the State's violation of the right
to freedom of conscience and religion and the right to privacy, and of
its obligation to take the legislative or other measures necessary to
give effect to those rights and its obligation to respect those rights
and freedoms and ensure their free and full exercise to all persons
subject to its jurisdiction.
Based on the arguments of fact and of law stated herein, and
without prejudging the merits of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN
To declare this case admissible as regards the alleged violations
of the rights contained in Articles 1(1), 2, 11 and 12 of the American
To notify the State and the petitioners of this decision.
To begin proceedings on the merits of the case.
To publish this decision and include it in the Commission's
Annual Report to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., this 9th day of October 2002.
(Signed): Juan E. Méndez, President; Marta Altolaguirre, First
Vice-President; Commission members Robert K. Goldman, Julio Prado
Vallejo, Clare K. Roberts and Susana Villarán de la Puente.
In keeping with Article 17(2)(a) of the Commission's Rules of
Procedure, Commission member José Zalaquett, a Chilean national,
did not participate in the discussion of this matter or in the
decision taken thereon.
The petitioners' brief of October 6, 1999, p. 11.
See, for example, the Inter-American Court of Human Rights, Mayagna
(Sumo) Awas Tingni Community Case, Nicaragua, Judgment on
Preliminary Objections, February 1, 2000, par. 53.
In that judgment, the Inter-American Court held that
"in order to validly oppose the admissibility of the
petition…. the State should have expressly and in
a timely manner invoked the rule that domestic remedies should
be exhausted.” (emphasis in the original). Idem, par. 54.