REPORT Nº 34/96
CASES 11.228, 11.229, 11.231 AND 11.182
October 15, 1996
Between 1991 and 1993, the Commission began to receive various
claims against the State of Chile, denouncing the enactment of Decree
Law 2191 of March 10, 1978. The petitions were registered under the following numbers and
names: 11.228 Irma
Meneses Reyes; 11.229 Ricardo Lagos Salinas; 11.231 Juan Alsina Hurtos
and 11.282 Pedro José Vergara Inostroza, and they argued that the
1978 amnesty law in question, Decree Law 2191--whereby various
offenses committed between 1973 and 1978 were pardoned--and the
consequent enforcement thereof by the Chilean courts constituted a
violation of consuetudinary and conventional international law.
In all of the complaints, the petitioners requested that the
Commission: 1) declare Decree Law 2191 to be incompatible with Article
XVII of the American Declaration of the Rights and Duties of Man and
with Articles 1, 8 and 25 of the American Convention on Human Rights;
2) recommend to the State of Chile that it adopt all of the
necessary measures to establish the whereabouts of the victims and
punish the persons responsible for the disappearances and executions
implemented outside the law; and 3) recommend to the State of Chile
that it grant compensation to members of the victims' families for the
violation of their right to justice.
Having realized that the arguments used in these four petitions
are essentially the same, and that the issue is basically a matter of
law--since it is not the facts that are being disputed, but the
question as to whether the decree is compatible with the
Convention--the Commission has decided to consider them jointly.
THE CLAIMS AND THE PROCESSING THEREOF BY THE COMMISSION
On December 21, 1993, the Commission received a complaint
against the State of Chile for violation of the right to justice and
the state of impunity maintained regarding the situation of Juan
Aniceto Meneses Reyes, a student at the University of Chile who was
arrested on August 3, 1974 by agents of what
was then the Directorate of National Intelligence, the DINA.
Meneses Reyes was seen after his arrest in the secret compound
at No. 38 Londres Street, and then again
at the Cuatro Alamos Camp where prisoners are held in solitary
confinement. Thereafter he disappeared.
The petitioners included the following account of the steps
they had taken, the remedies they had sought and the judicial
procedures utilized in the domestic jurisdiction of Chile: the
criminal investigation was instituted before the Seventh Criminal
Court in Santiago at the end of 1979.
Since the agents of the state were unionized and subject to a
military court, the file was turned over to the military tribunal.
On July 24, 1981, the military judge decreed a nonsuit, and
thereafter that verdict was confirmed by the Military Appeals Court on
October 30, 1981. Subsequently, at the request of the Military Attorney
General's Office, the file was reopened, and on December 12, 1989, the
law of amnesty was applied and the case was dismissed.
In its complaint regarding this decision, members of the
victim's family presented a protest to the Supreme Court, which denied
that recourse on November 3, 1993, leaving the dismissal definitively
Case 11.229. On
November 15, 1993, the Commission received a claim against the State
of Chile for violation of the right to justice and the state of
impunity persisting in the situation of Ricardo Lagos Salinas, an
accountant. He was
arrested on June 17, 1975 by agents of the former National
Intelligence Directorate (DINA), who took him to the compound at the
Villa Grimaldi in the City of Santiago.
Shortly afterward, he was seen, alive, along with other
directors of the Socialist Party, in the barracks there.
Then he disappeared. The
petitioners gave an account of the efforts they had deployed, the
remedies sought and the judicial formalities effected, as follows:
The investigation started with the presentation of a writ of
habeas corpus on September 3, 1975, which was rejected with a
statement from the Government to the effect that he had not been
arrested by order of any authority. The criminal investigation procedure was opened at the
Seventh Criminal Court of Santiago.
In December of 1979, the file was sent to the military court.
On June 17, 1982, the military judge decreed the dismissal of the
case, which was confirmed thereafter by the Military Appeals Court in
May of 1983. Upon finding
the case to be filed, at the request of the Military Attorney
General's Office for amnesty law 2191 to be applied, the military
judge issued a judgment calling for permanent dismissal on October 30,
1989. That sentence was
appealed, but then it was upheld by the Military Appeals Court on
December 5, 1990. The
petitioners presented a complaint regarding this decision to the
Supreme Court. On June
30, 1993, however, the Court rejected their remedy of complaint and
the judgment was definitively confirmed by that act.
Case 11.231. On
November 5, 1993, the Commission received a claim against the State of
Chile for violation of the right to justice and the state of impunity
in which the situation of the Spanish priest Juan Alsina Hurtos
remained. The priest had
been arrested on September 19, 1973--at the San Juan de Dios de
Santiago assistance center where he worked--by Army personnel who took
him to the Barros Arana National Institute where a military barracks
had been established. He
was seen there by the military chaplain, who also heard his
confession. Thereafter he
was murdered, and his body, riddled with bullet holes, was found on
the bank of the Mapocho River near Bulnes, in the City of Santiago.
The petitioners gave the following account of the steps they
have taken, the remedies sought and the judicial formalities conducted
within the internal jurisdiction of Chile:
The proceeding for kidnapping and homicide began at the Third
Criminal Court of Santiago, where it became possible to establish the
identity of the persons responsible; but thanks to application of the
amnesty decree law 2191, the criminal responsibility of the soldiers
who committed these acts was declared to be extinguished. That verdict was definitively confirmed by the Santiago Court
of Appeals on May 10, 1993.
Case 11.282. On
March 15, 1994, the Commission received a complaint against the State
of Chile for a violation of the right to justice and the situation of
impunity which has persisted in regard to the situation of Pedro
Vergara Inostrosa, who was arrested on April 27, 1974 in the City of
Santiago, along with other persons, by personnel from the Conchali
Carabineros Unit and taken to its barracks.
Thereafter, despite the presence of various witnesses who
testified to that arrest and transfer to the military post, Mr.
Vergara disappeared. The
petitioners give the following account of the procedures, recourse and
judicial acts carried out within the domestic jurisdiction of Chile:
The process of kidnapping and homicide began in the course of
ordinary legal proceedings. He
was transferred to the jurisdiction of the military, which ended with
a temporary stay of the proceedings.
In October of 1989, the military judge in Santiago reopened the
file on the case and, applying the law of amnesty, decreed the
permanent dismissal thereof. The
judge's verdict was appealed to the Military Appeals Court, which on
January 16, 1991 upheld the use of the law of amnesty.
A complaint against that verdict was lodged with the Supreme
Court, but the recourse was rejected on November 28, 1991, leaving the
permanent dismissal firmly in place. Finally, the recourse of reinstatement was presented.
It was declared without merit, however, on September 30, 1993,
thereby ending the attempt to clear up the facts and punish the
ADMISSIBILITY OF THESE CASES
According to the provisions of Article 44 of the American
Convention on Human Rights (hereinafter "the Convention"),
to which Chile is a State Party, the Commission is competent to
consider these cases since they are claims alleging violations of the
rights guaranteed by the American Convention in its Article
25--relative to the right to effective judicial protection--and in
Articles 1.1, 2 and 43--concerning the duty of the states to comply
with and see to compliance with the provisions of the Convention; to
adopt measures of internal law to give effect to the norms of the
Convention; and to provide the Inter-American Commission on Human
Rights with information on these matters.
The complaints satisfy the formal requirements for
admissibility set forth in Article 46.1 of the Convention and in
Article 32 of the Commission's Regulations.
petitioners have exhausted the remedies set forth in the Chilean law,
as established in the file on the case.
complaints are not pending in any other international procedure, nor
do they repeat a previous petition that has already been examined by
the Inter-American Commission on Human Rights.
procedure for a friendly settlement, as set forth in Article 48.1 (f)
of the Convention and in Article 45 of the Commission's Regulations,
was proposed by the Commission to the parties, but no understanding
was reached on that point.
no friendly settlement could be established, it is incumbent upon the
Commission to comply with the provisions of Article 50.1 of the
Convention, issuing its conclusions on the matter submitted to it for
COMPLIANCE WITH THE PROCEDURES ESTABLISHED BY THE CONVENTION
the processing of these cases, the Commission has granted equal
opportunities for defense to the Government of Chile and to the
petitioners. It has also
examined, with absolute objectivity, the evidence and arguments
submitted by the parties, and in the processing thereof has observed,
complied with and exhausted all of the legal and regulatory
formalities established in the American Convention on Human Rights and
in the Commission's Regulations.
ARGUMENTS PRESENTED BY THE GOVERNMENT OF CHILE
democratic Government of Chile alleges that it has enacted no law of
amnesty that is incompatible with the American Convention, inasmuch as
Decree Law 2191 was issued in 1978 under the de facto military
Government requests that the Commission take into account in these
cases the historical context in which the acts took place, along with
the special situation of the country's return to a democratic regime,
in which the new government was forced to accept the rules imposed by
the de facto military regime, which could not be amended except
in conformity with the law and with the Constitution.
Government has attempted to set aside the Amnesty Decree Law, but the
constitutional precept requires that initiatives relative to amnesty
be introduced only in the Senate (Article 62, Section Two of the
Constitution), where it lacks a majority due to the number of persons
in that legislative body who were not appointed by popular vote.
democratic Government has urged the Supreme Court to declare that the
amnesty now in effect shall not be an obstacle to the conduct of
investigation and punishment of the persons responsible.
National Commission on Truth and Reconciliation--the author of a
report containing individual accounts of the victims whose fundamental
rights had been violated under the military dictatorship, which
included the persons named in these claims--acknowledged that the
cases of these individuals constituted serious violations in which
agents of the state had participated; and, when their whereabouts
could not be discovered, listed them in the category of
"detainees who had disappeared."
19123, enacted by the democratic Government, gave the families of the
victims the following benefits: a single life-long pension amounting
to no less than the average income of a family in Chile; a special
procedure for the declaration of presumed death; special attention
from the state in the areas of health care, education and housing; the
condonation of debts owed for education, housing, taxes and any others
payable to state agencies; and exemption--for the victims'
children--from the compulsory military service.
democratic Government expressed its conformity with the terms used by
the petitioners to describe the nature of Decree Law No. 2191 of April
19, 1978, the purpose of which was to exonerate the perpetrators from
responsibility for the most appalling crimes committed in the history
Government asked the Inter-American Commission on Human Rights to
state in its final report that the violations of rights described in
the petitioners' accusation in the present case could not be
attributed to the Government of Chile, and that the Government bears
no responsibility for those acts.
OF THE COMMISSION REGARDING THE ALLEGATIONS OF THE PARTIES
Quality of the authorities who decreed the amnesty
so-called "law of amnesty" is an act of power on the part of
the military regime which overthrew the constitutional government of
Dr. Salvador Allende. Accordingly,
we are dealing here with authorities who lack any title or right to
such power, since they were neither elected nor in any way appointed,
but took possession of the office by force after deposing the lawful
government in violation of the Constitution.
de facto government lacks legal title, since if a state has
enacted a Constitution, everything that is not in accordance with that
document is contrary to law. Installation of the de facto government in Chile was
brought about by force, not by consent of the people.
even to preserve juridical security can the Commission put the
legality of a de jure government on the same footing as the arbitrary and unlawful
conduct of a usurping government, whose chance of existing is by
definition a source of legal insecurity.
Such governments warrant permanent repudiation in defense of
the Constitutional State of Law, together with respect for democratic
life and the principle of sovereignty of the people, based on the
full-fledged validity of human rights.
the present case, the persons benefiting from the amnesty were not
third parties from outside, but the very ones who had taken part in
the government plans of the military regime.
One thing is to uphold the need to legitimize the acts
celebrated by society as a whole (to avoid falling into chaos), or
those stemming from international responsibility, since the
obligations assumed in those areas cannot be shirked; but to extend
equal treatment to persons who acted in accord with the unlawful
government, thereby violating the Constitution and the laws of Chile,
is another matter entirely.
Commission considers that it would be absurd to suggest that the
usurping party and its followers might invoke the principles of
Constitutional Law--which they have violated--so they could derive
benefits from the security which is only justifiable and deserved by
those who have adhered strictly to that order.
The acts of the usurper cannot be valid and are not legal,
either in themselves or for the benefit of the unlawful or de facto
officials. Because if
those who collaborate with such governments are assured the impunity
for their conduct that is bestowed by a usurping and unlawful regime,
there would be no difference between what is legal and what is not;
between the constitutional and the unconstitutional; or between the
democratic and the authoritarian.
constitutional order must necessarily assure the government of
compliance with its fundamental aims, untying it from the limitations
contrary to law that are imposed by the usurping military regime, for
it is not juridically acceptable that such a regime can place limits
on the constitutional government which replaces it in attainment of
the democratic system, or that the acts of de facto power
should enjoy the full benefits that can only be bestowed on the
legitimate acts of the de jure power.
The de jure government recognizes the legitimacy
thereof, not in the rules issued by the usurper, but in the will of
the people who voted that government into office, and who alone are
entitled to sovereignty.
Chilean constitutional law
position expressed in the preceding paragraph is consistent with
Chile's Constitutional Law. The
1833 Constitution of Chile stated in Article 158 that "Any
resolution agreed to by the President of the Republic, the Senate or
the Chamber of Deputies in the presence or at the order of an army, of
a general at the head of an armed force, or by a meeting of persons
who--whether bearing arms or without them--disobey the authorities is
null and void and cannot take effect."
The Constitution of 1925 in turn declared: "No
magistrate's court, no person or meeting of persons can arrogate to
themselves--not even under pretext of special circumstances--other
authority or rights than those expressly conferred on them by the
laws. Any act in
contravention of this Article is null and void." (Article 4).
the supposed "Constitution" authorized by Decree Law of the
military regime has something to say in this respect:
"No judiciary, no person or group of persons may arrogate
to themselves, even under pretext of special circumstances, any
authority or rights other than those expressly conferred on them by
the laws. Any act in
contravention to this Article is null and void, and shall give rise to
such responsibilities and penalties as the law may prescribe (Article
7, paragraph two).
At the same time, Article 5 of that document establishes that
"the exercise of sovereignty recognizes the respect for essential
rights that emanate from human nature to be a limitation,"
postulating that no sector of the people nor any individual may claim
the privilege of such exercise for itself."
Fundamental rights and liberties of persons and of the state
fundamental rights and liberties do not cease to exist in the face of
a de facto government, because they preceded the state and the
constitution which recognizes and guarantees--but does not
create--them. Hence it is
erroneous to say that a de facto regime has no limits on its
anomalous or anticonstitutional powers.
Consequently, a government that is accused of systematically
violating the fundamental rights of the people it governs, and then
acquits itself by means of an amnesty is guilty of an egregious abuse
that context, Professor Christian Tomuschat says: "To maintain
that in certain cases obedience is owed to vicious laws and the
implacable executors thereof is tantamount to making the state a
fetish of a divine nature, unstained by even the most atrocious and
odious acts." (See
"On Resistance to Human Rights Violations,"
UNESCO, 1984, page 26.)
The international law of human rights
international law of human rights reaffirms that concept in light of
the provisions of Article XX of the American Declaration and Articles
23.1a and b of the Convention, which are inalienable according to
Article 27.2 of the latter document.
Other inter-American instruments also reaffirm that premise:
one of them is Article 3 of the OAS Charter, which holds that the
principle of the American states' solidarity rests on the common
denominator of "effective exercise of representative
The Inter-American Court of Human Rights
Inter-American Court of Human Rights defines "laws" as a
"general legal norm tied to the general welfare, passed by a
democratically elected legislative bodies established by the
constitution, and formulated according to the procedures set forth by
the constitutions of the States parties for that purpose."
(OC/6, paragraph 38). This
definition was predicated on an analysis of the principles of
"legality" and "legitimacy" and of the democratic
regime--within which the inter-American system of human rights must be
understood (OC/6, paragraphs 23 and 32), as noted in its OC/13,
paragraph 25. For the
Court, "the principle of legality, the democratic institutions
and the state of law are inseparable" (OC/8, paragraph 24).
Firm adherence to the democratic regime has been noted by the
Court: "Representative democracy is determinant throughout the
system of which the Convention is a part" (OC/l3, paragraph 34),
which completes its criteria regarding "the just requirements of
democracy" by which interpretation of the Convention--and, in
particular, the precepts which are closely tied to the preservation
and functioning of democratic institutions--should be guided (OC/5,
paragraphs 44, 67 and 69). Neither
should we forget the Court's doctrine that underscores the importance
of an elected legislature in the protection of fundamental rights (OC/8,
paragraphs 22 and 23) or the precept calling for the Judicial Branch
to control the legitimacy of acts performed by the Executive Branch (OC/8,
paragraphs 29 and 30; and OC/9, paragraph 20).
The Inter-American Commission on Human Rights
Inter-American Commission on Human Rights has issued pronouncements on
this subject on numerous occasions.
It has said, for example, that "the democratic framework
is a necessary element for the establishment of a political society in
which full human values may thrive" [See "Ten Years of
Activities, 1971-1981, page 331] when it alludes to the predominant
power granted to organs that are not representative of the people's
will [idem., page 270]. In
its Report on Panama (1978, page 114, paragraph 3; and the 1978/80
Annual Report, pp. 123/24) examining a draft political constitution
for Uruguay; in its report on Suriname regarding the citizens'
participation even in the drafting of constitutional texts
(1983, p. 43, paragraph 41); the opinions expressed on the plebiscite
in Chile, questioning the validity thereof, since it took place during
the suspension of public liberties [1978/80 Report, page 115]; and in
its findings in the "Rios Montt v. Guatemala" case.
The universal system
following should be mentioned with reference to the universal system:
a) the Charter of the United Nations and its preamble ("We, the
peoples of the United Nations..."); in its reference to the
"free self-determination of peoples" and to the
"development and stimulation of respect for human rights and the
fundamental freedoms of all...");
b) the Universal Declaration, in its Article 29; c) the
International Covenant on Civil and Political Rights; and d) the
statement of the Committee on Human Rights in "Ngaluba v.
Zaire," paragraphs 8.2 and 10, on denial of the right to
participate, on an equal footing, in the management of public affairs
as a result of the sanctions applied to eight parliamentarians.
Usurper governments and democracy
the reasons stated above, the Commission considers that representative
democracy constitutes the essential bastion of the American states'
political organization. Consequently,
the de facto governments are not compatible with the
requirements of the American Convention.
Commission considers that in these cases, the petitions raise a
question of law and they seek to determine whether the decree law in
question--and the way it was applied by the Chilean courts--are
compatible with the Convention, insofar as it has not disputed any of
the alleged events, and none of the events need to be confirmed.
the democratic government has denied its responsibility for the acts
perpetrated by the military dictatorship, it did recognize its
obligation to investigate past violations of human rights; so it set
up a Truth Commission in order to determine the facts and publish its
findings. As a means of
reparation, former President Aylwin, speaking on behalf of the State
of Chile, asked the members of the victims' families for their pardon.
In addition, the ex-president publicly protested the decision
of the Supreme Court, which called for the Amnesty Decree Law to be
applied in such a way as to suspend all investigation of the events.
The democratic Government, invoking the impossibility of
amending or annulling the Amnesty Decree Law and its obligation to
respect the decisions of the Judiciary, argued that the measures it
has already adopted are not only effective but suffice to comply with
Chile's obligations pursuant to the Convention, thus making any
further action unnecessary.
petitioners acknowledge the efforts made by the Government, but find
that those efforts have been insufficient and ineffective, and that
the Government has an ongoing obligation to conduct a relentless
investigation of the facts, establish responsibilities and punish the
persons responsible for previous violations of human rights.
Commission observes that, as demonstrated in the previous section,
adoption of the self-proclaimed amnesty decree law was in conflict
with the constitutional provisions in effect in Chile at the time when
the decree in question was issued.
Aside from the constitutionality or legality of the laws in
Chile's legal system, however, the Commission is competent to examine
the juridical effects of a legislative, judicial or other measure, so
long as it is incompatible with the rights and guarantees set forth in
the American Convention.
its decision relative to international responsibility for issuing and
enforcing laws which violate the Convention (Articles 1 and 2 of the
Convention), the Court declared that: "As a consequence of this
measure, the Commission may recommend that the State set aside or
amend the rule that is in violation, and to that end it is sufficient
that the ruling has been brought to its attention by any
2 of the Convention establishes the obligations of the States parties
to adopt "such legislative or other measures as may be
necessary" to give effect to the rights or freedoms enshrined in
this covenant. Accordingly,
the Commission and the Court are empowered to examine--in light of the
Convention--even the domestic laws that are alleged to suppress or
violate the rights and freedoms enshrined therein.
examining this topic, it is important to consider the nature and
gravity of the alleged offenses affected by the amnesty decree.
The military government that ruled the country from September
11, 1973 until March 11, 1990 carried out a systematic policy of
repression that resulted in thousands of victims of
"disappearances," executions that were summary or outside
the law, and instances of torture.
In referring to the practices of that military Government, the
Commission noted the following:
...the Government in question [had] employed virtually every
known means for physical elimination of the dissidents, among others:
disappearances, summary executions of individuals and groups,
executions decreed in proceedings without legal guarantees, and
of these offenses were considered to be so serious as to justify the
adoption, in various international instruments,
of specific measures to forestall any impunity for such acts,
including universal jurisdiction and inapplicability of the statute of
limitations to the offenses.
reference to the practice of disappearances, the General Assembly of
the Organization of American States has declared that "the forced
disappearance of persons in the Americas is an affront to the
conscience of the Hemisphere, and it constitutes a crime of lèse
In its 1988 decision in the "Velásquez Rodríguez"
case, the Inter-American Court observed that international practice
and doctrine have often categorized disappearances as a crime against
The Inter-American Convention on Forced Disappearance of
Persons reaffirms in its preamble that "the systematic practice
of forced disappearances constitutes a crime of lèse humanity."
The social need for clarification and investigation of these
crimes cannot be compared with that of a mere common offense.
The question of the Decree Law of Self-Proclaimed Amnesty
problem of amnesties has been addressed by the Commission on various
occasions as a result of claims against the States parties to the
American Convention which have resorted to this device, leaving
unprotected a sector in which many innocent victims of violence are
deprived of the right to justice in their justifiable complaints
brought against persons who have committed excesses and perpetrated
savage acts to the detriment of the victims.
Commission has repeatedly pointed out that the use of amnesties
renders ineffective and without merit the international obligations of
the States parties imposed by Article 1.1 of the Convention; as a
result, such amnesties constitute a violation of that article and
thereby eliminate the most effective measure for putting those rights
into effect, such as the trial and punishment of the persons
the petitioners make abundantly clear, the question does not focus on
the violations of human rights stemming from the unlawful detention
and disappearance of persons--such as practiced by agents of the State
of Chile during the previous military regime--but consists in essence
of two problems: A) the
failure to rescind--and consequent maintenance in effect of--Decree
Law 2191 on amnesty, which the military government handed down for its
own purposes, but which has remained in effect and is being enforced
during the democratic government, even after Chile had ratified the
American Convention and assumed the commitment to comply therewith;
and B) the failure to bring to trial or to identify the persons
responsible and punish the perpetrators of these acts, which began
during the military government and continues to prevail, even under
the democratic and constitutional government.
democratic Government of Chile has recognized the close relationship
which exists between amnesty and impunity in these cases, and for that
reason issued law No. 19.123, which indemnifies the families of the
victims of human rights violations and considers the act violating the
victims' rights as a single unified action from the time when the
victims are arrested up to the denial of justice.
events denounced in the claim against the democratic government cause,
on the one hand, a lack of compliance with the obligations assumed by
the State of Chile to bring the rules of its domestic law in line with
the precepts of the American Convention, thereby violating articles
1.1 and 2 of that document; and, on the other,
the enforcement thereof, which leads to a denial of justice to
the detriment of the persons who have disappeared as stated in the
accusations, thereby violating Articles 8 and 25 in connection with
Commission has taken into account the fact that the democratic
government turned to the Supreme Court in March 1991, when it asked
the Court--especially in cases of persons who had disappeared--to
render justice and to consider that the decree of self-proclaimed
amnesty then in effect should not and could not be an obstacle that
would prevent investigation of the pertinent responsibilities by legal
means; and that it had also vetoed a law which might have contributed
to the amnesty.
recognition is owed to creation of the National Commission on Truth
and Reconciliation and to the work of that body, which it performed by
collecting background information on violations of human rights and
detainees who had disappeared. The report cited the victims individually--including among
them the cases of the persons named in the claims--and it tried to
establish their whereabouts and ensure proper measures of reparation
and revindication for each of them.
In addition, it acknowledged that the cases of these persons
constituted serious violations of the fundamental rights, in which
agents of the state had played a part; and, when the victims'
whereabouts could not be determined, the report classified them as
"detainees who had disappeared."
deserving of recognition is Law No. 19.123, an initiative of the
democratic Government which grants benefits to the victims' families:
a) a single life-long pension amounting to no less than the
average income of a family in Chile; b) a special procedure for
obtaining a declaration of presumed death; c) special attention from
the state in the areas of health care, education and housing; d) the
condoning of debts owed for education, housing, taxes and any other
fees payable to state agencies; and e) an exemption--for the victims'
children--from the compulsory military service.
those measures do not suffice to guarantee respect for the human
rights of the petitioners as prescribed in Articles 1.1 and 2 of the
American Convention on Human Rights so long as the petitioners' right
to justice is not satisfied.
The denial of justice
violation of the right to justice and the consequent impunity
triggered thereby in the present case constitute a chain of events
which began, as has been established, when the military government
issued--in its own favor and that of agents of the state who had
committed violations of human rights--a series of rules designed to
form a complex juridical framework of impunity which was formally
introduced in the year 1978, when the military government approved
Decree Law No. 2191 on self-amnesty.
democratic government also joins in condemning the Decree Law on
Amnesty when it says that: "The constitutional government has no
choice but to agree with the petitioners as to the nature of Decree
Law 2191 of April 19, 1978, which sought to
exonerate [the perpetrators of] the most heinous crimes
committed in our history from any responsibility."
the Chilean State, through the organ of its Legislative Power, is
responsible for its failure to rescind the de facto Decree Law
No. 2191 of April 19, 1978, which is found to violate the obligations
assumed by that state--to adjust its rulings to the precepts of the
Convention--and has thereby violated Articles 1.1 and 2 of that
With respect to legal guarantees (Article 8)
petitioners claim that the juridical consequences of self-amnesty are
incompatible with the Convention, inasmuch as they violate the right
of the victim to a fair trial, as set forth in Article 8 of that
article protects the right of the accused to a fair trial "in the
substantiation of any accusation of a criminal nature made against
the state has the obligation to provide effective recourse (Article
25), which must be "substantiated in accordance with the rules of
due legal process" (Article 8.1),
it is important to point out that in many of the criminal law
systems of Latin America, the victim has the right to present charges
in a criminal suit. In
systems such as that of Chile, which permits it, the victim of a crime
has the fundamental right to go to court. 
That right is essential for instituting and continuing the
penal process. The decree
of amnesty clearly affected the right of the victims, recognized in
Chilean law, to bring a criminal suit in the courts against the
parties responsible for
violations of human rights.
even if this were not the case in dealing, as in these cases, with
offenses of public action--i. e., officially punishable--the state has
a legal obligation, which cannot be delegated and renounced, to
investigate them. As a
result, the Chilean State has, in any case, a monopoly on punitive
action and the obligation to promote and foster the various stages of
the proceedings to carry out its duty of guaranteeing the victims and
their families the right to justice.
This function should be assumed by the state as an inherent
legal duty, and not as a matter of private interests or one that
depends on the initiative of such interests, or the presentation of
proof by such parties.
petitioners also allege that the Amnesty Decree Law made it impossible
for members of the victims' families to obtain reparation in the civil
courts. Article 8 of the
American Convention establishes that:
Every person has the right to a hearing, with due guarantees
and within a reasonable time, by a competent, independent and
impartial tribunal, previously established by law . . . for the
determination of his rights and obligations of a civil, labor, fiscal,
or any other nature.
Chile, the possibility of starting a civil action is not necessarily
related to the results of the criminal procedure.
The civil suit must nevertheless be lodged against a given
person so that responsibility can be established for the alleged
events, and the payment of compensation determined.
The failure of the state to investigate makes it virtually
impossible to establish responsibility before the civil courts.
Despite the emphasis placed by the Supreme Court on the fact
that civil and penal procedures are independent of each other, 
the manner in which the amnesty was applied by the courts
clearly affected the right to obtain reparation in the civil
tribunals, given the impossibility of singling out or identifying the
de facto Decree Law 2191, as it was applied by the courts in
the State of Chile, kept the petitioners from exercising their right
to a fair proceeding to determine their civil rights, as set forth in
Article 8.1 of the Convention.
With respect to judicial protection (Article 25)
claim states that the victims and their families were deprived of the
right to an effective recourse in relation to the rights violated,
which are enshrined in Article 25 of the Convention.
Inter-American Court of Human Rights has affirmed that the states have
a legal obligation to provide domestic remedies.
In this respect, the Court pointed out that:
According (to the Convention), the States Parties undertake to
provide effective judicial recourse for the victims of human rights
violations (Article 25), remedies which must be substantiated pursuant
to the rules of due legal process (Article 8).
All of this falls within the general obligation incumbent upon
those same States to guarantee the free and full exercise of the
rights recognized by the Convention to all persons subject to their
jurisdiction (Article 1).
Court then established that: "Adequate domestic remedies are
those which are suitable to address an infringement of a legal
... The nonexistence of an effective recourse against the
violations of rights recognized by the Convention constitutes a
transgression of that covenant by the State Party in which such a
situation occurs. In this context, it should be emphasized that the fact that
it is envisaged by the Constitution or the law, or that it be formally
admissible does not suffice to cause that recourse to exist: the
requirement is that it be truly suitable to establish whether there
has been a violation of human rights, and to take the necessary steps
to remedy that offense.
self-amnesty was a general proceeding utilized by the state to refuse
to punish certain grave offenses.
In addition, due to the manner in which it was applied by the
Chilean courts, the decree not only made it impossible to punish the
parties who violated human rights, but also ensured that no accusation
be leveled and that the names of those responsible (the beneficiaries)
were not known, so that, legally, the culprits were considered as
though they had committed no illegal act at all. The law of amnesty gave rise to a juridical inefficacy in
regard to the offenses, and left the victims and their families with
no judicial recourse whereby those responsible for the violations of
human rights committed during the military dictatorship could be
identified and made subject to the corresponding penalties.
the promulgation and requirement of compliance with the de facto
Decree Law 2191, the Chilean State failed to guarantee the rights
stipulated in Article 25.
The obligation to investigate
its interpretation of Article 1.1 of the Convention, the
Inter-American Court of Human Rights establishes that "The second
obligation of the States Parties is to 'ensure' the free and full
exercise of the rights recognized in the Convention to every person
subject to their jurisdiction... As a consequence of this obligation,
the States must prevent, investigate and punish any violation
of the rights recognized by the Convention..."
The Court continues to examine this concept in several
What is decisive is whether a violation of the rights
recognized by the Convention has occurred with the support or the
acquiescence of the government, or whether the State has allowed the
act to take place without taking measures to prevent it or to punish
"The State has a legal duty to take reasonable steps to
prevent human rights violations and to use the means at its disposal
to carry out a serious investigation of violations committed within
its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate compensation.
"If the State apparatus acts in such a way that the
violation goes unpunished and the victim's full enjoyment of such
rights is not restored as soon as possible, the State has failed to
comply with its duty to ensure the free and full exercise of those
rights to the persons within its jurisdiction.
As to the obligation to investigate, the Court points out that
have an objective and be assumed by the State as its own legal duty,
not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof,
without an effective search by the government."
National Truth and Reconciliation Commission established by the
democratic Government to investigate violations of human rights which
had taken place in the past looked into a goodly part of the total
number of cases, and granted reparations to the victims or members of
their families. Nevertheless,
the investigation conducted by that Commission on cases of violation
of the right to life and the victims of other violations--in
particular, torture--were handled without any legal recourse or any
other type of compensation.
that Committee was not a judicial body and its work was limited to
establishing the identity of victims of violations of the right to
life. Because of the
nature of its mandate, the Commission was not authorized to publish
the names of those who had committed the offenses nor to impose any
type of punishment. That
being so, and despite the importance of its task of establishing the
facts and granting compensation, the Truth Commission cannot be
considered a satisfactory substitute for a judicial proceeding.
same Truth Commission concluded in its report that:
From the strictly preventive point of view, this Commission
believes that an indispensable element to achieve national
reconciliation and thus avoid a repetition of the events of the past
would be the complete exercise of its punitive faculties by the state.
Full protection of human rights is conceivable only in a true
state of law. And a state
of law calls for submitting all of the citizens to the law and the
tribunals of justice, which entails application of the penalties
contemplated in the penal legislation, equal for all, to the
transgressors of the rules which safeguard the respect for human
recognition of responsibility by the Government, the partial
investigation of the events and the subsequent payment of compensation
are not, in themselves, sufficient to comply with the obligations set
forth in the Convention. As
provided in Article 1.1 of that document, the state has the obligation
to investigate any violations that have been committed within the
sphere of its jurisdiction in order to identify the persons
responsible, impose pertinent penalties on them and ensure adequate
reparation for the victim.
adopting the de facto Decree Law on self-amnesty, the State of Chile
failed to comply fully with the obligation stipulated in Article 1.1
and violated the rights recognized by the American Convention, to the
detriment of the plaintiffs.
The international responsibility of the state
the present case, there is no question as to the responsibility of the
Government of Chile or that of the other organs which exercise public
power: the issue is the
international responsibility of the Chilean State.
the examination of the present case, it has been established--and the
Government has at no time denied--that agents of the Chilean State
played an active role in the authorship and execution of the events
denounced by the petitioners.
Government agrees that Decree 2191 is contrary to law.
It also acknowledges the close tie between amnesty and
impunity, and it admits the successive commission of these acts
violating the right to justice as one part of the act violating the
rights of the victims, from the time they were arrested to the denial
of justice, stating that the Amnesty Decree Law "encompasses
within a single unit a policy of massive and systematic violations of
human rights which, in the cases of the forced disappearances, starts
with the kidnapping of the victim; continues with the concealment
thereof; goes on from there with the victim's death; continues with
the denial of the act; and ends with the tender of amnesty to the
Government of Chile considers that, as an organ of the Executive
Branch, it cannot be blamed nor has it any responsibility for the
violations denounced by the petitioners because--insofar as amnesty is
concerned--the democratic Government has never decreed a law of
amnesty; and as--insofar as rescission of that law is concerned
because that is impossible for the reasons stated; that the same
limitation exists in regard to adaptation of domestic norms to those
of the American Convention on Human Rights; and that, insofar as
application of self-amnesty is concerned, it can only act within the
law and the Constitution, which establish the framework for its
competence, responsibilities and capabilities.
circumstance that Decree Law 2191 was enacted by the military regime
cannot lead to the conclusion that it is impossible to separate that
decree and its legal effects from the general practice of human rights
violations at that time. Although the Decree Law was adopted during the military
regime, it continues to be applied every time a claim denouncing a
presumed perpetrator of a human rights violation is presented to the
Chilean tribunals. The
things that have been denounced as incompatible with the Convention
are the ongoing juridical consequences of the Decree Law on
internally the executive, legislative and judicial powers are separate
and independent, the three branches of the state form a single
indivisible unit of the State of Chile which--in the international
plane--refuses to admit separate treatment and, as a result, Chile is
internationality responsible for the acts of its organs of public
power which infringe the international commitments stemming from
the standpoint of international law, the Chilean State cannot justify
its failure to comply with the Convention by alleging that
self-amnesty was decreed by the previous government or that the
abstention and omission of the Legislative Power in regard to the
rescinding of that Decree Law, or that the acts of the Judiciary which
confirm the application of that decree have nothing to do with the
position and responsibility of the democratic Government, inasmuch as
Article 27 of the Vienna Convention on the Law of Treaties establishes
that a State Party shall not invoke the provisions of domestic law as
a justification for failure to comply with a treaty.
Inter-American Court has maintained that: "under international
law a State is responsible for the acts of its agents undertaken in
their official capacity and for their omissions, even when those
agents act outside the sphere of their authority or violate internal
responsibility for the violations caused by Decree Law 2191--enacted
by the military regime which wrested the power in an unlawful and
arbitrary manner and not rescinded by the present legislative power
and applied by the jurisdictional organ as well--lies with the State
of Chile, regardless of the regime which approved that law or the
state power which enforced it or made its application possible.
There can be no doubt whatsoever as to the international
responsibility of the Chilean State for the events which--although
they took place during the military government--have still not been
investigated and punished. According
to the principle of continuity of the state, international
responsibility exists independently of changes of government.
In that connection, the Inter-American Court of Human Rights
has stated that: "According to the principle of the continuity of
the state in international law, responsibility exists both
independently of changes of government over a period of time and
continuously from the time of the act that creates responsibility to
the time when the act is declared illegal.
The foregoing is also valid in the area of human rights
although, from an ethical or political point of view, the attitude of
the new government may be much more respectful of those rights than
that of the government in power when the violations occurred."
following events confirm the failure of the State of Chile to comply
with the provisions of Articles 1 and 2 of the Convention: Decree Law
2191 was issued by the military dictatorship that was in power in
Chile from 1973 to 1990, and has not been replaced by the present
legislative branch, but continues to hold sway. In addition, Chile's domestic laws have not been adjusted to
reflect the norms of the Convention; and they still apply to the
judicial processes in progress, according to the statement issued by
the present Judicial Branch.
failure to set aside the de facto Decree Law after ratifying
the Convention; the absence of any adjustment in the domestic laws to
render the Convention effective in Chile, and the application of those
laws to the specific case addressed by this analysis, as attributed to
the legislative and judicial branches, each according to its
respective competence, have led the Chilean State to incur in a
violation of the Convention.
the self-proclaimed amnesty decree was enacted prior to the
inauguration of the democratic Government and ratification of the
Convention, the responsibility borne by the State of Chile as a result
of this issue stems from the fact that its domestic laws have not been
adjusted to comply with the terms of the Convention; and that when it
was [arbitrarily] declared constitutional by the judicial branch, its
effects have continued over a period of time to validate the
application of that act of power in the violation of human rights.
is important to note that a representative of the administration which
took over when the military forced President Allende out of office
testified before the United Nations Commission on Human Rights that
the Covenant on Civil and Political Rights had been in effect in Chile
its part, according to Article 5.2 of the Political Constitution of
between the international and the national norm is compulsory for the
Chilean courts. 
States Parties to the Convention assume, as states, the responsibility
and obligation to respect, compel respect for and guarantee all of the
rights and freedoms recognized therein to the persons who are subject
to their jurisdiction, and to change or adjust their laws to render
effective the enjoyment and exercise of those rights and freedoms.
When it failed to comply with that commitment, the Chilean
State is infringing Articles 1 and 2 of the Convention.
FINAL PROCESSING OF THE PRESENT CASE
the course of its 92nd regular meeting--which took place from April 24
through May 10, 1996--the Commission adopted Report 23/96.
The Report was sent to the Government of Chile with the request
that it submit such comments as it deemed pertinent within 60 days of
the date on which it was sent.
FROM THE GOVERNMENT OF CHILE
September 30, 1996, the Government of Chile sent a note to the
Commission with its reply, which include the following statements:
Government of Chile once again underscores the priority it assigns to
the international system for the protection of human rights at the
universal as well as the regional level, inasmuch as one of the
objectives of its foreign policy is to help strengthen the system and
enable it to defend individuals more effectively.
That recognition resulted--after the restoration of our
democracy--in adherence by the State of Chile to such important
international instruments as: the American Convention on Human Rights
in 1969 and the Optional Protocol to the 1966 International Agreement
on Civil and Political Rights.
that end, the inter-American system for the protection of human
rights--and, in particular, the work performed by the Inter-American
Commission on Human Rights--is especially important to our country.
As a result, it has proceeded to nurture and support the
various initiatives aimed at strengthening the system, specifically by
means of its basic organs, i.e. the Commission and the Court of Human
Commission's report does not question the position adopted by our
democratic Governments to the effect that it was not they who enacted
the 1978 Decree Law 2191 on amnesty, nor have they sponsored new legal
rulings designed to block the investigation of the facts or the
sanctioning thereof by the courts of justice.
Commission is aware that the democratic Government of Chile does not
share the position taken by the Supreme Court of Justice with respect
to the interpretation and scope attributed to the Amnesty Decree Law.
But constitutional and
international imperatives nevertheless make it incumbent upon the
government to ensure the independence of the Judiciary and to
guarantee the juridical efficacy of its decisions.
Government of Chile is gratified at the Commission's favorable
evaluation of its efforts to establish the truth, to administer
justice and to make reparation in cases of the most serious violations
of human rights, thanks to the noteworthy work carried out by the
National Commission on Truth and Reconciliation and, thereafter, the
National Reparation and Reconciliation Corporation.
is important to note, once again, that the democratic governments
which followed the military regime are fully in accord with the
criticism of the 1978 decree law on amnesty, and that they have never
enacted legal rulings to prevent investigation of the egregious
violations of human rights that were committed in the past.
To the contrary, they have fostered legal initiatives designed
to establish the truth regarding the fate of persons who were executed
or forced to disappear by agents of the state, so that justice and
reparation may be obtained insofar as possible.
to the legal adjustment measures which the democratic Government has
undertaken, the Inter-American Commission cannot be unaware of the
difficulties encountered in this task, owing to the special
characteristics inherent in the transition from an autocratic system
to a democratic one in Chile.
As is public knowledge, the Senate--which is the upper house of
Chile's Congress--does not consist entirely of democratically elected
members, but also includes
a substantial number of those appointed by the previous military
regime. This situation unquestionably produces a substantial
political effect, one that distorts the will of the people and hobbles
progress in the reformulation of democratic institutions, a
process that includes an amendment or rescission of the 1978 decree
the context of respect for
the state of law and the resultant separation of the powers of state,
it should be noted that the Government has adopted certain initiatives
designed to adapt the internal juridical order, ensuring
that the Tribunals of Justice have the necessary tools to
pursue their investigations until the truth is established,
and to handle the civil suits presented pursuant to Articles
279 bis, 413 and 421 of the Code of Criminal Procedure in conformity
with the international treaties ratified by Chile that are currently
on the considerations expressed in the present Report, the Commission
has reached the following conclusions:
the official act whereby the military regime which had taken over the
government in Chile issued the so-called Law of self-decreed amnesty
(Decree Law No. 2191) in 1978 is incompatible with the provisions of
the American Convention on Human Rights which was ratified by that
State on August 21,1990.
the sentence handed down by the Supreme Court of Chile on August 28,
1990 and the confirmation thereof on September 28 of that year--which
declares the aforementioned "Decree-Law 2191" constitutional
and requires that it be enforced by the Judicial Power, when the
American Convention on Human Rights had already entered into effect
for Chile--violates the provisions of Articles 1.1 and 2 of the
the judicial decisions dismissing the charges in the criminal cases
opened by the detention and disappearance of Irma Meneses Reyes (Case
11.228), Ricardo Lagos
Salinas (Case 11.229), Juan Alsina Hurtos (Case 11.231) and Pedro José
Vergara (Case 11.282), in whose names these cases were introduced, not
only aggravate the situation of impunity, but also definitively
violate the right to justice to which the members of the victims'
families are entitled: to identify the persons responsible and to
establish the responsibilities borne and the penalties to be paid by
those persons, and to obtain legal compensation from the guilty
insofar as the persons on whose behalf the present cases are
are concerned, the State of Chile has failed to carry out its
obligation to recognize and guarantee the rights set forth in Articles
8 and 25 in connection with Articles 1.1 and 2 of the American
Convention on Human Rights, to which Chile is a State Party.
the State of Chile has not complied with the norms contained in
Article 2 of the American Convention on Human Rights, inasmuch as it
has failed to adapt its laws on amnesty to the provisions of that
prejudice to that finding, the Commission is favorably impressed with
the Government's efforts to see that the competent organs, in
accordance with their constitutional processes and
current laws, adopt such legislative or other measures as may
be necessary to give effect to the right of those persons to obtain
For the reasons stated, and pursuant to its examination of the
facts and the international norms invoked,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
recommend to the State of Chile that it adapt its domestic laws to the
provisions of the American Convention on Human Rights, in order that
violations of human rights by the "de facto" government may
be investigated in such a way that the guilty are singled out, their
responsibilities are established and they are effectively punished,
thereby guaranteeing to the victims and members of their families the
right to justice which is their due.
recommend to the State of Chile that it enable the families of the
victims to which the present case refers to be effectively and fairly
compensated for the injuries inflicted on them.
publish this report in the Annual Report to the General Assembly of
the OAS, pursuant to the provisions of Article 48 of the Commission's
Regulations and Article 51.3 of the Convention in view of the fact
that the Government of Chile has failed to adopt the requisite
measures to remedy the situation denounced within the periods granted.
CONCURRING VOTE OF COMMISSIONER
OSCAR LUJÁN FAPPIANO
agree in full with the report that the Commission has prepared. I wish
merely to make the following additions to the “preliminary
considerations” contained in chapter VII, part
"A)" of that report:
BY WAY OF INTRODUCTION
It is worthwhile emphasizing that the role of the Commission,
in analyzing the question brought for its consideration, consists in
determining the sense of the standards in the American Convention
according to the interpretative methods of juridical science, and that
in this work of the Commission there is no place for ideological
connotations, which it does not profess, nor for any partiality in
favor of, or any bias against, any government, persons or group of
persons, which it does not entertain.
THE QUALITY OF THE AUTHORITIES THAT DECREED THE AMNESTY
In light of the foregoing, the question is to establish, at the
outset, whether the so-called “amnesty law” constitutes an
arbitrary act of the authorities that arose upon the military
overthrow of the constitutional government of Dr. Salvador Allende,
and whether for that reason those authorities had no right or
legitimacy, since they were neither elected nor appointed by any
legitimate means, but were installed in power by force, after the
legal government had been deposed in violation of the constitution.
In this case, in the strict application of juridical orthodoxy,
we are dealing with a “usurper government”.
In fact, although they are commonly known under the generic
term of “de facto” governments, there are two kinds of
illegal governments: de facto and usurper. The first is a government which, while it may not have been
appointed under the terms of the constitution and prevailing laws,
acts “under a veneer of legitimacy” because its authority derives,
seemingly, from a regular appointment or election. The second, on the
other hand, lacks all legitimacy, since it was neither elected nor
appointed in any manner, but was installed in power by force.[i]
A government de facto is not a government de jure,
because it is outside or contrary to law, because it has no legal
basis and because if a State has taken to itself a constitution, then
anything that departs therefrom is illegal. It is consistent with
neither the letter nor the spirit of a constitution to overthrow a
duly instituted government. The
installation of a de facto government is the product of force
rather than of consent, which of course causes no compunctions to
those who regard might as the source of all right, and who see the
“rule of law” and the “constitutional state" as merely
“schemes” that will collapse in the face of the “realism” of a
dictatorship, such as those that
have plagued our hemisphere.[ii]
But to those who would argue thus, we may reply with the words
"Just as they recognize no rights other than those of
their momentary triumph, so they admit no error other than the
overthrow itself. In
their eyes, any rebellion deserves to be punished if it fails, but is
perfectly legal if it succeeds. Any
usurpation they will condemn if it collapses in the attempt, just as
they will recognize any that achieves its objective.
The only standard in their eyes is that of change, even when it
comes to law. They allow
themselves to be swept along by opinion and they change their color
and loyalties whenever they feel the mood shifting.
They would have us believe that they are defending the status
quo, but in reality they are destroying it. They pride themselves on
their ability to bring about real transformation, and yet they concern
themselves only with the immediate business at hand.
They have no ethical or intellectual concept of law."[iii]
ILLEGAL GOVERNMENTS AND THE INVALIDITY OF THEIR ACTS
The acts of a usurper have no juridical value, whatever their
nature. We cannot speak here of “objective legality”, since the
mere observance of the forms of “true legality” is not sufficient
if the usurper lacks the constitutional authority that would give him
legal standing to act. Nor
can we speak of laws or “decree-laws” as such, and much less can
we speak of these as acts of “delegated legislation”, since the
Congress did not, and could not, delegate anything to a de facto
Not even for the laudable goal of preserving juridical security
can we place on an equal footing the constitutional legality of a de
jure government with the authoritarian and unconstitutional
illegality of a usurper government, whose very existence is the
fountain of juridical insecurity.
To accord any such recognition would be to place a seal of
approval on such governments and become their accomplice, whereas we
should steadfastly repudiate them in defence of the rule of law,
constitutional order, commitment to democracy and the principle of the
sovereignty of the people, based on the full respect of human rights.
If those who collaborate with such governments are assured of
impunity for their conduct under a usurping and illegitimate regime,
then there will be no difference between good and evil, between legal
and illegal, between constitutional and unconstitutional, between
right and wrong, between
democratic and authoritarian, and there would
be no reason to refuse to be an accomplice of such illegitimate
regimes. What juridical
security can we hope for if we place on an equal footing “de jure”
rule - which means basing our security on the constitution - and the
“de facto” rule of the usurpers who have disrupted and
violated that constitution?
We cannot give the stamp of legitimacy to something that owes
its very existence to the trampling of legitimacy.
We cannot allow that solid line to be erased that separates
constitutional rule from those who refuse to live under its system of
freedoms, rights and guarantees that is the hard-won prize of so many
struggles and sufferings by the men and women of our hemisphere, who
have sought to live in peace and tolerance and mutual respect for our
the most important point to establish is the inviolability of the
juridical regime conceived as the rule of law.
In the face of acts and presumptuous laws of a government
imposed solely by force, the first point to make clear, without
hesitation, is their glaring invalidity, their absolute nullity.
They cannot be even suggested to have the slightest shred of
legitimacy, since they are the unacceptable result of rebellion
against the fundamental law, which is the pillar of juridical
foregoing applies a fortiori in the present case, where the
beneficiaries of the amnesty are not foreigners or third parties but
integral participants in the designs of the usurper.
It is one thing to proclaim the need to legitimize the acts of
society as a whole, or those taken under international responsibility,
when they stem from obligations that cannot be avoided without
plunging the country into chaos, and it is quite another thing to
extend equal treatment to acts that imply complicity with an
illegitimate government. It
is simply absurd to pretend that the usurper and his henchmen can
invoke the principles of constitutional law, which they themselves
have violated, in order to enjoy the benefits of security that are
only justified and merited for those who adhere rigorously to that
law. Complicity and bad
faith can never be protected, even in acts that are otherwise legal. Crime does not give rise to rights.
are trying here to interpret the Constitution correctly, starting from
the need to invalidate any act that violates or contradicts it.
We are trying to apply the weight of that law, now that it is
once again fully in force. We
are trying, in short, to ensure the supremacy of a democratic regime
that has recovered its full strength, which it should never have lost,
and whose stability the Commission must promote and defend, because
the solidarity of the American States rests on the common denominator
of the “effective exercise of representative democracy” (OAS
Charter, Article 3), and because “no problem that any State member
might encounter can justify the disruption of a representative
democratic regime” (Declaration of Managua.
To the arguments heard during the present case to the effect
that it is impossible to abrogate the self-amnesty, we must respond
that the now-restored constitutional order must of necessity guarantee
the government the ability to fulfill its fundamental duties, free of
the inconceivable limitations imposed on it by the usurper.
Indeed, the whole structure would collapse if it did not. This
point is consistent, for example with the doctrine of the United
States Supreme Court established long ago in the case of "Horn v.
Lockhardt", in 1873: "We accept that acts taken in wartime
by those (Confederate) States as individual entities, through their
different branches of government - executive, legislative and judicial
- must be deemed, in general, to be valid and compelling, to the
extent that they do not affect or tend to affect the supremacy of the
national authority and of the just rights of citizens that are
guaranteed by the Constitution."
Along the same line of thought, the Supreme Court of Argentina
held that to deny to a constitutional government the power to annul
the validity of its effects would imply, directly, “a harmful
limitation on its efforts to consolidate the democratic system, and
moreover would mean granting it - the de facto act in question
- the full validity that can only be reasonably attributed to
legitimate acts of a de jure power."[v]
the most steadfast supporters of the notion of legal continuity of the
state admit the validity of actions of a de facto government
only with respect to third parties, since they draw a clear
distinction between the official with “plausible investiture” and
the usurper with “the veneer of legitimacy”.
As stated by Antokoletz, “the Anglo-American model only
admits the acts of ‘de facto’ officials as valid as far as
they affect the public: i.e., to the extent that they are of public
benefit. It does not regard them as legitimate in themselves, nor to
the extent that they benefit the illegal official. The official’s
responsibility for having performed his public functions improperly
does not disappear."[vi]
AMERICAN CONSTITUTIONAL LAW
constitutional law of the states of the region is concordant with this
points out that those systems that deem illegitimate any power not
emanating from the Constitution declare all of the acts of such a
power to be null. This concept of nullity is expressly established in
the constitutions of Honduras, Nicaragua, Costa Rica, Peru, El
Salvador, Venezuela and Chile.[vii]
survey that we conducted of the constitutions of member states of the
Organization confirmed this statement. The
thesis of nullity of the acts of a usurper is enshrined in the
following constitutions: Bolivia (1967), Article 3; Costa Rica (1949), Article 10
(earlier, Article 17); Chile (1980), Articles 5 and 7; Dominican
Republic (1966), Article 99; Guatemala (1985), Article 152; Honduras
(1982), arts. 2 and 3; Paraguay (1992), Article 138; Peru (1993),
Articles 45 and 46; Venezuela (1961), arts. 119 and 120.
As a result of the reforms introduced to its text in 1994, the
Constitution of Argentina has incorporated a similar provision to make
explicit what had previously been known as the “unwritten clause”,
as the logical consequence of the precepts in its Articles 22 and 33.
In effect, the current Article 36, first paragraph, provides:
“This Constitution shall take precedence even if its observance
should be interrupted by acts of force against the constitutional
order and the democratic system.
Those acts shall be irredeemably null”..
In its following provisions, it makes the authors of such acts
liable for punishment such as that reserved for the infamous
“traitors of their country."
the basis of the precept cited from the earlier Constitution, the
Argentine Congress was able validly to revoke the so-called
“self-amnesty” decreed by the military regime (law 23040), and to
adopt law 23062 which, with respect to the point at issue, establishes
the following: “In defence of the republican constitutional order
based on the principle of popular sovereignty, no juridical validity
whatsoever shall attach to any law or administrative act issued by de
fact authorities who have taken power through an act of
rebellion...even if they pretend to base them on powers acquired by
right of revolution."
1833 constitution of Chile declares in Article 158: “Any resolution
issued by the President of the Republic, the Senate or the Chamber of
Deputies, in the presence or at the instigation of an army, or of a
general leading an armed force, or of any group of people, whether
armed or not, that would disobey the authorities, is null and void and
can produce no effect whatsoever."[viii]
The Constitution of 18 November 1928, in turn, declares
entity, no person or group of persons may take upon itself, even under
the pretext of extraordinary circumstances, any authority or rights
other than those expressly conferred upon it by law. Any action in
contravention of this Article is null”.
Even the “constitution” issued by decree-law No. 3464 of 11
August 1980 repeats the Article of its predecessor almost letter for
letter (Article 7).
we can say that American constitutional law is unanimous in its
concept of the people’s sovereignty, and therefore a de facto
government is repugnant to the Constitution, and hence, the overthrow
of the constitutional authorities creates no rights in favor of the
seditious military leader or rebel. A fortiori, there can be no presumption to any
legitimacy when the case involves not a single de facto
functionary, but an entire regime that is unconstitutional, since a
regime that is totally de facto is neither democratic nor
centuries ago the Romans inscribed over an archway the words “Senatus
Populusque Romani" to give expression to the harmonious unity
of governed and governors.
the line of thought upheld by the Commission in its report No. 30/93,
it should be noted also that in the present case, the nullity of the
acts of a usurper is a normal constitutional clause with a solid
tradition in the hemisphere.[ix]
is also instructive to compare the jurisprudence of some of the
Region’s courts. The
Argentine Supreme Court did not hesitate to declare the illegality of
laws created by de facto governments, and to refuse to
recognize in such laws those qualities that can for good reason only
be attributed to legitimate acts of a de jure power. In the
words of the Court,[x]
“there can be no question as to the illegitimacy of an act dictated
under the shadow of a de facto legislative power that is not
instituted by our Fundamental Charter”.
above all, we must point to the transcendental judgment of the
Constitutional Court of Guatemala, issued in light of the events
surrounding ex-President Serrano.[xi]
PARLIAMENTARY DEBATE AS A GUARANTEE
constitutional law establishes an irreplaceable procedure for
formulating and adopting laws, which is in essence a guarantee that
arbitrary acts, misnamed “laws”, of a de facto government,
drafted and issued behind closed doors, sometimes by their own
beneficiaries, as in the heyday of the absolute monarchies, are
absolutely and irrevocably null and void.
arbitrary acts are not subject to healthy public debate. Such debate
represents not only homage to democracy, but also fulfillment of
constitutional precepts dealing with the formulation and adoption of
laws, and which serve as authentic guarantees of fundamental rights
and freedoms, as we now see reaffirmed in the provisions of Article
23.1 of the Convention.
omission of public debate, moreover, causes grave damage to the
people, since it destroys their trust in the law, it undermines their
sense of legality and destroys the “legal fiber” of the country,
as the philosopher Vanni has put it.[xii]
FUNDAMENTAL RIGHTS AND THE STATE
fundamental rights and freedoms are not extinguished by a de facto
government, because they predate both the state and the constitution,
which merely recognize and guarantee them, but did not create them.
Thus it is an error to claim that a de facto regime has
no limits on its arbitrary and unconstitutional powers, i.e. that it
can proceed "de legibus solutus" [exempt from the laws],
or according to the maxim of "quod
principii placuit, legis habet vigorem" [What pleases the
ruler has the force of law]. Hence, an amnesty dictated by a
government that stands accused of grave and systematic violations of
human rights and that attempts in this way to exculpate itself is just
such a practice and is therefore an abuse of power.
this regard, Tomuschat writes: "A
regime that makes a practice of genocide loses even the appearance of
legitimacy. To maintain that in certain cases we must obey a corrupt
law and yield to the demands of its perpetrators, would be to make of
the State a divinely inspired fetish, unstained by the most atrocious
and odious acts."[xiii]
THE INTERNATIONAL LAW OF HUMAN RIGHTS
dimension is confirmed by the provisions of Article 3 of the OAS
Charter, Articles XX and XXVIII of the American Declaration, the
preamble to the Convention and its Articles 23.1 a and b, which cannot
be suspended, according to its Articles 27.2, 29 and 32.
order to convert human rights into a legal reality, the first
requisite is to ensure a stable constitutional state, which embraces,
in effect, two other requisites: a) for a state to be free, the people
who comprise it must have the ability to choose their own destiny (the
principle of self-determination), and b) the people must determine,
freely and by means of generally applicable (not personal) laws, the
legal system that is to establish their human rights (the rule of
THE INTER-AMERICAN COURT OF HUMAN RIGHTS
approach taken here accords with the judgments of the Inter-American
Court of Human Rights, which has defined “laws” as “a general
legal norm tied to the general welfare, passes by democratically
elected legislative bodies established by the constitution, and
formulated according to the procedures set forth by the constitution
or the States Parties for that purpose." (OC/6, paragraph 38). It
arrived at this definition on the basis of analyzing the principles of
“legality” and “legitimacy” and of the democratic regime
within which the inter-American system of human rights must be
paragraphs 23 and 32), as is explicit in its OC/13, paragraph 25. For the Court, “the principle of legality, democratic
institutions and the rule of law are inseparable” (OC/8, paragraph
24). Strict adherence to
a democratic regime has been stressed by the Court in these terms:
“Representative democracy is the determining factor in the
entire system of which the Convention is a part” (OC/13, paragraph
34), and this stands in complement to its standards on “the just
demands of democracy” that must guide the interpretation of the
Convention, especially of those precepts that are critically related
to the preservation and functioning of democratic institutions (OC/5,
paragraphs 44; 67 and 69). Nor
should it be forgotten that the doctrine of the Court stresses the
importance of the elected legislature in guarding our fundamental
rights (OC/8, paragraphs 22 and 23), and it also stresses the role of
the Judiciary in reviewing the legitimacy of the acts of the Executive
Power (OC/8, paragraphs 29 and 30;
OC/9, paragraph 20).
THE INTER-AMERICAN COMMISSION
Commission has been blazing similar trails in its work, as follows: a)
when it states that the democratic context is a necessary element for
the establishment of a political society in which human values can
flourish freely ("Ten Years...”, p. 331); b) when it alluded to
the granting of overriding powers to bodies that are not
representative of the popular will (id., p. 270. Report on Panama, 1978, p. 114, paragraph 3.
Annual Report 1978/80, p. 123/24, analyzing a new draft
constitution for Uruguay); c) when it sets out its criteria for public
participation at the drafting stage for constitutions (report on
Suriname, 1983, p. 43, paragraph 41); d) when it question the validity
of the plebiscite in
Chile, for having been held during a time when public freedoms were
suspended [Report 1978/80, page. 115]; and e) in its Report 30/93 on
the case of Ríos Montt v/Guatemala.
THE UNIVERSAL SYSTEM
respect to the universal system, the following should be noted: a) the
Charter of the United Nations and its preamble (“We, the people of
the United Nations..."), in its reference to the “free
self-determination of peoples” and to "developing and
encouraging respect for human rights and fundamental freedoms for
all..."; b) the Universal Declaration, in its Article 29; c) The
International Covenant on Civil and Political Rights and d) the
statement by the Human Rights Committee in "Ngaluba
v/Zaire", paragraphs. 8.2 and 10 on the denial of the right to participate, under
conditions of equality, in the management of public affairs, due to
sanctions imposed on eight parliamentarians.[xv]
USURPER GOVERNMENTS AND DEMOCRACY
the above reasons, it can be concluded that democracy and rights are
inseparable terms in one and the same equation that has been
postulated in the philosophy that underlies the political and
institutional organization of the American States, and consequently
any act taken by a usurper or de facto government is in and of
itself incompatible with the letter and the spirit of the American
CHILE AND THE INTERNATIONAL TREATIES
have already reviewed the Chilean constitutions as relates to the
treatment they have accorded “governments” by usurpation.
We have seen that even the “Constitution” promulgated by
the military regime itself declares the nullity of acts of a usurper.
We shall now look at another aspect of the title of this
27 of the Vienna Convention on the Law of Treaties was accorded
special recognition by Chile at the adopting Conference.
Its representative, Mr. Barros, stated: “There is nothing to
prevent a state from invoking its constitution as grounds for refusing
to sign a treaty, but once a state has committed itself under a
treaty, it cannot subsequently attempt to circumvent its commitments
by invoking its constitution, still less its ordinary national
the regime that arose from the military overthrow of President Allende
maintained before the Human Rights Committee that the Covenant on
Civil and Political Rights had been in force in Chile since 1976.[xvii]
according to the provisions of Article 5.2 of the Constitution of
Chile, it is a mandatory duty of the courts to reconcile international
and national standards.[xviii]
A FINAL WORD
Commission can only applaud the efforts made in this hemisphere and
around the world to anathematize, now and forever, all those who would
order and overthrow democratic regimes; to affirm that in the Americas
the only route to power is through direct or indirect suffrage, and
not by coup d’état; and to demonstrate that constitutions and the
standards they uphold are not, as some seem to believe, so weak that
they will crumble at the first shout of a mob.
The Commission affirms the sanctity of the principle of
legality, of democratic institutions, of the rule of law and the
sovereignty of the people, in full respect for human rights, since
this was the reason for which it was created.
the political history of our peoples brings to mind the compelling
statement of Ramella: “What we have before us is a somber spectacle
indeed. The destruction of institutions by de facto governments
has disrupted the constitutional order, and has created a climate of
disrespect for the legitimate authorities and sown scepticism about
the political process in the minds of our youth.”[xix]
is among our people a certain scepticism about laws and the meaning of
paraphrase Bielsa, we may say that in times such as these, when
history seems to be unfolding so rapidly and unexpectedly, we must
take advantage of the few lucky things that have happened to the
peoples of America. America
has something better to offer. There
are many--the vast majority--who have remained loyal to the
Constitution, to the law and to civic virtues, and who ardently desire
to see democratic regimes firmly established.
There are citizens of sound conduct who not only reproach
transgressors, but all manifestations of mis-government, who do not
lust after the trappings of power, and who do not believe that public
duty means seizing power outside the law.[xx]
is with those citizens, with those young generations of America to
whom Ramella alluded, that the Commission makes its pact, and that
commitment can only be fulfilled if we give an example of standing up
for democracy in a way that will banish their disbelief and help to
strengthen their faith in the rule of law and the constitutional
that end, we must approach this question with our eyes firmly set on
the highest statement of our principles,
for a jurist, a man of law, cannot abandon a doctrine just because it
has been put to ill use. The lawyers of America, at their 21st
Inter-American Conference, issued a ringing call: “...In the face of
the many distortions that these principles have suffered at the hands
of various autocratic forms of government...we must seek to proclaim
clearly and categorically that the lawyers of America stand squarely
for the survival of a form of government that meets the tests of a
constitutional and pluralist democracy...".[xxi]
at the 22nd Conference, they declared: “...If we conceive of
representative democracy as the system that offers the greatest
respect for people’s rights, then it is incumbent upon us, wherever
there is a change of regime or whenever a government sets itself up in
defiance of the constitution, to preserve inviolate the principle that
the people are sovereign, and also that public authority must be
exercised in full respect for the inherent values of human dignity.[xxii]
means that, while social upheavals cannot always be avoided, the only
honest response when they do occur is to remain steadfastly loyal to the
rule of law, which is the only way of life in a democratic society.
former member of the Inter-American Juridical Committee, Jorge R.
Vanossi, writes: “Over this long journey, the price to be paid has
been very high: disregard for legality, acquiescence in autocratic
lawgivers on a more-or-less frequent and more-or-less permanent basis,
confusion between what is anomalous and ephemeral and what is normal and
lasting, the breakdown, if you will, of a certain constitutional
rigidity. The almost unthinking comparison between legislation that is 'de
jure' and laws that are 'de facto' leads inevitably to
identifying any 'government' by
the mere fact that it makes its dictates effective (however coercively),
in utter disregard for legal procedures and organs that have come to be
viewed by the predominant juridical conscience as irrelevant.
We must recant in this matter.... but all men of law are called
upon to examine carefully all those tendencies of resigned obedience to
validating doctrines, and to offer an analytic and thoughtful
alternative for reformulating them so that we may avoid yet another
manifestation--perhaps the most discouraging of all--of that phenomenon
that Ripert referred to as 'the decline of law'."[xxiii]
that alternative so dramatically evoked by Vanossi for escaping from the
“monologue and the mausoleum” to which, in the unforgettable phrase
of Octavio Paz, every
dictatorship is inevitably consigned, is the one that an enlightened man
of this land once opened for us: “That we here highly resolve that
these dead shall not have died in vain, that this nation, under God,
shall have a new birth of freedom, and that government of the people, by
the people and for the people shall not perish from the earth.".[xxiv]
Claudio Grossman, national of Chile, did not participate in the
discussion and voting on this case, in accordance to Article 19 of the
Regulations of the Commission.
Aylwin pointed out that: "Justice
also requires that the whereabouts of the disappeared be made known
and that individual responsibilities be determined.
As to the first item, the truth established in the report (of
the Truth and Reconciliation Commission) is not complete, since in
most of the cases of detainees and disappeared--as well as persons
executed, whose remains are not turned over to the families--the
Commission had no means of finding out where they were."
Inter-American Court of Human Rights, OC-13 of July 16, 1993,
in which it declared: "The Commision is competent, in the terms
of the powers conferred on it by Articles 41 and 42 of the
Convention, to term any rule of domestic law of a State Party as
violating the obligations that State has assumed by ratifying
it" (operative section I).
Inter-American Court of Human Rights, International
responsibility for issuing and enforcing laws which violate the
Convention (Articles 1 and 2 of the American Convention on Human
Rights), Advisory Opinion OC-14 of December 9, 1994, paragraph 39.
Both the Inter-American Convention to Prevent and Punish
Torture and the Inter-American Convention on Forced Disappearance of
Persons establish universal jurisdiction for the offenses in
question (Article 11 and Articles V and VI, respectively).
The Convention on Forced Disappearance also establishes, in
Article VII, the nonapplicability of the statute of limitations or,
if that is impossible, application of the limitations corresponding
to the most serious crimes.
See: AG/RES. 443 (IX-0/79); 742 (XIV-0/84)
950 (XVIII-0/88) 1022 (XIX-0/89); and 1044 (XX-0/90) and
IACHR, annual reports for 1978; 1980/81; 1981/82; 1985/86; 1986/87;
and special reports, such as the one on Argentina (1980), Chile
(1985) and Guatemala (1985).
Supreme Court of Chile.
Decision on the recourse of inapplicability of decree law
2191, August 24, 1990, paragraph 15.
The same court's decision on the recourse of clarification,
dated September 28, 1990, paragraph 4.
Constantineau: "Tratado de la doctrina de facto".
Ed. Depalma. Bs.As., 1945. To.
I, pp. 31 ff. Antokoletz: "Tratado
de derecho constitucional y administrativo".
Bs.As., 1933. Vol.I,
"Régimen de facto y ley de acefalía".
Ed. Depalma. Bs.As.,
1963. pp. 26/30.
See Bielsa: "Régimen"..., cit. pp.17; 23; 24, n.5; 35 y ss.
Id.: "Estudios de
derecho público". Ed. Depalma. Bs.As. 1952. To. III, pp.
"Gamberale de Manzur v/ U.N.R."., decision of 6
Antokoletz: op. citada, pp. 72/73.
Antokoletz: op./loc. cit. in previous note.
Adopted as a precedent by J.B. Alberdi in writing the draft
text of a constitution for the Province of Mendoza (Argentina).
Case 10.804. "Ríos Montt v/ Guatemala".
CIDH Annual Report 1993, p. 296, para. 29.
"Gamberale de Manzur v/ U.N.R.", decision of 6
April 1989. Note that
this pronouncement predates the constitutional reform of 1994.
Corte y el Sistema Interamericano de Derechos Humanos".
Rafael Nieto Navia Editor.
San José, Costa Rica. 1994, pp. 199 y ss.
citado, pp. 36; 38; 41; 42; 46 and 68.
Resistance to Violations of Human Rights", UNESCO, 1984, p. 26.
"Human Rights as legal reality."
International Dimensions of Human Rights." UNESCO. Barcelona.
1984. Vol. 1, p. 27.
For a more recent, full and analytic discussion of this
topic, see Cançado
y Derechos Humanos..." in the collection:
"La Corte y el Sistema Interamericano de Derechos
Humanos”, op. cit.
See Diaz Albónico: "la Convención de Viena...", in:
Sociedad Chilena de Derecho Internacional, pp. 147/74.
See Comité, fourth session.
Review of reports submitted by the States Parties... Initial
reports... Chile. CCPR/C/1Add.
25, 48pp. 27 April 1976.
"Tribunales chilenos y derecho internacional de derechos
Chilena de Derechos Humanos/Academia de Humanismo Cristiano.
Santiago, 1988. Cap.
IV. p. 182.
Bs.As. 1986, 2da. ed., p. 700.
cit., pp. 66/67.
San Juan, Puerto Rico, 1979.
Quito, Ecuador, 1981.
estado de derecho en el constitucionalismo social".
1987, pp. 468/469.