Mr. Carmelo Soria Espinoza (hereinafter “Carmelo Soria”), 54 years of
age and of dual Spanish and Chilean nationality, was working as chief of the
editorial and publications section of the Latin American Demographic Center
(CELADE) in Chile. CELADE is an agency of the Economic Commission for Latin
America and the Caribbean (ECLAC) and part of the United Nations (UN) system.
Accordingly, Mr. Soria has the status of international official.
On July 14, 1976, as he was leaving work, he was kidnapped by security
agents of the Dirección de Inteligencia
Nacional (hereinafter “DINA”) and subsequently murdered.
His body and car were left in a stream.
The Chilean courts determined that State agents participated in the crime
and their identities were established. However,
pursuant to Decree Law Number 2.191 from 1978, known as the self-amnesty law
(hereinafter "the self-amnesty law" or "the Amnesty Law"),
criminal prosecution was dismissed, allowing the crime committed by these agents
to go unpunished. Members of the
victim’s family submitted a petition to the Inter-American Commission on Human
Rights (hereinafter the "Commission" or "IACHR") alleging
the violation of their right to justice and requesting that the Commission
declare the Republic of Chile (hereinafter "the Chilean State,"
"the State of Chile," or "Chile") responsible for the
violation of the American Convention on Human Rights (hereinafter the
Based on the Commission's analysis, the judgment of the Supreme Court of
Justice of Chile from May 24, 1996, and other sources, the Commission concludes
that State agents violated the rights to liberty, personal integrity and life of
Carmelo Soria, enshrined in Article 1 of the American Declaration of the Rights
and Duties of Man (hereinafter "the American Declaration"). The
Commission also concludes that the dismissal of the criminal proceedings brought
concerning the detention and disappearance of Carmelo Soria Espinoza affects the
petitioners' right to justice and, therefore, the Chilean State is in violation
of its international obligations under Articles 8 and 25, 1(1) and 2 of the
American Convention; that the self-amnesty law is incompatible with the American
Convention, which was ratified by Chile on August 21, 1990; that the judgment of
the Supreme Court of Chile declaring compulsory the application of the
aforementioned Amnesty Law as constitutional, at a time when the American
Convention had already entered into force in Chile, constituted a violation of
Articles 1(1) and 2 of the Convention; that the Chilean State has not complied
with Article 2 of the American Convention in that it has not adapted its laws to
the provisions of the Convention; that Chile failed to comply with the
Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons as a result of adopting the Amnesty Law and because its
judicial administration bodies have failed to punish the perpetrators for the
crimes committed against Carmelo Soria.
PROCEEDINGS BEFORE THE COMMISSION
On February 15, 1997, Carmen Soria González Vera, the victim’s
daughter, assisted by the attorney Alfonso Insunza Bascunan, filed a petition
with the Commission, dated January 31, 1997.
The petitioners accuse the State of violating the right of access to
justice in the case of Mr. Carmelo Soria Espinoza and request that the
Commission declares the Amnesty Law as incompatible with the obligations of
Chile under the American Convention.
In a note dated February 24, 1997, without prejudging the admissibility
of the petition, the Commission brought the petition to the attention of the
State of Chile and requested that it present pertinent information with regard
to the same.
On July 24, 1997, the Chilean State requested an extension of 30 days to
submit the relevant responses. On
July 30, 1997, the Commission granted the State of Chile the extension of 30
days requested and informed the petitioners that it had done so.
On August 14, 1997, the State of Chile submitted its response to the
petition, which was transmitted to the petitioners on August 20, 1997,
requesting their observations to Chile's response and any new or additional
information to be considered by the Commission.
In a communication from October of 1997, the petitioners submitted their
observations to Chile's response. These
comments were transmitted to the Chilean State on December 15, 1997.
In a note dated December 31, 1997, the State of Chile transmitted its
observations to the petitioners’ reply with respect to the Chilean State's
response to the original petition. The
State of Chile's observations were transmitted to the petitioners on January 16,
On June 22, 1998, in light of the requirements and characteristics of
this case and in accordance with Article 48(1)(f) of the Convention and Articles
54(1) and 54(2) of the Commission's Regulations, the Commission placed itself at
the disposal of the parties for the purpose of reaching a friendly settlement in
this case based on the respect for human rights.
On July 20, 1998, the State of Chile responded to the Commission’s
proposal. The State indicated that,
notwithstanding the difficulties it had encountered in reaching a friendly
settlement in this case, it reiterated its willingness to remain open to
solutions that might help reach an agreement with members of the victim’s
On November 13, 1998, the petitioners informed the Commission that the
members of Carmelo Soria’s family were not in Chile at that moment and
requested an additional period of 45 days during which to respond to the
Commission’s friendly settlement proposal.
12. The Commission convened a hearing during its 102nd Regular Session for the purpose of hearing the parties' final arguments. This hearing took place on March 3, 1999, and was attended by the petitioner, Carmen Soria Gonzalez Vera, and the State's representative, Mr. Alejandro Salinas of the Chilean Foreign Ministry. During this hearing, each party had the opportunity to present their arguments. At that time, the IACHR placed itself at the disposal of the parties for the purpose of reaching a friendly settlement once again. The petitioners stated that it was not possible in the present case to reach a friendly settlement consistent with the respect for human rights as envisioned in Article 48(1)(f) of the American Convention and Articles 54(1) and 54(2) of the Commission’s Regulations.
POSITIONS OF THE PARTIES
Position of the petitioners
In their petition, the petitioners provide a description of the facts
based on the conclusions reached by the National Commission for Truth and
Reconciliation when it investigated the Carmelo Luis Soria Espinoza case, which
are as follows:
14. The petitioners allege that, even though it had been judicially determined that Carmelo Soria Espinoza had been murdered by DINA agents, the State of Chile, through its jurisdictional bodies, declined to impose the punishment provided for under law. The petitioners add that civil or criminal disciplinary measures against the officials directly responsible for acts contrary to international law or in violation of human rights were necessary as a consequence of the State’s responsibility and for the purpose of ensuring its preventive function.
15. The petitioners maintain that, instead of applying disciplinary measures, the Chilean State applied the Amnesty Law, granting amnesty to the authors, accomplices, and accessories involved in the cover-up of crimes committed between September 11, 1973, and April of 1978. According to the petitioners, the State also declared that the criminal responsibility of the accused, Guillermo Salinas Torres and José Ríos San Martín, was terminated as a result of the Supreme Court's judgment dated August 23, 1996, upholding that of June 4, 1996, dismissing the case against these individuals because the actions investigated in the case occurred within the period of time covered by the aforementioned law.
The petitioners add that the decision from December 30, 1993, in which
the judge denied the petition to declare the final dismissal null and void in
virtue of the amnesty law, was based on the following facts:
According to the petitioners, the judicial record declares that Carmelo
Soria Espinoza was a United Nations official and therefore subject to protection
under the Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, particularly Articles 2(1) and 2(2).
Article 2(1) establishes that cases concerning "a murder, kidnapping
or other attack upon the person or liberty of an internationally protected
person… shall be made by each State Party a crime under its internal
law." Article 2(2) specifically states that "[e]ach State Party shall
make these crimes punishable by appropriate penalties which take into account
their grave nature."
Further, the petitioners affirm that according to the Public Prosecutor
before the Supreme Court of Chile, in his opinion dated June 17, 1996,
international human rights treaties ratified by Chile prohibited the application
of the Amnesty Law in the case of Carmelo Soria Espinoza.
The petitioners also maintain that the Commission should take into
account that in the case of Mr. Carmelo Soria, the State of Chile, by means of
the Supreme Court of Justice's judgment issued on August 23, 1996, failed to
consider Mr. Soria’s status as an international official.
They argue that in view of the gravity of the crime, his status should
have constituted an obstruction to extending the benefit of amnesty to the
perpetrators since, in accordance with the principle aut
dedere aut judicare, crimes committed against internationally protected
persons were unpardonable, and it was the obligation of the State of Chile to
punish the perpetrators.
20. The petitioners assert that the decisions of the Chilean courts of justice violate international human rights treaties. These treaties consider or assimilate forced disappearances and summary or arbitrary executions, committed by State agents, with crimes "against humanity," "lesa humanidad," which are not subject to amnesty or statutes of limitations.
The petitioners affirm that the State of Chile, in taking this position
through its judicial bodies, has failed to fulfill its obligation to punish the
perpetrators and thus denied the petitioners the right to justice duly asserted
before the appropriate competent authorities.
22. The petitioners conclude that in the case of the disappearance and murder of Carmelo Soria Espinoza several international human rights norms have been violated, particularly provisions within the inter-American system of human rights. The petitioners specifically allege violations of Article XVII of the American Declaration, concerning the right to justice, and Articles 1(1), 8 and 25 of the American Convention on Human Rights. They also request that the Amnesty Law be declared incompatible with the obligations of the aforementioned American Convention inasmuch as it violates Articles 1, 2 and 43 of the Convention.
Position of the State
In its responses, the State has not contested the version of the facts
presented by the petitioners.
With respect to the legal arguments regarding the substance of the case,
the State has maintained that the Chilean people, in free exercise of their
right to self-determination, chose a means of restoring democracy that involved
the acceptance of institutional rules imposed by an authoritarian regime.
It declared that implicit in the acceptance of those rules was the
acceptance of all laws enacted under the authoritarian system and the decision,
within that legal context and in accordance with its rules, to improve those
laws until a fully democratic regime had been configured.
The State pointed out that “the democratic governments of Chile have
not enacted any amnesty law that is incompatible with the American Convention,
since Decree Law 2.191 was issued in 1978 under the de facto military
regime." The State argues that the democratic governments cannot be
accused of acts that occurred many years before they assumed power or acts which
originate from other powers of the State whose independence, under the
constitution, must be respected. Accordingly,
the State requested that the Commission take into consideration the historical
context and the special situation of the country’s return to a democratic
regime, in which the new government had to accept rules imposed by the de
facto military regime that could only be modified in the manner prescribed
by law and the Constitution.
In the State's opinion, it cannot be demanded of the constitutional
Government that it transgress the institutional framework it inherited or modify
it by means not recognized within that framework.
It can only be demanded to comply with that legal framework or to
advocate for its modification or derogation through means established by that
framework. The State considers
that, even though the constitutional governments that came after the military
regime might agree with the petitioners' criticisms of the Amnesty Law from
1978, it is not possible to terminate or revoke it.
The State also pointed out that the current government absolutely
respects the independence of the Judicial Branch and cannot invalidate its
judgments or render them without effect, even though they might be contrary to
the government’s interests or positions. To ensure their independence, the
government cannot interfere with the work of the members of the courts.
According to the State of Chile, the Executive Branch lacks the authority
to unilaterally revoke legal precepts recognized as valid by other powers of the
State. With respect to the possibility of revoking the Amnesty Law,
legal measures with regard to amnesties may only be initiated in the Senate
(Article 62, second paragraph, of the Constitution), a branch of the State in
which the current government does not enjoy a majority, due to the number of
members not elected by popular vote. The
State maintains that in any case, as far as accused persons might be concerned,
derogation would be without effect under criminal law by virtue of the principle
that criminal laws cannot be applied retroactively against the accused (Article
19 Nº 3 of the Constitution).
The State referred to the creation of the National Commission for Truth
and Reconciliation that, in its 1990 report, identified the victims of
fundamental rights violations under the military dictatorship.
The case of Carmelo Soria Espinoza was included among those in which
State agents were found to have participated in serious violations of
fundamental rights. The State
maintained that its efforts to investigate the grave human rights violations
that occurred between 1973 and 1990 through the National Corporation for
Reparation and Reconciliation (a public agency that carried on the investigative
work of the National Commission for Truth and Reconciliation) attests to its
interest in shedding light on the truth.
The State also pointed out that it was the presentation of new facts by
the National Commission for Truth and Reconciliation itself that led to the
reopening of the summary investigation that had been dismissed so many years
before by the Third Criminal Chamber of Santiago, as the petitioners themselves
recognize in their brief.
The State indicated that its reparations policy is set forth mainly in
Law 19.123, published in the Official Journal of February 8, 1992 (hereinafter
"the Reparations Law"). This
provision granted a single lifetime pension to victims’ family members in
amounts no less than the average family income in Chile; a special provision for
the declaration of presumed death; special attention from the State in the areas
of health, education, and housing; forgiveness of educational, housing, tax and
other debts owed to State agencies; and exemption from compulsory military
service for the victims’ children.
The State asserted that the family members of Carmelo Luis Soria Espinoza
currently receive monthly benefits under that law, in addition to a lump-sum
compensatory benefit equal to 12 monthly pension payments and the corresponding
medical benefits. To be precise,
Laura González-Vera Marchant receives $161,905 Chilean pesos.
In the particular case of the Carmelo Soria family, following the
judgment of the Supreme Court, the State offered to take a series of measures in
order to repair the damage caused. The
measures offered through the Government of Spain were as follows: a public
declaration by the Government of Chile recognizing the responsibility of the
State for the acts committed by its agents in the death of Carmelo Soria
Espinoza and offering in the same declaration to place a monument in his memory
at a site in Santiago designated by his family.
The State also undertook to donate a large sum of money for the
establishment of a foundation in the name of Carmelo Soria Espinoza, with the
aim of promoting respect for human rights and fundamental freedoms.
Nevertheless, the victim’s family did not accept any of the proposed
symbolic and material reparations for the injury caused.
The State pointed out that the Government of Spain, by note of December
18, 1996, commented favorably on the State of Chile's proposal and recognized
the “constructive efforts of the Government of Chile to reach an extrajudicial
solution." At the same time,
the Spanish government expressed its “regret that the efforts of both
governments to reach a final solution… had not been successful."
35. The State maintains that it cannot be held accountable for the alleged violations and that it is not responsible for human rights violations which led to the opening of case 11.725. The State requests that creation of the National Commission for Truth and Reconciliation and the provisions of the Reparations Law, in its application, be considered as measures taken to ensure respect for the petitioners’ human rights.
The jurisdiction of the Commission
36. The petition in question falls within the jurisdiction of the Commission. The petitioners have locus standi to bring the matter before the Commission and has alleged offenses relating to compliance with the provisions established in the American Declaration and the American Convention, committed by agents of an OAS member state that has been a State Party to the Convention since 1990. The events surrounding the disappearance and extrajudicial execution of Mr. Soria occurred when Chile’s obligation as an OAS member state to respect the standards established in the American Declaration were in effect. The events surrounding the alleged denial of justice occurred at a time when the Chilean State’s obligation to respect and guarantee the rights established in the American Convention was in effect.
Exhaustion of domestic remedies
The petitioners argue that domestic remedies have been exhausted.
In July of 1976, criminal proceedings were initiated concerning the death
of Carmelo Soria Espinoza. On
August 3, 1976, the victim’s family lodged a criminal complaint.
On July 2, 1979, the Third Criminal Chamber of Santiago declared a
temporary stay in the proceedings because it was not possible to locate the
principal perpetrators, accomplices, or accessories involved in a cover-up,
despite the fact that the crime of homicide had been established.
This resolution was approved by the Court of Appeals of Santiago on
September 28, 1979.
On March 15, 1991, the National Commission for Truth and Reconciliation
ordered that the criminal proceedings before the Third Criminal Chamber of
Santiago be reopened.
On November 16, 1993, the Supreme Court of Justice resolved a
jurisdictional dispute in favor of military justice.
On December 30, 1993, a Supreme Court judge denied the petition
requesting that the dismissal issued by the military justice system, pursuant to
the Amnesty Law, be declared null and void.
On April 6, 1994, the Supreme Court declared the dismissal null and void
and ordered the investigation to continue.
On May 24, 1995, the Supreme Court tried the case of the former DINA
agents Guillermo Sanilas Torres, former army colonel, as principle perpetrator,
and José Ríos San Martín, former sergeant, as an accomplice, in the
aggravated homicide of Carmelo Soria Espinoza.
Within the second and third grounds considered in its judgment, the
Supreme Court affirmed “that the acts described constitute aggravated homicide
under Article 391 Nº 1, circumstances 1 and 5 of the Criminal Code,” and
“that facts in the case provide grounds to presume that Guillermo Salinas
Torres (former army colonel) was the principle perpetrator and the second person
(former army sergeant) was his accomplice."
On June 4, 1996, Judge Eleodoro Ortíz ordered the final dismissal of the
case pursuant to the Amnesty Law. The
second paragraph of the grounds considered in the final dismissal ruling
affirmed that “according to information compiled during the investigation, the
death of Mr. Soria occurred on July 14 or 15, 1976, and appears beyond all doubt
to have been caused by the criminal acts of third persons."
On August 23, 1996, the Supreme Court upheld the final dismissal and
closed the case. As a result of the decision of the Supreme Court of Chile,
domestic remedies were exhausted.
Therefore, the Commission concludes that the Supreme Court of Justice's
judgment on August 23, 1996, results in the exhaustion of domestic remedies in
the present case, as required by Articles 46 of the American Convention and
20(c) of the Statute of the Commission. The
State has not contested the issue of exhaustion.
Timeliness of the petition
The Commission considers that the petition was presented within a period
of six months from the date on which the domestic court rendered its final
judgment, in accordance with Article 46(1)(b) of the American Convention.
It is the understanding of the Commission that the subject of the
petition is not pending before another international investigation or settlement
and is not substantially the same as one previously studied by the Commission or
another international organization. Accordingly,
the conditions set forth in Articles 46(1)(c) and 47(d) are satisfied.
Characterization of the alleged acts
48. The Commission considers that the petition refers to acts that could be characterized as a violation of the rights enshrined in the American Declaration and the American Convention. Specifically, the petitioners refer to an alleged violation of rights guaranteed in Article 1 of the American Declaration and Articles 25, 1(1), 2 and 43 of the American Convention concerning the right to effective judicial protection and the duty of the States to ensure observance of the American Convention by adopting the domestic legislative measures necessary to effectively enforce its provisions and inform the Commission accordingly. It is therefore not evident that the petition is groundless or out-of-order, and the Commission considers that the conditions under Article 47(c) have been met.
49. With respect to the enactment and application of laws compatible with the Convention (Articles 1 and 2), the Commission has jurisdiction under Article 42 of the treaty to determine whether such laws, and in particular the so-called “amnesty” laws, as well as actions taken on the basis of those laws, constitute a violation of the obligations assumed by the State Party concerned. The Court has affirmed in this regard that “[a]s a result of the foregoing, the Commission may recommend to a State the derogation or amendment of a conflicting norm that has come to its attention by any means… ."
Commission has developed a body of precedent concerning its jurisdiction with
respect to human rights violations committed by courts of justice in cases
where, as a result of a judicial decision, a violation of the Convention has
been committed when the decision in question was issued in the absence of due
process or apparently violated another right guaranteed by the Convention.
The State has not contested the Commission’s jurisdiction.
5. Conclusions on admissibility
The Commission considers that the present case meets the formal
requirements regarding admissibility, established in Articles 46(1) of the
Convention and 32 of the Commission's Regulations.
The petitioners have exhausted the remedies that were available to them
under Chilean law or they are considered excused from the exhaustion requirement
under Article 46(2) with respect to the jurisprudence established by the Supreme
Court of Chile which does not accept writs of amparo challenging the
application of the self-amnesty law in the present case.
ANALYSIS OF THE SUBSTANCE OF THE CASE
The Commission notes that the version of the facts presented by the
petitioners, with respect to the alleged violation of the rights to life,
liberty and personal integrity, is based on the findings of the investigations
referred to in the judgments of the Supreme Court of Justice of Chile.
The State has not contested these determinations concerning the facts
before the Commission. The present
case requires a determination of law regarding whether the Amnesty Law and the
manner in which it was applied by the Chilean courts, in relation to the forced
disappearance, torture and extrajudicial execution of Carmelo Soria, are
compatible with the Convention.
The State has not denied the participation of its agents in the facts of
this case, perpetrated during the period of the military dictatorship.
Considering the nature and gravity of the crimes, the adjudication of
which was affected by the Amnesty Law, there can be no doubt that the military
government in power from September 11, 1973, to March 11, 1990, carried out a
systematic policy of repression which resulted in the “disappearance,"
summary or extrajudicial execution, and torture of thousands of victims. In
reference to the practices of the State at that time, the Commission indicated
[The] Government has used
virtually all known means to physically eliminate dissidents, including:
disappearances, summary executions of individuals and groups, executions ordered
in trials lacking legal guarantees, and torture.
It is necessary to note that the General Assembly of the Organization of
American States has declared that the practice of forced disappearances is “an
affront to the conscience of the hemisphere and constitutes a crime against
its decision from 1988 in the Velásquez
Rodríguez case, the Inter-American Court of Human Rights observed that
international doctrine and practice have frequently characterized disappearances
as a crime against humanity.
In its preamble, the Inter-American Convention on Forced Disappearance of
Persons reaffirms that “the systematic practice of the forced disappearance of
persons constitutes a crime against humanity."
The social need to clarify and investigate these crimes cannot be
considered equal to that of a mere common crime.
Forced disappearances and related crimes, such as torture and summary
execution, are of such gravity that several international instruments have
established special standards, such as universal jurisdiction and exceptions to
statutes of limitations, for their adjudication with the aim of avoiding
Chilean State, recognizing its obligation to investigate past human rights
violations, established a National Commission for the purpose of determining the
facts and making them public. As a
reparations measure, the then President Aylwin apologized to the victims'
families. He also publicly
protested and criticized the decision in which the Supreme Court determined that
application of the Amnesty Law had the effect of suspending the investigation
into the systematic violations committed during the dictatorship.
The State pointed out the inability of the democratic government to
modify or invalidate the Amnesty Law, as well as the State's obligation to
respect the decisions of the Judicial Branch.
The State also argued that the measures it adopted are both effective and
sufficient to fulfill the obligations of Chile under the Convention.
While the petitioners recognize the efforts made by Chile, they maintain
that the State's efforts have been insufficient and ineffective, adding that the
State has the obligation to investigate the facts, determine the individuals
responsible and punish those responsible for past human rights violations.
The State set out its position in terms of the separation of State
Powers: Executive, Legislative and Judicial.
However, the Commission must consider the international responsibility of
the Chilean State as a whole for the acts of its organs and agents whose active
and passive participation in the crimes committed against Carmelo Soria Espinoza
have been acknowledged.
The State argues that the Executive Branch, as an organ, is not
responsible for the alleged violations, inasmuch as the democratic government
has not decreed any amnesty law. It
maintains that it is unable to revoke the law or adapt it or other provisions to
the American Convention. With
respect to the application of the self-amnesty, the State can only act within
the law and the Constitution, which establish the framework of its authority,
responsibilities and powers.
The Commission considers that the Amnesty Law and its legal effects flow
from the military regime's policy of human rights violations, which governed
Chile from September of 1973 to March of 1990.
Even though the norm in question was issued during the de facto
Government of General Augusto Pinochet, it is still applied in order to protect
the intellectual authors and actual perpetrators of those crimes whenever
Chilean or foreign courts receive or attempt to examine cases concerning human
rights violations. The legal consequences of the Amnesty Law and its invariable
and continuous application by State bodies during the democratic governments
that followed the military regime, as intended by the de facto
government, are entirely incompatible with the provisions of the American
Although under Chilean domestic law the executive, legislative and
judicial branches are separate and independent, from the point of view of
international law, they must be considered as a single entity of the State for
the purpose of determining responsibility for the violation of international
From the perspective of international law, the Chilean State cannot
justify its lack of compliance with the Convention with the excuse that the
Amnesty Law was established by a previous government.
Nor can the State justify its failure to repeal the Amnesty Law as well
as the continued application of the law based on the inaction and omission of
the legislative branch and the acts of the judicial branch.
Article 27 of the Vienna Convention on the Law of Treaties enshrines the
norm of customary international law whereby States Parties to a treaty may not
invoke the provisions of their domestic law as a justification for the failure
to comply with a treaty. In addition, the Inter-American Court has held 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 law."
The State of Chile is responsible for any denial of justice that the
Amnesty Law may have caused, irrespective of the regime that issued the Amnesty
Law or the branch of the State that applied it or made its application possible.
Even though the abduction and extrajudicial execution took place during
the past military government, the State is internationally responsible for
fulfilling its obligation to administer justice and punish the agents
responsible for these acts.
In accordance with the principle of continuity of the State,
international responsibility exists independent of changes in government.
In that regard, the Inter-American Court of Human Rights asserted 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 which 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."
B. Violations of the American
Compatibility of the Self-amnesty Law with the American
The States Parties to the American Convention have undertaken the
obligation, with respect to persons under their jurisdiction, to respect and
guarantee all the rights and freedoms protected in the Convention and to adapt
their legislation to permit the effective enjoyment and exercise of those rights
and freedoms. Specifically, Article
2 of the Convention establishes the obligation of the States Parties to adopt
“such legislative or other measures as may be necessary” to give effect to
the rights and freedoms enshrined in the Convention.
Therefore, the Commission must examine the compatibility of the States
Parties’ domestic legislation with the rights enshrined in the Convention.
Some States, in seeking mechanisms for national peace and reconciliation,
have resorted to enacting amnesty laws that have left victims of serious human
rights violations helpless, depriving them of the right to access to justice.
The adoption and application of these types of provisions is incompatible
with the obligations undertaken by virtue of Articles 1(1) and 2 of the American
The compatibility of amnesty laws with the American Convention has been
examined by the Commission on several occasions in the context of deciding
individual cases. Through the
application of impunity, the norm under review protects serious human rights
violations committed against persons subject to the jurisdiction of the State
Party involved, causing these violations to go unpunished.
The Commission has repeatedly indicated that the application of amnesty
laws, which bar access to justice in cases concerning serious human rights
violations, render ineffective the obligation of the States Parties to respect
the rights and freedoms recognized in the Convention and to ensure their free
and full exercise by all persons subject to their jurisdiction, without
discrimination of any kind, as established in Article 1(1) of the Convention.
Such laws therefore eliminate the most effective means of enforcement of
human rights, that is, the adjudication and punishment of those responsible.
The Court, for its part, has stated that "States… have the
obligation to prevent human rights violations, investigate them, identify and
punish their intellectual authors and accessories after the fact, and may not
invoke existing provision of domestic law, such as the Amnesty Law…to avoid
complying with their obligations under international law.
In the Court's judgment, the Amnesty Law… precludes the obligation to
investigate and prevents access to justice.
For these reasons… [the State's] argument that it cannot comply with
the duty to investigate the facts that gave rise to the present case must be
rejected… Consequently, it is the duty of the State to investigate human
rights violations, prosecute those responsible and avoid impunity.
The Court has defined impunity as the failure to investigate, prosecute,
take into custody, try and convict those responsible for violations of rights
protected by the American Convention and has further stated that"
…the State has the obligation
to use all the legal means at its disposal to combat that situation, since
impunity fosters chronic recidivism of human rights violations, and total
defenseless[ness] of the victims and their relatives (Paniagua
Morales et al. Case, supra 57, para. 173).
The doctrine and practice of the IACHR with respect to amnesty coincides
with the study on impunity recently prepared by Louis Joinet, United Nations
Special Rapporteur on Impunity.
In his study, presented to the United Nations Commission on Human Rights
on October 2, 1997, Joinet recommended the adoption of 42 principles established
for the protection and promotion of human rights through measures designed to
Principle 20 refers to the State's duty with respect to the
administration of justice. In that regard, Joinet affirms that impunity is the result of
States not fulfilling their obligation to investigate such violations and adopt
measures, particularly in the area of the administration of justice, to
guarantee that those responsible are accused, tried and punished.
Furthermore, impunity arises from the fact that States do not adopt
appropriate measures to provide victims with effective recourse, to remedy the
injuries they suffered, and prevent the repetition of such violations.
As established above, precluding the possibility of judging those
responsible for the illegal detention, forced disappearance and extrajudicial
execution of Carmelo Soria, perpetrated by agents of the State during the past
military regime, violates the right to access to justice and judicial protection
enshrined in the Convention. This
denial of justice stems from the enactment and application of the Amnesty Law
that the military government issued for the benefit of its own members.
The State has maintained this law in force after ratification of the
American Convention and it has been ruled as constitutional by the State's
Judicial Branch, which has applied it in a continuous manner. The Commission has
already had the opportunity on earlier occasions to declare its opinion on the
incompatibility of this law and its application by domestic courts in particular
cases with the international obligations of the Chilean State under the American
Aware of the close relationship between the Amnesty Law, impunity and the
violation of fundamental human rights, the State has taken measures such as
those set forth in the Reparations Law for the purpose of compensating victims'
family members. As it has expressed
on several occasions, the violation of victims’ rights from the moment of
their arrest up to the denial of justice must be considered as a whole.
The Commission has duly noted that the Executive Branch contacted the
Supreme Court of Chile in March of 1991 to urge it to consider that the
self-amnesty in force should not and could not be an obstacle to the judicial
investigation and determination of those responsible.
The Executive Branch also vetoed a law that could have contributed to the
The Commission recognizes the importance of creating the National
Commission for Truth and Reconciliation and the work it accomplished in
gathering information on human rights violations and disappeared detainees.
The report named the victims individually, including Carmelo Soria, and
recognized that their cases constituted grave violations of fundamental rights
attributable to State agents, and attempted to establish their whereabouts and
take measures to provide full reparation and clear each of the victims'
74. The Commission also recognizes and appreciates the Reparations Law, an initiative of the democratic government that provides victims’ families with: (a) a single lifetime pension in an amount no less than the average family income in Chile; (b) a special procedure for the declaration of presumed death; (c) specialized attention given by the State in the areas of health, education and housing; (d) forgiveness of educational, housing, tax and other debts owed to State agencies; and (e) exemption from compulsory military service for victims’ children.
Nonetheless, in accordance with Articles 8 and 25, in conjunction with
Articles 1(1) and 2 of the American Convention on Human Rights, so long as the
right to justice remains unsatisfied, these measures are not sufficient to
guarantee respect for the petitioners' human rights, which means rendering
justice in the specific case, punishing those responsible, and providing
adequate reparations to the family members.
The Chilean State has affirmed that revocation of the Amnesty Law would
have no effect as far as those responsible for the violations are concerned, by
virtue of the principle of non-retroactive application of criminal law under
Article 9 of the American Convention and 19(3) of the Constitution of Chile.
In that regard, the Commission points out that the principle of
non-retroactive application of the law, under which no one can be convicted
retroactively for actions or omissions that were not considered criminal under
applicable law at the time they were committed, cannot be invoked with respect
to those granted amnesty because at the time the acts in question were committed
they were classified and punishable under Chilean law in force.
The Commission concludes that the State is responsible for the continued
application of the Amnesty Law from April 19, 1978, in this case through the
judgment of the Supreme Court of Justice from August 23, 1996.
The State is also found responsible for its failure to bring its domestic
law into compliance with the precepts of the American Convention through the
revocation of the amnesty law, in violation of the obligations assumed under
Articles 1(1) and 2.
Denial of justice
The violation of the right to justice and the resulting impunity in the
present case are the result of a chain of events beginning when the military
government issued a series of laws, in its own favor and in favor of State
agents who committed human rights violations, designed to form a complex legal
framework of impunity. This process
formally commenced in 1978 when the military government enacted the self-amnesty
law and eventually led to the judgment issued by the Supreme Court of Justice on
August 23, 1996, applying the Amnesty Law against Carmelo Soria Espinoza through
declaring the dismissal of the prosecution for his violent death.
Violation of the right to judicial guarantees (Article 8)
79. The Commission has established in other cases that amnesties or their effects cannot deprive victims, their family members or survivors of the right to obtain, at a minimum, adequate reparations for human rights violations enshrined in the American Convention. This position derives largely from the interpretation of the Inter-American Court with respect to the consequences of a State’s violation of its duty to guarantee human rights under Article 1(1) of the Convention. In the Velásquez Rodríguez case, the Inter-American Court declared that the State has a legal duty to investigate violations committed within its jurisdiction in order to “ensure the victim adequate compensation." (emphasis added). The right to adequate compensation is also intertwined with the right to judicial protection enshrined in Article 25 of the Convention.
The judicial consequences of the self-amnesty are incompatible with the
Convention in that they deny the victim the right to a fair trial, under Article
8 of the Convention.
Although the State has the obligation to provide effective recourse
(Article 25), which must be “substantiated in accordance with the rules of due
process of law (Article 8(1)),"
it is important to note that in many criminal law systems in Latin America the
victim has the right to file charges in criminal proceedings.
In systems like that of the one in Chile which permit it, the victim of a
crime has a fundamental right to recourse before the courts.
That law is essential for the initiation of criminal proceedings.
In the present case, the Amnesty Law clearly affected the right of the
victim and his family to obtain justice through effective recourse against those
responsible for violating his human rights.
Even if this were not the case, since the crimes in question here are
public crimes, that is to say subject to ex
officio prosecution, as in the present case, the State has the legal
obligation to investigate them, an obligation which may not be delegated or
renounced. Thus, it is in any case incumbent on the Chilean State to
take punitive action and press forward with the various procedural stages, in
fulfillment of its duty to guarantee the right to justice of the victim and his
family. This function must be
assumed by the State as its own legal duty, not as a step taken by private
interests or that depends upon the initiative of those private individuals or
upon their offer of proof.
The Amnesty Law also deprived the victim's family of the possibility of
obtaining reparations in the civil courts.
On this point, Article 8 of the American Convention provides:
Moreover, according to Chilean law, the possibility of initiating a civil
case does not necessarily depend on the results of criminal proceedings.
Nonetheless, the civil claim must be lodged against a specific person in
order to establish their responsibility for the alleged acts and determine the
payment of indemnities owed. The
absence of an investigation by the State made it materially impossible to
establish the responsibility in the civil courts.
Even though the Supreme Court of Chile affirmed that the fact that civil
and criminal proceedings are independent,
the manner in which the amnesty was applied by the courts affected the right to
obtain reparations within the civil courts, given the impossibility of
individualizing or identifying those responsible for the disappearance, torture
and extrajudicial execution of Carmelo Soria.
In addition, as a result of the manner in which it was applied and
interpreted by the Chilean courts, the Amnesty Law deprived the petitioners the
exercise of their right to a fair trial, established in Article 8(1) of the
Convention, for the proper determination of their civil rights.
Violation of the right to judicial protection (Article 25)
In the present case, the victim and his family were deprived of their
right to effective recourse against acts that violated their fundamental rights,
under Article 25 of the Convention. Article
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such remedies when
Concerning the legal obligation that States have to provide effective
domestic recourse, the Inter-American Court of Human Rights has asserted the
The Court has added that: “[a]dequate domestic remedies are those which
are suitable to address an infringement of a legal right."
In the present case, the self-amnesty law and its application by the
Supreme Court of Chile had the effect of barring the victim's family's access to
effective recourse for the protection of their rights under Article 25 of the
American Convention. Indeed, by way of these legislative and judicial acts, the
State declined to punish the serious crimes committed against Carmelo Soria,
which at the least violated his rights to life, liberty and physical and moral
integrity enshrined in Articles 4, 5 and 7 of the American Convention. In
addition, the manner in which the law was applied by the Chilean courts not only
prevented the punishment of the perpetrators of human rights violations, but
also ensured that no charges would be brought against those responsible in such
a way that they have been considered legally innocent.
The Amnesty Law rendered the crimes without juridical effect.
The law left the victim and his family without any judicial recourse that
might have permitted those responsible for the human rights violations,
committed against Carmelo Soria during the military dictatorship, to be duly
judged and punished.
Accordingly, by enacting and applying the Amnesty Law, the State of Chile
failed to guarantee the rights to judicial protection enshrined in Article 25 of
the Convention, thereby violating the corresponding human rights of Carmelo
Soria Espinoza and his family.
Failure to fulfill the obligation to investigate and punish
Article 1(1) of the American Convention provides that the States Parties
undertake to “respect” the rights recognized therein and to “ensure” the
free and full exercise of those rights. As
declared by the Inter-American Court, this obligation implies an actual duty of
the States to take measures that effectively ensure such rights.
By virtue of this obligation, the State of Chile has a legal duty to take
reasonable steps to prevent human rights violations, 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 upon them the appropriate
punishments, and to ensure the victim adequate reparations.
93. The Court has also held that “[t]he 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, impose the appropriate punishment and ensure the victim adequate compensation."
The Amnesty Law establishes a legal impediment to obtaining relevant
information regarding the facts and circumstances surrounding the violation of
fundamental rights; it also bars domestic legal recourse for the judicial
protection of fundamental rights established in the American Convention, the
laws of Chile and its Constitution. Therefore,
the Amnesty Law is in violation of the right established in Article 25 of the
The Commission has reiterated in cases concerning the applicability of
amnesty laws that it is necessary for States to adopt “the measures necessary
to clarify the facts and identify those responsible for the human rights
violations that occurred during the de facto period”;
that “the State has the obligation to investigate all violations that have
been committed within its jurisdiction, for the purpose of identifying the
persons responsible”; and that the State of Chile should
“amend its domestic legislation to reflect the provisions of the American
Convention on Human Rights, so that violations of human rights by the 'de
facto' military government may be investigated, with a view to identifying
the guilty parties, establishing their responsibilities and effectively
prosecuting them, thereby guaranteeing to the victims and their families the
right to justice that pertains to them."
In interpreting the scope of Article 1(1) of the American Convention, the
Inter-American Court has asserted that the obligation established in that
The Court has also stated that:
In its interpretation of Article 1(1) of the American Convention, the
Inter-American Court has also affirmed that “[t]he second obligation of the
States Parties is to 'guarantee' the free and full exercise of the rights
recognized by the Convention to every person subject to its jurisdiction…[a]s
a consequence of this obligation, the States must prevent, investigate and
punish any violation of the rights recognized by the Convention…."
The Court continues its analysis of this concept as follows:
In the present case, the State has the obligation to carry out an
exhaustive investigation and to punish, through its jurisdictional bodies, those
responsible for the acts that resulted in the death of Carmelo Soria Espinoza.
However, even though it was established within the second and third
grounds considered in the May 24, 1995 judgment of the Supreme Court of Chile:
“that the acts described constitute the crime of aggravated homicide under
Article 391, no. 1, circumstance 1 and 5 of the Criminal Code” and “that the
same facts provide grounds for presuming that Guillermo Salinas Torres (former
army colonel) was the principal author and José Ríos San Martín (former army
sergeant) was his accomplice," the State of Chile, by means of the June 4,
1996 judgment of the Supreme Court applying the Amnesty Law, declared final
dismissal of the case. This
occurred notwithstanding the finding in the second grounds considered in the
aforementioned final dismissal ruling which established that “according to the
information compiled during the investigation, the death of Mr. Soria occurred
on July 14 or 15, 1976, and appears beyond all doubt to have been caused by the
criminal acts of third persons."
This clearly shows that, at the time indicated, once the presumed
perpetrators were identified, the State did not fulfill its obligation through
its judicial administration bodies to complete the investigation and punish
those responsible for the acts connected with the extrajudicial execution of
Carmelo Soria Espinoza.
The Commission considers it important to point out that “the duty to
investigate… must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its own
legal duty, not as a step taken by private interests which depends upon the
initiative of the victim or his family or their offer of proof, without an
effective search for the truth by the government."
In upon other words, the authorities should have undertaken a serious
investigation of the facts in order to establish the objective and real truth.
The State apparatus, on the contrary, acted in such a manner that the
violations went unpunished and the petitioners’ rights were not upheld.
The Commission for Truth and Reconciliation, established by the
democratic government to investigate past human rights violations, made a
commendable effort to compile information concerning human rights violations and
the situation of the disappeared detainees for the purpose of establishing their
whereabouts and taking steps to provide full reparation and clear each of the
victims' reputation. Nevertheless,
although its work covered a large portion of the total number of cases, it did
not allow for the investigation of criminal acts committed by State agents, nor
the identification and punishment of those responsible, precisely because of the
Amnesty Law. For this reason, the
rights of surviving victims and family members to know the true facts were
violated by the Chilean State.
In addition, the National Commission for Truth and Reconciliation was not
a judicial body, and its function was limited to establishing the identity of
the victims of violations to the right to life.
Given the nature of its mandate, the National Commission did not have the
authority to publish the names of those who committed crimes nor to impose any
type of punishment. Consequently,
notwithstanding its importance in establishing the facts and awarding
compensation, the National Commission for Truth and Reconciliation cannot be
considered as an adequate substitute for judicial process.
The same National Commission concluded in its report:
The Government’s recognition of responsibility, the partial
investigation of the facts and the subsequent payment of compensation are not,
in and of themselves, sufficient to comply with the obligations provided for in
the Convention. According to Article 1(1), the State has the obligation to
investigate violations committed within the scope of its jurisdiction in order
to identify those responsible, impose the appropriate punishment and provide the
victim with adequate reparations.
Therefore, the Commission concludes that the State did not comply with
its obligation to investigate and punish those responsible for violating the
human rights of Carmelo Soria Espinoza and that the dismissal resulting from the
application of amnesty, despite the incriminating evidence existing against
them, demonstrates that the State also failed to comply with its obligation to
Consequently, by enacting the self-amnesty law and applying it in the
case of Carmelo Soria through the judgment issued by the Supreme Court of
Justice, the State of Chile failed to fulfill the obligation to investigate and
punish those responsible, as stipulated in Article 1(1) of the Convention, and
violated human rights recognized in the American Convention to the detriment of
the victim and his family.
Violation of the right to life, liberty and personal integrity
In her petition, Carmen Soria González Vera reported first of all the
following facts before the Commission:
Before it was discontinued, the judicial investigation of the illegal
detention, torture and summary execution of Mr. Carmelo Soria Espinoza managed
to obtain verification of a number of the facts alleged by the petitioners as
well as to identify some of the perpetrators.
In the present case, based on the contents of the Commission’s file on
the case, the judgment issued by Judge Libedinsky of the Supreme Court of
Justice of Chile on December 30, 1993, the investigations in the case
ascertained that Mr. Carmelo Soria Espinoza was arrested by a group of military
officers assigned to the DINA who were members of a brigade of that agency known
as Mulchén. Mr. Soria Espinoza was
then transported in his own automobile to a building located at Vía Naraja 4925
in the Lo Curro district where he was subjected to interrogation, physical
duress and subsequent death by his abductors who, apparently, previously
investigated presumed activities of a political nature by the forenamed Soria
The Supreme Court concludes:
The judgment of the Supreme Court of Justice, dated May 24, 1996,
These conclusions were also supported by the judgment of Judge Eleodoro
Ortiz of the Supreme Court on June 4, 1996, who, in referring to the
responsibility of the persons named in the preceding paragraph, concluded:
The Commission must take into account the determinations reached as a
result of these investigations, which were discontinued after they had in fact
established that Carmelo Soria was indeed illegally detained, subjected to
interrogation, physical duress, and was subsequently executed by those who
abducted him. This occurred after the true identity of the perpetrators, and the
fact that they were agents of the Chilean State, had been revealed.
At that moment, the judicial investigation was suspended and dismissed
pursuant to the Amnesty Law. Given
that completion of the proceedings was blocked after the responsibility of the
State had been ascertained, the Commission can not leave out the ruling that,
based on the investigations of the highest Court of Justice, the responsibility
of the State has been duly established concerning the violation of the rights to
life, liberty and personal integrity of Mr. Carmelo Soria Espinoza.
When these violations occurred, the situation in the Republic of Chile
was described by the Inter-American Commission, in its 1985 Report on the
Situation of Human Rights in Chile, in the following manner:
115. At the time of the
victim’s abduction and execution, the American Convention was not in force. However, it is within the Commission’s jurisdiction to
examine these violations by virtue of the American Declaration of the Rights and
Duties of Man.
Article I of the American Declaration provides:
The Commission’s doctrine with respect to arbitrary detention and
illegitimate deprivation of liberty in the light of the American Declaration, as
set forth in its publication Ten Years of Activities 1971-1981, is as follows:
117. In the present case, and as established by the Supreme Court of Justice of Chile in its judgment of December 30, 1993, Carmelo Soria was arbitrarily deprived of his liberty, which constitutes a violation of Article I of the American Declaration.
With respect to the right to personal integrity, the Commission has
affirmed that torture is not justified under any circumstances, because it
constitutes an offense against human dignity and violates the integrity of the
person, the defense of which is also enshrined in Article I of the American
The Commission has expressed the necessity for States to conduct an
exhaustive investigation of any accusation of torture and to punish those found
responsible for acts of that nature, irrespective of their position or rank.
In the present case, as established by the Supreme Court of Justice of
Chile in its judgment of December 30, 1993, Carmelo Soria was subject to
physical duress when he was interrogated by State agents, which constitutes a
violation of Article I of the American Declaration.
With respect to observance of the precept concerning the right to life
enshrined in the American Declaration and the punishment of those responsible
for violating that right, the Commission has affirmed that “the right to life
is worthy of special consideration because it constitutes, without a doubt, the
foundation and basis for all other rights."
The Commission has also indicated that member states where such
violations occur have the obligation to “put an immediate stop to the
extremely grave practice of illegal executions committed by security forces or
paramilitary groups,” recommending that the States adopt “such preventive
measures as may be appropriate” and ensure the existence of “an independent
Judicial Branch and sufficiently empowered” to “investigate and
subsequently…punish all those responsible for such illegal executions."
In the present case, as established by the Supreme Court of Justice of
Chile in its judgment of December 30, 1993, Carmelo Soria was ultimately
murdered by his abductors, in violation of Article I of the American
In conclusion, the State is responsible in this case for the violation of
the rights to life, liberty and personal integrity of Mr. Carmelo Soria
Espinoza, enshrined in Article I of the American Declaration.
This responsibility derives from the investigations conducted by the
Supreme Court of Justice of Chile itself, and the documents confirming the
State's responsibility are contained in the judicial files which were a part of
the investigation process concerning the disappearance, torture and homicide of
Obligations in matters of human
rights established in the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons and Universal Jurisdiction
The alleged violation of the
Convention on the Prevention and Punishment of Crimes against Internationally
On December 14, 1973, the Chilean State ratified the Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons,
which was signed by the delegate of Chile on that same date and published as law
of the Republic on February 28, 1977 (Official Journal of March 29, 1977).
As a State Party to that Convention, the State of Chile has an obligation
under the rules and principles of international customary law to observe this
treaty in good faith and to adapt its domestic laws accordingly.
The Chilean State has also undertaken the obligation to respect that
Convention and to ensure compliance with it under all circumstances, especially
in grave situations such as the forced disappearance, torture and extrajudicial
execution of Carmelo Soria Espinoza.
125. Indeed, Article 3
of the aforementioned Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons provides that each State Party shall
take the necessary measures to enforce its jurisdiction over the crimes
enumerated in paragraph 1 of Article 2, which include "murder, kidnapping
or other attack upon the person or
liberty of an internationally protected person."
The concept of an internationally protected person includes "any
representative or official of a State or any official or other agent of an
international organization of an intergovernmental character who, at the time
when and in the place where a crime against him,… is committed, is entitled
pursuant to international law to special protection from any attack on his
person, freedom or dignity, as well as members of his family forming part of his
household" (Article 1(1)(b) of the aforementioned Convention).
Additionally, "[e]ach State Party shall make these crimes punishable
by appropriate penalties which take into account their grave nature"
In the case of Carmelo Soria, by not taking into account his legal status
as a United Nations international official, the State of Chile failed to observe
its international obligations derived from the Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons to which it is a
Party. Given the grave nature of
the crime, the State should have prevented granting the benefit of amnesty upon
the perpetrators of his murder, since according to the principle aut
dedere aut judicare crimes committed against internationally protected
persons are unpardonable and it is the obligation of Chile to punish the
Indeed, Article 2(2) of the aforementioned Convention provides that in
cases of homicide, kidnappings and other offenses against the physical integrity
or liberty of an international official "[e]ach State Party shall make
these crimes punishable by appropriate penalties which take into account their
grave nature" (emphasis added by the Commission).
The violation of this international obligation by the Chilean State is
confirmed by the judgment of the Supreme Court of Chile itself, dated August 23,
1996, which was submitted as evidence by the petitioners.
It is clear from this judgment that the aforementioned Supreme Court
failed to consider Mr. Soria's capacity as an international official subject to
protection, even though it had before it the evidence issued by the Ministry of
Foreign Affairs of Chile, based on an ECLAC report from September 8, 1994,
explicitly recognizing that Mr. Soria had the "status of permanent United
Nations international official."
Even though it had this evidence before it, the Supreme Court ignored it,
declaring that international protection derived from the Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons
was not applicable to Mr. Soria, inasmuch as "it can only be inferred from
the aforementioned documents that Mr. Soria was an ECLAC official, but they do
not provide convincing elements in a credible manner establishing that he had
the capacity of chief or senior official of ECLAC staff or its mission, CELADE.
Such capacity is supported only by mere affirmations by the informants,
without any official corroborating documentation."
This notwithstanding, the same Supreme Court judgment affirmed the
interpretation of the judgment under appeal, which ultimately upheld that Mr.
Soria should only receive the benefit of the guarantee referred to in the
aforementioned Convention if the criminal infraction at issue had been
established in his case: "the punishable nature of the infraction when the
judgment was issued and the conduct in question was an imputable crime, which
obviously had not been established in this case given the objective situation of
the extinction of criminal responsibility resulting from the amnesty established
in Decree Law 2.191, which was clearly applied in this case." With this
conclusion, the Supreme Court ultimately upheld the decision of the Chilean
Judicial Branch to not apply the aforementioned Convention, pursuant to the
amnesty, disregarding the additional obligation of the Chilean State deriving
from Mr. Soria's capacity as an international official.
Aside from these considerations, the jurisdiction of the Inter-American
Commission and Inter-American Court with respect to the application of other
provisions of international law for the protection of human rights, such as the
Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, is amply supported by the very text of the American
Convention and the body of precedent established by decisions of the
Inter-American Commission and Inter-American Court themselves.
In this sense, Article 29 of the American Convention, concerning
restrictions regarding interpretation, provides that "[n]o provision of
this Convention shall be interpreted as: (b)
restricting the enjoyment or exercise of any right or freedom recognized by
virtue of the laws of any State Party or by virtue of another convention to
which one of the said states is a party."
It should be noted that the Inter-American Court has endorsed the
Commission's practice of applying sources of international law found in other
treaties that contain human rights provisions different from those of the
American Convention. In Advisory
Opinion Nº 1,
interpreting the term "other treaties" in Article 64 of the American
Convention, the Court maintained that:
Accordingly, the Court has explicitly asserted that this Commission's
practice is "entirely consistent with the object and purpose of the
Convention, the American Declaration and the Statute of the Commission."
This leads the Commission to the conclusion that the Chilean State has
failed to fulfill its obligation to punish crimes committed against
international officials in accordance with the Convention on the Protection and
Punishment of Crimes against Internationally Protected Persons as a result of
applying the self-amnesty law, failing to adapt its laws to the provisions of
that Convention, and because its competent organs in the Administration of
Justice have not punished the crimes of forced disappearance, torture and
extrajudicial execution committed against Carmelo Soria, an internationally
The question of universal jurisdiction in the doctrine of the Commission
The Commission has expressed its position on numerous occasions
concerning the need for an international judicial process for recourse in cases
where human rights have been violated by State agents and where proper
investigation and punishment under domestic law has proven impossible.
On December 8, 1998, during the celebration of the fiftieth anniversary
of the American Declaration of the Rights and Duties of Man and the United
Nations Universal Declaration of Human Rights, the Commission issued a
recommendation to the states parties to the inter-American system in which it
took note of "one of the greatest advances in recent international public
law: the establishment of the principle of individual criminal responsibility
within the international legal order."
In that recommendation, approved during its 101st regular
session, the IACHR indicated that "pursuant to the Principles of Nuremberg,
adopted by the United Nations General Assembly in 1946, and the resolutions
establishing the international criminal courts for the former Yugoslavia and
Rwanda, issued by the United Nations Security Council in 1993 and 1994, the
recent diplomatic conference in Rome approved the Permanent Statute of the
International Criminal Court on July 17, 1998."
The Commission also noted that "Articles 1 and 25 of that Statute
proclaim the criminal responsibility of any person accused of committing a crime
against international law in one of the following three categories: genocide,
crimes of war and crimes against humanity (such as the forced disappearance of
persons, torture and grave or systematic human rights violations).
Additionally, these Articles permit the prosecution and adjudication of
such crimes by the new international criminal court in cases where the national
system of criminal law concerned is not willing or able to perform this
The recommendation adds that "this evolution in the legal framework
has permitted further consolidation of the principle of universal jurisdiction,
by virtue of which any State has the authority to pursue, prosecute and sanction
the individuals responsible for such international crimes, even those committed
outside of a State's territorial jurisdiction or which do not relate to the
nationality of the accused or of the victims, since such crimes affect all of
humanity and are in conflict with public order in the world community."
The recommendations conclude that "as principal organ of the
Inter-American system, the IACHR has the mission to promote the observance and
defense of human rights in the hemisphere among the Member States of the OAS.
Therefore, it considers that the definite establishment of the principle
of individual criminal responsibility in the international legal order, together
with the principle of universal jurisdiction, contribute significantly to the
strengthening of international systems for the protection of human rights and,
even more importantly, to the consolidation of the rule of law and fundamental
human freedoms in the world community." Accordingly,
in exercise of its functions established in Articles 41(b) of the American
Convention, 18(b) of its Statute, and 63(f) of its Regulations, the
Inter-American Commission decided:
The Commission considers that, with respect to the individual criminal
responsibility of the accused for the extrajudicial execution of the ECLAC
official, universal jurisdiction is clearly applicable in terms of the
Commission's Recommendations from December 8, 1998.
This consideration is based on the finding that the Supreme Court of
Justice of Chile chose not to administer justice in the case of Carmelo Soria
when it applied the amnesty law and compromised the State's international
responsibility by leaving the commission of the crime immune.
It is also important to consider that the Inter-American Court, in its
interpretation of Article 1(1) of the American Convention, referring to the duty
to ensure the protection established in that provision, declared in the Velásquez
Rodríguez case that the State had
the obligation to prevent, investigate, sanction and provide reparations for
rights violated in the following terms:
143. Furthermore, in the Castillo Páez case, the Court clarified the obligation of the State to investigate and punish as follows:
144. In the same case, Castillo Páez, the victim’s family members requested that the Court urge the State to eliminate the legal obstacles that impeded an investigation of the facts and the eventual punishment of those responsible. In the reparations stage of the case, the Court determined that the Amnesty Law constituted an obstacle to the investigation of the facts and the access to justice, which prevented the victim’s family from knowing the truth and receiving the corresponding reparations. According to the Court, Articles 25 and 1(1) of the American Convention require the State to guarantee all persons the right to simple and prompt recourse to ensure that those responsible for human rights violations are tried and that reparations for the damages suffered can be obtained. Article 25 is directly related with Article 8(1) of the American Convention, which establishes the right of every person 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 or her rights. Accordingly, the Court determined that the State had the obligation to investigate the human rights violations, try those responsible, and prevent a situation of impunity, which in the context of these facts means that the State has the obligation to revoke the Amnesty Law.
The applicability of universal jurisdiction to the present case in favor
of Carmelo Soria is based on Articles 1, 2 and 3 of the Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons,
Including Diplomatic Agents, which includes the following provisions:
With respect to persons subject to international protection, Article 1 of
the treaty provides:
With respect to acts giving rise to international protection, Article 2
of the same treaty provides:
respect to the jurisdiction established for investigating and sanctioning such
crimes, Article 3 of the aforementioned Convention provides:
In the event that due consideration is not given to a claim for
investigation and punishment, Article 3(3) of the Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons, Including
Diplomatic Agents, provides that "This Convention does not exclude any
criminal jurisdiction," irrespective of the perpetrators' whereabouts,
provided it is "exercised in accordance with internal law."
Under the principle of universal jurisdiction, any State has the judicial
authority to pursue, prosecute and punish individuals presumed to be responsible
for international crimes or crimes against international law, even those crimes
committed outside their territorial jurisdiction or that do not pertain to the
nationality of the accused or the victims, since such crimes are an offense
against humanity and a disturbance to public order in the world community.
Indeed, such international crimes or crimes against international law are
for the most part ius cogens, and have been codified or recognized over time in
conventions. It is characteristic
of these crimes that they cannot be committed without State involvement, action,
tolerance or consent. This
definition consists of at least 25 categories of international violations,
including crimes against United Nations officials, based expressly on the
special convention cited and analyzed here.
In the present case, the Chilean State, by virtue of the pertinent
provisions of the aforementioned treaty, had the obligation to investigate and
punish the perpetrators (State agents) responsible for the crimes of the forced
disappearance, torture and summary execution of Carmelo Soria.
By not proceeding to do so, the Chilean State not only violated its
international obligations under the aforementioned Convention, but also opened
the way for universal jurisdiction to apply in the case.
Therefore, it would amount to a typical international crime against
humanity where the State, if it does not wish to or cannot fulfill its
obligation to punish those responsible, must accept the application of universal
jurisdiction for that purpose.
Therefore, in the present case, the Chilean State violated its
international obligations under Articles 1, 2 and 3 of the Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons,
under which the Chilean State has the obligation in this case to accept
universal jurisdiction for the purpose of ensuring that an investigation is
conducted and the State agents responsible for the illegal detention, torture
and summary execution of Carmelo Soria are punished.
ACTIONS TAKEN SUBSEQUENT TO REPORT Nº 79/99
On May 5, 1999, during the 103rd session held from April 29 to
May 9, 1999, the Commission adopted Report Nº 79/99 on the present case, based
on Article 50 of the American Convention. The
Commission transmitted it to the Chilean State with a number of recommendations,
granting the State a period of two months, from the date of the transmittal, to
report on the implementation of the Commission's recommendations.
The Government of Chile did not respond to the Commission’s note in
Report Nº 79/99 from May 5, 1999, during the above mentioned period, and it did
not request an extension of the time period for doing so. The period granted by
the Commission within which to send a reply having expired, the Chilean State
finally forwarded its observations on September 29, 1999. The Commission regrets
the State's failure to reply to the report within the aforementioned period,
which could have led it to reiterate its conclusions and recommendations without
having before it the required information.
Nevertheless, in light of the response submitted by the State, the
Commission proceeds to address that information below.
In its reply, the Chilean State maintains the following:
it values the efforts of the Commission to reach a friendly settlement but,
given the nature of the petition
and the considerations involved, it has not been possible to arrive at a
for both parties which would put an end to this dispute; that it has had
difficulty to comply with the recommendations contained in the Commission’s
report, but that said recommendations have been partially adopted; that the
Supreme Court concluded that by law Mr. Soria was not entitled to the legal
protection afforded by the Convention on
the Prevention and Punishment of Crimes against Internationally Protected
a decision which may not be challenged by any other State authority without
seriously breaching the Constitution and the Pact of San Jose itself.
it is not possible to recommend the State of Chile to transfer the case
concerning Mr. Soria's immunity to an international court with universal
jurisdiction since that is not provided for in the above cited Convention, nor
does there exist any court with powers recognized by the State to that end; that
the criminal responsibility of the persons who carried out the killing of
Carmelo Soria has been determined before the courts and appeared in the process
heard by the Supreme Court, and consequently the Chilean State has complied with
the recommendation relating to the establishment of criminal liability in this
the adaptation of Chilean domestic law to reflect the provisions contained in
the American Convention is a core objective of the Government’s policy, but
that the repeal or amendment of Decree Law 2.191 of 1978 has complex legal
implications; that the Supreme Court, in connection with another case involving
human rights violations, recently interpreted the provision contained in Decree
Law 2.191 in the sense that it is not possible to apply amnesty in those cases
involving people detained-disappeared, inasmuch as they are considered crimes
that are in progress or ongoing, and, in cases where the bodies of the victims
appear, it will be necessary to establish the date of death in order to
determine whether the exculpatory provision applies, in such a way as to move
toward compliance with the Commission’s specific recommendation in regard
thereto; that this case law contains the recent interpretation of the amnesty
law and demonstrates the manner in which the Supreme Court is adapting its
judgments to reflect international human rights law in force in the country.
State has formally acknowledged that the death of Mr. Carmelo Soria Espinoza was
the consequence of actions by State agents and a serious violation of human
rights; that said acknowledgement is contained in the report of the National
Commission for Truth and Reconciliation, and that in consequence of such
acknowledgement the family of Mr. Soria is beneficiary to the established
reparation measures; that, moreover, the Chilean Government has offered
additional redress in favor of the family of Carmelo Soria, which the family
itself rejected, and which consisted of a public statement recognizing the
State’s responsibility for the actions of its agents; the construction of a
monument of remembrance to him in a location designated by his family in
Santiago; and the donation of a substantial sum of money for setting up a
foundation named after him with the purpose of promoting respect for human
rights and fundamental freedoms.
In its response, the Chilean State admits that it has not been possible
to give full compliance to the Commission’s recommendations, nor to arrive at
a satisfactory outcome designed to come to an understanding with the petitioners
in order to reach a friendly settlement in relation to the present case.
Furthermore, the Commission notes and values the efforts made by the
Chilean State to propose compensation measures to the family of Carmelo Soria.
Nonetheless, the family of Carmelo Soria has repeatedly expressed to this
Commission that the primary substantial and essential reparation for them
consists of the termination of the impunity granted to the material and
intellectual perpetrators of the crimes committed against him by State agents,
and that they are not prepared to receive compensation in return for the
continuation of impunity or without the guarantee that those responsible will be
effectively punished. The foregoing
concurs with the jurisprudence cited in the Commission's present report, in the
sense that, when dealing with human rights violations, States must adopt
compensation measures, including the effective punishment of those responsible,
by which token, any legislative measure designed to prevent such punishment, as
is the case involving an amnesty law, runs contrary to the Convention.
In light of the foregoing, it is clear that the Chilean State has not
adopted the necessary measures to comply with the recommendations contained in
Report Nº 78/99. The Commission
recalls what the Inter-American Court has established with respect to the
States' obligation to comply with its recommendations:
For the above reasons, the Commission reiterates the conclusions adopted
in its Report Nº 79/99 to the effect that, as established by the Supreme Court
of Justice of Chile itself in its judgment of August 23, 1996, the Chilean State
has violated, in the case of Carmelo Soria Espinoza, the right to personal
liberty, the right to life, and the right to personal integrity enshrined in
Article I of the American Declaration of the Rights and Duties of Man.
The Commission also reiterates its conclusions in the aforementioned
Report Nº 79/99, that the judicial decisions ruling the dismissal of criminal
proceedings initiated concerning the detention, forced disappearance, torture
and extrajudicial execution of Carmelo Soria Espinoza, in whose name this case
was instigated, not only aggravate the situation of impunity, but also violate
the victim’s family's right to justice for the purpose of identifying the
perpetrators of these crimes, establishing responsibility, imposing the
corresponding punishment and providing judicial reparation.
The Commission confirms further that in the present case the Chilean
State violated the rights enshrined in Articles 8 and 25, in conjunction with
Articles 1(1) and 2 of the American Convention.
The Commission also reiterates that Decree Law 2.191 for self-amnesty,
issued in 1978 by the past military regime of Chile, is incompatible with
Articles 1, 2, 8 and 25 of the American Convention, ratified by that State on
August 21, 1990.
The Commission also confirms that the Chilean State has violated its
international obligations under Articles 1(1) and 2 of the American Convention
by way of the judgment of the Supreme Court of Chile of August 23, 1996,
confirmed on September 28 that same year, declaring the Amnesty Law
constitutional and its application by the Judicial Branch mandatory, at a time
when the aforementioned American Convention had already entered into force in
The Commission confirms further that the Chilean State has not complied
with the norms established in Article 2 of the American Convention, in that it
has not adapted its domestic laws on amnesty to the provisions of the
The Commission also reiterates that the State of Chile has violated its
international obligations derived from the norms contained in the Convention on
the Prevention and Punishment of Crimes against Internationally Protected
Persons as a result of having applied the Amnesty Law by virtue of the fact that
its competent organs for the administration of justice failed to observe its
international obligations–specifically, when the Supreme Court of Chile, in
its judgment of August 23, 1996, decided to apply the Amnesty Law. Therefore,
the Chilean State has violated Article 2(1) of the aforementioned international
Convention – a human rights provision–inasmuch as it failed to punish the
crimes committed against Carmelo Soria, an internationally protected person
under that Convention who, according to documentation issued by ECLAC on
September 8, 1994, at the request of the Chilean Foreign Ministry, had the
status of "permanent senior international official of the United
Based on the foregoing analysis
THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS REITERATES THE
To establish the responsibility of the persons identified as guilty of
the murder of Carmelo Soria Espinoza by due process of law, in order for the
parties responsible to be effectively punished and for the family of the victim
to be effectively ensured the right to justice, enshrined in Articles 8 and 25
of the American Convention.
To comply with the provisions of the Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons, in order for
human rights violations, committed against international officials entitled to
international protection, such as the execution of Mr. Carmelo Soria Espinoza in
his capacity as an officer of ECLAC ,
to be appropriately investigated and effectively punish those responsible.
Should the Chilean State consider itself unable to fulfill its obligation
to punish those responsible, it must, consequently, accept the authorization of
universal jurisdiction for such purposes.
To adapt its domestic legislation to reflect the provisions contained in
the American Convention on Human Rights in such a way that Decree Law No. 2.191
enacted in 1978 be repealed, in order that human rights violations committed by
the de facto military government
against Carmelo Soria Espinoza may be
investigated and punished.
To adopt the necessary measures for the
victim’s family members to receive adequate and timely compensation that
includes full reparation for the human rights violations established herein,
as well as payment of fair compensation for physical and non physical damages,
including moral damages.
On October 8, 1999, the Commission transmitted Report Nº 110/99–the
text of which is the foregoing–to the Chilean State and the petitioners
pursuant to Article 51(2) of the American Convention; and granted the State a
period of one month within which to comply with the foregoing recommendations.
162. In accordance with the aforementioned Article 51(2), at this stage of the proceedings the Commission shall limit itself to assessing the measures adopted by the Chilean State to comply with the recommendations and remedy the situation examined. The State of Chile did not respond to the note from the Commission regarding the aforesaid Report Nº 110/99 of October 6, 1999.
The lack of response from the Chilean State is evidence that it has not
adopted the measures incumbent upon it to comply with the recommendations
contained within the Commission’s Report Nº 110/99 and to remedy the
In accordance with the foregoing, and with the provisions in Articles
51(3) of the American Convention and 48 of the Commission's Regulations, the
Commission decides to reiterate the conclusions and recommendations contained in
chapters VII and VIII supra, respectively; make public the present report; and include it
in its Annual Report to the OAS General Assembly. The IACHR, in accordance with the provisions contained in the
instruments that govern its mandate, will continue to evaluate the measures
adopted by the Chilean State with respect to the above mentioned recommendations
until they have been fully complied with by said State.
The Commission decides to transmit the present report to the State of
Chile and to the petitioners.
Done and signed by the Inter-American Commission on Human Rights, in the city of San José, Costa Rica, on this the 19th day of November of 1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice Chairman; Carlos Ayala, Jean Joseph Exumé, and Alvaro Tirado Mejía, Commission members.
Commissioner Claudio Grossman, national of Chile, did not participate in the
discussion and adoption of this report, in accordance with the requirements
of Article 19(2)(a) of the Regulations of the Commission.
 Article 20 of the Commission’s Statute provides that:
“In relation to those member states of the Organization that are
not parties to the American Convention… the Commission shall have the
following powers, in addition to those designated in Article 18: a. to pay
particular attention to the observance of the human rights referred to in
Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration
[…] b. to examine communications submitted to it and any other available
information, to address the government of any member state not a Party to
the Convention for information deemed pertinent by this Commission, and to
make recommendations to it, when it finds this appropriate […]."
 In this regard, the Commission must verify in a particular
case "whether what the norm provides contradicts the Convention and not
whether it contradicts the internal legal order of the State."
I/A Court H.R., Advisory opinion OC-13/93, Series A, para. 29.
 I/A Court H.R., International Responsibility for the
Promulgation and Enforcement of Laws in Violation of the Convention
(Articles 1 and 2 of the American Convention on Human Rights), Advisory
Opinion OC-14/94, December 9, 1994, para. 39.
 Inter-American Yearbook
on Human Rights/Anuario Interamericano de Derechos Humanos 1985,
Martinus Nijhoff Pub., 1987, page 1062.
 Res. AG/RES.666 (XIII-0/83).
 I/A Court H.R., Velásquez
Rodríguez, Judgement of July 29, 1988, Series C, Nº 4, para. 153.
 Inter-American Convention on Forced Disappearance of Persons,
Resolution adopted by the General Assembly at its Seventh Plenary Session on
June 9, 1994. OEA/Ser. P
 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 1978; 1980/81;
1981-82; 1985/86; 1986/87; and in particular those on Argentina (1980),
Chile (1985) and Guatemala (1985).
 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 crimes in question (Article 11 and
Articles V and VI respectively). The
Convention on Forced Disappearance also provides, in Article VII, for
exemption from a statute of limitations or, if that is not possible, the
application of limitations equal to those applying to the most serious
 President Aylwin stated:
“Justice also requires the clarification of the whereabouts of the
disappeared as well as the determination of individual responsibilities.
Concerning the first point, the truth established in the report (of
the Commission for Truth and Reconciliation) is incomplete.
In most of the cases the remains of the detainees-disappeared and
those executed were not returned to their families.
The Commission did not have the means to determine their
 Report on the Situation of Human Rights in Chile,
OEA/Ser.L/V/II.34, doc. 21, 1974; Second Report on the Situation of Human
Rights in Chile, OEA/Ser.L/V/II.37, doc. 19, corr., 1976; Third Report on
the Situation of Human Rights in Chile, OEA/Ser.L/V/II.40, doc. 10, 1977;
Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.66, doc.
 Brownlie, Ian, Principles
of Public International Law, Clarendon Press. Oxford, 1990, 4th ed. Pages 446/52. Benadava Derecho
Internacional Público, Ed. Jurídica de Chile, 1976, page 151.
 I/A Court H.R Velásquez
Rodríguez case, judgment of July 29, 1998, para. 170.
 Idem, para. 184.
 IACHR, Report 29/92 Annual Report 1992-1993, para. 32.
 See Annual Report of IACHR 1985-1986, page 204; IACHR Report
28/92 (Argentina), Report 29/92 (Uruguay), IACHR Report 1992-1993; IACHR,
Report Nº 36/96, Case 10.843 (Chile), IACHR Annual Report 1996, para. 49;
Report 1/99, Case 10.480 (El Salvador), IACHR Annual Report 1998, para. 107.
 The Inter-American Court of Human Rights has indicated that
this provision establishes the obligation of the States Parties to guarantee
the respect of each and every right protected by the Convention.
I/A Court H.R., Velásquez Rodríguez, judgment of July 29, 1988, supra note
42, para. 162; I/A Court H.R., Godínez
Cruz, judgment of January 20, 1989, Series C Nº 5 (1989), para. 171;
I/A Court H.R., Neira Alegría et al,
judgment of January 19, 1995, supra note 65, para. 85. Also see Annual Report of the Inter-American
Commission on Human Rights (1996), OEA/Ser.L/V/II.95, Doc. 7 rev., March 14,
1997, Reports Nº 36/96 (Chile), para. 78 and Nº 34/96 (Chile), para. 76;
Annual Report of the Inter-American Commission on Human Rights (1992-93),
OEA/Ser.L/V/II.83, Doc. 14, March 12, 1993, Reports Nº 28/92 (Argentina),
para. 41 and Nº 29/92 (Uruguay), para. 51, Annual Report of the
Inter-American Commission on Human Rights (1997), OEA/Ser.L/V/II.98, Doc. 6
rev., April 13, 1998, para. 71.
 IACHR Reports 28/92 (Argentina) and 29/92 (Uruguay).
 I/A Court H.R., Loayza
Tamayo, Reparations, para. 168 and 170.
 The Administration of
Justice and the Human Rights of Detainees “Question of the Impunity of
perpetrators of human rights violations (civil and political)” (E/CN.4/Sub.2/1997/20/Rev.1).
This report was prepared by Louis Joinet pursuant to resolution
1996/119 of the Sub-Committee on the Prevention of Discrimination Against
and the Protection of Minorities, of the United Nations Human Rights
 Idem, pages 13-15.
 Report Nº 25/98 concerning cases 11.505, Alfonso René
Chanfeau Orayce; 11.532, Agustín Eduardo Reyes González; 11.541, Jorge Elías
Andrónico Antequera and his brother Juan Carlos and Luis Francisco González
Manríquez; 11.546, William Robert Millar Sanhueza and Jorge Rogelio Marín
Rossel; 11.549, Luis Armando Arias Ramírez, José Delimiro Fierro Morales,
Mario Alejandro Valdés Chávez, Jorge Enrique Vásquez Escobar and Jaime
Pascual Arias Ramírez; 11.569, Juan Carlos Perelman and Gladys Díaz
Armijo; 11.572, Luis Alberto Sánchez Mejías; 11.573, Francisco Eduardo
Aedo Carrasco; 11.583, Carlos Eduardo Guerrero Gutiérrez; 11.585, Máximo
Antonio Gedda Ortiz; 11.595, Joel Huaiquiñir Benavides; 11.652, Guillermo
González de Asís; 11.657, Lumy Videla Moya; 11.675, Eulogio del Carmen
Ortiz Fritz Monsalve; and 11.705, Mauricio Eduardo Jorquera Encina. See
IACHR Annual Report 1997, OEA/Ser.L/V/II.98, doc. 6, rev., April 13, 1998,
pp. 520-559. See IACHR Annual
Report, 1996, Report Nº 36/96 and 34/96 Chile, pp. 162-240.
See also the Griego case, in the Yearbook of the European Convention
on Human Rights, 1969, Martinus Nijhoff, The Hague, 1972.
 I/A Court H.R., Velásquez
Rodríguez, para. 174.
 I/A Court H.R., Velásquez
Rodríguez, Preliminary Exceptions; judgment of June 26, 1987, para. 91.
 Code of Criminal Procedure of Chile, Title II, “Criminal
Action and Civil Action in Criminal Proceedings," Articles 10/41.
 I/A Court H.R, Velásquez
Rodríguez, judgment of July 29, 1988, para. 177.
 Supreme Court of Chile.
Decision on a claim for non-application of Decree Law 2.191, August
24, 1990, para. 15. The same
court. Decision on a request
for clarification on September 28, 1990, para. 4.
 I/A Court H.R., Velásquez
Rodríguez, Preliminary Exceptions, para. 91.
 I/A Court H.R., Velásquez
Rodríguez, judgment of July 29, 1988, para. 64.
 I/A Court H.R., Advisory opinion OC-9/87, para. 24.
 “The second obligation of the States Parties is to ensure
the free and full exercise of the rights recognized by the Convention to
every person subject to its jurisdiction.
This obligation implies the duty of the States Parties to organize
the governmental apparatus and, in general, all the structures through which
public power is exercised, so that they are capable of juridically ensuring
the free and full enjoyment of human rights.
As a consequence of this obligation, the States must prevent,
investigate and punish any violation of the rights recognized by the
Convention and, moreover, if possible attempt to restore the right violated
and provide compensation as warranted for damages resulting from the
violation." I/A Court
H.R., Velásquez Rodríguez, judgment of July 29, 1988, Series C Nº 4
(1988), para. 166, Godínez Cruz,
judgment of January 20, 1989, Series C No. 5 (1989), para. 175.
 I/A Court H.R., Velásquez
Rodríguez, Idem., para. 174, Godínez
Cruz, Idem., para. 184.
 Idem., para. 174.
 IACHR, Annual Report 1992-1993 - OEA/Ser.L/V/II.83 Doc. 14,
Uruguay 29/92, Recommendations, para 3.
 IACHR, Annual Report 1996 - OEA/Ser.L/V/II.95 Doc. 7 rev.,
Chile 36/96, para. 77.
 IACHR, Annual Report 1996 - OEA/Ser.L/V/II.95 Doc. 7 rev.,
Chile 36/96, Recommendations, para. 111.
 I/A Court H.R., Velásquez
Rodríguez, judgment of July 29, 1988, para. 166.
 Idem., para. 174.
See also I/A Court H.R., Godínez
Cruz, judgment of January 20, 1989, supra note 70, para. 184.
 I/A Court H.R., Velásquez
Rodríguez, judgment of July 29, 1988, supra note 42, para. 176;
I/A Court H.R., Godínez Cruz, supra
note 70, para 187.
 I/A Court H.R., Velásquez
Rodríguez, judgment of July 29, 1988, para. 166.
 Idem., para. 173.
 Idem., para. 174.
 Idem., para. 176.
 Idem., para. 177.
 I/A Court H.R., Velásquez
Rodríguez, judgment of July 29, 1988, para. 177.
 Rettig Report. February
1991, Volume 2, page 868 (unofficial translation).
 I/A Court H.R., Velásquez
Rodríguez, judgment of July 29, 1988, para. 174.
 See Report on the Situation of Human Rights in Chile
OEA/Ser.L/V/II.66 doc. 17, 1985; Conclusions page 313.
 For the member states of the Organization that have not
ratified the American Convention on Human Rights, the American Declaration
is the text that determines which are the human rights referred to in the
Charter. In other words, for
those States, in matters pertaining to the Charter of the Organization, the
American Declaration constitutes a source of international obligations. Inter-American Court of Human Rights, Advisory Opinion
OC-10/89, para. 45.
 IACHR Annual Report, 1972, page 26.
 IACHR Annual Report, 1978, page 24; IACHR Annual Report,
1976, page 20.
 IACHR Annual Report, 1971, page 35.
 Ibid., page 128.
 Taken from the Report of the Office of the Public Prosecutor
before the Supreme Court, June 19, 1996.
 See IACHR, Report No.
26/97 (Colombia), September 30, 1997; IACHR Report
No. 55/97 (Argentina), November 18, 1997.
 I/A Court H.R., Advisory opinion OC 1/82, para. 43.
 I/A Court H.R., Velásquez
Rodríguez, judgment of July 29, 1988, Series C, Nº 4, para. 166.
 I/A Court H.R., Castillo
Páez, judgment of November 3, 1997, Series C, Nº 34, para. 90.
 I/A Court H.R., Castillo
Páez, Reparations, judgment of November 27, 1998, Series C, No. 43,
 Ibid., para. 106.
 Ibid., para. 107.
 Ibid. In
the separate concurrent decision by Judges Cancado Trindade and Abreu
Burelli this is expressed even more explicitly.
In Paragraph 3, the Judges declare that “States have the obligation
to eliminate measures (that constitute an obstacle to the enjoyment of human
rights), consistent with the other general obligation of adapting their
internal laws to international norms…."
 See, inter alia,
Sharon A. Williams, “The Prosecution
of War Criminals in Canada," Timothy L.H. MacCormack & Gerry J.
Simpson (eds), THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES,
Kluwer Law International, The Hague, 1997, pp. 156 et
 See, inter alia, M.
Cherif Bassiouni, INTERNATIONAL CRIMINAL LAW CONVENTIONS AND THEIR PENAL
Publishers, Inc. New York, 1997, pp. 34 et
seq. Professor Cherif
Bassiouni is an authority on the subject who has participated in the
drafting of several international instruments in this field, and is
President of the International Human Rights Law Institute of DePaul College of Law, President
of the International Association of Criminal Law, and President of the
International Institute of Higher Studies in Criminal Sciences.
 I/A Court H.R., Loayza
Tamayo, judgment September 17, 1997, para. 80.
 The quoted text was taken from paragraph 2, page 1, of the
judgment of the Supreme Court of Justice of Chile of August 23, 1996.