...continued
51.
Aware of the close relationship between the amnesty law, impunity,
and the violation of fundamental human rights, the Chilean State has taken
measures such as the enactment of Law N°
19.123 to compensate victims’ relatives. As it has expressed on several
occasions, the IACHR repeats that the violation of victims’ rights from
the moment of their arrest up to the denial of justice must be considered
as a whole. 52.
The Inter-American Commission has duly noted that President
Patricio Aylwin contacted Chile’s Supreme Court in March 1991 to urge it
to consider that the amnesty in force should not and could not be an
obstacle to the judicial investigation and identification of the
corresponding responsibilities. The Commission also takes due note of the
initiative of his successor, President Eduardo Frei Ruiz-Tagle, who
addressed Chile’s Chamber of Deputies on May 5, 1995, in the context of
proposed amendments to the Code of Criminal Procedure, and reminded that
body that: The
International Covenant on Civil and Political Rights of 1966 and the
American Convention on Human Rights, two treaties ratified by Chile and
currently in force, indicate the duty of states parties to investigate and
judge violations of the human rights protected by those treaties, and to
rule on the legal remedies brought by the victims.[26] 53.
Similarly, the IACHR recognizes the importance of the creation of
the National Truth and Reconciliation Commission and its work in gathering
information on human rights violations and disappearances. Its report
named the victims individually, including Samuel Alfonso Catalán Lincoleo,
recognized that their cases constituted grave violations of fundamental
rights attributable to agents of the State, and attempted to establish
their whereabouts and take measures that would make full amends and clear
the name of the victims and their families. 54.
The Commission recognizes and appreciates Law N°
19.123,
an initiative of the first democratic government after the military
dictatorship that provides victims’ families with: (a) a lifetime
pension in an amount no less than the average income of a Chilean family;
(b) a special procedure for declarations of presumed death; (c)
specialized attention from the State for health care, education, and
housing; (d) cancellation of educational, housing, tax, and other debts
owed to state agencies; and (e) exemption from compulsory military service
for victims’ children. 55.
Nonetheless, in accordance with Articles 8 and 25 of the American
Convention, in conjunction with Articles 1(1) and 2 thereof, these
measures are not enough to guarantee respect for petitioners’ human
rights. The international obligations set forth in those provisions
require that the right to justice in the specific case be guaranteed, that
the guilty be punished, and that due reparations be made to the victims’
families. 56.
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 contained in Article 9 of the
American Convention and Article 19(3) of the Chilean Constitution under
which criminal law cannot be applied retroactively. In this regard, the
Commission points out that the principle of nonretroactive application
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 as then in force. 57.
The IACHR concludes that the Chilean State is responsible for the
application of the amnesty law of April 19, 1978, in this case through the
rulings of the lower courts as upheld by the judgment of the Supreme Court
of Justice of January 16, 1997. The IACHR also finds the State responsible
for failing to bring its domestic law into line with the American
Convention through the repeal of the amnesty law, in violation of the
obligations assumed under Articles 1(1) and 2 thereof. C.
The Right to a Fair Trail (Article 8 of the American Convention) 58.
The violation of the right to justice and the resulting impunity in
the present case are the result of a chain of events. This pattern began
when the military government issued a series of laws designed to form a
complex legal framework of impunity for itself and for agents of the State
guilty of human rights violations. This process commenced formally in 1978
when the military government enacted Decree-Law N°
2191,
“the amnesty law,” and culminated with the judgment handed down by the
Supreme Court of Justice on January 16, 1997. 59.
The Inter-American Commission has, in other cases, ruled that
amnesties and the effects thereof
cannot
deprive victims, their family members, or survivors of the right to
obtain, at a minimum, adequate reparations for violations of human rights
enshrined in the American Convention. This position derives largely from
the Inter-American Court’s interpretation of the consequences of a
state’s violation of its duty to guarantee human rights under Article
1(1) thereof. The right to adequate compensation is also intertwined with
the right to judicial protection enshrined in Article 25 of the
Convention.[27] 60.
The judicial consequences of the amnesty are incompatible with the
Convention in that they deny the victim the right to a fair trial as set
forth in Article 8 thereof. 61.
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”[28]
(Article 8(1)), it is important to note that in many of Latin America’s
criminal justice systems the victim has the right to file charges in
criminal proceedings. Such is the case in Chile, where the victim of a
crime has a fundamental right to recourse before the courts as a party in
the criminal proceedings,[29]
and where that activity by the victim is essential to the proceedings. In
the case at hand, 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. 62.
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--the State has the legal obligation to investigate
them, and that is an obligation that may not be delegated or renounced. It
is incumbent on the Chilean State to take punitive action and press
forward with the various procedural stages, in fulfillment of its duty of
guaranteeing the right to justice of victims and their families. This
function must be assumed by the State as its own legal duty; it must not
be a step taken by private interests that depends upon the initiative of
those private individuals or upon their offer of proof.[30] 63.
The amnesty law also deprived the victim’s family of the
possibility of obtaining reparations through Chile’s civil courts. On
this point, Article 8(1) of the American Convention provides: Every
person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal,
previously established by law . . . for the determination
of his rights and obligations of a civil, labor, fiscal, or any other
nature. 64.
In any event, under 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 compensation. The absence of an
investigation by the State made it materially impossible to establish
responsibility through the civil courts. Even though the Supreme Court of
Chile has affirmed the fact that civil and criminal proceedings are
independent,[31]
the manner in which the amnesty was applied by the courts affected the
right to obtain reparations through the civil courts, because it was
impossible to individualize or identify those responsible for the
disappearance, torture, and extrajudicial killing of Samuel Alfonso Catalán
Lincoleo. 65.
Because of the way in which it was applied and interpreted by the
Chilean courts in the present case, the amnesty law prevented the
victim’s family from enjoying their right to a fair trial to duly
determine their civil rights, as established in Article 8(1) of the
American Convention. D.
The Right to Judicial Protection (Article 25 of the American
Convention) 66.
In the case at hand, the victim and his family were deprived of
their right to effective recourse against acts that violated their
fundamental rights, in breach of Article 25 of the Convention: 1.
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection
against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the
course of their official duties. 2.
The States Parties undertake: a.
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 state; b.
to develop the possibilities of judicial remedy; and c.
to ensure that the competent authorities shall enforce such
remedies when granted. 67.
Concerning the states’ legal obligation of providing effective
domestic recourse, the Inter-American Court of Human Rights has asserted
the following: Under
the Convention, States Parties have an obligation to provide effective
judicial remedies to victims of human rights violations (Art. 25),
remedies that must be substantiated in accordance with the rules of due
process of law (Art. 8(1)), all in keeping with the general obligation of
such States to guarantee the free and full exercise of the rights
recognized by the Convention to all persons subject to their jurisdiction
(Art. 1).[32] 68.
The Inter-American Court has further explained that for such
remedies to be effective, they must be suitable to address the legal right
that has been infringed.[33]
In interpreting this matter under the American Convention, the Court has
said that: The
absence of an effective remedy to violations of the rights recognized by
the Convention is itself a violation of the Convention by the State Party
in which the remedy is lacking. In that sense, it should be emphasized
that, for such a remedy to exist, it is not sufficient that it be provided
for by the Constitution or by law or that it be formally recognized, but
rather it must be truly effective in establishing whether there has been a
violation of human rights and in providing redress.[34] 69.
In the present case, the amnesty law and its application by the
Chilean Courts barred the victim’s family’s access to effective
recourse for the protection of their rights granted under Article 25 of
the American Convention. Indeed, through these legislative and judicial
acts, the State declined to punish the serious crimes committed against
Samuel Alfonso Catalán Lincoleo that violated his rights to life,
liberty, and physical and moral integrity enshrined in the American
Declaration and the American Convention. In addition, the manner in which
the decree-law was enforced by the Chilean courts not only kept
perpetrators of human rights violations from being punished, but also
ensured that no charges would be brought against those responsible; as a
result, under domestic law they have been considered innocent. 70.
The amnesty law rendered the crimes without juridical effect and
left Samuel Alfonso Catalán Lincoleo and his family without any judicial
recourse that might have permitted the due trial and punishment of those
responsible for the human rights violations perpetrated against him under
the military dictatorship. 71.
By enacting and enforcing Decree-Law N°
2191,
the Chilean State failed to guarantee the right enshrined in Article 25 of
the American Convention to the detriment of Samuel Alfonso Catalán
Lincoleo and his family. E.
The Obligation to Investigate and Punish (Article 1(1) of the
American Convention) 72.
Article 1(1) of the American Convention provides that the States
Parties undertake to respect the rights recognized therein and to ensure
their free and full exercise. As the Inter-American Court has stated, this
obligation implies an actual duty on the part of the States to take
measures that effectively ensure those rights.[35]
By virtue of this obligation, the Chilean State has a legal duty to take
reasonable steps to prevent human rights violations, to use the means at
its disposal to investigate violations committed within its jurisdiction,
to identify those responsible, to impose upon them the appropriate
punishments, and to ensure the victim adequate compensation.[36]
73.
The IACHR believes that the amnesty law establishes a legal barrier
to obtaining relevant information regarding the facts and circumstances
surrounding the violation of a fundamental right; it also impedes domestic
legal recourse for the judicial protection of fundamental rights
established in the American Convention, the laws of Chile, and its
Constitution. 74.
In cases concerning the applicability of amnesty laws, the
Commission has reiterated that states must adopt “the measures necessary
to clarify the facts and identify those responsible for the human rights
violations that occurred during the de
facto period.”[37]
Regarding enforcement of the amnesty law in Chile, the Inter-American
Commission has ruled 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”[38]
and that the Chilean State 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.”[39] 75.
In interpreting the scope of Article 1(1) of the American
Convention, the Inter-American Court has asserted that the obligation it
contains 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.[40]
76.
The Inter-American Court has also stated that: The
State has a legal duty to take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to identify
those responsible, to impose the appropriate punishment and to ensure the
victim adequate compensation.
If
the State apparatus acts in such a way that the violation goes unpunished
and the victim’s full enjoyment of such rights is not restored as soon
as possible, the State has failed to comply with its duty to ensure the
free and full exercise of those rights to the persons within its
jurisdiction.[41] 77.
In its interpretation of Article 1(1) of the American Convention,
the Inter-American Court has also affirmed that “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 . . . . As a consequence of this
obligation, the States must prevent, investigate and punish any violation
of the rights recognized by the Convention.”[42]
The Court further pursues this concept in the following terms: What
is decisive is whether a violation of the rights recognized by the
Convention has occurred with the support or the acquiescence of the
government, or whether the State has allowed the act to take place without
taking measures to prevent it or to punish those responsible.[43]
The
State has a legal duty to take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to identify
those responsible, to impose the appropriate punishment and to ensure the
victim adequate compensation.[44]
If
the State apparatus acts in such a way that the violation goes unpunished
and the victim’s full enjoyment of such rights is not restored as soon
as possible, the State has failed to comply with its duty to ensure the
free and full exercise of those rights to the persons within its
jurisdiction.[45]
78.
As regards the investigation, the Court notes that it “must have
an objective and be assumed by the State as its own legal duty, not as a
step taken by private interests that depends upon the initiative of the
victim or his family or upon their offer of proof, without an effective
search for the truth by the government.”[46] 79.
In the present case, the State is obliged to carry out an
exhaustive investigation and to punish, through its jurisdictional bodies,
those responsible for the acts that resulted in the illegal arrest and
forced disappearance of Samuel Alfonso Catalán Lincoleo. 80.
The IACHR believes it is important to note, once again, that the
authorities should have conducted a serious investigation of the incident
in order to establish the real, objective truth. However, the State’s
apparatus instead acted in such a manner that the violations went
unpunished and the rights of Samuel Alfonso Catalán Lincoleo’s family
were not upheld. 81.
The Truth and Reconciliation Commission, set up by the democratic
government of Chile to investigate past human rights violations, made a
commendable effort to compile information concerning human rights
violations and the situations of disappeared detainees for the purpose of
establishing their whereabouts and taking steps to make full amends and to
clear their reputations. 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 agents of the State, nor the
identification and punishment of those responsible, precisely because of
the amnesty law. For this reason, the right of the surviving victims and
the families to know the true facts was violated by the Chilean State. 82.
In addition, the National Truth and Reconciliation Commission 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, this National Commission
cannot be considered an adequate substitute for a judicial process. In
this regard, former President of the Inter-American Court Dr. Pedro Nikken
has stated that: The
establishment of a truth commission is a plausible means, within a
political negotiation to reach peace in an armed conflict, as a first step
and perhaps the most tangible contribution that can be made within that
scenario to combat impunity. . . [Nonetheless,] the
establishment of the truth should not inhibit the judicial organs from
judging and punishing the persons responsible, but outside the context of
a political negotiation. Impunity
for crimes committed by state agents or under the cover of the state does
not entail only the failure to punish the persons responsible for those
crimes. An inseparable component of such impunity is the failure to carry
out any investigation, the cover-up, and even the falsification of the
facts to protect the persons responsible. There is no doubt that the
discovery of the truth, which is the responsibility of independent
persons, destroys that element which, while not useful in itself for
eradicating impunity, fulfills at least a dual function. First, it is
useful for society to learn, objectively, what happened in its midst,
which translates into a sort of collective catharsis. And second, it
contributes to creating a collective conscience as to the need to impede
the repetition of similar acts and shows those who are capable of doing so
that even if they may escape the action of justice, they are not immune
from being publicly recognized as the persons responsible for very grave
attacks against other human rights. In this regard, even though these do
not constitute punitive mechanisms, they may perform a preventive function
that is highly useful in a process of building peace and the transition to
democracy.[47] 83.
The report of the National Truth and Reconciliation Commission
concluded that: From
a strictly preventive standpoint, this Commission considers that an indispensable
element for obtaining national reconciliation and for avoiding the
repetition of the acts committed would be the State’s full exercise of
its power to punish. The full protection of human rights is
conceivable only under a true Rule of Law. The Rule of Law assumes that
all citizens be subject to the law and the courts of justice, which
involves the application of punishment as stipulated by criminal law on an
equal basis for all those who violate the norms which ensure respect for
human rights.[48]
(Emphasis added.) 84.
The State’s acknowledgement 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 set
forth in the Convention. According to Article 1(1), the State has the
obligation of investigating violations committed under its jurisdiction in
order to identify those responsible, impose the appropriate punishment,
and provide the victim with adequate reparations.[49] 85.
The Inter-American Commission concludes that the State failed to
comply with its obligation of investigating and punishing those
responsible for violating the human rights of Samuel Alfonso Catalán
Lincoleo and that the application of the amnesty law and, later, of
statutory limitations to the action, despite the incriminating evidence
that existed, demonstrates that the State also failed to comply with its
obligation of imposing punishment. 86.
By enacting Decree-Law N°
2191 and applying it in the case of Samuel Alfonso Catalán Lincoleo, the
Chilean State failed to fulfill the obligation of investigating and
punishing those responsible, as set forth in Articles 1(1), 8, and 25 of
the American Convention, to the detriment of the victim’s family. F.
The Right to Life, Liberty, and Humane Treatment (Articles 4, 5,
and 7 of the American Convention and Article I of the American
Declaration) 87.
According to the facts described in the complaint and which the
Chilean State has expressly acknowledged, Mr. Samuel Alfonso Catalán
Lincoleo was deprived of his liberty on August 27, 1974, by police
officers, members of the armed forces, and civilians, absent a written
order from a competent authority. From that time until the date upon which
this report was adopted, Mr. Catalán Lincoleo has remained a victim of
forced disappearance carried out by the aforesaid agents of the Chilean
State. As also said in this report, those facts have been demonstrated by
the National Truth and Reconciliation Commission. 88.
In analyzing the IACHR’s competence to study the substance of
this case, it has been determined that the arrest and forced disappearance
of Samuel Alfonso Catalán Lincoleo constitute a multiple and ongoing
violation of several rights enshrined in the American Declaration and the
American Convention. Article I of the American Declaration stipulates that
“every human being has the right to life, liberty and the security of
his person,” while the relevant provisions of the American Convention
grant the following guarantees: Article
4. Right to Life 1.
Every person has the right to have his life respected. This right
shall be protected by law and, in general, from the moment of conception.
No one shall be arbitrarily deprived of his life. Article
5. Right to Humane Treatment 1.
Every person has the right to have his physical, mental, and moral
integrity respected. 2.
No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their liberty
shall be treated with respect for the inherent dignity of the human
person. Article
7. Right to Personal Liberty 1.
Every person has the right to personal liberty and security. 2.
No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the
constitution of the State Party concerned or by a law established pursuant
thereto. 3.
No one shall be subject to arbitrary arrest or imprisonment. 4.
Anyone who is detained shall be informed of the reasons for his
detention and shall be promptly notified of the charge or charges against
him. 5.
Any person detained shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to be released without
prejudice to the continuation of the proceedings. His release may be
subject to guarantees to assure his appearance for trial. 6.
Anyone who is deprived of his liberty shall be entitled to recourse
to a competent court, in order that the court may decide without delay on
the lawfulness of his arrest or detention and order his release if the
arrest or detention is unlawful. In States Parties whose laws provide that
anyone who believes himself to be threatened with deprivation of his
liberty is entitled to recourse to a competent court in order that it may
decide on the lawfulness of such threat, this remedy may not be restricted
or abolished. The interested party or another person in his behalf is
entitled to seek these remedies. 89.
Article II of the Inter-American Convention on Forced Disappearance
of Persons defines violations of this kind: For
the purposes of this Convention, forced disappearance is considered to be
the act of depriving a person or persons of his or their freedom, in
whatever way, perpetrated by agents of the state or by persons or groups
of persons acting with the authorization, support, or acquiescence of the
state, followed by an absence of information or a refusal to acknowledge
that deprivation of freedom or to give information on the whereabouts of
that person, thereby impeding his or her recourse to the applicable legal
remedies and procedural guarantees.[50] 90.
The Inter-American Court has stated that the forced disappearance
of persons “is one of the most serious and cruel human rights
violations.”[51]
The Court’s broad jurisprudence on this matter was reiterated in another
recent judgment: Forced
or involuntary disappearance constitutes a multiple and continuous
violation of several Convention rights, in that not only does it lead to
an arbitrary denial of freedom, but also endangers the detainee’s
personal integrity, security, and life. It also leaves the victim in a
state of complete defenselessness, opening up the way for other related
crimes. This
phenomenon also entails neglecting the duty of organizing the governmental
apparatus to ensure the rights enshrined in the Convention; as a result of
this, by carrying out or tolerating actions intended to lead to forced or
involuntary disappearances, by failing to properly investigate them, and
by not punishing, when appropriate, the perpetrators, the State violates
the duty of respecting the rights protected by the Convention and of
ensuring their free and full exercise, with respect to both the victim and
his relatives, for identifying his whereabouts.[52] 91.
The Inter-American Commission believes that the facts of this case,
which have been expressly acknowledged by the Chilean State, clearly
constitute the violations referred to in the articles quoted above and the
corresponding interpretation. Consequently, the IACHR holds the Chilean
State responsible for violating Mr. Samuel Alfonso Catalán Lincoleo’s
right to life, liberty, and humane treatment as set forth in Articles 4,
5, and 7 of the American Convention and in Article I of the American
Declaration.
VI.
ACTIONS TAKEN AFTER REPORT N°
116/00 92.
On December 8, 2000 the Commission adopted Report N°
116/00 in this case, pursuant to Article 50 of the American Convention,
and forwarded it to the Chilean State on December 15, 2000 with the
pertinent recommendations.
The IACHR set a time period of two months for the State to inform
on the measures taken toward compliance with said recommendations.
93.
On February 5, 2001 the State sent a communication requesting a 30
day extension to “submit the pertinent response, considering that the
competent authorities have not yet completed the actions with a view to an
adequate response to the petition presented in this case”. 94.
The IACHR notes that the State has no presented any information
regarding compliance with the recommendations in Report 116/00, as
requested according to the procedural stage of this case.
The extension was not requested to adopt such measures, but rather
to prepare “an adequate response to the petition”, with no indication
of the actions taken so far to solve the case and provide reparations to
the relatives of the victim.
The Commission must consider the foregoing in the context of this
case, given that more than two years have elapsed since the IACHR placed
itself at the disposal of both parties with a view to the friendly
settlement procedure, and that no response was received form either of
them.
Therefore, the IACHR decides not to grant the extension and
approves the instant report under Article 51 of the American Convention. VII.
CONCLUSIONS 95.
The Inter-American Commission concludes that the Chilean State has
unquestionably violated, with respect to Samuel Alfonso Catalán Lincoleo,
the right to personal liberty, life, and humane treatment set forth in
Article I of the American Declaration and in Articles 4, 5, and 7 of the
American Convention. The IACHR furthermore concludes that the Chilean
State has violated, with respect to the members of Mr. Catalán
Lincoleo’s family, the rights enshrined in Articles 8 and 25 of the
American Convention, in conjunction with Articles 1(1) and 2 thereof. The
Inter-American Commission also states, once again, that Decree-Law Nº
2191—the amnesty law enacted in 1978 by Chile’s former military
regime—is incompatible with Articles 1, 2, 8, and 25 of the American
Convention. VIII.
RECOMMENDATIONS 96.
Based on the foregoing analysis and conclusions, THE
INTER-AMERICAN COMMISSION REITERATES THE FOLLOWING RECOMMENDATIONS TO THE
CHILEAN STATE: 1.
Establish responsibility for the murder of Samuel Alfonso Catalán
Lincoleo by due process of law, so that the guilty may be duly punished. 2.
Adapt its domestic legislation to the provisions of the American
Convention, in such a way as to leave Decree-Law N°
2191 of 1978 without effect. 3.
To take the steps necessary for the members of the victim’s
family to receive adequate and timely compensation, including full
reparations for the human rights violations described herein as well as
payment of fair compensation for physical and nonphysical damages,
including moral damages. IX.
PUBLICATION 97.
On February 23, 2001 the Commission forwarded Report Nº 12/01--the
text of which is in the preceding paragraphs--to the Chilean State and to
the petitioners, pursuant to Article 51(2) of the American Convention; and
it established a period of thirty days for the State to supply information
on compliance with the above recommendations.
No response was received from the Chilean State by the date this
report was approved. 98.
Accordingly, and pursuant to 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; to publish this report; and to include it in the
Commission’s Annual Report to the General Assembly of the OAS. Pursuant
to the provisions contained in the instruments governing its mandate, the
IACHR will continue to evaluate the measures taken by the Chilean State
with respect to those recommendations, until the State has fully complied
with them.
Done and signed by the Inter-American Commission on Human Rights on April 16, 2001. (Signed): Juan E. Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Hélio Bicudo, Robert Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners. [ Table of Contents | Previous | Next ] [26]
Note N°
666-330
of May 5, 1995, from the President of the Republic of Chile to the
President of that country’s Chamber of Deputies. [27]
Inter-Am.Ct.H.R, Velásquez
Rodríguez Case, paragraph 174. [28]
Inter-Am.Ct.H.R, Velásquez Rodríguez Case, Preliminary Objections,
Judgment of June 26, 1987, paragraph 91. [29]
Chilean Code of Criminal Procedure, Title II, “Of Criminal Action
and of Civil Action in Criminal Proceedings,” Articles 10/41. [30]
See: Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment of July
29, 1988, paragraph 79. [31]
Supreme Court of Chile, Ruling on a claim for nonapplication of
Decree-Law 2191, August 24, 1990, paragraph 15; the same court, Ruling
on a request for clarification of September 28, 1990, paragraph 4. [32]
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Preliminary Objections,
paragraph 91. [33]
Inter-Am.Ct.H.R.,
Velásquez Rodríguez Case, Judgment of July 29, 1988, paragraph 64. [34]
Inter-Am.Ct.H.R., Advisory Opinion OC-9/87, paragraph 24. [35]
The Inter-American Court has said that: 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. Inter-Am.Ct.H.R.,
Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4
(1988), paragraph 166; Godínez Cruz Case,
Judgment of January 20, 1989, Series C No. 5 (1989), paragraph 175. [36]
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, op.
cit., paragraph 174; Godínez Cruz Case, op.
cit., paragraph 184. [37]
IACHR, Annual Report 1992–1993, OEA/Ser.L/V/II.83 Doc.14, Uruguay
29/92, Recommendations, paragraph 3. [38]
IACHR, Annual Report 1996, OEA/Ser.L/V/II.95 Doc. 7 rev., Chile 36/96,
paragraph 77. [39]
IACHR, Annual Report 1996, OEA/Ser.L/V/II.95 Doc. 7 rev., Chile 36/96,
Recommendations, paragraph 111. [40]
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, paragraph 166. [41]
Ibid., paragraph 174. [42]
Ibid.,
paragraph 166. [43]
Ibid.,
paragraph 173. [44]
Ibid.,
paragraph 174. [45]
Ibid.,
paragraph 176. [46]
Ibid.,
paragraph 177. [47]
Pedro Nikken, El manejo del pasado y la cuestión de la impunidad
en la solución de los conflictos armados de El Salvador y Guatemala,
published in “Liber Amicorum
– Héctor Fix-Zamudio,” Volume I, Secretariat of the
Inter-American Court of Human Rights, San José, Costa Rica, 1998, pp.
167 and 168. [48]
Report of the National Truth and Reconciliation Commission, February
1991, Vol. 2, p. 868. [49]
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, paragraph 174. [50]
The Inter-American Convention on Forced Disappearance of Persons came
into force on March 28, 1996. The Chilean State signed it on June 10,
1994, but, as of the date of this report, has not yet ratified it. The
origins of the rules applicable to forced disappearances can be found
in Resolution 33/173 of the United Nations General Assembly, which
refers to the rights to life, liberty, security, and freedom from
torture and from arbitrary arrest and detention (Articles 3, 5, 9, 10,
and 11 of the Universal Declaration of Human Rights and Articles 6, 7,
9, and 10 of the International Covenant on Civil and Political
Rights). In this regard, see: José Antonio Guevara, El crimen de
lesa humanidad de desaparición forzada de personas: elementos para su
prevención, in “Ruptura”, Annual Review of the Law
School Association, Faculty of Jurisprudence of the Catholic
University of Ecuador (PUCE), Vol. I, Year 2000, p. 232. [51]
Inter-Am.Ct.H.R., Blake Case, Judgment of January 24, 1998, paragraph
66. [52]
Inter-Am.Ct.H.R., Bámaca Velásquez Case, Judgment of November 25,
2000, paragraphs 128 and 129.
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