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REPORT
Nº 19/03[1] COMPLIANCE
AGREEMENT CARMELO
SORIA ESPINOZA CHILE March
6, 2003 I.
SUMMARY
1.
On February 15, 1997, the Inter-American Commission on Human
Rights (hereafter the Commission or the IACHR) received a petition
accusing the State of Chile (hereafter the Chilean State or Chile) of
violating the petitioners’ right to justice for its failure to
investigate the death of Carmelo Soria Espinoza. Following proceedings before the IACHR, on November 19, 1999,
the Commission published report 133/99 in which it found that the State
of Chile had violated Articles 1, 2, 8 and 25 of the American Convention
on Human Rights (hereafter the American Convention), and made certain
recommendations. 2.
On January 21, 2003, the Commission received a commitment signed
by the State to comply with the recommendations of the IACHR, as well as
a statement on the part of the petitioners accepting that commitment.
In this report, the Commission reproduces the contents of both
documents, ratifies the terms of the agreement, and urges the State to
comply with the recommendations formulated by the IACHR in its report
133/99. II.
FACTS OF THE CASE
3.
Mr. Carmelo Soria Espinoza, 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 had 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 (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 Nº 2.191, known as the
self-amnesty law, criminal prosecution was dismissed, allowing the crime
committed by these agents to go unpunished.
III.
PROCEEDINGS BEFORE THE COMMISSION
4.
On February 15, 1997, Carmen Soria González Vera, the victim’s
daughter, assisted by the attorney Alfonso Insunza Bascuñán, 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 they request
that the Commission declare the Amnesty Law incompatible with the
obligations of Chile under the American Convention.
On February 24, 1997, the Commission transmitted the petition to
the State, thereby initiating the corresponding proceedings in
accordance with the rules of procedure of the IACHR. 5.
Upon completion of proceedings, on May 5, 1999, the Commission
adopted Report 79/99 on the present case, based on Article 50 of the
American Convention. In that report, the Commission recommended that the State
establish the responsibility of the persons identified as guilty of the
murder of Carmelo Soria Espinoza by due process of law; that it 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 to be appropriately investigated and to
effectively punish those responsible, or that otherwise the Chilean
State must accept the authorization of universal jurisdiction for such
purposes; that it repeal Decree Law Nº 2.191 enacted in 1978 in order
that human rights violations committed by the de
facto military government may be investigated and punished; and that
it make reparations to the victim’s family
for physical and non physical damages, including moral damages. 6.
The report was transmitted to the Chilean State with the
pertinent recommendations, giving the State two months from the date of
transmission to report on its compliance.
The Chilean State submitted its observations on September 29,
1999. On October 18, 1999,
the Commission approved Report 110/99, pursuant to Article 51 of the
Convention, and transmitted it to the State with a period of one month
to present information on its compliance with the recommendations.
On November 19, 1999, the Commission decided to publish the
above-mentioned report. 7.
On January 21, 2003, the Commission received a commitment signed
by the State to comply with the recommendations of the IACHR, as well as
a statement by the petitioners accepting that commitment. IV.
COMMITMENTS SIGNED BY THE PARTIES
8.
The commitment signed by the State reads as follows: In
order
to comply with the recommendations established by the Inter-American
Commission on Human Rights (IACHR) in its report 133/99, in the case of
reference (case 11.725), the Government of Chile is pleased to submit
the following proposal of compliance, prepared in accordance with the
rules accepted before that body. The
proposal incorporates both material and symbolic aspects consistent with
the spirit and the possibilities of the government to provide a
satisfactory solution to the affected party. I. Background: 1. In its report 133/99, the IACHR concluded, after analyzing the
judgment of May 24, 1996, by the Supreme Court of Justice of Chile, that
agents of the State “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 concluded that the
judicial dismissal of criminal proceedings initiated concerning the
detention and disappearance of Carmelo Soria Espinoza affected the
petitioners' right to justice, and that consequently the Chilean State
violated its international commitments enshrined in Articles 8 and 25,
1(1) and 2 of the American Convention. The
Commission added that Decree Law 2.191 is incompatible with the American
Convention, ratified by Chile in 1990, and that consequently the
judgment of the Supreme Court of Chile declaring the Amnesty Law
constitutional and of mandatory application violated Articles 1(1) and 2
of the Convention, The
Commission further declared that the Chilean State has not complied with
Article 2 of the American Convention, in that it has not adapted its
domestic laws to the provisions of the Convention.
The
Commission also considered that the State has failed to comply with the
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons as a result of having adopted the
Amnesty Law and because its competent organs for the administration of
justice failed to punish the crimes committed against Carmelo Soria
Espinoza. 2.
The IACHR recommended that the Chilean State take the following
measures:
• 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 to 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.
3. The family of Mr. Carmelo Soria Espinoza has declared its interest in
concluding judicial proceedings initiated before the Chilean courts to
pursue the extracontractual liability of the State. II. Objectives and scope of the
Chilean government's proposal for compliance with the recommendations: The
proposal that the Government of Chile submits to the Inter-American
Commission on Human Rights is an agreement between the parties
(government and petitioners), that has the following objectives:
• To put an end to international action, in particular the measures
adopted by the Commission pursuant to the recommendations contained in
Report 133/99.
•
To lay the basis for terminating judicial proceedings to pursue
the extracontractual liability of the State for the death of Carmelo
Soria, in the case "Soria con Fisco” (“Soria vs the State Prosecutor”) now before the Fourth
Civil Court of Santiago under case Nº C-2219-2000.
• To obviate further judicial action for State liability, whether
in connection with action of its agents or for physical or non physical
damages, including moral damages. III. Elements of the compliance proposal: a)
The family of Mr. Carmelo Soria
Espinoza (hereafter the petitioner) will terminate action before the
Inter-American Commission on Human Rights and expressly declares that
all the recommendations contained in the Commission's report 133/99 have
been complied with. b)
The petitioner accepts the
symbolic reparation measures offered by the State of Chile, consisting
of:
• A public declaration by the Government of Chile recognizing the
responsibility of the State, through the action of its agents, for the
death of Mr. Carmelo Soria Espinoza.
•
That same declaration offers to erect a monument of remembrance
to Mr. Carmelo Soria Espinoza in a location designated by his family in
Santiago. c)
The petitioner will desist from the suit
for extracontractual liability of the State, in the case "Soria con Fisco” now before the Fourth Civil Court of Santiago
under case d)
The State of Chile undertakes to pay a
single lump sum of one million five hundred thousand United States
dollars as compensation to the family of Mr. Carmelo Soria Espinoza,
which payment will be made ex
gratia through the offices of the Secretary General of the United
Nations, by virtue of an agreement to be signed between the Government
of Chile and the United Nations. e)
The Government of Chile declares that
Mr. Carmelo Soria Espinoza had the status of an international official
of the United Nations, assigned to the Economic Commission for Latin
America, ECLAC, as a senior staff member, and that he therefore had the
status of a senior international staff official. f)
The Government of Chile will present
before the Courts of Justice of Chile an application to reopen criminal
proceedings that were initiated to prosecute those who killed Mr.
Carmelo Soria Espinoza. The
proposals presented by the Government of Chile to comply with the
recommendations of the Inter-American Commission on Human Rights have
the sole objective of putting an end to the dispute that currently
exists between the Chilean State and the family of Mr. Carmelo Soria
Espinoza, expressed in case 11.725. 9. The commitment signed by the petitioner, and addressed to the IACHR, declares: We,
Carmen Soria González Vera, assisted by the attorney Alfonso Insunza
Bascuñan, respectfully declare before you: We
are aware of the proposal for compliance with the recommendations of
Report 133/99 presented by the Government of Chile to the Commission,
and we expressly understand it in all its parts, which read textually as
follows: a)
The family of Mr. Carmelo Soria Espinoza
(hereafter the petitioner) will terminate action before the
Inter-American Commission on Human Rights and expressly declares that
all the recommendations contained in the Commission's report 133/99 have
been complied with. b)
The petitioner accepts the symbolic
reparation measures offered by the State of Chile, consisting of:
• A public declaration by the Government of Chile recognizing the
responsibility of the State, through the action of its agents, for the
death of Mr. Carmelo Soria Espinoza.
•
That same declaration offers to erect a monument of remembrance
to Mr. Carmelo Soria Espinoza in a location designated by his family in
Santiago. c)
The petitioner will desist from the suit
for extracontractual liability of the State, in the case "Soria con Fisco” now before the Fourth Civil Court of Santiago
under case Nº C-2219-2000, declaring that it agrees to terminate
judicial proceedings initiated and that the reparations agreed before
the Inter-American Commission on Human Rights are all that will be
demanded of the State and that, consequently, the family will not pursue
further judicial action for State liability, whether in connection with
action of its agents or for physical or non physical damages, including
moral damages. An
authenticated copy of the judicial decision approving the withdrawal of
action must be presented before the Commission by the petitioner, for
purposes of demonstrating compliance with this agreement. d)
The State of Chile undertakes to pay a
single lump sum of one million five hundred thousand United States
dollars as compensation to the family of Mr. Carmelo Soria Espinoza,
which payment shall be made ex
gratia through the offices of the Secretary General of the United
Nations, by virtue of an agreement to be signed between the Government
of Chile and the United Nations. e)
The Government of Chile declares that
Mr. Carmelo Soria Espinoza had the status of an international official
of the United Nations, assigned to the Economic Commission for Latin
America, ECLAC, as a senior staff member, and that he therefore had the
status of a senior international staff official. f) The Government of Chile will
present before the Courts of Justice of Chile an application to reopen
criminal proceedings that were initiated to prosecute those who killed
Mr. Carmelo Soria Espinoza. With
respect to this proposal, we express our absolute conformity and
acceptance, because it complies with the recommendations of the
Commission's Report 133/99. THEREFORE:
We
request the Executive
Secretary to accept in full the proposal of the Chilean government on
compliance with Report 133/99. VI.
CONCLUSIONS
10.
The Inter-American Commission recognizes the willingness of the
Chilean State to resolve this case by complying with the recommendations
contained in Report 133/99, including payment of compensation for
damages suffered, and prosecution and punishment of those responsible
for the death of Carmelo Soria. 11.
In accordance with its powers under the Convention and its Rules
of Procedure, the Commission will continue to monitor compliance with
the recommendations in that report. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES: 1.
To take note of the terms of the commitment assumed by the State
of Chile and accepted by the petitioners in the present case. 2.
To welcome the willingness shown by the government to comply with
the recommendations of the IACHR. 3.
To urge the State to take the measures necessary to comply with
pending commitments. 4.
To continue monitoring compliance with the agreement reached by
the parties and the recommendations made by the Commission. 5.
To make public this report and to include it in the Annual Report
to the General Assembly of the OAS. Given
and signed at the headquarters of the Inter-American Commission on Human
Rights in the city of Washington D.C., on March 6, 2003.
(Signed): Marta Altolaguirre, President; Clare Kamau Roberts,
Second Vice-President; Robert K. Goldman, Juan Méndez, Julio Prado
Vallejo and Susana Villarán, Commissioners
[1]
In conformity with Article 17(2)(a) of the Rules of Procedure of the
IACHR, Mr. José Zalaquett, the First Vice- Chairman of the
Commission and a national of Chile, did not participate in the
discussion or voting on this case. |