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ANNUAL REPORT 2009
CHAPTER III THE PETITION AND CASE SYSTEM
D. Status of compliance with the recommendations of the IACHR (continuation)
Case
12.051, Report No. 54/01, Maria da
125.
In Report
No. 54/01 of April 16, 2001, the Commission concluded that (a) the
Federative Republic of Brazil was responsible for violating the rights to
126. The IACHR made the following recommendations to the Brazilian State:
1. Complete, rapidly
and effectively, criminal proceedings against the person responsible for
the assault and attempted murder of Mrs. Maria da
2. In addition,
conduct a serious, impartial, and exhaustive investigation to determine
responsibility for the irregularities or unwarranted delays that prevented
rapid and effective prosecution of the perpetrator, and implement the
appropriate administrative, legislative, and
3. Adopt, without
prejudice to possible
4. Continue and
expand the reform process that will put an end to the condoning by the
State of domestic violence against women in Brazil and discrimination in
the handling thereof. In
a. Measures to train and raise the awareness of officials of the judiciary and specialized police so that they may understand the importance of not condoning domestic violence.
b. The
simplification of criminal
c. The
d. An increase
in the number of special police stations to address the rights of women
and to provide them with the special resources needed for the effective
processing and investigation of all complaints related to domestic
violence, as well as resources and assistance from the Office of the
Public Prosecutor in preparing their
e. The inclusion
in teaching curriculums of units aimed at providing an understanding of
the importance of respecting women and their rights recognized in the
Convention of Belém do
f. The
provision of information to the Inter-American Commission on Human Rights
within sixty days of transmission of this report to the State, and of a
report on steps taken to implement these recommendations, for the purposes
127. The State did not submit information on compliance with those recommendations of the IACHR. The petitioners submitted information on compliance with those recommendations of the IACHR on December 14, 2009, and January 7, 2009[13].
128.
Preliminarily, the IACHR notes that, in its 2008 Annual Report, the
Inter-American Commission considered that there was full compliance with
recommendations
129. With respect to recommendation No. 2 supra, the petitioners observed that administrative proceeding No. 200820000002601, initiated before the National Council of Justice (CNJ), was rejected by said Council on February 13, 2009, without it having examined the alleged irregularities, since the convict was already serving the sentence imposed. According to the petitioners, due to the confidential nature of the proceedings before the CNJ, they and the victim only learned of said decision on December 9, 2009. Moreover, on this same date the petitioners became aware that a new proceeding based on the same grounds, administrative proceeding No. 200910000052964, had been initiated on September 25, 2009 before the CNJ, and was pending. The petitioners underscored the importance of implementing this recommendation, which would not only compensate the victim for all the years she spent seeking justice but also constitute a significant step toward eliminating discrimination by the police and the Judiciary against female victims of violence.
130.
In terms of the different points of recommendation No. 4 supra, the
petitioners acknowledged the progress achieved with the adoption of the
“Maria da
131.
In view of all the foregoing, the Commission
reiterates that
the State has significantly carried
out the recommendations outlined, while recommendations
Cases
11.286, 11.406, 11.407, 11.412, 11.413, 11.415,
11.416 and 11.417,
132.
In Report
No. 55/01 of April 16, 2001, the Commission concluded that the Federative
Republic of Brazil was responsible for violating the right to life,
integrity, and personal security (Article I of the American Declaration),
the right to
133. The IACHR made the following recommendations to the Brazilian State:
1. That it carry out
a serious, impartial, and effective investigation into the facts and
circumstances of the deaths of Aluísio Cavalcanti, Clarival Xavier Coutrim,
Delton Gomes da
2. That such
investigation include the possible omissions, negligence, and obstructions
of justice that may have resulted from the failure to convict the persons
responsible in a
3. That the necessary
measures be taken to conclude, as soon as possible and in the most
absolute legality, the
4. That the Brazilian State makes reparation for the consequences of the violations of the rights of the victims and their families or those who hold the right for the harm suffered, described in this report.
5. That the necessary
measures be taken to abolish the jurisdiction of the military justice
system over criminal offenses committed by police against civilians, as
proposed by the
6. That the Brazilian
State take measures to establish a system of external and internal
supervision of the military police of
7. That the Brazilian State present the Commission, within 60 days of transmittal of this report, a report on compliance with the recommendations, for the purpose of applying the provision at Article 51(1) of the American Convention.
134.
The
State did not submit information concerning compliance with the
recommendations issued by the IACHR. On the other hand, the petitioners
provided information regarding the
135.
In this regard, the petitioners noted that the criminal proceedings
regarding victims Aluísio Cavalcanti and
136.
Based on the foregoing, the Commission
reiterates that
the State has partially carried out
the recommendations. Accordingly, the Commission will continue to
Case
11.517, Report No. 23/02, Diniz
137.
In
Report No. 23/02 of February 28, 2002, the Commission concluded that the
Federative State of Brazil was responsible for violating the right to life
(Article 4) of Mr. Diniz
138. The IACHR made the following recommendations to the Brazilian State:
1. Conduct a
serious, effective, and impartial investigation through the ordinary
justice system to determine and punish those responsible for the death of
Diniz
2. Take the necessary steps to ensure that the victim’s family receives adequate compensation for the violations established herein.
3. Take steps
to prevent a repetition of such events and, in
139. The State provided information regarding compliance with the recommendations issued by the IACHR on June 29, 2009. The petitioners submitted information on compliance with said recommendations on September 3, 2009 and December 10, 2009.
140.
With
respect to recommendation No. 1 supra, both parties noted that the
police investigation is still pending before the 15th
141.
With
respect to recommendation No. 2 supra, both parties agree that
142.
With
respect to recommendation No. 3 supra, the State pointed out a
series of programs and measures implemented to prevent violence associated
with agrarian conflict, through the creation of the Ouvidoria
143.
Despite the adoption of the aforementioned measures, the State concedes
and regrets those deaths associated with agrarian conflict that have yet
to be adequately resolved. Moreover, and despite the measures adopted by
the State in this regard, the petitioners pointed out that no significant
reduction has been observed in the number of agrarian conflicts that would
indicate such measures have been effective. In this regard, the
petitioners noted that, according to the
144.
In view of the above-mentioned considerations, the Commission concludes
that the recommendations noted
have been partially
carried out. Accordingly, the Commission will continue to
Case
10.301, Report No. 40/03,
145.
In
Report No. 40/03 of October 8, 2003, the IACHR concluded that the
Brazilian State violated the human rights of Arnaldo Alves de Souza,
Antonio Permoniam
146. The IACHR made the following recommendations to the State:
1. That it adopt the
legislative measures needed to transfer to the
2. That use of the
cells designed for solitary confinement (celdas
3. That it punish, in
keeping with the gravity of the
4. In those cases in which it has not done so, that it pay fair and adequate compensation to the victims’ next-of-kin for the harm caused as a result of the breaches of the above-mentioned provisions.
147.
In the
same Report, the Commission stated the extent of compliance with those
recommendations at that
[T]he Commission considers that the recommendation that Brazil “adopt the legislative measures needed to transfer to the regular criminal courts the trial of common crimes committed by military police in the performance of their public order functions” has met with partial compliance. In effect, the IACHR reiterates that although Law No. 9,299/96 represents major progress in this respect, it is insufficient, as it merely transfers to the regular courts crimes against life committed by military police in the performance of their functions, and keeps jurisdiction over all other crimes committed by members of the Military Police under the Military Police.
148. Neither the State nor the petitioners furnished information regarding compliance with the above-mentioned recommendations of the IACHR for inclusion in this Annual Report. However, the IACHR notes that the petitioners furnished information on compliance with IACHR recommendations on January 7, 2009, in response to the Commission’s request in 2008[15].
149. With respect to recommendation No. 1 supra, the petitioners emphasized that compliance with this recommendation was still pending, along the same lines considered by the IACHR in Report No. 40/03 (see supra).
150.
With respect to recommendation No. 2 supra, the petitioners
reiterated the points raised by the IACHR in its 2008 Annual Report, in
the sense that solitary confinement cells continue to be used in the state
of Roraima, and that no information is available on said recommendation
regarding the states of Amapá, Ceará, Goiás,
151. As regards recommendation No. 3 supra, the petitioners indicated that no significant progress has been made in the last year with respect to the criminal proceedings. The petitioners also pointed out that they have no information on compliance with this recommendation as regards the military police involved in the events.
152. With respect to recommendation No. 4 supra, the petitioners noted that according to the recent report of the Working Group formed to identify the beneficiaries and the amount of compensation, it has not been possible to indentify and/or locate the next-of-kin of some of the victims. In this regard, the IACHR urges the parties to overcome the remaining obstacles so as to comply with this recommendation and locate the family members of all the victims.
153.
In view of the foregoing, the IACHR concludes that the State has partially
carried out the recommendations indicated.
Accordingly, the Commission will continue to
Case
11.289, Report No. 95/03, José
154.
On
October 24, 2003, by Report No. 95/03, the Commission approved a friendly
settlement agreement in the case of José
155. Pursuant to that agreement, the State undertook to:
1. Publicly recognize
its responsibility by the solemn act of creating the National Commission
for the Eradication of Slave
2. Keep under reserve the identity of the victim at the moment of the solemn act recognizing State responsibility and in public declarations about the case.
3. Continue with the
efforts to carry out the
4. Compensate José
5. Implement the
actions and proposals for legislative changes contained in the National
Plan for the Eradication of Slave
6. Make every effort
to secure the legislative approval (i) of Proposed Law No. 2130-A, of
1996, which includes among the violations of the economic order the use of
“unlawful means of reducing production costs such as the non-payment of
7. Defend the
8. Strengthen the
Public Ministry of
9. Revoke, by the end
of the year, by means of the appropriate administrative acts, the
Cooperation Agreement signed between the owners of estates and authorities
of the Ministry of
10. Strengthen
gradually the Division of Repression of Slave
11. Take initiatives
vis-a-vis the
12. Undertake in
October 2003 a national campaign to raise awareness of and oppose slave
13. Evaluate the
possibility of
156.
With
respect to
157. The State submitted information on the implementation of the friendly settlement agreement on December 14, 2009. The petitioners submitted information on the implementation of the friendly settlement agreement on December 11, 2009.
158.
With
respect to compliance with the
159.
With
respect to the legislative changes proposed in the National Plan for the
Eradication of Slave
160.
As
regards PL No. 207/2006, which would compile a “dirty list” of landowners
with recurring violations of the
161.
With
respect to legislative approval of Proposed Law No. 2130-A of 1996, which
includes among the violations of the economic order the use of “unlawful
means of reducing production costs such as the non-payment of
162.
With
respect to the
163.
With
respect to the adoption of immediate measures related to the strengthening
of the Public Ministry of
164.
Furthermore, the petitioners emphasized the lack of transparency
associated with the dissemination of
165.
On
revocation by the applicable administrative acts of the Cooperation
Agreement signed between estate owners and authorities of the Ministry of
166.
With
respect to
167.
With
respect to raising awareness of and opposition to the practice of slave
168.
Finally, with regard to
169.
In
view of the foregoing, the IACHR concludes that the State has carried out
the friendly settlement agreement in part. Accordingly, the Commission
will continue to
Case 11.556, Report No. 32/04, Corumbiara (Brazil)
170.
In
Report No. 32/04, of March 11, 2004, the Commission concluded that the
Brazilian State was responsible for: (a) violation of the rights to life,
humane treatment,
171. The Commission made the following recommendations to the State:
1. Conduct a complete,
impartial, and effective investigation into the events, by nonmilitary
organs, to determine responsibility for the deaths, personal injuries, and
other acts that occurred at
2. Make adequate reparations to the victims specified in this report or to their next-of-kin, as appropriate, for the human rights violations determined in this report.
3. Adopt the
necessary measures to prevent
4. Amend Article 9 of
the Military Criminal Code, Article 82 of the Code of Military Criminal
Procedure, and any other domestic
172. The State did not submit information on compliance with those recommendations of the IACHR. The petitioners submitted information on compliance with those recommendations of the IACHR on December 25, 2009.
173. With respect to recommendation No. 1 supra, the petitioners indicated that no complete, impartial or effective investigation of the facts in dispute was ever carried out beyond the one described by the IACHR in Report No. 32/04, and, consequently, compliance with this recommendation is still pending.
174.
As
regards recommendation No. 2 supra, the petitioners indicated that
no consensus has been reached with the State regarding the number of
victims in the conflict, and that the family members of the deceased
victims have yet to be compensated. The petitioners allege there were
more than 50 injured victims. In this respect, the Commission reiterates
that Report on the Merits No. 32/04 mentions 28 victims; 11 killed and 17
injured (Report on the Merits No. 32/04,
175. On recommendation No. 3 supra, the petitioners noted that the State has yet to comply, inasmuch as the situation of violence associated with agrarian conflict continues to be serious in Brazil.
176. On recommendation No. 4 supra, the petitioners indicated that no progress has materialized since approval of Law No. 9,299, of 1996, which partially reformed the scope of jurisdiction of military justice.
177.
In
view of the foregoing, the IACHR concludes that the State has partially
implemented the recommendations noted. Accordingly, the Commission will
continue to
Case 11.634, Report No. 33/04, Jailton Neri da Fonseca (Brazil)
178.
In
Report No. 33/04 of March 11, 2004, the Commission concluded that: (a) the
Brazilian State was responsible for the violation of the rights to
personal liberty, humane treatment, life, special measures of protection
for children,
179. The Commission made the following recommendations to the State:
1. That it make full
reparations, in consideration of both
2. Ensure a full,
impartial, and effective investigation into the
3. Pay the next-of-kin
of Jailton Neri da Fonseca compensation computed in accordance with
international
4. Amend Article 9 of
the Military Criminal Code and Article 82 of the Code of Military Criminal
Procedure, in addition to any other domestic
5. Adopt and
implement measures to educate officers of the justice system and members
of the police to prevent acts involving
6. Adopt and implement immediate measures to ensure
observance of the rights established in the American Convention, the
Convention on the Rights of the Child, and the other national and
international
180. The State submitted information on the implementation of the IACHR’s recommendations on September 24, 2009. The petitioners submitted information on the implementation of the IACHR’s recommendations on January 7, 2009[17] December 10, 2009.
181.
With
respect to recommendations
182. None of the parties made specific reference to the other recommendations.
183.
Consequently, the IACHR concludes that
the recommendations have been partially carried out. Accordingly,
the Commission will continue to
Case 12.001, Report No. 66/06, Simone André Diniz (Brazil)
184.
In
Report No. 66/06 of October 21, 2006, the IACHR concluded that the
Brazilian State was responsible for violating the human rights to equality
before the law,
185. The Commission made the following recommendations to the Brazilian State:
1. Fully compensate
the victim, Simone André Diniz, in both
2. Publicly acknowledge international responsibility for violating the human rights of Simone André Diniz;
3. Grant financial assistance to the victim so that she can begin or complete higher education;
4. Establish a
monetary value to be paid to the victim as compensation for
5. Make the legislative and administrative changes needed so that the anti-racism law is effective, in order to remedy the limitations indicated in paragraphs 78 and 94 of this report;
6. Conduct a
complete, impartial and effective investigation of the facts, in order to
establish and sanction responsibility with respect to the events
associated with the
7. Adopt and
implement measures to educate court and police officials to avoid actions
that involve discrimination in investigations, proceedings or in
8. Support a
9. Organize
government seminars with representatives of the
10. Ask state
governments to create offices specializing in the investigation of
11. Ask Public
Ministries at the state level to create Public Prosecutor’s Offices at the
state level specializing in combating racism and
12. Promote awareness
campaigns against
186. The State presented information on compliance with the aforementioned recommendations on February 17, 2009 and September 4, 2009. The petitioners submitted information regarding implementation of those recommendations by the IACHR on June 9, 2009, and December 10, 2009.
187.
With
respect to recommendations
188. With respect to recommendation No. 3 supra, both parties acknowledged that compliance is still pending, inasmuch as the victim was taking the university entrance examination for the University of Guarulhos on December 10, 12, and 13.
189.
With
respect to recommendation No. 5 supra, both parties acknowledged
that Proposed Law (PL) No. 309 of 2004 and No. 6,624 of 2005 (statute on
190. With respect to recommendation No. 6 supra, both parties acknowledged that compliance is still pending.
191.
With
respect to recommendations
192.
With
respect to recommendation No. 8 supra, the State indicated that
since 2006 such a document already exists regarding discrimination in
advertising, which was prepared during the seminar “Reflections on the
Role of Advertising in the Dissemination and Fight against
Discrimination,” organized by the Secretariat of Justice and Citizenship
of
193.
With
regard to recommendation No. 10 supra, the State indicated that, in
194.
With
regard to recommendation No. 11 supra, the State pointed out that,
in
195.
With
regard to recommendation No.12 supra, the State indicated that
compliance had been fully carried out though the launching of the “Racism:
If You Don’t Report it Who Will?” campaign by the Government of
196. In view of the foregoing, the Commission concludes that the recommendations outlined have been partially carried out.
Case
12.019, Report No. 35/08 Antonio
197.
In
Report No. 35/08 of July 18, 2008, the IACHR concluded that, with respect
to Mr. Antonio
198. The Commission made the following recommendations to the Brazilian State:
1. That it
adopt the necessary measures to give
2. That it
open an investigation to determine the
3. That it
make appropriate reparations to Antonio
4. That it
provide
199. To date, neither the State nor the petitioners have furnished information on compliance with the foregoing recommendations of the IACHR. Consequently, the Commission concluded that the compliance with the indicated recommendations is still pending.
Case 11.771, Report No. 61/01, Samuel Alfonso Catalán Lincoleo (Chile)
200. In Report No. 61/01 of April 16, 2001, the Commission concluded that the Chilean State had violated, with respect to Samuel Alfonso Catalán Lincoleo, the rights to personal liberty, life, and personal security, enshrined at Article I of the American Declaration and Articles 4, 5, and 7 of the American Convention. In addition, the IACHR concluded that the Chilean State violated, to the detriment of Mr. Catalán Lincoleo’s next-of-kin, the rights enshrined in Articles 8 and 25 of the American Convention, in keeping with Articles 1(1) and 2 of that instrument. In addition, the IACHR reiterated that Decree-Law No. 2,191, on 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. All the foregoing was in connection with the forced disappearance of Samuel Alfonso Catalán Lincoleo, 29 years of age, who was an agricultural technical expert with ties to the Communist Party when he was detained on August 27, 1974, in his domicile in the city of Lautaro, Chile, by members of the Carabineros, soldiers, and civilians. The family members turned to the Chilean courts in 1979 with a complaint stating the facts, but the matter was archived in October 1981 by application of Decree-Law 2,191 of 1978, which ordered amnesty for the violations committed since the September 1973 coup in Chile. In 1992 an effort was made to bring a new judicial action, which culminated in November 1995 with the dismissal with prejudice by application of the self-amnesty decree-law cited above. Finally, the Supreme Court of Justice of Chile decided on a motion for cassation on the merits of the case with its ruling of January 16, 1997, which found that the legal action had prescribed.
201. The IACHR made the following recommendations to the Chilean State:
1. Establish the parties responsible for the murder of Samuel Alfonso Catalán Lincoleo through due judicial process, so that the guilty parties may be effectively punished.
2. Adapt its domestic legislation to the American Convention, for which purpose it must declare Decree-Law No. 2191 of 1978 null and void.
3. Adopt the necessary measures to ensure that the victim’s next-of-kin receive adequate, timely reparations, including full satisfaction for the violations of the human rights established herein, as well as payment of fair compensation for material and nonmaterial damages caused, including pain and suffering.
202. In 2009, the IACHR asked the parties to submit up-to-date information on the implementation of those recommendations.
203. By means of a note dated March 13, 2009, the Chilean State presented the following information: Regarding the first recommendation, it reported that on January 29, 2001, a complaint was filed with the Santiago Court of Appeal against Mr. Augusto Pinochet Ugarte and others for the crimes of qualified abduction, illicit association, and illegal burials of persons, including that of Samuel Catalán Lincoleo, whose proceedings were registered as No. 2182-98. On August 25, 2003, the proceedings were totally and definitively dismissed, on the grounds that the 4th Military Court of Valdivia had already established res judicata in connection with those same incidents. On August 31, 2005, the Ninth Chamber of the Santiago Court of Appeal, in resolving the jurisdictional consultation placed before it, upheld the definitive dismissal of the proceedings.
204. Regarding the second recommendation, related to amending its domestic law, the State reported that since 1990, Chile’s democratic governments have made great efforts to leave Decree Law No. 2.191 – known as the amnesty decree and enacted by the military regime – void of all effect. However, the State indicated that, regrettably, the congressional majorities necessary for such a change had not been attained. It also reported that a congressional motion for the interpretation of Article 93 of the Criminal Code had been presented, in order to ensure compliance with the judgment of the Inter-American Court of Human Rights in the case of Almonacid Arellano v. Chile. That judgment by the Inter-American Court ordered the Chilean State to amend its laws so that the decree in question would not pose an obstacle for investigating and punishing those responsible for the human rights violations committed during the 1973 to 1978 period. As of the date of its communication, the State reported, the legislative bill seeking to exclude crimes against humanity and war crimes covered by international instruments ratified by Chile from statutory limitations was at its first reading in the Senate and was on the docket for examination by the Constitution, Legislation, and Justice Committee.
205. As regards the third recommendation appearing above, the State identified each of the reparation measures specifically adopted on behalf of the next-of-kin of Mr. Samuel Alfonso Catalán Lincoleo: Sofía Lincoleo Montero, the victim’s mother; Gabriela Isidoro Bucarey Molinet, mother of the victim’s daughter; Elena del Carmen Catalán Bucarey, the victim’s daughter; Adriana del Carmen Albarrán Contres, mother of Samuel Miguel Catalán Albarrán, the victim’s son; and Mr. Catalán Lincoleo’s eight siblings. In particular it stressed the amounts given to each of the reparations beneficiaries through both the lifetime compensation pension provided for in Law 19.123 and the redress bonus of Law 19.980. it also referred to physical and mental health care benefits they received, and the educational benefits extended to the victim’s children.
206. From the available information, the Commission believes that the Chilean State has implemented the recommendation requiring redress to be given to the victim’s next-of-kin, who have benefited from economic compensation, health care, and access to education. At the same time, the IACHR notes with concern that its recommendation requiring the determination of responsibility for Samuel Alfonso Catalán Lincoleo’s murder has not been addressed, since the Chilean judicial authorities ordered the definitive dismissal of the proceedings and, consequently, the incident remains unpunished. Finally, the Commission notes the efforts made to bring domestic law into line with the American Convention, which is an international obligation of the State still pending compliance that requires the participation of all branches of government, particularly the legislature.
207.
In
light of the above, the Commission concludes that the Chilean State has
partially implemented the above recommendations. Accordingly, the
Commission will continue to
Case 11.715, Report No. 32/02, Juan Manuel Contreras San Martín et al. (Chile)
208. On March 12, 2002, by Report No. 32/02, the Commission approved a friendly settlement agreement in the case of Juan Manuel Contreras San Martín, Víctor Eduardo Osses Conejeros, and José Alfredo Soto Ruz. In summary, the petitioners had made arguments alleging the responsibility of the State for having been deprived of liberty for more than five years due to a judicial error, and for then having denied the compensation they claimed. The three persons were detained for the homicide of a woman and alleged that the police subjected them to physical abuse and psychological pressures until obtaining their confession.
209. According to the friendly settlement agreement, the State undertook to:
1. Award to Messrs. Juan Manuel Contreras San Martín, José Alfredo Soto Ruz and Víctor Eduardo Osses Conejeros, a discretional annuity of three minimum wages each;
2. Provide to them free of charge adequate training in skills and trades in accordance with their expectations, aptitudes and possibilities, through the office of the National Training and Employment Service (SENCE) in the region where they live, in order to enable them to increase their financial incomes and enhance their quality of life;
3. Publicly provide reparation to the victims before their community by means of an act of the Regional Government duly disseminated by the mass media, designed to restore their reputation and honor that had been certainly damaged by the judicial decisions that once harmed them.
210. In the same report, the Commission took note of the implementation of these commitments, and urged the State to promote relevant studies and legislative initiatives in relation to the rules governing compensation in the case of judicial error.
211. The Commission asked the parties to provide information on the status of implementation of the recommendations. The Commission received information from the petitioners on January 20, 2005. The petitioners informed that Commission “that with respect to carrying out the conditions adopted in the context of those friendly settlement agreements, the Chilean State has faithfully executed them.” The State reported that it has fully carried out the commitments it assumed in the respective agreement.
212. Accordingly, the IACHR concluded that the friendly settlement agreement was fully implemented.
Case 11.725, Report No. 139/99, Carmelo Soria Espinoza (Chile)
213. In Report No. 139/99 of November 19, 1999, the IAHCR concluded that the State violated the rights to personal liberty and humane treatment, and the right to life, of Carmelo Soria, enshrined in Article I of the American Declaration of the Rights and Duties of Man. The Commission also found that the dismissal with prejudice of the criminal charges that had been brought for the detention and disappearance of Carmelo Soria Espinoza negatively affects the right to justice of the petitioners, and as a result, the Chilean State has violated its international obligations enshrined at Articles 8 and 25, 1(1) and 2 of the American Convention; that Decree-Law 2,191 of 1978, 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 that finds said Decree-Law 2,191 constitutional of binding application, when the American Convention had already come into force for Chile, violates Articles 1(1) and 2 of said Convention; that the Chilean State has not carried out Article 2 of the American Convention, for it has not brought its legislation into line with the provisions of the Convention; that it has ceased to be in compliance with the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons for having adopted Decree-Law 2,191 and because its administration of justice organs have not punished the perpetrators of the crimes committed against Carmelo Soria. Mr. Carmelo Soria Espinoza, 54 years of age, and a dual Spanish and Chilean national, worked as the chief of the editorial and publications section at the Latin American Demography Center (CELADE) in Chile, an entity of the Economic Commission for Latin America and the Caribbean (ECLAC), which is part of the United Nations, accordingly Mr. Soria was an international civil servant.
214. On November 19, 1999, the Inter-American Commission made the following recommendations to the Chilean State:
1. 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.
2. 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.
3. 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.
4. 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.
215. On March 6, 2003, the IACHR published Report No. 19/03, which contains the agreement on implementation the parties reached with respect to Case 11,725.
216. In the terms of the agreement on implementation, the State committed to:
a) Issue a public declaration recognizing the responsibility of the State, through the action of its agents, for the death of Mr. Carmelo Soria Espinoza. b) Erect a monument of remembrance to Mr. Carmelo Soria Espinoza in a location designated by his family in Santiago.
c) Pay a single lump sum of one million five hundred thousand United States dollars as compensation to the family of Mr. Carmelo Soria Espinoza.
d) Declare 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.
e) 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.
217. For their part, the petitioners agreed to:
a) Terminate the 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) 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.
218. On July 31, 2007, the Chilean State sent a communication to the IACHR in which it reported that on July 18, 2007, the legislative processing of the bill aimed at approving the agreement on implementation of the recommendations mentioned, and that it was referred, for its promulgation, to the Presidency of the Republic of Chile. On August 30, 2007, the State sent the IACHR a joint statement signed by the Director for Human Rights of the Ministry of Foreign Relations of Chile, and by attorney Alfonso Insunza Bascuñan, the petitioners’ representative, in which the petitioners indicate that they “consider concluded, definitively, the international complaint or claim filed against the Chilean State before the Inter-American Commission on Human Rights” and that “they consider that all of the recommendations contained in Report 139/99 have been carried out,” requesting they be “archived accordingly.” On September 4, 2007, the Chilean State reported that item 3.III.c of the Report of the Agreement on Implementation No. 19/03 had been complied with by virtue of the petitioner abandoning her complaint for extra-contractual liability of the State as a result of the facts of the instant case, and her agreement to accept the reparations agreed upon before the IACHR as the only ones that may be enforced as against the State.
219. On January 16, 2008, the State informed the IACHR that it had carried out the commitments to pay monetary compensation, by making payment for an ex gratia pension as compensation to the family of Mr. Carmelo Soria and, with the acts of symbolic reparation established in Agreement on Implementation No. 19/03, by recognition of the responsibility of the Chilean State in the death of Mr. Carmelo Soria and building a memorial in tribute to his life and work. Specifically, the State indicated that on November 8, 2007, the ceremony was held “Unveiling the Plaque in Tribute to Carmelo Soria” at the headquarters of the Economic Commission for Latin America and the Caribbean (ECLAC) in Santiago, at which Carmelo Soria’s widow and children were present, along with the President of the Republic of Chile, the President of the Government of Spain, and the UN Secretary General. The Ministry of Foreign Relations gave the Secretary General of ECLAC four checks for US$ 375,000 issued by the General Treasury of the Republic of Chile, to Carmelo Soria’s widow and three children.
220. Subsequently, on October 21, 2008, the State reported that the Human Rights Program of the Ministry of Interior, created by Law 19,123, became a party to case No. 7.891-OP “C”, which is investigating the crimes of illicit association and obstruction of justice, under the responsibility of the Judge Alejandro Madrid, of the Court of Appeals of Santiago, carrying out what was indicated by the IACHR in its Report No. 133/99. The State indicates that the previous case was begun on October 25, 2002, upon complaint submitted by Ms. Carmen Soria González-Vera against four members of the Dirección de Inteligencia Nacional (DINA) and any others who turn out to be responsible, as perpetrators, accomplices, or aiders and abettors in the crimes of obstruction of justice and illicit association to the detriment of Carmelo Soria, for the homicide of DINA chemist Eugenio Berríos Sagredo, who was taken out of the country to Uruguay to keep him from testifying in some judicial proceedings, including in the case of Mr. Carmelo Soria.
221. At the Commission’s request, the petitioners sent a communication on November 13, 2008, in which they reported that, as expressed by the State, in Case No. 7.981-C there is a petition pending to issue an indictment for the crime of illicit association and others. In addition, the petitioners indicated that based on the new information in that case, they will ask that Case No. 1-93, in the homicide of Carmelo Soria Espinoza before the Supreme Court, be reopened so that the persons responsible may be punished and to set aside the dismissal with prejudice due to application of Decree-Law 2,191 of 1978 on Amnesty.
222. The Commission, based on the information it has in this case, observes that all the commitments assumed by the parties in Report No. 19/03 have been carried out. As regards compliance with the recommendations made by the Commission in Report No. 139/99, the Commission considers that the State has carried these out in part.
223. On November 13, 2009, the IACHR requested the parties to provide updated information; however, at the time of completing the present Annual Report, additional information on compliance with the recommendations made in Report No. 139/99 had not been received. As a result, the Commission concludes that compliance with these recommendations is still pending.
224. Therefore, the Commission concludes that the Chilean State has partially complied with the recommendations indicated. As a result, the Commission shall continue to monitor the items that are pending.
Petition 4617/02, Report No. 30/04, Mercedes Julia
Huenteao Beroiza et al.
225. On March 11, 2004, by Report No. 30/04, the Commission approved a friendly settlement agreement in the petition of Mercedes Julia Huenteao Beroiza et al. In summary, the petitioners, who are members of the Mapuche Pehuenche people, from the sector known as Alto del Bío Bío, Region VIII in Chile, had made arguments regarding the State’s responsibility for the development of the Ralco Hydroelectric Project, carried out by the Empresa Nacional de Electricidad S.A. (ENDESA), in the areas in which they lived.
226. According to that agreement, the State committed to the following:
1. Measures to improve the legal institutions protecting the rights of indigenous peoples and their communities, including: a) constitutional recognition for the indigenous peoples in Chile; b) ratification of ILO Convention No. 169 by Chile; c) strengthening of indigenous participation in the Indigenous Development Area of the Alto Bío Bío; and d) Establishment of mechanisms that ensure the participation of indigenous communities in management of the Ralco Forest Reserve.
2. Measures designed to strengthen the territorial and cultural identity of the Mapuche Pehuenche people, as well as mechanisms for participation in their own development, including: a) creation of a municipality in the Upper Bío Bío sector; b) agreement on mechanisms to solve the land problems that affect the indigenous communities in the Upper Bío Bío sector; c) strengthen indigenous participation in the Upper Bío Bío Indigenous Development Area (ADI); and d) agreement on mechanisms designed to ensure the participation of indigenous communities in the management of the Ralco Forest Reserve.
3. Measures to foster development and environmental conservation in the Upper Bío Bío sector, including: a) agreement on mechanisms to ensure that indigenous communities are informed, heard, and taken into consideration in follow-up and monitoring of the environmental obligations of the Ralco Hydroelectric Project; b) strengthen economic development in the Upper Bío Bío sector, in particular in its indigenous communities, through mechanisms that are acceptable to the petitioners; c) agree on mechanisms to facilitate and improve tourism development of the reservoirs in the Upper Bío Bío for the benefit of the indigenous communities; and d) agree on binding mechanisms for all state organs to prevent the construction of future megaprojects, in particular hydroelectric projects, on indigenous lands in the Upper Bío Bío.
4. Agree, as soon as possible, on urgent measures with respect to the lawsuits against indigenous leaders who have been prosecuted for acts connected with the construction of the Ralco Plant.
5. Measures to satisfy the private demands of the Mapuche Pehuenche families concerned.
227. The State reported that on September 15, 2008, it ratified ILO Convention 169 and that it was promulgated on October 2, 2008, and was published in the Diario Oficial on October 14, 2008. The State indicated that Convention 169 will come into force in Chile on September 15, 2009, as established by Article 38(3) of said Convention, which would mean that commitment 2(a) of the previous agreement would be met.
228. By communication of December 18, 2008, the State reported that commitment 3(a) had been carried out. As regards commitment 3(b), the State reported that lands had been bought for almost all the Pewenche communities that belonged to the Comuna del Alto Bío Bío, and that at that time work was under way to follow through on the purchases for the communities of Butalelbun, Malla Malla, and Trapa Trapa, all of them belonging to the Cajón del Queuco. With respect to commitment 3(c), the State indicated that the Office of the Provincial Governor and the Corporación Nacional de Desarrollo Indígena, CONADI, have continued making efforts to be able to constitute the Board of the Indigenous Development Area, pursuing all alternatives that may lead to that. As regards commitment 3(d), the State indicated that to date CONADI and the Corporación Nacional Forestal, CONAF, are studying, along with the indigenous communities, how to administer the Ralco reserve.
229. As regards commitment 4(a) of the friendly settlement agreement, the State indicated that the measures necessary for the audit results to be sent, among others, to the municipality of Santa Bárbara and Alto Bío Bío had been taken for public consultation, and published at the CONAMA website. In addition, it notes that the office of Executive Director of CONAMA and the public services have monitored and overseen the project, as established in the resolution with the environmental assessment. As regards the impacts of the Ralco reservoir on the sector of the Alto Bío Bío, the State reports that it will perform an independent audit once three years have elapsed since the start-up of the hydroelectric plant; the objective will be to propose the measures necessary for correcting possible unforeseen effects, especially in tourism development along the banks of the reservoir.
230. With respect to commitment 4(b), the State reported that a meeting had been held between CONADI and the Municipality of Alto Bío Bío in which it was agreed to initiate a process of coordination during January 2009. As regards commitment 4(c) the State reported that tourism projects have been financed on the banks of Lake Ralco, that works have been promoted and financed to strengthen tourism with special purposes in the high cordillera, and that as a result of the commitment made by ENDESA regarding the return of the remnant lands not flooded by the Ralco reservoir, CONADI is processing the restitution of the remnants to their original owners, which presents the opportunity to develop tourism projects associated with the reservoir. With respect to commitment 4(d) the State indicated that it is studying the existence of culturally significant sites in the lands that the project will affect, though to date the existence of indigenous lands in the areas to be affected has not been shown.
231. The petitioners submitted a communication dated April 10, 2007, that was received at the IACHR on May 8, 2007, in which detailed reference is made to each point of the agreement. They note compliance with the point regarding the creation of a comuna in the sector of the Alto Bío Bío, whose elected mayor is Mapuche Pehuenche. They also consider that there has been compliance with the point of agreeing upon a mechanism to ensure the participation of the indigenous communities in administering the Ralco Forestry Reserve. In terms of the point referring to the measures to satisfy the particular demands of the Mapuche Pehuenche families affected, they indicate that a memorandum of understanding has been signed with the Government and the Pehuenche families, which has been partially implemented.
232. At the request of the IACHR, the petitioners sent a communication on December 15, 2008, in which they indicated that the State has failed to carry out commitment 4(d) of the friendly settlement agreement, on having accepted to undertake an environmental impact study of a hydroelectric megaproject in Mapuche Pehuenche territory known as the Angostura Project. According to the petitioners, this project would affect indigenous lands of the Alto Bío Bío in which there are at least four sacred sites for the Mapuche Pehuenche and on which some Mapuche Pehuenche families currently live. The petitioners indicated that the National Corporation of Indigenous Development (CONADI: Corporación Nacional de Desarrollo Indígena), an agency of the State entrusted with ensuring the protection of indigenous lands, issued a report on July 31, 2008 (Official Note 578) in which it confirms the importance of the sector for the heritage of the Mapuche Pehuenche communities. The petitioners indicated, based on what was stated above, that the State breached its commitment to adopt land-use management measures so that the indigenous lands in the Alto Bío Bío may be “characterized as an area for protection of resources of natural or cultural heritage value, and, accordingly, that they be declared as zones not fit for building or with building restrictions.” They also indicated that pursuant to Indigenous Law 19,300 and Convention 169, the Chilean State has a special obligation to protect indigenous persons and their lands and territories. The petitioners reported that the Angostura Hydroelectric Project has plans to begin construction in the first half of 2009 and is to come on line in the second half of 2012. This project includes the construction and operation of a hydroelectric plant, and will have a total volume of water in the reservoir of approximately 100 million cubic meters.
233. On November 13, 2009, the Commission requested the parties to provide information; however, at the time the present Annual Report was completed, the parties had not submitted updated information regarding compliance with the friendly settlement agreement. As a result, the Commission confirms what was indicated in the Annual Report of 2008, which on the basis of the information provided by the parties concluded that the friendly settlement agreement had been partially complied with.
234. Because of the above, the Commission concludes that the friendly agreement has been partially complied with. As a result, the Commission shall continue to monitor the items that are pending.
Case 12.142, Report No. 90/05, Alejandra Marcela Matus Acuña et al. (Chile)
235. In Report No. 90/05 of October 24, 2005, the Commission concluded that: (a) Marcela Alejandra Matus Acuña was a victim of censorship of the book “Libro Negro de la Justicia Chilena,” and that her books were confiscated by judicial order and out of circulation for more than two years; (b) Ms. Matus Acuña was subjected to a judicial proceeding that forced her to leave her country to protect against being deprived of liberty; and (c) Chilean society was deprived of the right of access to information. Accordingly, the Commission determined that the State had violated Articles 13 and 21 of the American Convention, all in violation of the obligation to respect and ensure the rights, enshrined in Article 1(1) of the American Convention and the obligation to bring domestic provisions of law into line with the commitments assumed by the State, in keeping with Article 2 of the same Convention.
236. The Commission made the following recommendation to the State:
Provide for adequate reparations to Alejandra Marcela Matus Acuña for the consequences of the violations of the right to freedom of expression and the right to property, to the detriment of the journalist Alejandra Matus Acuña.
237. At the Commission’s request, the State reported on December 19, 2007, that “in July 2007, the State Defense Council issued its favorable opinion regarding the possibility of settlement in case No. 9,822-06, before the Fifteenth Civil Court of Santiago” for the damages suffered by journalist Alejandra Matus on occasion of the seizure of the publication by her called “El Libro Negro de la Justicia Chilena.” The State indicated that to go forward in the dialogue with the complainant and her legal representative, it was necessary “to have a specific proposal, on both the economic aspects and the symbolic or moral reparation, that satisfied both parties and that would make it possible to consider the recommendation fulfilled.” Finally, it indicated that “to facilitate such conversations the State Defense Council specially designated three of its members to coordinate the respective proposals, and to promote and facilitate conversations until the matter is resolved.”
238. Subsequently, on October 8, 2008, the State reported to the Commission by sending a communication signed by the legal representative of Ms. Alejandra Matus and the Director of Human Rights at the Ministry of Foreign Relations of Chile dated September 30, 2008, that a settlement had been reached in domestic court between Ms. Matus’s representative and the State Defense Council. According to that settlement, the petitioner considered definitively terminated the international complaint presented in case 12,142 and considered the recommendations contained in Report 90/05 of the Inter-American Commission on Human Rights to have been carried out. According to press information attached by the State, the petitioner had received compensation of 30 million Chilean pesos. In addition, in this same communication it was indicated that the petitioner also recognized that the Chilean State has brought its domestic legislation into line with the American Convention on Human Rights in respect of freedom of expression, on having issued and promulgated Law No. 19,733, repealing the crime at Article 6(b) and the measures at Article 16 of Law on Internal State Security, No. 12,927, and Article 41 of Law No. 16,643 on Abusive Advertising, making it possible to dismiss with prejudice the criminal case against her, and to lift the confiscatory measures and prohibition that affected her book.
239. In a communication of November 10, 2008, the Commission requested up-to-date information from both parties. The State reported, in a communication of November 21, 2008, that it referred to what was indicated in the communication received by the Commission on October 8, 2008, and indicated that the forwarding of joint “State and petitioner” communications was, in its view, the appropriate means for considering a friendly settlement finalized, accordingly that procedure would be adopted as a regular practice by the Chilean State.
240. The petitioners informed the Commission in a communiqué of May 5, 2008, that in January 2008 the State Defense Council, the organ that represented the government’s interests in the previous trial, resolved to reject the proposed settlement formulated by petitioner Alejandra Matus, thereby possibly cancelling the friendly settlement reached with the Human Rights Office of the Chilean Foreign Ministry.
241. On January 7, 2009, at the request of the IACHR, the petitioners reported that the process of carrying out the recommendations issued by the Commission was in its final stage, since the Ministry of Justice had sent the respective payment decree, through Resolution 3849 of December 31, 2008, which could materialize “in the coming days,” once the General Treasury of the Republic issues the respective document. Accordingly, the petitioners indicated that “the recommendation of reparation issued by the IACHR with respect to this case has been fully carried out by the Chilean State.”
242. Based on the foregoing, the Commission concludes that the Chilean State has fully carried out the recommendation made in Report No. 90/05, Alejandra Matus Acuña et al.
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Next] [13] The IACHR did not include this information in its 2008 Annual Report, since it received the petitioners’ communication subsequent to the approval of said Annual Report.
[14]
IACHR, Annual Report 2008.
Chapter III.D,
[15] The IACHR did not include this information in its Annual Report 2008, inasmuch as it received the petitioners’ communication subsequent to the approval of said Annual Report.
[16]
IACHR, Annual Report 2008.
Chapter III.D,
[17] The IACHR did not include this information in its Annual Report 2008, inasmuch as it received the petitioners’ communication subsequent to the approval of said Annual Report. |
