Nº 44 /02
ALFREDO ALMONACID ARELLANO
On September 15, 1998, the Inter-American Commission on Human
Rights (hereinafter the "Commission" or the "IACHR")
received a petition lodged by Mario Márquez Maldonado and Elvira Del
Rosario Gómez (hereinafter "the petitioners").
It is alleged that the Republic of Chile (hereinafter "the
State" or "the Chilean State") is responsible for the
violation of the right to have access to justice by virtue of a court
order of 25 March 1998 that closed the inquiry into the murder of Mr.
Almonacid Arellano, based on the 1978 Amnesty Law, Decree 2,191.
The petitioners alleged that the State is responsible for the
violation of the right to judicial protection and the right to judicial
guarantees, and in so doing also violated its obligation to respect and
ensure the rights recognized in Articles 1(1), 8(1) and 25 of the
American Convention on Human Rights (hereinafter "the American
Convention" or "the Convention").
As to the petition's admissibility, the petitioners assert that
access to justice at the domestic level has been denied and that the
petition satisfies the admissibility requirements both in terms of form
and substance. The State,
on the other hand, argues that the constitutional governments that
followed the military regime cannot be held accountable for the facts
denounced. It asserts that
the 1978 amnesty law, Decree 2,191, is the applicable law in the present
case and cannot be repealed. It
further asserts that the constitutional governments have not enacted
amnesty laws and have done nothing to violate the international
obligations undertaken by Chile. The
State adds that the existing National Truth and Reconciliation
Commission and the victims' reparations policy are guarantees of the
rights embodied in Articles 1(1), 8(1) and 25 of the Convention.
It contends, therefore, that no right recognized in the American
Convention has been violated.
After analyzing the parties' positions, the Commission concluded
that it was competent to hear the petitioners' case and that said case
was admissible under Articles 46 and 47 of the American Convention.
II. PROCESSING BEFORE THE COMMISSION
On September 15, 1998 the Commission received a petition lodged
by Mario Márquez Maldonado and Elvira Del Rosario Gómez alleging
violations of Articles 1(1), 8(1) and 25 of the Convention.
On October 7, 1998, the Commission transmitted the pertinent
parts of the complaint to the Chilean State, setting a period of 90 days
for the State to provide information concerning the facts alleged and
the exhaustion of remedies under domestic law.
The State's response was received on January 7, 1999 and transmitted
to the petitioners on January 22, 1999.
The Commission set a period of 45 days for the petitioners to
submit their observations. The
petitioners' observations were received on March 20, 1999 and forwarded
to the Chilean State on March 26, 1999.
The Commission set a period of 30 days for the State to submit
On April 22, 1999 the State requested a 30-day extension of the
deadline for submitting its response, and the Commission has granted
such extension. On January 22, 2002 the Commission repeated its request
for information and set a period of 30 days for the State to submit its
observations. The State did
THE PARTIES' POSITIONS
The petitioners' position
The petitioners allege that on September 16, 1973 a group of some
twelve Carabineros [gendarmes]
under the command of Raúl Neveux Cortessi and Manuel Segundo Castro
Osorio, came to the home of Mr. Luis Alfredo Almonacid Arellano, a
professor and activist in the Chilean Communist Party, President of the Central
Única de Trabajadores (CUT) in the city of Rancagua, and director
of the Sindicato Unido de
Trabajadores de Educación (SUTE).
Mr. Almonacid Arellano was detained in the presence of his
family, beaten, pushed and insulted.
Outside the victim's home, Mr. Almonacid Arellano was pushed and
lost his balance, whereupon Raúl Neveux Cortessi shot him fatally.
According to the petitioners, on September 19, 1973, the First
Court of Rancagua instituted proceedings in an inquiry that it then
dismissed on April 8, 1974. The
Rancagua Appeals Court reversed the dismissal, but the case was
dismissed again. The
petitioners allege that time and time again over the course of 17 years,
the case was dismissed and the dismissal overturned by the Rancagua
Appeals Court. According to
the petitioners, "from then on the case resulted in series of
repeated dismissals of the accusations and eventual revocations of these
dismissals by the Court, which had been known, during the 17 years of
the military regime for its independence and constant efforts in the
quest for the truth."
The petitioners allege that finally, on August 28, 1996 the
Rancagua Appeals Court ruled that Raúl Neveux Cortessi was to be tried
for the murder of Mr. Almonacid Arellano.
The Military Prosecutor filed an appeal with the Supreme Court,
which ruled that the military courts had jurisdiction in the case.
On January 28, 1997 the military court issued a final ruling
dismissing the investigation concerning Raúl Neveux Cortessi.
The petitioners appealed the ruling, but on March 25, 1998 the
court martial rejected the appeal and upheld the dismissal of the
proceedings, specifying that the law 1978 amnesty law, decree 2,191 was
applicable. The petitioners
contend that the court martial's ruling definitively closed the judicial
inquiries being conducted to establish the circumstances under which Mr.
Almonacid was killed; as a result, the material and/or intellectual
authors of the murder of Mr. Almonacid Arellano have gone unpunished.
In their response to the State's observations, the petitioners
contend that the Chilean State is responsible for the violations of the
Convention committed by agents of the State, not just those of the
executive branch, but those of all branches of government, including the
legislative and judicial.
The petitioners further allege that although the historical
context in which Mr. Almonacid Arellano's death occurred was different
from what it is under the current democratic government, the
responsibility of the Chilean State transcends historical eras and, by
the international law principle of the continuity of States, stretches
beyond the era of democratic government and encompasses that of the
military regime as well.
Therefore, they allege that this constitutes a violation of
Articles 1(1), 8(1) and 25 of the Convention.
Their argument is that the right to access to justice has not
been guaranteed, that the obligation to investigate and punish was
violated, as was the right of Mr. Almonacid Arellano's next of kin to
the judicial protection and guarantees recognized in the Convention.
They assert that the 1978 amnesty law, decree 2,191, is
incompatible with the provisions of the Convention because it denies the
right of access to justice.
The State's position
The State expressly asserts that "it does not deny the facts
reported in the communication from the victim's representative." While it does not raise procedural objections, it makes
a series of substantive arguments.
The State argues that the specific historical context of this
case is a factor the Commission should consider.
It explains that Chile moved from a military regime to a
constitutional one, and that the 1978 amnesty law, decree 2,191, was
part of that process. In
this democratization process, the State contends, the constitutional
governments implicitly accepted the juridical system and laws
established by the military regime, and the constitutional governments
could not, therefore, repeal the 1978 amnesty law, decree 2,191.
The State explains that, in any case, it would be impossible for
the government to try to change this decree, because some of the members
of the present senate -which plays an essential role in the process of
legislative reform- were appointed by the military regime.
Repeal of the 1978 amnesty law, decree 2,191, would also imply a
violation of the criminal law principle of the non-retroactivity.
The State also argues that because the judicial branch of
government is independent of the executive branch, the latter can have
no influence on judicial decisions.
The State also notes that a distinction has to be made between an
amnesty law decreed by a de facto government and one enacted by a
constitutional government, as the National Truth and Reconciliation
Commission and the Inter-American Commission on Human Rights both
acknowledged. The State
contends that an amnesty law decreed by a de facto regime is a
way of ensuring that regime's impunity, whereas those enacted by
constitutional governments are part of a process of national
reconciliation. The State
argues that because the amnesty law in question was decreed by the de
facto government, the democratic government is not responsible for those
The State notes that the constitutional governments have not
enacted any amnesty law that could be regarded as incompatible with the
American Convention, nor have they, either by action or omission, done
anything that would be contrary to the obligations Chile undertook as a
party to the said Covenant.
Lastly, the State alleges that the National Truth and
Reconciliation Commission already considered the case of Luis Alfredo
Almonacid Arellano. This
Commission acknowledged the facts, specifically that Almonacid Arellano
was extra-judicially executed by agents of the State and that his human
rights were violated. The
State also explained that Mr. Almonacid Arellano's next of kin were
already compensated based on the information provided by the Instituto
de Normalización Previsional and the Office of the Deputy Secretary
of the Interior since 1992.
IV. ANALYSIS ON COMPETENCE AND ADMISSIBILITY
A. The Commission's competence
ratione personae, ratione loci, ratione temporis and ratione materiae
Under Article 44 of the American Convention, the petitioners are
entitled to lodge complaints with the IACHR.
The petition refers as alleged victims to persons whose
Convention-recognized rights Chile undertook to respect and ensure.
As for the State, Chile has been a party to the American
Convention since August 21, 1990 the date on which its instrument of
ratification was deposited. The Commission thus has competence ratione
personae to examine the petition.
The Commission has competence ratione
loci to examine the petition because the violations of
Convention-protected rights are alleged to have occurred within the
territory of a State party to the Convention.
The Commission has
competence ratione temporis
because the obligation to respect and ensure the rights protected in the
American Convention was already binding upon the State at the time the
events alleged in the petition occurred.
The petitioners are not alleging violations of the American
Convention for Mr. Almonacid Arellana's murder, which has occurred prior
to Chile's ratification of the Convention.
Finally, the Commission has competence ratione
materiae, because the petition denounces violations of human rights
protected by the American Convention.
B. Admissibility requirements
Exhaustion of the remedies under domestic law
Under Article 46(1) of the American Convention, one of the
requirements that must be met for a petition to be admissible is that
the remedies under a State's domestic laws have been pursued and
The State did not raise any preliminary objections alleging a
failure to exhaust domestic remedies.
The Commission therefore considers that the Chilean State did not
claim during the initial proceedings on this petition the failure to
exhaust the remedies under domestic law.
Time and time again the Inter-American Court has held
that in order to be timely, the objection asserting failure to exhaust
domestic remedies must be raised during the first stages of the
proceedings; otherwise, it is presumed that the interested State has
tacitly waived the use of that objection.
Therefore, the Inter-American Commission considers that
in this matter, Chile waived the objection asserting failure to exhaust
domestic remedies, as it did not raise that objection, either within the
established time periods or at the first opportunity it had during the
proceedings, which was in its response to the petition that initiated
period for lodging a petition
With regard to the petition under study, the IACHR has
established that Chile tacitly waived its right to raise the objection
asserting failure to exhaust domestic remedies. Therefore, the requirement set forth in Article 46(1)(b) of
the American Convention is not applicable.
Convention’s requirement that domestic remedies be exhausted is
independent of the requirement that the petition be lodged within six
months following the judgment exhausting domestic jurisdiction. Therefore, the Inter-American
Commission must determine whether the petition was lodged within a
reasonable time. The
Commission notes that the original petition of August 27, 1998 was
received on September 15, 1998. Likewise,
the most recent ruling by a domestic court -which in the petitioners'
opinion denied them of any possibility of access to justice- is dated
March 25, 1998. Therefore,
the Commission considers that the petition was presented within a
reasonable period of time.
Duplication of proceedings and res
There is nothing in the case file to suggest that the subject
matter of the petition is pending in another international proceeding
for settlement or that the petition itself is substantially the same as
one already examined by the Commission or any other international body.
Therefore, the Commission considers that the requirements set out
in Articles 46(1)(c) and 47(d) of the Convention have been met.
Characterization of the facts alleged
The Commission considers that the petitioners' allegations of
violations of the right to judicial guarantees in the matter addressed
in this report could tend to establish facts that would constitute
violations of the rights of the victim and his next of kin, recognized
in Articles 1(1), 8 and 25 of the American Convention, without prejudice
to the possibility that, when considering the merits of the case, the
Commission may find other violations.
The Commission concludes that it has competence to examine the
case lodged by the petitioners concerning the alleged violation of the
right of access to justice, the right to judicial guarantees, and the
State's obligation to respect and ensure the free and full exercise of
the recognized rights to all persons subject to its jurisdiction.
Based on these arguments of fact and of law, and without
prejudging the merits of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN
To declare this case admissible as regards the alleged violations
of the rights contained in Articles 1(1), 8, and 25 of the American
To notify the State and the petitioners of this decision.
To proceed with the consideration of the merits of the case.
To publish this decision and include it in the Annual Report that
the Commission will present to the OAS General Assembly.
Done and signed at the headquarters of the
Inter-American Commission on Human Rights, in the city of Washington,
D.C., on the 9th day of October in the year 2002.
(Signed): Juan E. Méndez, President; Marta Altolaguirre, First
Vice-President; Commission members Robert K. Goldman, Julio Prado
Vallejo, Clare K. Roberts, and Susana Villarán de la Puente.
In keeping with Article 17(2)(a)
of the Commission's Rules of Procedure, Commission member José
Zalaquett, Second Vice-President and a Chilean national, did not
participate in the discussion of this case or in the decision taken
to the State, the National Truth and Reconciliation Commission
proposed a number of measures to publicly redress and restore the
Some measures were symbolic gestures, while others were legal
and administrative, in areas such as social security, health
services for next of kin, education for children, housing, social
welfare, and others.
Chile deposited its instrument of ratification of the Convention on
August 21, 1990.
See, for example, Inter-American Court of Human Rights, Mayagna
(Sumo) Awas Tingni Community Case, Nicaragua, Judgment on
Preliminary Objections, February 1, 2000 par. 53.
In that judgment, the Inter-American Court held that
"in order to validly oppose the admissibility of the
petition…. The State should have expressly and in
a timely manner invoked the rule that domestic remedies should
be exhausted.” (emphasis in the original). Idem, par. 54.