ROSARIO PIZARRO JIMÉNEZ ET AL.
On December 20, 1999, the Inter-American Commission on Human
Rights (hereinafter “the Inter-American Commission”, “the
Commission” or “IACHR”) received a complaint lodged jointly by the
Center for Justice and International Law (CEJIL) and the Public Interest
Clinic of the University of Diego Portales (hereinafter “the
petitioners”) against the Republic of Chile (hereinafter “the
State” or “the State of Chile”), in which they allege that the
following women: Gilda Rosario Pizarro Jiménez, Elena de Carmen Ponce
Jorquera, Gloria Lewelyn Ponce Jorquera, Myrna Janette Ponce Jorquera,
Elizabeth del Luján Fuentes Ruiz and Angélica Soledad Pérez Fernández,
all of them spouses of police officers of the Carabineros de Chile,
were victims of various violations of their human rights as a
consequence of their public and peaceful demonstration against what they
considered to be the inadequate remuneration received by their spouses
in their jobs as Carabineros.
The petitioners alleged that the State was responsible for the
violation of their rights to humane treatment, to a fair trial, to
protection of their honor and dignity, to freedom of thought and
expression, to freedom of assembly, to protection of the family, to
equality before the law and to judicial protection in relation to the
obligation of the State to respect and guarantee human rights and its
duty to adopt the provisions of domestic law set out in Articles 1(1),
2, 5, 8, 11, 13, 15, 17, 24 and 25 of the American Convention.
With respect to the admissibility of the complaint, the
petitioners contend that due legal process does not exist in the
domestic jurisdiction for the protection of the rights alleged to have
been violated and that the courts that are supposed to hear those
complaints lack the independence and impartiality required by Article 8
of the Convention. They therefore request a waiver of the requirement
for the prior exhaustion of domestic remedies provided for in Article
46(2)(a) and (b) of the American Convention.
For its part, the State denied that it has violated any of the
norms of the Convention and requested the Commission to reject the
arguments of the petitioners and to declare the petition inadmissible,
since it did not fulfill the requirements set out in Articles
46(1)(a)(b) and 47(b)(c) of the Convention.
After reviewing the positions of the parties, the Commission
concludes that it is competent to consider the complaint presented by
the petitioners and that the petition is admissible, in the light of
Articles 46 and 47 of the American Convention.
II. PROCESSING BY
On December 20, 1999, the Commission received a petition
presented by the Center for Justice and International Law and the Public
Interest Clinic of the University of Diego Portales, denouncing the
State of Chile for violations of the rights of Gilda Rosario Pizarro Jiménez,
Elena de Carmen Ponce Jorquera, Gloria Lewelyn Ponce Jorquera, Myrna
Janette Ponce Jorquera, Elizabeth del Luján Fuentes Ruiz and Angélica
Soledad Pérez Fernández, as recognized in Articles 1(1), 2, 5, 8, 11,
13, 15, 17, 24 and 25 of the American Convention.
On May 15, 2000, the Commission transmitted the pertinent parts
of the complaint to the State of Chile and granted it a period of 90
days within which to submit information concerning the events and the
exhaustion of domestic remedies.
On July 18, 2000, the Commission received the State’s reply and
transmitted it to the petitioners on July 25, 2000, granting them a
period of 30 days within which to submit their comments thereon.
On September 8, 2000, the IACHR informed the parties that it had
granted a hearing at its 108th meeting, which took place on
October 10, 2000.
The comments of the petitioners were received on October 20, 2000
and transmitted to the State of Chile on October 27, 2000.
The Commission granted a period of 30 days for the State to
submit its comments. The
State declined to present comments.
III. POSITIONS OF
A. Position of the
According to the petition, in early 1998, the Government of Chile
promulgated Law-Ranking Decree Nº 2 of the Ministry of Defense, which
provided for a series of wage and social security benefits for the
personnel of Carabineros de Chile.
The petitioners allege that this Decree provided more benefits in
qualitative and quantitative terms to officers than to non-commissioned
personnel, which caused dissatisfaction with the State and the
authorities of the institution on the part of the non-commissioned
officers and their families.
The petitioners allege that members of the families of the
Carabineros began to demonstrate their discontent in small private
gatherings, mainly of the spouses of the Carabineros, an initiative that
was suppressed by the Carabineros authorities, who prohibited
non-commissioned officers or any of their family members from expressing
“their dissatisfaction at the new Law-Ranking Decree, under threat of
loss of their jobs and of being subjected to a strict system of
penalties for acts disloyal to the institution”. 
The petitioners state that, despite the threats received, the
alleged victims went to the Metropolitan Intendency on April 23, 1998 to
request authorization to conduct a peaceful protest on April 27, 1998,
the day of the commemoration of the anniversary of the Carabineros de
Chile. The Intendent of the
Metropolitan Region granted the authorization on April 24, 1998.
The petitioners allege that on the day of the demonstration, the
wives of the Carabineros went to the Plaza de la Constitution, where
they saw the square surrounded by more than a hundred Carabineros, buses
of the institution, teargas launchers, and even armored personnel
carriers, all prepared to suppress the demonstration. On seeing this,
they decided to join another group of Carabineros spouses in the Plaza
Benjamín Vicuña Mackenna. Stationed
in the vicinity of that square, however, was a cordon of approximately
50 Carabineros members of the specially trained forces blocking the
demonstrators’ path. The demonstrators also observed the presence of
three water cannon, two teargas launchers, two armored personnel
carriers, civil police personnel and a number of buses belonging to the
demonstrators attempted to move forward peacefully, but the special
forces personnel began to strike those who were attempting to continue
with “kicks in the legs, pushing and kneeing”.
The police contingent also hurled insults containing references
“to their alleged political affiliation
to leftist parties and to the disloyal manner in which they
treated the institution of Carabineros de Chile."
The petitioners state further that additional Carabineros
intervened in the violence and a water cannon was used violently against
a number of demonstrators.
The petitioners allege that, despite these repressive actions,
the women demonstrators continued to peacefully exercise their
constitutional rights and had reassembled in the Avenida Libertador
Bernardo O’Higgins to continue with the demonstration when they were
intercepted once again by Carabineros and a water cannon.
The petitioners allege that the victims were struck, shoved and
kicked and unlawfully deprived of their freedom.
They also state that Gloria Lewelyn Ponce Jorquera was struck by
Carabineros, despite the fact that she was pregnant, and that Patricia
Elena del Carmen Ponce Jorquera also suffered a fracture and had
undergone rehabilitative treatment for one year.
The petitioners state that on June 3, 1998, a criminal complaint
was instituted for assault causing minor injuries, illegal detention and
abusive treatment of individuals in the Second Criminal Court of
Santiago, which declared itself incompetent to hear the case, since the
complaint was against members of the Carabineros de Chile and should
therefore be heard by military tribunals. As a result of this, the
proceeding was referred to the Sixth Military Court where, to date, the
case has remained at the stage of pre-trial proceedings.
According to the petitioners, the events described above had as a
direct and immediate consequence the dismissal of the Carabineros who
were married to the women named in this petition.
On the question of admissibility, the petitioners claim the
waiver of the requirement for exhaustion of domestic remedies provided
for in Article 46(2) of the Convention.
They allege that the victims did not have access to due legal
process within the domestic jurisdiction, where they could claim
protection of the rights that they allege were violated, since the
tribunal lacks the due independence and impartiality required by Article
8(1) of the Convention. They
add that this lack of independence of the military court is evident from
the fact that the judges of the institution are subordinate to the
senior officials of the service, the fact that they are subject to
removal, and their lack of legal training.
In their reply to the comments of the State on admissibility, the
petitioners stated that the Commission should declare the petition
admissible, since the acts that were the subject of the complaint
concerned the violation of various rights by the domestic authorities
that involves the international responsibility of the State of Chile,
which neither protected nor guaranteed the right of the victims to due
legal process in the substantiation of the criminal complaints filed in
the domestic courts.
The petitioners therefore argue that the State of Chile has
violated the rights recognized in Articles 1(1), 2, 5, 8, 11, 13, 15,
17, 24 and 25 of the American Convention.
B. Position of the
The State alleged that a number of amendments to Law-Ranking
Decree Nº 1 on the Carabineros Personnel Statute were published on
March 12, 1998, including provisions for designated remunerative
benefits, which gave rise to some dissatisfaction within the
institution. It added that,
as a result of that situation, some Carabineros spouses engaged in
public demonstrations and made statements to the media, in which they
attacked the institution and its character as a non-deliberative,
disciplined and hierarchical body.
The State added that a public demonstration was held on April 27,
1998, in which several Carabineros spouses participated.
According to the State, this demonstration ventured into areas
that had been prohibited because of their proximity to the seat of
Government, which was why the demonstrators had been intercepted and six
wives detained and subsequently released on bail.
For the State, both the meetings that were held and the
demonstration constitute an “act of indiscipline that undermines the
legal order in force and weakens the very foundation of any armed
On the question of admissibility, the State alleged that the
Commission should declare the petition inadmissible, in accordance with
the provisions of Article 47(b) and (c) of the Convention, because in
its view the acts did not constitute a violation of the rights and
freedoms recognized by the Convention.
They add, further, that domestic remedies had not been exhausted
and that the argument of the lack of independence of the military
tribunal and of military justice in general cannot be advanced in the
absence of a prior judgment or ruling.
The State also alleges that it is for the Supreme Court to
exercise precautionary, disciplinary and economic powers with respect to
the administration of military justice in peacetime.
It added that the major decisions of military tribunals and
courts martial are generally subject to review by the Supreme Court by
way of cassation, application for review or complaint proceedings so
that any arbitrariness can be remedied by the ordinary justice system
and by its highest court.
The State also argued that the petition should be declared
inadmissible on the grounds that it had been submitted after the period
provided for in Article 46(1)(b) of the Convention.
According to the State, the petitioners should have lodged the
complaint within six months of the date on which they were notified of
the decision of the Second Criminal Court of Santiago that it lacked
competency in the matter.
The State requested, finally, that the Commission should declare
the petition inadmissible and reject the arguments of the petitioners,
since Chile had fulfilled its obligations under the Convention.
ANALYSIS OF COMPETENCE AND
Competence ratione personae, ratione loci, ratione temporis and ratione materiae of
Under Article 44 of the American Convention, the petitioners have
the right to lodge complaints with the IACHR.
The petition names as the alleged victims individuals in respect
of whom Chile has undertaken to respect and guarantee the rights
recognized in the American Convention.
With regard to the State, the Commission notes that Chile has
been a State party to the American Convention since August 21, 1990, the
date on which it deposited the appropriate instrument of ratification.
The Commission therefore has competence ratione
personae to consider the petition.
The Commission has competence ratione
loci to consider the petition, insofar as it alleges violations of
rights protected in the American Convention that are alleged to have
taken place within the territory of a State party to the Convention.
The IACHR is competent ratione
temporis insofar as the obligation to respect and guarantee the
rights protected in the American Convention was already in force for the
State at the date on which the acts referred to in the petition are
alleged to have taken place.
Lastly, the Commission is competent ratione
materiae, because the petition denounces violations of human rights
that are protected by the American Convention.
1. Exhaustion of
Article 46(1) of the American Convention on Human Rights provides
that in order for a petition or communication lodged in accordance with
Articles 44 or 45 to be admitted by the Commission, “the
remedies under domestic law [must] have been pursued and exhausted in
accordance with generally recognized principles of international law”.
The petitioners request that the waivers provided for in Article
46(2)(a) and (b) of the Convention should be applied because the State
of Chile did not guarantee due legal process to the victims for the
protection of the rights that are alleged to have been violated, since
the military tribunal lacks the due independence and impartiality
required by Article 8(1) of the Convention.
They allege, moreover, that the criminal action that they filed
remains at the stage of pre-trial proceedings in the Sixth Military
and that the investigations had not been completed and no one had been
charged in the case.
Article 46(2)(a) and (b), which was invoked by the petitioners,
provides that the requirements concerning the previous exhaustion of
domestic remedies and the period allowed for the lodging of the petition
shall not be applicable where:
a. The domestic legislation of the state concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated;
b. The party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
The State of Chile asserted the objection of failure to exhaust
domestic remedies in its reply to the complaint and argued that the
complaint is not admissible, according to Article 46(1) of the
Convention. According to
the State, it cannot be claimed that the military tribunal lacks
independence and impartiality if no prior judgment or decision proving
this has been obtained. It
added further that if the petitioners considered that military justice
did not guarantee them due process they should have had recourse to the
Supreme Court by way of cassation, application for review or complaint
The Inter-American Court and the IACHR have repeatedly adverted
to the fact that the general rule of prior exhaustion of domestic
remedies allows the State to “resolve the problem under its internal
law before being confronted with an international proceeding”,
in this case before an international jurisdiction of human rights that
“reinforces or complements” the domestic jurisdiction.
This general rule not only recognizes that the State has the
aforementioned right but places upon the State the obligation to provide
individuals under its jurisdiction with adequate remedies to protect the
legal situation that has been violated and which are effective in
producing the intended result. If
the remedies provided by the State fail to meet these requirements, the
objections contemplated in Article 46(2) of the Convention, which have
been provided in order to guarantee international action where the
remedies available under domestic law and the internal judicial system
itself are not prompt and effective enough to guarantee respect for the
human rights of the victims, must then be applied.
The Commission has frequently noted that it is not sufficient for
the State to assert the objection of non-exhaustion of domestic remedies
for it to be accepted. As
the Inter-American Court of Human Rights has ruled, a State that asserts
this objection must also identify the domestic remedies still to be
exhausted and prove their effectiveness and efficacity in the
circumstances. The State of
Chile mentioned the remedies but did not prove their effectiveness.
The petitioners allege that, since the proceeding took place
before a military tribunal, the parties lacked the due guarantees to
substantiate the remedy, which is therefore not effective.
One of the main presumptions of due legal process is the
independence, autonomy and impartiality of the national organs
responsible both for investigating and punishing alleged violations of
human rights. In this
respect, the Commission is of the view that the system of military
justice lacks the necessary independence and autonomy to investigate in
an impartial manner the violations of human rights alleged to have been
committed by policemen who are part of the armed forces.
The Inter-American Court, in considering the question of the lack
of due process as an exception to the requirement of prior exhaustion of
domestic remedies, has pointed out that:
46(2)(a) applies to situations in which the domestic law of a State
Party does not provide appropriate remedies to protect rights that have
been violated. Article 46(2)(b) is applicable to situations in which the
domestic law does provide for remedies, but such remedies are either
denied the affected individual or he is otherwise prevented from
exhausting them. These provisions thus apply to situations where
domestic remedies cannot be exhausted because they are not available
either as a matter of law or as a matter of fact.
The Commission recalls, moreover, that the Court has established
that the mere existence of remedies in the domestic jurisdiction does
not imply an obligation to exhaust them but rather that the remedies
must be adequate and effective. Being adequate means that the function
of these remedies, within the domestic law, must be adequate for
protecting the legal situation that has been violated. An effective
remedy is one that permits the result for which it has been established
to be achieved.
The Commission holds that if a proceeding for violations of human
rights committed against civilians is held before a military tribunal,
this remedy is not an effective remedy and therefore need not be
In this specific case, the lack of effectiveness of the remedy is
obvious from the total lack of movement and progress of the
investigation from the beginning. Indeed, the criminal complaint brought
on June 3, 1998 and now before the Military Tribunal is still at the
stage of pre-trial proceedings and no concrete progress has been made in
the investigation into those responsible for the alleged violations of
rights of which the women were victims. All of this is sufficient to
conclude that the remedies of the domestic jurisdiction are not
In order to provide an appropriate remedy to redress the alleged
violations, the State, in its capacity as the authority responsible for
the punitive action, should have instituted through the Department of
Public Prosecution proceedings aimed at identifying and prosecuting all
those responsible, diligently seeing all the various stages of the
proceedings through to completion, in an action in the civil justice
The Commission considers it important to note that the exceptions
to the rule requiring the exhaustion of domestic remedies are closely
linked to the determination of possible violations of certain rights
enshrined in the Convention, such as the right to a fair trial (Article
8) and the right to judicial protection (Article 25). However, Article
46(2), which provides for three exceptions to this general rule, by its
nature and purpose, is autonomous in its content vis-à-vis the
substantive norms of the Convention, which is why, in deciding whether
the exceptions are applicable, a standard of evaluation must be used
that is different from the one used to determine whether the substantive
rights recognized in Articles 8 and 25 of the international instrument
have been violated. In this report, the Commission will therefore
consider the question of the applicability of the abovementioned
exceptions as a question requiring a prior and special ruling and leaves
the analysis of the reasons why the domestic remedies were not exhausted
and the legal effect of the failure to exhaust them until such time as
the Commission takes up its consideration of the substance of the
complaint with a view to determining whether violations of Articles 8
and 25 of the Convention have in fact taken place.
In light of the foregoing, the Commission is of the view that the
domestic remedies available in this case are not effective to address
the infringement of a legal right and that the exception of the
non-existence in the domestic law of due process of law to investigate
and prosecute violations of human rights, as provided for in Article
46(2)(a) of the Convention, is applicable in the present case and
exempts the petitioners from the requirement to exhaust the domestic
2. Time allowed
for the presentation of the petition
The state alleged that the petition had been presented after the
time period provided for in Article 46(1)(b), since more than six months
had elapsed since the date on which the Second Criminal Court of
Santiago had ruled that it lacked competence.
Since in the present petition it was decided to apply one of the
exceptions provided in Article 46(2) of the Convention, the IACHR
concludes that the requirements provided for in Article 46(1)(b) are not
applicable. In accordance with the provisions of Article 32(2) of the
Regulations of the Commission, it is necessary to determine whether the
petition was presented within a reasonable period of time. In this
regard, considering the nature of the case and the fact that the
complaint in the domestic jurisdiction was presented on June 3, 1998 and
that the petition was lodged with the IACHR on December 20, 1999, in
other words, one and a half years later, the Commission determines that
it was presented within a reasonable period of time.
Duplication of procedures and res
There is no record of the subject of the petition being pending
in another international forum for dispute settlement nor that it
duplicates a petition already examined by this or any other
international forum. The requirements provided for in Articles 46(1)(c)
and 47(d) of the Convention are therefore deemed to have been fulfilled.
of the acts alleged
The State requested the Commission to reject the complaint
because it had fulfilled the obligations imposed on it by the Convention
in respect of the Articles alleged by the petitioners to have been
The Commission is of the view that it is not necessary at this
stage of the proceeding to establish whether or not a violation of the
American Convention has taken place. For the purposes of admissibility,
the IACHR must decide if the acts alleged constitute a violation, as
provided for in Article 47(b) of the American Convention and whether the
petition is “manifestly groundless” or “obviously out of order”,
in accordance with subparagraph (c) of the same Article.
The standard for determining whether these requirements have been
met is different from the standard required for deciding on the merits
of a complaint. The IACHR must undertake a prima
facie evaluation to determine whether the complaint is based on an
apparent or potential violation of a right guaranteed by the Convention
and not to establish whether or not a violation has taken place. Such an
evaluation is a summary analysis that does not prejudice or offer an
opinion on the substance of the matter. The Commission's Regulations
themselves, by establishing two separate phases of admissibility and
substance, reflects this distinction between the evaluation that must be
made by the Commission for the purpose of declaring a petition
admissible and that required in order to establish that a violation has
With respect to the present petition, the Commission considers
that the arguments presented by both parties require an in-depth
analysis of the substance of the matter in order to be resolved. The
IACHR therefore does not find that the petition is “manifestly
groundless” or "obviously out of order”. On the other hand, the
IACHR considers that, prima facie,
the petitioners have fulfilled the requirements set out in Article 47(b)
The Commission considers that it is competent in the present case
to evaluate the alleged violations of the right to humane treatment, to
a fair trial, to protection against abusive or arbitrary interference in
private life, to freedom of thought and expression, to assembly, to
protection of the family, to equality before the law and to access to
simple and prompt judicial remedies, all of which are related to the
obligations to respect and guarantee rights and the duty to bring
domestic legislation into line with the international commitments
entered into by the State, which could constitute violations of the
rights of the alleged victims recognized in Articles 1(1), 2, 5, 8, 11,
13, 15, 17, 24 and 25 of the American Convention.
The Commission concludes that it is competent to consider the
case presented by the petitioners concerning the alleged violation of
the rights to humane treatment, to a fair trial, to protection against
abusive or arbitrary interference in private life, to freedom of thought
and expression, freedom of assembly, protection of the family, equality
before the law and access to simple and prompt judicial remedies, all of
which are related to the obligation to respect and guarantee the free
and full exercise of human rights and the duty to bring domestic
legislation into line with the international commitments assumed by the
Based on the arguments of fact and of law set out above and
without prejudice to the substance of the question,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the petition under consideration admissible under
Articles 1(1), 2, 5, 8, 11, 13, 15, 17, 24 and 25 of the American
To notify the State and the petitioner of this decision;
To initiate the proceeding on the substance of the question;
To publish this decision and to include it in the annual report
to be submitted to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., on March 7, 2003. (Signed):
Marta Altolaguirre, President; Clare Kamau Roberts, Second
Vice-President; Commission members: Robert K. Goldman, Juan Méndez,
Julio Prado Vallejo and Susana Villarán.
In conformity with Article 17(2)(a) of the Rules of Procedure of the
IACHR, Mr. José Zalaquett, the First Vice- President of the
Commission and a national of Chile, did not participate in the
discussion or voting on this case.
Carabineros de Chile is a police, technical and military institution
created in 1927 that is part of the law enforcement and public
security forces of Chile.
Statement by the petitioners, December 20, 1999, p. 3.
On August 4, 1999, the Center for Justice and International Law
(CEJIL) and the Public Interest Clinic of the University of Diego
Portales presented to the Commission a petition against the Republic
of Chile in which they allege that Messrs. Mario Alberto Jara Oñate,
Julio Cesar Cid Deik, Marcelino Esteban López Andrade, José
Exequel Tobar Muñoz, Fernando Villa Molina, Ciro Elías Rodríguez
Uribe, Mario Eduardo Araya Marchant and Sergio Iván González
Bustamante, all members of the Carabineros de Chile, were victims of
an evaluation exercise carried out by the Carabineros authorities
that violated their rights to a fair trial, to equality before the
law, to protection of their honor and dignity, to protection of
their family and to judicial protection.
Article 25 of the Code of Military Justice provides that the
functions of prosecutors in criminal cases are to conduct
investigations and to substantiate the cases, for which all relevant
information about charges and evidence in the case must be compiled.
Inter- American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of 29 July 1988. Series
C. Nº 4, para. 61.
Inter- American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of 29 July 1988, Series C. Nº 4 (1988), para. 61.
The Commission has also
noted that the problem of impunity in military criminal justice is
not linked exclusively to the absolution of the accused; “the
investigation of human rights violations by the military court
itself entails problems where it comes to having access to an
effective and impartial judicial remedy” (IACHR, Second report on
the situation of human rights in Peru, OEA/Ser.L/V/II.106 Chap.II,
para. 210), and that
investigation of the case by the military courts precludes the
possibility of an objective and independent investigation carried
out by judicial authorities not linked to the command structure of
the security forces. The
fact that the investigation of the case was initiated in the
military justice system may make a conviction impossible, even if
the case is passed on to the regular courts, as it is likely that
the necessary evidence has not been collected in a timely and
effective manner. In addition, the investigation of the cases that
remain in the military jurisdiction may be conducted so as to impede
them from reaching the final decision-making stage.
Inter-American Court of Human Rights, Exceptions to the Exhaustion
of Domestic Remedies (Articles 46(1), 46(2)(a) and 46(2)(b) American
Convention on Human Rights), Advisory Opinion OC-11/90 of August 10,
1990, Series A. Nº 11, para. 17.
 Inter-American Court of Human Rights, case of Velásquez Rodríguez, Judgment of July 29, 1988, Series C. Nº 4, paras 63-64; case of Godínez Cruz, Judgment of January 20, 1989, Series C. No. 5, paras. 66-67; case of Fairen Garbi and Solís Corrales, Judgment of March 15, 1989, Series C. Nº 6, paras. 87-88.
IACHR, Report Nº 54/01, Case 12.250, Massacre of Mapiripán,
Colombia, para. 38, and IACHR Juan Humberto Sánchez-Honduras,
Report Nº 65-01, Case 11.073, March 6, 2001, para. 51.