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REPORT Nº 36/96
CASE 10.843
CHILE*
15 October 1996
I.
THE COMPLAINT AND PROCEEDINGS OF THE COMMISSION
1.
On March 27, 1991, the Commission received a complaint against
the State of Chile for violation of the right to justice, and for the
situation of impunity with respect to those responsible for the arrest
and disappearance of the following persons:
1.
Garay Hermosilla, Héctor Marcial (8 July 1974); 2. Buzio Lorca,
Jaime (13 July 1974); 3. Elgueta Pinto, Martín (15 July
1974); 4. Alvarado Borgel, María Inés (15 July 1974); 5. Chacón Olivares, Juan
Rosendo (15 July 1974); 6.
Guajardo Zamorano, Luis Julio (20 July 1974); 7. Tormen Méndez,
Sergio Daniel (20 July 1974); 8. Andreoli Bravo, María Angélica (6
August 1974); 9. Dockendorff Navarrete, Muriel (6 August 1974); 10.
Cabezas Quijada, Antonio Sergio (17 August 1974); 11. Barría Araneda,
Arturo (28 August 1974); 12. Villalobos Díaz, Manuel Jesús (17
September 1974); 13. Rodríguez Araya, Juan Carlos (17 November 1974);
14. Castro Salvadores, Cecilia Gabriela
(17 November 1974); 15. Reyes Navarrete, Sergio Alfonso (17 November
1974); 16. Pizarro Meniconi, Isidro Miguel Angel (19 November 1974);
17. Vera Almarza, Ida (19 November 1974); 18. Muller Silva, Jorge Hernán
(29 November 1974); 19. Bueno Cifuentes, Carmen Cecilia (29 November
1974); 20. Silva Saldívar, Gerardo Ernesto (10 December 1974);
21.Urbina Chamorro, Gilberto Patricio (6 January 1975); 22. Contreras
Hernández, Claudio Enrique (7 January 1975); 23. Flores Pérez, Julio
Fidel (10 January 1975); 24. Molina Mogollones, Juan René (29 January
1975); 25. Bruce Catalán, Alan Roberto (13 February 1975); 26. Vásquez
Sáenz, Jaime Enrique (13 February 1975); 27. Acuña Reyes, Roberto
René (14 February 1975); 28. Perelman Ide, Juan Carlos (19 February
1975); 29. Lagos Salinas, Ricardo (24 June 1975); 30. Peña Herreros,
Michelle (28 June 1975); 31. Rodríguez Díaz, Mireya Herminia (25
June 1975); 32. Lorca Tobar, Carlos Enrique (25 June 1975); 33. Ferrús
López, Santiago Abraham (11 December 1975); 34. Quezada
Solís, Mario Luis (12 December 1975); 35. Ascencio Subiabre, José
Ramón (29 December 1975).
36.
Boettiger Vera, Octavio (17 January 1976); 37. Weibel Navarrete,
José Arturo (29 March 1976); 38. Araya Zuleta, Bernardo (2 April
1976); 39. Flores
Barraza, María Olga (2
April 1976); 40. Recabarren González, Luis Emilio (29
April 1976); 41. Recabarren González, Manuel Guillermo (29 April
1976); 42. Mena
Alvarado, Nalvia Rosa (29 April 1976); 43. Recabarren Rojas,
Manuel Segundo (30 April 1976); 44. Zamorano Donoso, Mario Jaime
(4 May 1976); 45. Muñoz Poutays, Onofre Jorge (4 May 1976); 46.
Donaire Cortéz, Uldarico (5 May 1976); 47. Donato Avendaño,
Jaime Patricio (5 May 1976); 48. Escobar
Cepeda, Elisa del Carmen (6 May 1976); 49. Díaz Silva, Lenín
Adán (9 May 1976); 50. Concha Bascuñán, Marcelo Hernán (10 May
1976); 51. Espinoza
Fernández, Eliana (12 May 1976); 52. Díaz
López, Victor (12 May 1976); 53. Cerda Cuevas, Oscar Domingo (19
May 1976); 54. Rekas Urra, Elizabeth de las Mercedes (26 May
1976); 55. Elizondo Ormaechea, Antonio (26 May 1976); 56. Maino
Canales, Juan Bosco (26 May 1976); 57. Maturana González, Luis
Emilio Gerardo (8 June 1976); 58. Pardo
Pedemonte, Sergio Raúl (16 June 1976); 59. Hinojoza Araos, José
Santos (26 June 1976); 60. Martínez
Quijón, Guillermo Albino (21 July 1976); 61. Canteros Prado,
Eduardo (23 July 1976); 62. Canteros Torres, Clara Elena (23 July
1976); 63. Gianelli Company, Juan Antonio (26 July 1976); 64.
Godoy Lagarrigue, Carlos Enrique (4 August 1976); 65. Insunza
Bascuñán, Ivan Sergio (4 August 1976); 66. Vivanco Vega, Hugo
Ernesto (4 August 1976); 67. Herrera Benítez, Alicia Mercedes (4
August 1976); 68. Ramos Garrido, Oscar Orlando (5 August 1976);
69. Ramos Vivanco, Oscar Arturo (5 August 1976); and, 70. Vargas
Leiva, Manuel de la Cruz (7 August 1976). 2.
In their complaint, the petitioners recount the judicial
proceedings that were followed within the internal jurisdiction of
Chile, as follows: in August 1978, acting on behalf of various
relatives of the persons mentioned above, the Solidarity Office of the
Archbishopric of Santiago brought criminal charges against General
Manuel Contreras Sepúlveda,
Director of the Dirección de Inteligencia Nacional (DINA), for the
arrest and subsequent disappearance of those persons, between the
years 1974 and 1976. The
accusation was brought before the competent Criminal Court, alleging
aggravated abduction as defined in Article 141 of the Penal Code of
Chile. The Judge in
charge of the investigation immediately declared himself incompetent
to hear the case, on the grounds that the persons charged were subject
to military law. The
Solidarity Office appealed that decision before the Court of Appeals
of Santiago, which confirmed the lower court’s lack of jurisdiction.
3.
The accusation was remitted to the Second Military Court of
Santiago, which accepted jurisdiction, and ordered summary proceedings
pursuant to the Code of Military Justice. The military tribunal decided to consider this case in
conjunction with 35 other cases that were being processed before
various criminal courts of Santiago, relating to the disappearance of
some of the same persons mentioned in the accusation.
4.
In the accusation itself, and subsequently during the
proceedings before the military tribunal, it was requested that a
substantive investigation of the facts should be conducted.
Nevertheless, this request was denied by the military tribunal, with
the result that the case remained paralyzed at the summary stage for
11 years, despite the abundant evidence that was submitted during the
proceedings.
5.
In December 1989, the Second Military Tribunal of Santiago,
upon the request of the Fiscal Militar General (the Military Attorney
General)‑-an institution created by the military government to
represent the interests of the Army in litigation ---ordered the
definitive dismissal of the charges, pursuant to Amnesty Decree Law (D.L.)
2191 that had been issued
on 19 April 1978, approved by the military regime then in power with a
view to pardoning the crimes committed by persons belonging to that
regime between the years 1973 and 1978.
6.
With a view to preventing the definitive closing of the
investigation and determining the whereabouts of the victims and the
responsibility of the persons accused, in January 1990 an appeal of
inapplicability was brought, alleging the unconstitutionality of the
self-amnesty DL on the basis of which the military tribunal had
ordered definitive dismissal of the charges.
In accordance with the laws of Chile, that appeal of
inapplicability was submitted to the Supreme Court.
7.
On August 24, 1990, the Supreme Court of Chile decided,
unanimously, to reject the appeal and confirmed, consequently, the
constitutionality of the self-amnesty DL of 1978. With respect to the possibility of a judicial investigation
of the disappearances that occurred during the period covered by the
self-amnesty DL, the Court stated that:
...the amnesty constitutes an act of the Legislative Power
which has the objective effect of suspending the declaration of
criminality under any other law, as a result of which the offense
cannot be punished, because the penalty associated with the illicit
acts is eliminated, and this prevents and paralyzes definitively or
for ever, the exercise of any judicial action intended to prosecute
them... The foregoing means that, since the amnesty law has been
upheld as valid, the courts must apply it pursuant to the provisions
of articles 107 and 408 No. 5 of the Code of Criminal Procedure,
without regard to the provisions of Article 413 of that Code, which
require that a decree of definitive dismissal is conditional upon
having exhausted all investigative attempts to produce the corpus
delicti and to determine the identify of the guilty party.
8.
The aggrieved parties submitted before the Supreme Court a
final appeal for clarification of the verdict, and its reversal.
On 28 September 1990, the Supreme Court unanimously confirmed
its decision on the constitutionality of the self-amnesty DL and added
that:
once the validity of the amnesty or pardon law has been
verified, the courts must apply it, and must terminate any judicial
investigation or proceedings, as provided in Article 107 of the Code
of Criminal Procedure, a rule that in this situation must take
precedence over any other, because it obliges the court, in a case
where the facts submitted show that the legal responsibility of the
accused person has been extinguished, to refuse to proceed with
criminal action, and this has the effect of dismissing the charges
definitively.
9.
The Supreme Court, in both of these decisions, stated that the
self-amnesty DL does not exclude the right of the aggrieved parties to
be duly compensated by the civil courts for any financial damages that
the offenses may have caused them.
If the self-amnesty DL, as interpreted by the Court,
constitutes a rule that prevents the judge from ordering an
investigation, or, if an investigation is already underway, requires
that it be suspended immediately, then the right to compensation for
damages is not only illusory but also juridically impossible, since
the unanimous jurisprudence of the Chilean courts indicates that civil
actions may only proceed once the corpus delicti has been
produced, and the guilty party against whom such action is to be taken
has been determined. This
is expressly prescribed in Article 40 of the Code of Criminal
Procedure, in stating that civil action may be taken against the
responsible party himself and against his heirs, and in Article 254
No. 3 of the Code of Civil Procedure, which makes it mandatory that a
civil suit must contain the name, address and profession or office of
the individual against whom the suit is brought.
10. In
light of the foregoing, and in particular the fact that the Supreme
Court has denied access to justice for 70 Chileans, in violation of
the provisions of the American Convention, which is currently in force
in Chile, and since the current Supreme Court can clearly be expected
to maintain its position with respect to the limits imposed by the
self-amnesty DL of 1978, the petitioners ask the Commission to declare
that the State of Chile has violated Article 25 with respect to
article 1.1 of the American Convention on Human Rights, and that, in
light of the provisions of Articles 1.2 and 43 of that instrument, it
declare that DL 2191 is incompatible with the obligations of Chile
under the American Convention on Human Rights.
11. The
Commission transmitted the relevant portions of the complaint to the
Government of Chile on 1 April 1991, asking it to submit information
on the alleged facts or any other pertinent information, within a
period of 90 days.
On July 8, 1991, the Commission received a note from the
Government, seeking a delay of 30 days to submit its response, which
request was granted by the Commission in a note dated 11 July 1991.
On August 12, 1991, the Commission received a new petition for
a delay of 30 days for responding to the complaint, and this was
granted by the Commission on 16 August, 1991.
The Commission received the response of the Government on 11
September 1991. In it, the Government alleges that the remedies
available within Chilean jurisdiction have not been exhausted. The
response also states that the petition had been presented after the
expiry of the 6-month period prescribed by Article 46 b of the
Convention, and Articles 35 (b) and 38.1 of the Regulations of the
Commission.
On November 15, 1994, the Commission sent to the Government and
the petitioners a communication in which it offered its good offices
to both parties to arrive at a friendly settlement of the matter.
On December 29, 1994, the petitioners sent their observations
on the information presented by the Government of Chile regarding the
case, and these were transmitted to the Government on 11 January 1995.
The Commission held a hearing on the case on 1 February 1995,
with the participation of representatives of the petitioners and of
the Government of Chile.
On February 11, 1995, a delay of 60 days was granted to the
Government of Chile to prepare additional comments on the case.
On August 25, 1995, the Commission received the response of the
Government.
On October 10, 1995, the Government was sent Report No. 19/95
on admissibility, which had been adopted by the Commission during its
90th Regular Session.
II.
ADMISSIBILITY OF THE PRESENT CASE
12. Pursuant
to the provisions of Article 44 of the American Convention on Human
Rights (hereafter “the Convention”), to which Chile is a State
Party, the Commission is competent to hear this case, because it deals
with complaints that allege violations of rights that are guaranteed
by the American Convention in Article 25, with respect to the right to
effective judicial protection, and Articles 1.1, 2 and 43 on the duty
of states to comply with and enforce the Convention, to adopt domestic
legal provisions to give effect to the standards of the Convention and
to report thereon to the Inter-American Commission on Human Rights.
13. The
compliant therefore meets the formal requirements of admissibility
contained in the American Convention on Human Rights, and in the
Regulations of the Commission, as stated in Report 19/95 on
admissibility, adopted by the Commission during its 90th Regular
Session, in September 1995.
14. The
current complaint is not pending in another international proceeding
for settlement, nor is it a repetition of a petition previously
studied by the Inter-American Commission on Human Rights.
III.
FRIENDLY SETTLEMENT
15. During
the course of the hearing held on 1 February 1995, the Commission
reminded the representatives of the petitioners and the Government of
Chile that, pursuant to the provisions of Article 48 paragraph f) of
the Convention, it was obliged to put itself at the disposal of the
parties with a view to reaching a friendly settlement of the matter,
on the basis of respect for the human rights recognized in the
Convention.
16. By
means of a communication of 8 February 1995, ratified on 8 September
1995, the representatives of the victims refused to accept a friendly
settlement under any condition, and asked that the proceedings be
continued, as provided for in the American Convention.
Since no friendly settlement has been reached, the Commission
must comply with the provisions of Article 50.1 of the Convention, by
issuing its conclusions and recommendations on the matter submitted
for its consideration.
IV.
COMPLIANCE WITH THE PROCEDURES ESTABLISHED BY THE CONVENTION
17. During
the proceedings regarding the present case, the Commission has given
equal opportunity to the Government of Chile and to the petitioners to
present arguments, and has weighed the evidence and allegations
submitted by both parties with absolute objectivity.
In the handling of the present case, all legal and regulatory
procedures established by the American Convention on Human Rights and
by the regulations of the Commission have been observed, complied with
and exhausted.
V.
ARGUMENTS PRESENTED BY THE GOVERNMENT OF CHILE
18. The
democratic Government of Chile argued that it has issued no amnesty
law that is incompatible with the American Convention, since Decree
Law 2191 was issued in 1978, under the de facto military
regime.
19. The
Government asked the Commission to consider the historical context in
which the deeds took place, and the special conditions under which the
country returned to a democratic regime, whereby the new Government
was obliged to accept the rules imposed by the de facto
military regime, and could
modify them only in accordance with the law and the Constitution.
20. The
Government has attempted to revoke the amnesty Decree Law, but the
constitutional rules provide that initiatives relating to amnesty may
only originate in the Senate [article 62 paragraph 2 of the
Constitution], where it lacks a majority, due to the number of persons
in that legislative chamber who were not elected by popular vote.
21. The
democratic Government has urged the Supreme Court to declare that the
amnesty currently in force cannot prevent the guilty parties from
being investigated and prosecuted.
22. The
National Commission for Truth and Reconciliation, in its report naming
the victims whose basic rights had been violated under the military
dictatorship, including the 70 persons included in this complaint,
recognized that the cases of these persons constituted serious
violations that involved
agents of the State, and because the whereabouts of the victims was
unknown, they were deemed to be “disappeared prisoners”.
23. By
means of law 19123, issued by the democratic Government, the families
of the victims were granted: a single life-time pension in an amount
no less than the average compensation for a family in Chile; a special
procedure declaring the victims to be presumed dead; special attention
by the State with respect to health, education and housing;
forgiveness of education, housing, tax and other debts to state
agencies; and exemption from compulsory military service for the
children of the victims.
24. The
democratic Government expressed its agreement with the statement of
the petitioners regarding the nature of Decree Law 2191 of 19 April
1978, which sought to exonerate responsibility for the most serious
crimes ever committed in the history of Chile.
25. The
Government asked the Inter-American Commission on Human Rights to
declare in its final report that the Government of Chile was not
guilty or liable in any way for the violations of rights that form the
basis of the petitioners’ complaint in this case.
VI.
OBSERVATIONS OF THE COMMISSION ON THE ARGUMENTS PRESENTED BY
THE PARTIES
A)
Preliminary considerations
a.
Status of the authorities who decreed the amnesty
26. The
so-called “amnesty law” is an arbitrary act taken by the military
regime that overthrew the constitutional Government of Dr. Salvador
Allende. It is the act
therefore of authorities who lacked any legitimacy or right, since
there were not elected nor appointed in any manner, but rather
installed themselves in power by force, after having deposed the legal
government, in violation of the Constitution.
27. A
de facto government lacks legal legitimacy, because if a state
has adopted a Constitution, any act that is not in accordance with
that constitution is contrary to Law.
The installation of a de facto government in Chile was
the result of force and not of popular consent.
28. The
Commission cannot, even for the sake of preserving juridical security,
place the legitimacy of a de jure government on an equal
footing with the arbitrary and illegal behavior of a regime that has
usurped power, the very possibility of which, by
definition, gives rise to juridical insecurity.
Such regimes deserve to be permanently repudiated in defence of
the Constitutional State and the Rule of Law, and in regard
for democratic life and the principle of the sovereignly of the
people, based on full respect for human rights.
29. In
the present case, those who benefitted from the amnesty were not
foreigners or third parties, but people who were participants in the
governing policies of the military regime.
It is one thing to affirm the necessity of giving legitimacy to
acts taken by society as a whole [to avoid collapsing into chaos] or
acts that flow from international commitments, because obligations
assumed in those fields cannot be circumvented, but is entirely
another matter to extend similar treatment to those who collaborate
with an illegitimate government in violation of the Constitution and
the laws of Chile.
30. The
Commission believes it would be absurd to pretend that the usurper and
its successors could invoke the principles of the Constitution, which
they themselves violated, in order to enjoy the benefits of security,
which are only justified and merited for those who adhere rigorously
to the Constitution. The
acts of a usurper can have no validity or legitimacy either as regards
the usurper himself or for his illegal or de facto
functionaries. Because if
those who collaborate with such governments are granted and assured
impunity for their conduct under a usurping and illegitimate regime,
there would be no difference between what is legal and what is
illegal, between what is constitutional and what is unconstitutional,
or between what is democratic and what is authoritarian.
31. The
constitutional rule of law in Chile must, of necessity, ensure that
the Government can comply with its fundamental goals, unencumbered by
limitations that are contrary to law and that were imposed by a
usurping military regime, since it is not juridically acceptable that
such a regime should be able to restrict the actions of the
constitutional Government succeeding it as it tries to consolidate the
democratic system, nor is it acceptable that the acts of the de
facto power should enjoy all those attributes that accrue to the
legitimate acts of a de jure power.
The de jure government derives its legitimacy, not from
any rules handed down by the usurper, but from the will of the people
who have elected it, since they alone can claim sovereign power.
b.
The Constitutional rule of law in Chile
32. The
position expressed in the preceding paragraph is consistent with
Chilean constitutional law. The
Constitution of Chile of 1833 provided, in Article 158, that “Any
resolution issued by the President of the Republic, the Senate or the
Chamber of Deputies, in the presence or at the instigation of an army,
or of a general leading an armed force, or of any group of people,
whether armed or not, that would disobey the authorities, is null and
void and can produce no effect whatsoever."
In turn, the Constitution of 1925 declared: “No power, no
person or group of persons may take upon itself, even under the
pretext of extraordinary circumstances, any authority or right other
than what is expressly conferred upon it by law.
Any act in contravention of this article is null and
void." [Article 4].
Even the “constitution” sanctioned by Decree Law of the
military regime expresses on this point:
"No power, no person nor group of persons may take upon
itself, even under the pretext of extraordinary circumstances, any
authority or right other than what is expressly conferred upon it by
the constitution or the law. Any
act in contravention of this article is null and shall give rise to
the liabilities and penalties that the law provides”
[Article 7, second paragraph}.[1]
Similarly, Article 5 of that document provides that “the
exercise of sovereignly is limited with respect to the essential
rights that emanate from the nature of humanity”, and states that no
individual nor group of people can claim to exercise it.
c.
Basic rights and freedoms of persons and of the state
33. Similarly,
fundamental rights and freedoms do not cease to exist under a de
facto government, since they predate both the State and the
Constitution, which may recognize and guarantee them, but did not
create them. It is
therefore erroneous to maintain that a de facto regime has no
limits to its power to act in an arbitrary or unconstitutional way.
From this it follows that a government that is accused of the
systematic violation of the fundamental rights of its subjects and
that tries to excuse itself through an amnesty thereby commits a
serious abuse of power.
34. In
this regard, professor Christian Tomuschat says: “To maintain that
in certain cases we must obey a corrupt law and yield to the demands
of its perpetrators, would be to make of the State a divinely inspired
fetish, unstained by the most atrocious and odious acts” (See “On
resistance to the violation of human rights," UNESCO, 1984, page
26).
d.
The international law of human rights
35. International
human rights law reaffirms this concept, as in the provisions of
Article XX of the American Declaration and Article 23.1 a and b of the
Convention, which cannot be suspended, according to Article 27.2 of
the Convention.
Other inter-American instruments reaffirm the foregoing, such
as Article 3 of the OAS Charter, which bases the principle of
solidarity of the American states upon the common denominator of
“the effective exercise of representative democracy”.
The Inter-American Court of Human Rights
36. The
inter-American Court of Human Rights defines as “laws”, those
“legal rules of a general character, intended to serve the public
good, issued by legislative bodies that are constitutionally
established and democratically elected, and elaborated in
accordance with the procedures set out in the constitutions of the
States Parties for the formulation of laws” (our underlining) (OC/6,
paragraph 38). It arrived
at this definition on the basis of analyzing the principles of
“legality” and legitimacy” and of the democratic regime within
which the inter-American system of human rights must be comprehended (OC/6,
paragraphs 23 and 32), as is explicit in its OC/13, paragraph 25.
For the Court, “the principle of legality, democratic
institutions and the rule of law are inseparable” (OC/8, paragraph
24). Strict adherence to a democratic regime has been stressed by
the Court: “Representative democracy is the determining factor in
the entire system of which the Convention is a part” (OC/13,
paragraph 34), and this stands in complement to its standards on
“the just demands of democracy” that must guide the interpretation
of the Convention, and especially of those precepts that are
critically related to the preservation and functioning of democratic
institutions (OC/5, paragraphs 44; 67 and 69).
Nor should it be forgotten that the doctrine of the Court
stresses the importance of the elected legislature in the guarding of
fundamental rights (OC/8, paragraphs 22 and 23), and it also stresses
the role of the Judiciary in reviewing the legitimacy of the acts of
the Executive Power (OC/8, paragraphs 29 and 30;
OC/9, paragraph 20).
The Inter-American Commission on Human Rights
37. The
IACHR has pronounced itself on this theme on many occasions.
For example, it has stated that “the democratic context is
the necessary element for the establishment of a political society
where human rights can thrive to their fullest” [See, Ten Years of
Activities 1971-1981, page 331], where it refers to the according of
dominant power to bodies that do not represent the popular will (id,
page 270]. In its Report
on Panama (1978), page 114, paragraph 3.
Annual Report 1978/80, page 123/24; analyzing a draft political
Constitution for Uruguay; in its report on Suriname regarding public
participation, even in the preparation of constitutional texts (1983),
page 43 paragraph 41; its decision regarding the plebiscite in Chile,
questioning its validity for having been held during a time when
public freedoms were suspended [Report 1978/80, page 115]; and in the
results of the case of "Ríos Montt v/Guatemala)."
The universal system
38. With
respect to the universal system, the following
should be noted: a) the Charter of the United Nations and its
preamble (“We, the people of the United Nations..."); in its
reference to the “free self-determination of peoples” and to
"developing and encouraging respect for human rights and
fundamental freedoms for all..."; b) the Universal Declaration,
in its article 29; c) The International Covenant on Civil and
Political Rights and d) the statement by the Human Rights Committee in
"Ngaluba v/Zaire", paragraphs
8.2 and 10 on the denial of the right to participate, under
conditions of equality, in the management of public affairs, due to
sanctions imposed on eight parliamentarians.
Usurper governments and democratic governments
39. For
the reasons discussed above, the Commission considers that
representative democracy constitutes the essential precondition for
the political and juridical organization of the American States, and
consequently it deems the acts of a usurper or de facto
government to be, of and by themselves, incompatible with the
provisions of the American Convention of Human Rights.
B)
General considerations
40. The
Commission considers that in the present case, the petition poses a
question of law and seeks to determine if the decree-law referred to,
and the form in which it was applied by the Chilean courts, is
compatible with the Convention, given that none of the alleged deeds
has been denied, and it is not necessary to confirm any
facts.
41. Although
the democratic Government denied its responsibility for the deeds
perpetrated by the military dictatorship, it did recognize its
obligation to investigate previous violations of human rights, and it
established a Truth Commission to verify the facts and to publish its
results. As a measure of
reparation, ex-President Aylwin asked for forgiveness, on behalf of
the State of Chile, from the relatives of the victims. Moreover, the
ex-President issued a public protest over the decision of the Supreme
Court which ruled that the amnesty decree-law must be applied so as to
suspend any investigation of the facts.[2]
The democratic Government, invoking its inability to amend or
annul the amnesty decree-law and its obligation to respect the
decisions of the Judiciary, argued that the measures it had already
taken were both effective and sufficient to comply with the
obligations of Chile under the Constitution, and that these measures
rendered any further action unnecessary.
42. The
petitioners, while they recognize the efforts made by the Government,
maintain that those efforts were neither sufficient nor effective, and
that the Government is under a permanent obligation to conduct a full
and complete investigation of the facts of the case, establish
responsibility and prosecute the parties guilty of past violations of
human rights.
43. The
Commission notes that, as has been demonstrated in the preceding
section, the adoption of the self-amnesty decree-law was in conflict
with the provisions of the Chilean constitution in force at the time
it was issued. Moreover,
regardless of the legality or constitutionality of the laws under the
Chilean Constitution, the Commission is competent to examine the legal
effects of a legislative, judicial or any other kind of measure to the
extent that it is incompatible with the rights and guarantees
protected under the American Convention.[3]
44. In
its decision relating to international responsibility regarding the
application and enforcement of laws that violate the Convention
(Articles 1 and 2 of the
Convention), the Court declared that: “as a result of this power,
the Commission may recommend that the State revoke or revise the
offending rule, and in order to make such a recommendation it is
sufficient that the rule have come to the Commission’s attention by
one means or another."[4]
45. Article
2 of the Convention establishes the duty of States Parties to adopt
“such legislative or other measures
as may be necessary” to give effect to the rights and freedoms
enshrined in the Convention. Therefore,
the Commission or the Court is empowered to examine--under the terms
of the Convention-- internal laws that are alleged to suppress or
violate the rights and freedoms enshrined therein.[5]
46. In
examining this matter, it is important to consider the nature and
severity of the alleged crimes that were covered by the amnesty
decree. The military
government that ruled the country from 11 September 1973 until 11
March 1990 conducted a systematic policy of repression that resulted
in thousands of victims of “disappearances”, summary or illegal
executions and torture. The
Commission, in referring to the practices of that military government,
stated that:
... that Government (had) used virtually every known means of
physical elimination against dissidents, including: disappearances,
summary executions of individuals and groups, executions decreed in
trials without due process, and torture.[6]
47. Some
of these crimes were deemed sufficiently serious that they have been
used to justify the adoption, in various international instruments, of
measures specifically aimed at avoiding impunity, including universal
jurisdiction and the removal of all time limitations with respect to
prosecuting those crimes.[7]
48. With
respect to disappearances, the General Assembly of the Organization of
American States has declared that ".. The forced disappearance of
persons in America is an affront to the conscience of the whole
hemisphere, and constitutes a crime against humanity."[8]
In its decision of 1988 in the case of "Velásquez Rodríguez"
the Inter-American Court noted that international practice and
doctrine have on many occasions deemed disappearances to be a crime
against humanity.[9]
The Inter-American Convention on the Forced Disappearance of
Persons reaffirms in its preamble that “the systematic practice of
forced disappearances constitutes a crime against humanity."[10]
The social necessity to clarify and investigate such crimes
cannot be compared with that of a mere common felony.[11]
a)
The question of the Self-Amnesty Decree-Law
49. The
Commission has on a number of occasions considered the question of
amnesties, in relation to complaints against States Parties to the
American Convention that, in searching for a mechanism to restore
peace or achieve national reconciliation, have resorted to amnesties,
at the expense of groups of people among whom were many innocent
victims of violence, who have thus seen themselves deprived of their
right to due process for their just complaints against persons who had
committed excesses and acts of barbarism against them.[12]
50. The
Commission has repeatedly stated that the application of amnesties
renders ineffective and worthless the obligations that States Parties
have assumed under Article 1.1 of the Convention, and thus constitute
a violation of that article and eliminate the most effective means for
protecting such rights, which is to ensure the trial and punishment of
the offenders.[13]
51. What
is at issue here, as the petitioners have made perfectly clear, is not
the violations of human rights involved in the illegal detention and
disappearance of the 70 persons named in their complaint, a deed
committed by agents of the State of Chile during the previous military
regime, but more fundamentally two problems: A) failure to revoke--and
hence allowing to remain in force--the amnesty decree-law 2191 that
was issued by that military government, but which has remained in
force under the democratic Government, even after Chile ratified the
American Convention and assumed the commitment to comply with it; and
B) failure to investigate, to identify the responsible parties and to
prosecute the authors of those deeds, which failure began during the
military government, and has continued during the democratic and
constitutional Government.
52. The
democratic Government of Chile recognized the close relationship that
exists in this case between amnesty and impunity, and therefore issued
Law No. 19.123, which offers compensation to the families of the
victims of human rights violations, and treats as a single act the
violation of the victims’ rights, from the time they were seized
until the time justice was denied.
53. The
deeds alleged against the democratic Government relate, on one hand,
to non-compliance with the obligations assumed by the State of Chile
to adapt its domestic legal standards to the precepts of the American
Convention, which non-compliance violates Articles 1.1 and 2; and on
the other hand to its actions, which imply the denial of justice for
the 70 disappeared persons named in the complaint, which violates
Articles 8 and 25 in connection with Article 1.1.
54. The
Commission has taken note that the democratic Government approached
the Supreme Court in March 1991, seeking that it do justice to the
cases of the disappeared persons, and that it rule that the
self-amnesty in force should not and could not prevent the conduct of
a legal investigation to determine the corresponding responsibilities;
the Commission has also noted that the Government vetoed a law that
would have added to the amnesty.
55. Not
only does the Government of Chile agree with the petitioners with
respect to the violation of rights represented by Decree Law 2191, it
also considers that in addition to the articles cited by the
petitioners in support of their petition, the Commission should also
take account of the provisions of Article 8 paragraph 1, which
guarantees the right of every person to be heard before a competent,
independent and impartial tribunal, for the determination of his
rights.
56. Special
recognition is merited by the creation of the National Commission for
Truth and Reconciliation, and to the work that that Commission has
done in compiling files on violations of human rights and on the
disappeared prisoners, the report from which specified the
victims--including the cases of the 70 persons included in the
complaint--and the efforts to establish their whereabouts and the
measures of compensation for each of them; it recognized that the
cases of those persons constitute serious violations of fundamental
rights, and that agents of the State were involved in those
violations; and it recognized them, in the absence of knowledge of
their whereabouts, as “disappeared prisoners.”
57. Similar
recognition is merited for law No. 19.123, an initiative of the
democratic Government, which granted to the families of the victims:
a) a single life-time pension in an amount no less than the average
compensation for a family in Chile; b) a special procedure to declare the victims as presumed
dead; c) special attention by the State with respect to health,
education and housing; d) forgiveness of education, housing, tax and
other debts owing to state agencies; and e) exemption from compulsory
military service for the children of the victims.
58. Nevertheless,
such measures are not sufficient to guarantee respect for the human
rights of the petitioners, in accordance with the provisions of
Articles 1.1 and 2 of the American Convention on Human Rights, as long
as they are denied the right to justice.
b)
The denial of justice
59. The
violation of the right to justice, and the consequent impunity that is
created in the present case, constitutes a chain of acts that began,
as it has been established, when the military government issued, in
its own favor and that of its agents who committed violations of human
rights, a series of rules designed to form a complete legal bulwark of
impunity, beginning formally in the year 1978 with the military
government’s Decree-Law No. 2191 on self-amnesty. |
