REPORT Nº 36/96
15 October 1996
THE COMPLAINT AND PROCEEDINGS OF THE COMMISSION
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:
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).
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).
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.
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.
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
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.
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.
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.
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
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
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.
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.
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
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
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.
ADMISSIBILITY OF THE PRESENT CASE
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.
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.
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.
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
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.
COMPLIANCE WITH THE PROCEDURES ESTABLISHED BY THE CONVENTION
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
ARGUMENTS PRESENTED BY THE GOVERNMENT OF CHILE
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
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.
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.
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.
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”.
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.
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.
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.
OBSERVATIONS OF THE COMMISSION ON THE ARGUMENTS PRESENTED BY
Status of the authorities who decreed the amnesty
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.
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.
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.
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.
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.
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.
The Constitutional rule of law in Chile
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}.
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.
Basic rights and freedoms of persons and of the state
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.
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
The international law of human rights
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
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
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
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
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
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.
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
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.
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.
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
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.
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."
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.
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,
... 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.
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.
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."
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
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."
The social necessity to clarify and investigate such crimes
cannot be compared with that of a mere common felony.
The question of the Self-Amnesty Decree-Law
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.
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
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
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.
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.
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.
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
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.”
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.
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.
The denial of justice
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.
democratic Government has joined in condemning the self-amnesty
decree-law, and has told this Commission that:
"the constitutional Government cannot but agree with the
petitioners on the nature of Decree-Law No. 2191 of 19 April 1978,
which sought to exonerate responsibility for the most serious crimes
committed in our history."
the Chilean State, through its Legislative Power, is responsible for
failure to amend or revoke the de facto Decree-Law No. 2191 of
19 April 1978, and is thereby in violation of the obligations it has
undertaken to adjust its laws to the precepts of the Convention,
pursuant to Articles 1.1 and 2.
Violation of the right to a fair trial
is alleged that the legal consequences of the self-amnesty are
incompatible with the Convention, since they transgress on the right
of the victim to a fair trial, as guaranteed in Article 8.
article protects the right of the accused to a fair trial “in the
substantiation of any accusation of a criminal nature made against
him...”. The State has
the duty to provide effective recourse (Article 25), which must be
“substantiated in accordance with the rules of due legal process
It is important to note that in many of the criminal law
systems of Latin America, the victim has the right to bring charges in
a criminal action. In systems such as that of Chile, which permit
this, the victim of a crime has the fundamental right to turn to the
This right is essential to activate the criminal process and to
move it forward. The
amnesty decree clearly affected the right of the victims, which is
recognized in Chile, to launch criminal action before the courts
against those responsible for violations of their human rights.
if this were not the case, since the crimes in question here are
public crimes, that is to say they can be prosecuted ex officio,
the State has the obligation to investigate them, an obligation that
can be neither delegated nor renounced.
Thus, in any case, the Chilean State is empowered to take
punitive action and is obliged to press forward with the various
procedural stages, in fulfillment of its duty to guarantee the right
to justice for the victim and his family.
This task must be assumed by the state as its own legal duty,
not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof.
petitioners allege furthermore that the Amnesty Decree-Law prevented
the families of the victims from seeking reparations in the civil
courts. Article 8 provides that:
Every person has the right to a hearing, with due guarantees
and within a reasonable time, by a competent, independent and
impartial tribunal, previously established by law...for the
determination of his rights and obligations of a civil, labor, fiscal
or any other nature.
Chile, the ability to bring civil action is not necessarily linked to
the results of the criminal proceedings.
Civil charges, however, must be brought against a specified
person in order to establish the responsibility for the alleged deeds
and to determine the payment of compensation.
The failure of the state to conduct an investigation made it
virtually impossible to establish any such responsibility before the
civil courts. Notwithstanding
the fact that the Supreme Court stressed that civil and criminal
proceedings are independent, the manner in which the
amnesty was applied by the courts clearly affected the right to seek
reparations in the civil courts, by making it impossible to
individualize or identify those responsible.
de facto Decree-Law 2191, as it was applied and interpreted by
the courts of Chile, prevented the petitioners from exercising their
right to a fair trial to determine their civil rights, as guaranteed
in article 8.1 of the Convention.
Violation of the right to judicial protection (article 25)
petitioners claim that the victims and their families were deprived of
their right to effective recourse against the violation of the their
rights, as protected in Article 25 of the Convention.
Inter-American Court of Human Rights has ruled that states have the
legal duty to provide domestic recourse.
On this point, the Court stated that:
Under the Convention, States Parties have an obligation to
provide effective judicial remedies to victim of human rights
violations (Art. 25), remedies that must be substantiated in
accordance with the rules of the process of law (Art. 8(1), all in
keeping with the general obligation of such States to guarantee the
free and full exercise of the rights recognized by the Convention to
all persons subject to their jurisdiction (Art. 1).
Court went on to establish that: "Adequate domestic remedies are
those which are suitable to address an infringement of a legal
...the absence of an effective remedy to violations of the
rights recognized by the Convention is itself a violation of the
Convention by the State Party in which the remedy is lacking.
In that sense, it should be emphasized that, for such a remedy
to exist, it is not sufficient that it be provided for by the
Constitution or by law or that it be formally recognized, but rather
it must be truly effective in establishing whether there has been a
violation of human rights and in providing redress.
self-amnesty was a general procedure by which the State refused to
prosecute serious crimes. Moreover, because of the way it was applied by the Chilean
courts, the decree not only prevented the possibility of prosecuting
the authors of the human rights violations, but also ensured that no
accusation could be brought, and that the names of the responsible
parties (beneficiaries) would not be known, so that, legally, those
persons were considered as if they had never committed any illegal act
at all. The amnesty
decree-law rendered the crimes legally without effect, and deprived
the victims and their families of any legal recourse through which
they might identify those responsible for violating their human rights
during the military dictatorship, and bring them to justice.
promulgating and enforcing the de facto Decree-Law 2191, the
Chilean State failed to guarantee the right to judicial protection as
stipulated in Article 25 of the Convention.
Failure to fulfill the duty to investigate
Inter-American Court of Human Rights, in its interpretation of Article
1.1 of the Convention, has ruled that "The second obligation of
the States Parties is to 'ensure' the free and full exercise of the
rights recognized by the Convention to every person subject to its
jurisdiction. As a
consequence of this obligation, the States must prevent, investigate
and punish any violation of the rights recognized by the
The Court then devoted several paragraphs to analyzing this
What is decisive is whether a violation of the rights
recognized by the Convention has occurred with the support or the
acquiescence of the Government, or whether the State has allowed the
act to take place without taking measures to prevent it or to punish
"The State has a legal duty to take reasonable steps to
prevent human rights violations and to use the means at its disposal
to carry-out a serious investigation of violations committed within
its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate
"If the State apparatus acts in such a way that the
violation goes unpunished and the victim's full enjoyment of such
rights is not restored as soon as possible, the State has failed to
comply with its duty to ensure the free and full exercise of those
rights to the persons within its jurisdiction."
With respect to the duty to investigate, the Court has stated
that the investigation "...must have an objective and be assumed
by the State as its own legal duty, not as a step taken by private
interests that depends upon the initiative of the victim or his family
or upon their offer of proof, without an effective search for the
truth by the government."
National Commission for Truth and Reconciliation established by the
democratic Government to investigate previous human rights violations
addressed a good portion of the total number of cases, and granted
reparations to the victims or their families. Yet notwithstanding
the investigations conducted by that Commission into cases of
violation of the right to life, the victims of other violations,
including torture, were deprived of any legal recourse and of any other type of
that Commission was not a judicial body and its work was limited to
establishing the identity of the victims whose right to life had been
violated. Under the terms
of its mandate, the Commission was not empowered to publish the names
of those who had committed the crimes, nor to impose any type of
sanction on them. For
this reason, despite its important role in establishing the facts and
granting compensation, the Truth Commission cannot be regarded as an
adequate substitute for the judicial process.
Truth Commission concluded in its report as follows:
From the strictly preventive viewpoint, this Commission
believes that, as an indispensable element for achieving national
reconciliation and avoiding the repetition of the deeds that have
occurred, the State must exercise fully its powers of prosecution.
Human rights can only be effectively protected under the true
rule of law. And the rule
of law presupposes that all citizens are subject to the law and to the
courts of justice, which involves the application of the penalties
provided in criminal legislation, on an equal basis, to all those who
violate the standards that govern respect for human rights."
Government’s recognition of responsibility, its partial
investigation of the facts and its subsequent payment of compensation
are not enough, in themselves, to fulfil its obligations under the
Convention. According to
the provisions of Article 1.1, the State has the obligation to
investigate all violations that have been committed within its
jurisdiction, for the purpose of identifying the persons responsible,
imposing appropriate punishment on them, and ensuring adequate
reparations for the victims."
sanctioning the de facto Decree-Law 2191 on self-amnesty, the
State of Chile failed to comply fully with the duty stipulated in
Article 1.1 of the Convention, and violated to the prejudice of the
petitioners the human rights recognized by the American Convention.
The international responsibility of the State
is at issue in this case is not the responsibility of the Government
of Chile or of the other organs of public authority, but the
international responsibility of the Chilean State.
the proceedings under this case, it has been demonstrated, and the
Government has at no time denied, that there was both active and
passive involvement of agents of the Chilean State as authors and
perpetrators of the deeds alleged by the petitioners.
Government is in agreement that Decree 2191 is contrary to law; it
recognizes the strict relationship between amnesty and impunity; it
admits that the successive acts committed in violation of the right to
justice represented a single and continuous act in violation of human
rights, from the time the victims were seized until justice was
denied, and has stated that the amnesty decree-law “represents
within a single act a policy of massive and systematic violations of
human rights that, in the cases of forced disappearance, begins with
the abduction of the victim, continues with hiding him, then his
death, persists with denial of the deed and concludes with the amnesty
granted to public agents.”
Government of Chile maintains that, as an organ of the Executive
Power, it cannot be held responsible or liable for any of the
violations alleged by the petitioners, because, with respect to the
self-amnesty, the democratic Government has never decreed an amnesty
law; and with respect to the revocation of that law, because it is
impossible to do so, for the reasons stated; that this same limitation
exists with respect to adapting its internal standards to those of the
American Convention on Human Rights; that with respect to the
application of the amnesty it can act only within the bounds of law
and the Constitution which determine its competence, responsibilities
fact that Decree-Law 2191 was promulgated by the military regime
cannot lead to the conclusion that it is impossible to separate that
decree and its legal effects from the general practice of human rights
violations of that time. While it is true that the Decree-Law was
issued during the military regime, it continues to be applied whenever
a complaint is brought before Chilean courts against an alleged
violator of human rights. What has been denounced as incompatible with
the Convention is the continuous legal consequence of the Decree-Law
the Executive, Legislative and Judicial powers may indeed be distinct
and independent internally, the three powers of the State represent a
single and indivisible unit which is the State of Chile and which, at
the international level, cannot be treated separately, and thus Chile
must assume the international responsibility for the acts of its
public authorities that violate its international commitments deriving
from international treaties.
Chilean State cannot under international law justify its failure to
comply with the Convention by alleging that the self-amnesty was
decreed by a previous government, or that the abstention and failure
of the Legislative Power to revoke that Decree-Law, or the acts of the
Judicial Power confirming its application, have nothing to do with the
position and responsibility of the democratic Government, since the
Vienna Convention on the Law of Treaties provides in Article 27 that a
State Party cannot invoke the provisions of its domestic law as a
justification for non-compliance with a treaty.
Inter-American Court has ruled that "under international law a
State is responsible for the acts of its agents undertaken in their
official capacity and for their omissions, even when those agents act
outside the sphere of their authority or violate internal law."
responsibility for the violations caused by the de facto
Decree-Law 2191, which was promulgated by the military regime that
seized power in an arbitrary and illegal manner, which was not revoked
by the current Legislative power, and which is still applied by the
Judicial power, lies squarely with the State of Chile, regardless of
the regime that issued it or the branch of the State
that applied it or made possible its application.
There can be no doubt whatever that the Chilean State bears the
international responsibility for deeds that, while they may have
occurred under the military government, have still not been
investigated or punished. Consistent
with the principle of the continuity of the State, international
responsibility exists independently of changes of government.
In this respect, the Inter-American Court of Human Rights has
said: "According to the principle of the continuity of the State
in international law, responsibility exists both independently of
changes of government over a period of time and continuously from the
time of the act that creates responsibility to the time when the act
is declared illegal. The
foregoing is also valid in the area of human rights although, from an
ethical or political point of view, the attitude of the new government
may be much more respectful of those rights than that of the
government in power when the violations occurred."
following facts confirm the failure of the State of Chile to comply
with the provisions of Articles 1 and 2 of the Convention:
Decree-Law 2191 issued by the military dictatorship that ruled
Chile between 1973 and 1990 has not been revoked by the legislative
Power, but has remained in force; that internal legislation of Chile
has not been adjusted to reflect the standards of the Convention; and
that legislation continues to be applicable to judicial proceedings
now underway, as declared by the current Judicial Power.
failure to revoke the de facto Decree-Law upon ratification of
the Convention, the failure to amend internal standards so as to give
effect to the Convention within Chile, and the application of that
Decree-Law to the case in question, by the Legislative and Judicial
powers according to their respective competencies, mean that the
Chilean State stands in violation of the Convention.
the self-amnesty was promulgated prior to the inauguration of the
democratic Government and the ratification of the Convention, the
responsibility attributable to the State of Chile for this question
derives form the fact that its internal legislation has not been
adapted to the terms of the Convention and that, having been declared
[in an arbitrary manner] constitutional by the Judicial Power, its
effects have been maintained over time, as validating the arbitrary
act that violated human rights.
is important to note that a representative of the regime installed by
the military action that overthrew President Allende declared before
the United Nations Human Rights Committee that the Covenant on Civil
and Political Rights has been in force in Chile since 1976.
should be noted as well that, according to Article 5.2 of the
Political Constitution of Chile, the courts of Chile are bound to
reconcile international and national law in their decision.
States Parties to the Convention assume, as States, the responsibility
and duty to respect, enforce and guarantee all of the rights and
freedoms recognized therein for all persons subject to their
jurisdiction, and to change or amend their legislation to give effect
to the full and free exercise of those rights and freedoms.
By failing to fulfill this commitment, the Chilean State has
infringed Articles 1 and 2 of the Convention.
FINAL PROCEEDINGS UNDER THE PRESENT CASE
its 92nd Special Session held between 29 April and 3 May 1996, the
Commission adopted Report 24/96, which was transmitted to the
Government of Chile with the request that it submit any observations
it deemed pertinent within a period of 60 days of that transmission.
OF THE GOVERNMENT OF CHILE
30 September 1996, the Government of Chile transmitted its response to
the Commission, in which it stated the following:
Government of Chile reiterates the recognition it accords to the
international system for the protection of human rights, both at the
international and regional level, and contributing to the
reinforcement and effectiveness of that system in defence of the
individual is one of the goals of Chilean foreign policy.
As a consequence of that recognition, the State of Chile - once
it was restored to democracy - has signed important international
instruments in this regard, including the American Convention on Human
Rights of 1969 and the Optional Protocol of the International Covenant
on Civil and Political Rights of 1966.
this connection, our country attaches special significance to the
inter-American system for the protection of human rights, and in
particular the work of the Inter-American Commission on Human Rights.
Consequently, it has attempted to promote and support the
various initiatives directed at strengthening that system,
specifically its basic organs, i.e. the Commission and the
Inter-American Court of Human Rights.
its report, the Inter-American Commission does not question the
attitude of the democratic governments of Chile, since it was not they
who promulgated decree-law No. 2191 of 1978 on amnesty, nor have they
issued any new legal rules that would impede the investigation or
prosecution of the deeds in question by the Courts of Justice.
Inter-American Commission is aware that the democratic Government of
Chile does not share the view adopted by the Supreme Court of Chile
with respect to the interpretation and scope of the amnesty
decree-law, but that it must nevertheless, for both constitutional and
international reasons, preserve the independence of the judiciary and
guarantee that its rulings are given legal effect.
Government of Chile appreciates the positive light in which the
Inter-American Commission has viewed the efforts made to establish the
truth, to enforce justice and to provide reparations in the case of
the most serious violations of human rights, through the work of the
National Commission for Truth and Reconciliation and subsequently
through the National Corporation for Reparations and Reconciliation.
is important to reiterate that the democratic governments that
followed the military regime fully support the criticisms that have
been brought against the amnesty decree-law of 1978, and that they
have never promulgated any legal rules that would impede an
investigation of the serious human rights violations that occurred in
the past. On the
contrary, they have sponsored legal initiatives to establish the truth
of what happened in the case of persons who were executed or
disappeared at the hands of agents of the State, with a view to
obtaining justice and reparation wherever possible.
respect to the legislative amendment measures that the democratic
Government has undertaken, the Inter-American Commission must be aware
of the difficulties that this matter has posed for the Executive
Power, as a result of the peculiar characteristics of the process of
transition from an autocratic to a democratic regime in Chile.
As is generally known, the Senate, the upper chamber of the
Chilean Congress, is not composed in its entirely by members who have
been democratically elected, but has a significant number of senators
appointed by the former military regime.
This fact has the undeniable political effect of distorting the
popular will and preventing progress in the reform of democratic
institutions, including efforts
to amend or revoke the decree-law on amnesty of 1978.
should be noted that, in full respect for the rule of law and the
independence of the various branches of state power, the Government
has adopted certain initiatives intended to adapt the country’s
domestic criminal justice system so as to ensure that the courts have
the tools necessary to proceed with the investigations until the truth
is established, and to accept civil suits brought under articles 279
bis, 413 and 421 of the Code of Criminal Procedure, consistent with
the international treaties that Chile has ratified and that are
currently in force.
the basis of the consideration presented in this report, the
Commission has arrived at the following conclusions:
action by which the military regime that had seized power in Chile
issued the 1978 Decree-Law No. 2191 declaring amnesty for itself is
incompatible with the provisions of the American Convention on Human
Rights, which was ratified by Chile on 21 August 1990.
judgment of the Supreme Court of Chile, rendered on 28 August 1990,
and its confirmation on 28 September of that year, declaring that
Decree-Law 2191 was constitutional and that is enforcement by the
Judiciary was mandatory although the American Convention on Human
Rights had already entered into force in Chile, violates the
provisions of Articles 1.1 and 2 of that Convention.
judicial rulings of definitive dismissal issued in the criminal
charges brought in connection with the detention and disappearance of
the 70 persons in whose name the present case was initiated, not only
aggravated the situation of impunity, but were also in clear violation
of the right to justice pertaining to the families of the victims in
seeking to identify the authors of those acts, to establish the
corresponding responsibilities and penalties, and to obtain legal
satisfaction from them.
respect to the 70 persons in whose name the present case has been
brought, the State of Chile has failed to fulfill its duty to
recognize and guarantee the rights enshrined in articles 8 and 25, in
relation to Articles 1.1 and 2, of the American Convention on Human
Rights, to which Chile is a State
State of Chile has not complied with the standards contained in
Article 2 of the American Convention on Human Rights, by virtue of
having failed to amend its legislation on amnesty to reflect the
provisions of that Convention. Without
prejudice to that fact, the Commission views positively the
initiatives by which the Government has attempted to have the
competent bodies adopt legislative
or other measures in accordance with prevailing constitutional and
legal procedures as needed to give effect to the right of the persons
mentioned to obtain justice.
the reasons explained above, the Inter-American Commission on Human
Rights, consistent with the analysis of the facts and of the
international standards that have been invoked,
recommend to the State of Chile that it amend its domestic legislation
to reflect the provisions of the American Convention on Human Rights,
so that violations of human rights by the "de facto"
military government may be investigated, with a view to identifying
the guilty parties, establishing their responsibilities and
effectively prosecuting them, thereby guaranteeing to the victims and
their families the right to justice that pertains to them.
recommend to the State of Chile that it enable the families of the
victims to whom the present case refers to be effectively compensated
for the damages inflicted.
publish the present report in the Annual Report to the General
Assembly of the OAS, pursuant to Article 48 of its Regulations and
51.3 of the Convention, because the Government of Chile did not adopt
measures to correct the situation denounced within the time period.
CONCURRING VOTE OF COMMISSIONER
DR. OSCAR LUJÁN FAPPIANO
I agree in full with the report that the Commission has
prepared. I wish merely to make the following additions to the
“preliminary considerations” contained in chapter VI, part
"A)" of that report:
BY WAY OF INTRODUCTION
It is worthwhile emphasizing that the role of the Commission,
in analyzing the question brought for its consideration, consists in
determining the sense of the standards in the American Convention
according to the interpretative methods of juridical science, and that
in this work of the Commission there is no place for ideological
connotations, which it does not profess, nor for any partiality in
favor of, or any bias against, any government, persons or group of
persons, which it does not entertain.
THE QUALITY OF THE AUTHORITIES THAT DECREED THE AMNESTY
In light of the foregoing, the question is to establish, at the
outset, whether the so-called “amnesty law” constitutes an
arbitrary act of the authorities that arose upon the military
overthrow of the constitutional government of Dr. Salvador Allende,
and whether for that reason those authorities had no right or
legitimacy, since they were neither elected nor appointed by any
legitimate means, but were installed in power by force, after the
legal government had been deposed in violation of the constitution.
In this case, in the strict application of juridical orthodoxy,
we are dealing with a “usurper government”.
In fact, although they are commonly known under the generic
term of “de facto” governments, there are two kinds of
illegal governments: de facto and usurper. The first is a government which, while it may not have been
appointed under the terms of the constitution and prevailing laws,
acts “under a veneer of legitimacy” because its authority derives,
seemingly, from a regular appointment or election. The second, on the
other hand, lacks all legitimacy, since it was neither elected nor
appointed in any manner, but was installed in power by force.[i]
A government de facto is not a government de jure,
because it is outside or contrary to law, because it has no legal
basis and because if a State has taken to itself a constitution, then
anything that departs therefrom is illegal. It is consistent with
neither the letter nor the spirit of a constitution to overthrow a
duly instituted government. The
installation of a de facto government is the product of force
rather than of consent, which of course causes no compunctions to
those who regard might as the source of all right, and who see the
“rule of law” and the “constitutional state" as merely
“schemes” that will collapse in the face of the “realism” of a
dictatorship, such as those that
have plagued our hemisphere.[ii]
But to those who would argue thus, we may reply with the words
"Just as they recognize no rights other than those of
their momentary triumph, so they admit no error other than the
overthrow itself. In
their eyes, any rebellion deserves to be punished if it fails, but is
perfectly legal if it succeeds. Any
usurpation they will condemn if it collapses in the attempt, just as
they will recognize any that achieves its objective.
The only standard in their eyes is that of change, even when it
comes to law. They allow
themselves to be swept along by opinion and they change their color
and loyalties whenever they feel the mood shifting.
They would have us believe that they are defending the status
quo, but in reality they are destroying it. They pride themselves on
their ability to bring about real transformation, and yet they concern
themselves only with the immediate business at hand.
They have no ethical or intellectual concept of law."[iii]
ILLEGAL GOVERNMENTS AND THE INVALIDITY OF THEIR ACTS
The acts of a usurper have no juridical value, whatever their
nature. We cannot speak here of “objective legality”, since the
mere observance of the forms of “true legality” is not sufficient
if the usurper lacks the constitutional authority that would give him
legal standing to act. Nor
can we speak of laws or “decree-laws” as such, and much less can
we speak of these as acts of “delegated legislation”, since the
Congress did not, and could not, delegate anything to a de facto
Not even for the laudable goal of preserving juridical security
can we place on an equal footing the constitutional legality of a de
jure government with the authoritarian and unconstitutional
illegality of a usurper government, whose very existence is the
fountain of juridical insecurity.
To accord any such recognition would be to place a seal of
approval on such governments and become their accomplice, whereas we
should steadfastly repudiate them in defence of the rule of law,
constitutional order, commitment to democracy and the principle of the
sovereignty of the people, based on the full respect of human rights.
If those who collaborate with such governments are assured of
impunity for their conduct under a usurping and illegitimate regime,
then there will be no difference between good and evil, between legal
and illegal, between constitutional and unconstitutional, between
right and wrong, between
democratic and authoritarian, and there would
be no reason to refuse to be an accomplice of such illegitimate
regimes. What juridical
security can we hope for if we place on an equal footing “de jure”
rule - which means basing our security on the constitution - and the
“de facto” rule of the usurpers who have disrupted and
violated that constitution?
We cannot give the stamp of legitimacy to something that owes
its very existence to the trampling of legitimacy.
We cannot allow that solid line to be erased that separates
constitutional rule from those who refuse to live under its system of
freedoms, rights and guarantees that is the hard-won prize of so many
struggles and sufferings by the men and women of our hemisphere, who
have sought to live in peace and tolerance and mutual respect for our
the most important point to establish is the inviolability of the
juridical regime conceived as the rule of law.
In the face of acts and presumptuous laws of a government
imposed solely by force, the first point to make clear, without
hesitation, is their glaring invalidity, their absolute nullity.
They cannot be even suggested to have the slightest shred of
legitimacy, since they are the unacceptable result of rebellion
against the fundamental law, which is the pillar of juridical
foregoing applies a fortiori in the present case, where the
beneficiaries of the amnesty are not foreigners or third parties but
integral participants in the designs of the usurper.
It is one thing to proclaim the need to legitimize the acts of
society as a whole, or those taken under international responsibility,
when they stem from obligations that cannot be avoided without
plunging the country into chaos, and it is quite another thing to
extend equal treatment to acts that imply complicity with an
illegitimate government. It
is simply absurd to pretend that the usurper and his henchmen can
invoke the principles of constitutional law, which they themselves
have violated, in order to enjoy the benefits of security that are
only justified and merited for those who adhere rigorously to that
law. Complicity and bad
faith can never be protected, even in acts that are otherwise legal. Crime does not give rise to rights.
are trying here to interpret the Constitution correctly, starting from
the need to invalidate any act that violates or contradicts it.
We are trying to apply the weight of that law, now that it is
once again fully in force. We
are trying, in short, to ensure the supremacy of a democratic regime
that has recovered its full strength, which it should never have lost,
and whose stability the Commission must promote and defend, because
the solidarity of the American States rests on the common denominator
of the “effective exercise of representative democracy” (OAS
Charter, Article 3), and because “no problem that any State member
might encounter can justify the disruption of a representative
democratic regime” (Declaration of Managua.
AG/OAS. Nicaragua, 1993).
the arguments heard during the present case to the effect that it is
impossible to abrogate the self-amnesty, we must respond that the
now-restored constitutional order must of necessity guarantee the
government the ability to fulfill its fundamental duties, free of the
inconceivable limitations imposed on it by the usurper.
Indeed, the whole structure would collapse if it did not. This
point is consistent, for example with the doctrine of the United
States Supreme Court established long ago in the case of "Horn v.
Lockhardt", in 1873: "We accept that acts taken in wartime
by those (Confederate) States as individual entities, through their
different branches of government - executive, legislative and judicial
- must be deemed, in general, to be valid and compelling, to the
extent that they do not affect or tend to affect the supremacy of the
national authority and of the just rights of citizens that are
guaranteed by the Constitution."
Along the same line of thought, the Supreme Court of Argentina
held that to deny to a constitutional government the power to annul
the validity of its effects would imply, directly, “a harmful
limitation on its efforts to consolidate the democratic system, and
moreover would mean granting it - the de facto act in question
- the full validity that can only be reasonably attributed to
legitimate acts of a de jure power."[v]
the most steadfast supporters of the notion of legal continuity of the
state admit the validity of actions of a de facto government
only with respect to third parties, since they draw a clear
distinction between the official with “plausible investiture” and
the usurper with “the veneer of legitimacy”.
As stated by Antokoletz, “the Anglo-American model only
admits the acts of ‘de facto’ officials as valid as far as
they affect the public: i.e., to the extent that they are of public
benefit. It does not regard them as legitimate in themselves, nor to
the extent that they benefit the illegal official. The official’s
responsibility for having performed his public functions improperly
does not disappear."[vi]
AMERICAN CONSTITUTIONAL LAW
constitutional law of the states of the region is concordant with this
points out that those systems that deem illegitimate any power not
emanating from the Constitution declare all of the acts of such a
power to be null. This concept of nullity is expressly established in
the constitutions of Honduras, Nicaragua, Costa Rica, Peru, El
Salvador, Venezuela and Chile.[vii]
survey that we conducted of the constitutions of member states of the
Organization confirmed this statement.
The thesis of nullity of the acts of a usurper is enshrined in
the following constitutions: Bolivia
(1967), Article 3; Costa Rica (1949), Article 10 (earlier, Article
17); Chile (1980), Articles 5 and 7; Dominican Republic (1966),
Article 99; Guatemala (1985), Article 152; Honduras (1982), arts. 2
and 3; Paraguay (1992), Article 138; Peru (1993), Articles 45 and 46;
Venezuela (1961), arts. 119 and 120.
As a result of the reforms introduced to its text in 1994, the
Constitution of Argentina has incorporated a similar provision to make
explicit what had previously been known as the “unwritten clause”,
as the logical consequence of the precepts in its Articles 22 and 33.
In effect, the current Article 36, first paragraph, provides:
“This Constitution shall take precedence even if its observance
should be interrupted by acts of force against the constitutional
order and the democratic system.
Those acts shall be irredeemably null”..
In its following provisions, it makes the authors of such acts
liable for punishment such as that reserved for the infamous
“traitors of their country."
the basis of the precept cited from the earlier Constitution, the
Argentine Congress was able validly to revoke the so-called
“self-amnesty” decreed by the military regime (law 23040), and to
adopt law 23062 which, with respect to the point at issue, establishes
the following: “In defence of the republican constitutional order
based on the principle of popular sovereignty, no juridical validity
whatsoever shall attach to any law or administrative act issued by de
fact authorities who have taken power through an act of
rebellion...even if they pretend to base them on powers acquired by
right of revolution."
1833 constitution of Chile declares in Article 158: “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."[viii]
The Constitution of 18 November 1928, in turn, declares
entity, no person or group of persons may take upon itself, even under
the pretext of extraordinary circumstances, any authority or rights
other than those expressly conferred upon it by law. Any action in
contravention of this Article is null”.
Even the “constitution” issued by decree-law No. 3464 of 11
August 1980 repeats the Article of its predecessor almost letter for
letter (Article 7).
we can say that American constitutional law is unanimous in its
concept of the people’s sovereignty, and therefore a de facto
government is repugnant to the Constitution, and hence, the overthrow
of the constitutional authorities creates no rights in favor of the
seditious military leader or rebel. A fortiori, there can be no presumption to any
legitimacy when the case involves not a single de facto
functionary, but an entire regime that is unconstitutional, since a
regime that is totally de facto is neither democratic nor
centuries ago the Romans inscribed over an archway the words “Senatus
Populusque Romani" to give expression to the harmonious unity
of governed and governors.
the line of thought upheld by the Commission in its report No. 30/93,
it should be noted also that in the present case, the nullity of the
acts of a usurper is a normal constitutional clause with a solid
tradition in the hemisphere.[ix]
is also instructive to compare the jurisprudence of some of the
Region’s courts. The
Argentine Supreme Court did not hesitate to declare the illegality of
laws created by de facto governments, and to refuse to
recognize in such laws those qualities that can for good reason only
be attributed to legitimate acts of a de jure power. In the
words of the Court,[x]
“there can be no question as to the illegitimacy of an act dictated
under the shadow of a de facto legislative power that is not
instituted by our Fundamental Charter”.
above all, we must point to the transcendental judgment of the
Constitutional Court of Guatemala, issued in light of the events
surrounding ex-President Serrano.[xi]
PARLIAMENTARY DEBATE AS A GUARANTEE
constitutional law establishes an irreplaceable procedure for
formulating and adopting laws, which is in essence a guarantee that
arbitrary acts, misnamed “laws”, of a de facto government,
drafted and issued behind closed doors, sometimes by their own
beneficiaries, as in the heyday of the absolute monarchies, are
absolutely and irrevocably null and void.
arbitrary acts are not subject to healthy public debate. Such debate
represents not only homage to democracy, but also fulfillment of
constitutional precepts dealing with the formulation and adoption of
laws, and which serve as authentic guarantees of fundamental rights
and freedoms, as we now see reaffirmed in the provisions of Article
23.1 of the Convention.
omission of public debate, moreover, causes grave damage to the
people, since it destroys their trust in the law, it undermines their
sense of legality and destroys the “legal fiber” of the country,
as the philosopher Vanni has put it.[xii]
FUNDAMENTAL RIGHTS AND THE STATE
fundamental rights and freedoms are not extinguished by a de facto
government, because they predate both the state and the constitution,
which merely recognize and guarantee them, but did not create them.
Thus it is an error to claim that a de facto regime has
no limits on its arbitrary and unconstitutional powers, i.e. that it
can proceed "de legibus solutus" [exempt from the laws],
or according to the maxim of "quod
principii placuit, legis habet vigorem" [What pleases the
ruler has the force of law]. Hence, an amnesty dictated by a
government that stands accused of grave and systematic violations of
human rights and that attempts in this way to exculpate itself is just
such a practice and is therefore an abuse of power.
this regard, Tomuschat writes: "A
regime that makes a practice of genocide loses even the appearance of
legitimacy. 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."[xiii]
THE INTERNATIONAL LAW OF HUMAN RIGHTS
dimension is confirmed by the provisions of Article 3 of the OAS
Charter, Articles XX and XXVIII of the American Declaration, the
preamble to the Convention and its Articles 23.1 a and b, which cannot
be suspended, according to its Articles 27.2, 29 and 32.
order to convert human rights into a legal reality, the first
requisite is to ensure a stable constitutional state, which embraces,
in effect, two other requisites: a) for a state to be free, the people
who comprise it must have the ability to choose their own destiny (the
principle of self-determination), and b) the people must determine,
freely and by means of generally applicable (not personal) laws, the
legal system that is to establish their human rights (the rule of
THE INTER-AMERICAN COURT OF HUMAN RIGHTS
approach taken here accords with the judgments of the Inter-American
Court of Human Rights, which has defined “laws” as “a general
legal norm tied to the general welfare, passes by democratically
elected legislative bodies established by the constitution, and
formulated according to the procedures set forth by the constitution
or the States Parties for that purpose." (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
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 in these terms:
“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, 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 guarding our 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
Commission has been blazing similar trails in its work, as follows: a)
when it states that the democratic context is a necessary element for
the establishment of a political society in which human values can
flourish freely ("Ten Years...”, p. 331); b) when it alluded to
the granting of overriding powers to bodies that are not
representative of the popular will (id., p. 270. Report on Panama, 1978, p. 114, paragraph 3.
Annual Report 1978/80, p. 123/24, analyzing a new draft
constitution for Uruguay); c) when it sets out its criteria for public
participation at the drafting stage for constitutions (report on
Suriname, 1983, p. 43, paragraph 41); d) when it question the validity
of the plebiscite in
Chile, for having been held during a time when public freedoms were
suspended [Report 1978/80, page. 115]; and e) in its Report 30/93 on
the case of Ríos Montt v/Guatemala.
THE UNIVERSAL SYSTEM
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.[xv]
USURPER GOVERNMENTS AND DEMOCRACY
the above reasons, it can be concluded that democracy and rights are
inseparable terms in one and the same equation that has been
postulated in the philosophy that underlies the political and
institutional organization of the American States, and consequently
any act taken by a usurper or de facto government is in and of
itself incompatible with the letter and the spirit of the American
CHILE AND THE INTERNATIONAL TREATIES
have already reviewed the Chilean constitutions as relates to the
treatment they have accorded “governments” by usurpation.
We have seen that even the “Constitution” promulgated by
the military regime itself declares the nullity of acts of a usurper.
We shall now look at another aspect of the title of this
27 of the Vienna Convention on the Law of Treaties was accorded
special recognition by Chile at the adopting Conference.
Its representative, Mr. Barros, stated: “There is nothing to
prevent a state from invoking its constitution as grounds for refusing
to sign a treaty, but once a state has committed itself under a
treaty, it cannot subsequently attempt to circumvent its commitments
by invoking its constitution, still less its ordinary national
the regime that arose from the military overthrow of President Allende
maintained before the Human Rights Committee that the Covenant on
Civil and Political Rights had been in force in Chile since 1976.[xvii]
according to the provisions of Article 5.2 of the Constitution of
Chile, it is a mandatory duty of the courts to reconcile international
and national standards.[xviii]
A FINAL WORD
Commission can only applaud the efforts made in this hemisphere and
around the world to anathematize, now and forever, all those who would
order and overthrow democratic regimes; to affirm that in the Americas
the only route to power is through direct or indirect suffrage, and
not by coup d’état; and to demonstrate that constitutions and the
standards they uphold are not, as some seem to believe, so weak that
they will crumble at the first shout of a mob.
The Commission affirms the sanctity of the principle of
legality, of democratic institutions, of the rule of law and the
sovereignty of the people, in full respect for human rights, since
this was the reason for which it was created.
the political history of our peoples brings to mind the compelling
statement of Ramella: “What we have before us is a somber spectacle
indeed. The destruction of institutions by de facto governments
has disrupted the constitutional order, and has created a climate of
disrespect for the legitimate authorities and sown scepticism about
the political process in the minds of our youth.”[xix]
is among our people a certain scepticism about laws and the meaning of
paraphrase Bielsa, we may say that in times such as these, when
history seems to be unfolding so rapidly and unexpectedly, we must
take advantage of the few lucky things that have happened to the
peoples of America. America
has something better to offer. There
are many--the vast majority--who have remained loyal to the
Constitution, to the law and to civic virtues, and who ardently desire
to see democratic regimes firmly established.
There are citizens of sound conduct who not only reproach
transgressors, but all manifestations of mis-government, who do not
lust after the trappings of power, and who do not believe that public
duty means seizing power outside the law.[xx]
is with those citizens, with those young generations of America to
whom Ramella alluded, that the Commission makes its pact, and that
commitment can only be fulfilled if we give an example of standing up
for democracy in a way that will banish their disbelief and help to
strengthen their faith in the rule of law and the constitutional
that end, we must approach this question with our eyes firmly set on
the highest statement of our principles,
for a jurist, a man of law, cannot abandon a doctrine just because it
has been put to ill use. The lawyers of America, at their 21st
Inter-American Conference, issued a ringing call: “...In the face of
the many distortions that these principles have suffered at the hands
of various autocratic forms of government...we must seek to proclaim
clearly and categorically that the lawyers of America stand squarely
for the survival of a form of government that meets the tests of a
constitutional and pluralist democracy...".[xxi]
at the 22nd Conference, they declared: “...If we conceive of
representative democracy as the system that offers the greatest
respect for people’s rights, then it is incumbent upon us, wherever
there is a change of regime or whenever a government sets itself up in
defiance of the constitution, to preserve inviolate the principle that
the people are sovereign, and also that public authority must be
exercised in full respect for the inherent values of human dignity.[xxii]
means that, while social upheavals cannot always be avoided, the only
honest response when they do occur is to remain steadfastly loyal to the
rule of law, which is the only way of life in a democratic society.
former member of the Inter-American Juridical Committee, Jorge R.
Vanossi, writes: “Over this long journey, the price to be paid has
been very high: disregard for legality, acquiescence in autocratic
lawgivers on a more-or-less frequent and more-or-less permanent basis,
confusion between what is anomalous and ephemeral and what is normal and
lasting, the breakdown, if you will, of a certain constitutional
rigidity. The almost unthinking comparison between legislation that is 'de
jure' and laws that are 'de facto' leads inevitably to
identifying any 'government' by
the mere fact that it makes its dictates effective (however coercively),
in utter disregard for legal procedures and organs that have come to be
viewed by the predominant juridical conscience as irrelevant.
We must recant in this matter.... but all men of law are called
upon to examine carefully all those tendencies of resigned obedience to
validating doctrines, and to offer an analytic and thoughtful
alternative for reformulating them so that we may avoid yet another
manifestation--perhaps the most discouraging of all--of that phenomenon
that Ripert referred to as 'the decline of law'."[xxiii]
that alternative so dramatically evoked by Vanossi for escaping from the
“monologue and the mausoleum” to which, in the unforgettable phrase
of Octavio Paz, every
dictatorship is inevitably consigned, is the one that an enlightened man
of this land once opened for us: “That we here highly resolve that
these dead shall not have died in vain, that this nation, under God,
shall have a new birth of freedom, and that government of the people, by
the people and for the people shall not perish from the earth.".[xxiv]
Commissioner Claudio Grossman, national of Chile, did not
participate in the discussion and voting on this case, in
accordance to Article 19 of the Regulations of the Commission.
President Aylwin stated that:
"Justice also demands that we clarify the whereabouts of
those who have disappeared, and that we determine individual
the first point, the truth as established in the report (of the
Commission for Truth and Reconciliation) is incomplete, since in
most of the cases where prisoners disappeared or were executed
without their bodies’ being returned to their families, the
Commission had no means to locate their whereabouts."
Inter-American Court of Human Rights,
OC-13 of 16 July 1993, in which it states, “the Commission
is competent, under the terms of the attributes conferred on it by
Articles 41 and 42 of the Convention, to declare any rule of
Domestic Law of a State Party to be in violation of the obligations
that the State assumed in ratifying the Convention" (Resolutory
Inter-American Court of Human Rights, International
responsibility for adopting and enforcing laws that violate the
Convention (Articles 1 and 2
of the American Convention on Human Rights), Advisory Opinion OC-14
of 9 December, 1994, paragraph 39.
Both the Inter-American Convention to Prevent and Punish
Torture and the Inter-American Convention on
Forced Disappearance of Persons establish universal
jurisdiction over the crimes in question (Article 11 and Articles V
and VI respectively.) The Inter-American Convention on Forced
Disappearance of Persons also establishes, in Article VII, that
there should be no applicable statute of limitations, or if this is
not possible, that any periods of limitation should be those
applicable to the gravest crimes.
See: AG/RES. 443 (IX-0/79); 742 (XIV-0/84); 950 (XVIII-0/88);
1022 (XIX-0/89) and 1044 (XX-0/90) and IACHR, Annual Reports 1978;
1980/81; 1981-82; 1985/86; 1986/87 and special reports, such as that
on Argentina (1980),
Chile (1985) and Guatemala (1985), all of which were approved by the
Supreme Court of Chile.
Decision on recourse of inapplicability of Decree‑Law
2191, 24 August 1990, paragraph 15.
Same Court. Decision
on recourse of clarification of 28 September 1990, paragraph 4.
Constantineau: "Tratado de la doctrina de facto".
Ed. Depalma. Bs.As., 1945. To.
I, pp. 31 ff. Antokoletz: "Tratado
de derecho constitucional y administrativo".
Bs.As., 1933. Vol.I,
"Régimen de facto y ley de acefalía".
Ed. Depalma. Bs.As.,
1963. pp. 26/30.
See Bielsa: "Régimen"..., cit. pp.17; 23; 24, n.5; 35 y ss.
Id.: "Estudios de
derecho público". Ed. Depalma. Bs.As. 1952. To. III, pp.
"Gamberale de Manzur v/ U.N.R."., decision of 6
Antokoletz: op. citada, pp. 72/73.
Antokoletz: op./loc. cit. in previous note.
Adopted as a precedent by J.B. Alberdi in writing the draft
text of a constitution for the Province of Mendoza (Argentina).
Case 10.804. "Ríos Montt v/ Guatemala".
CIDH Annual Report 1993, p. 296, para. 29.
"Gamberale de Manzur v/ U.N.R.", decision of 6
April 1989. Note that
this pronouncement predates the constitutional reform of 1994.
Corte y el Sistema Interamericano de Derechos Humanos".
Rafael Nieto Navia Editor.
San José, Costa Rica. 1994, pp. 199 y ss.
citado, pp. 36; 38; 41; 42; 46 and 68.
Resistance to Violations of Human Rights", UNESCO, 1984, p. 26.
"Human Rights as legal reality."
International Dimensions of Human Rights." UNESCO. Barcelona.
1984. Vol. 1, p. 27.
For a more recent, full and analytic discussion of this
topic, see Cançado
y Derechos Humanos..." in the collection:
"La Corte y el Sistema Interamericano de Derechos
Humanos”, op. cit.
See Diaz Albónico: "la Convención de Viena...", in:
Sociedad Chilena de Derecho Internacional, pp. 147/74.
See Comité, fourth session.
Review of reports submitted by the States Parties... Initial
reports... Chile. CCPR/C/1Add.
25, 48pp. 27 April 1976.
"Tribunales chilenos y derecho internacional de derechos
Chilena de Derechos Humanos/Academia de Humanismo Cristiano.
Santiago, 1988. Cap.
IV. p. 182.
Bs.As. 1986, 2da. ed., p. 700.
cit., pp. 66/67.
San Juan, Puerto Rico, 1979.
Quito, Ecuador, 1981.
estado de derecho en el constitucionalismo social".
1987, pp. 468/469.