REPORT N° 61/01*

CASE 11.771

SAMUEL ALFONSO CATALÁN LINCOLEO

CHILE

April 16, 2001

I.        SUMMARY

1.       On June 26, 1997, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the IACHR”) received a complaint from lawyer Nelson Caucoto Pereira (“the petitioner”) alleging the international responsibility of the Republic of Chile (“the State”) in the forced disappearance of Samuel Alfonso Catalán Lincoleo at the hands of State agents following his arrest on August 27, 1974, and in the subsequent denial of justice.

2.       The complaint reports that Samuel Alfonso Catalán Lincoleo, aged 29, an agricultural technician with ties to the Communist Party, was arrested at 2:00 a.m. on August 27, 1974, at his home in the city of Lautaro, Chile. The arrest was carried out by carabineros, soldiers, and civilians, and Mr. Catalán Lincoleo’s relatives were told that he was being held at a military facility in Lautaro. Samuel Alfonso Catalán Lincoleo’s disappearance has continued since that day. His family reported the incident to the Chilean judicial system in 1979, but the proceedings were filed in October 1981 under Decree-Law N° 2191 of 1978, which ordered an amnesty for abuses committed following the September 1973 coup d’état in Chile. Fresh legal action was brought in 1992, which was definitively dismissed in November 1995 under the aforesaid amnesty law. Finally, Chile’s Supreme Court of Justice ruled on an appeal for annulment regarding the substance of the case in a decision handed down on January 16, 1997, which declared that the time allotted for legal action had expired under applicable statutory limitations.

3.       As a result of its analysis, the IACHR concludes in this report that the arrest and forced disappearance of Samuel Alfonso Catalán Lincoleo at the hands of agents of the Chilean State made that State responsible for violating the following rights protected by the American Convention on Human Rights (the “American Convention”): the right to life (Article 4), to humane treatment (Article 5), to personal liberty (Article 7), to a fair trial (Article 8), and to judicial protection (Article 25), all in conjunction with the obligation set forth in Article 1(1) of the same international instrument. The IACHR also concludes that the incidents described herein constitute violations of the right to life, liberty, and personal security protected by Article I of the American Declaration of the Rights and Duties of Man (“the American Declaration”). Finally, the Inter-American Commission determines that Decree-Law N° 2191 of 1978 is incompatible with the American Convention, which was ratified by Chile on August 21, 1990, and, consequently, that the Chilean State has not complied with Article 2 thereof by failing to adapt its domestic laws to the provisions of the international instrument.

II.       PROCESSING BY THE COMMISSION

4.       On July 14, 1997, the Inter-American Commission transmitted the pertinent parts of the petition to the Chilean State and gave it a period of 90 days to submit information regarding the incident and the exhaustion of domestic remedies.

5.       The State’s reply was received on October 2, 1997, and was forwarded to the petitioner. The petitioner’s comments were received on December 2, 1997, and were transmitted to the Chilean State.

6.       On February 10, 1998, the State sent its comments, which were forwarded to the petitioner on February 25, 1998. The petitioner’s final comments were sent to the Chilean State on April 25, 1998. On June 18, a communication was received from the State in which it repeated its position on this case and provided additional information about new legal precedents in Chile under which application of the amnesty law could be rejected. This communication from the State was passed on to the petitioner.

7.       On December 2, 1998, the IACHR placed itself at the disposal to the parties to begin friendly settlement proceedings in this case. The 30-day limit set for this purpose came and went without any reply from the parties.

III.      POSITIONS OF THE PARTIES

A.      Position of the petitioner

8.       The petitioner maintains that the Chilean State is internationally responsible for the arbitrary arrest and forced disappearance of Samuel Alfonso Catalán Lincoleo and for the impunity associated with those events. The petitioner states his position in the following terms:

The forced disappearance of Samuel Alfonso Catalán Lincoleo is a crime against humanity, the perpetrators of which can be granted no exoneration of punishment. International law does not admit amnesties or statutory limitations for crimes like these, which are condemned by the international community as a whole. Under international instruments such as the American Convention, the Covenant on Civil and Political Rights, and others, these crimes are above the sphere in which a State may grant pardons in exercise of sovereign power, and, with respect to these crimes, explicit bans have been placed on the admissibility of statutory limitations and amnesties.

International crimes of this kind are not condemned by one country alone, but by all nations. Their criminal nature does not originate in the national law of one state, but in international law as agreed upon by all civilized nations. This means that a single state, acting on an individual basis, cannot erase the criminal nature of an action that the community of states has defined as an “international crime.” For that reason, in applying a statutory limitation, amnesty, or any other mechanism to exonerate the perpetrators’ guilt, the first human rights violation is compounded by a second one: that of impunity.

In the case at hand, the Supreme Court’s ruling that statutory limitations apply to the criminal proceedings brought--considering the debatable conditions under which that ruling was given (or not, as the case may be)--has had the grave effect of permanently ending a judicial investigation intended to uphold truth and justice in connection with the victim’s disappearance. That constitutes the denial of justice described herein. The proceedings were closed, without even having determined the victim’s whereabouts. The State irrevocably refuses to locate him. Furthermore, it has obviously refused to hear about the events that befell him and to identify and judge the perpetrators. By behaving in this fashion, the Supreme Court has placed the Chilean State in grave international responsibility.^[1]

9.       With regard to reparations, the petitioner questions the State’s claims:

What is the truth in this case? Were the killers of the victim indeed identified? Do we know who finally hid the body? Is the whereabouts of his grave known?

The truth of which the Chilean government speaks constitutes a part of the events and was already known to the victim’s family even before the National Truth and Reconciliation Commission was set up; it is, in other words, a minimal truth, of which prior knowledge existed. What we need to find out to complete the story and establish the whole truth is the location of the victim’s body and the identity of the criminals. And then, either simultaneously or subsequently, to judge and punish the perpetrators.

Consequently, believing that the State has discharged its tasks because a state agency, the National Truth and Reconciliation Commission, has recognized that the victim was killed by state agents, is completely inadequate in accordance with the demands that international law places on the Chilean State in this case.^[2]

B.       Position of the State

10.     Regarding the alleged incidents, the Chilean State maintains the following:

It must be stressed that the constitutional government of Chile does not deny the events described in the submission from the victim’s representative. In fact, as soon as the democratic system was restored, President Patricio Aylwin, aware of the institutional difficulties inherent in dealing with the grave problem of human rights violations inherited from the military regime, set up the NATIONAL TRUTH AND RECONCILIATION COMMISSION by means of Interior Ministry Supreme Decree No. 355 of April 25, 1990; that is, one month after taking office.^[3] (Emphasis in the original.)

11.     The State also reports that its compensation policy is essentially set forth in Law 19.123, published in the Official Journal on February 8, 1992. This law provides victims’ families with a lifetime pension in an amount no less than the average income of a Chilean family; a special procedure for declarations of presumed death; special assistance from the State for health care, education, and housing; the cancellation of educational, housing, tax, and other debts owed to state agencies; and exemptions from compulsory military service for victims’ children.

12.     Regarding the legal considerations related to the substance of the case, the State maintains that in exercising its right of free determination, the Chilean people chose a way to recover their democracy that meant accepting the institutional rules imposed by the dictatorship. It notes that the acceptance of those rules further implied acceptance of all the laws enacted by the dictatorship and the decision, within that legality and in accordance with its rules, to improve them until a fully democratic regime was achieved.

13.     The State attests that “the democratic governments of Chile have not enacted amnesty laws incompatible with the American Convention, and emphasizes the fact that Decree-Law N° 2191 was issued in 1978 under the de facto military regime.” It holds that it is inadmissible to accuse the democratic governments of actions carried out many years before they came to power or committed by other branches of government, whose constitutional independence must be respected. It therefore requests that the IACHR bear in mind the historical context and the special circumstances of the country’s return to democracy, under which the new government had to abide by the rules imposed by the de facto military regime, which it was unable to modify other than in accordance with the law and the Constitution.

14.     In the State’s opinion, the constitutional government cannot be required to infringe the institutionality it inherited or to attempt to modify it by means other than that same legality. It can only be urged to observe it or to work for its amendment or repeal, through the legal channels that it itself provides. The State holds that although the constitutional governments that followed the military regime share the petitioner’s criticisms of the 1978 amnesty, its provisions can be neither annulled nor repealed.

15.     The State further notes that the democratic governments that came after the dictatorship have shown absolute respect toward the independence of the judiciary and have been unable to invalidate or annul the decisions of the judicial branch, even when contrary to their own positions or interests. Neither can a government undermine the tenure enjoyed by judges and magistrates as a guarantee of their independence.

16.     It adds that the Chilean Executive, acting alone, does not have the power to annul legal provisions that have been recognized as valid by the other branches of government. Regarding the possibility of the amnesty law being repealed, the State explains that legal initiatives toward that end must originate with the Senate (Article 62(2) of the Constitution), where the ruling government does not enjoy a majority on account of the presence of senators who were not elected by the popular vote. In any event, it also holds that a repeal would not have any legal effects on any parties ultimately accused of the crime, because of the principle under which criminal law cannot be applied retroactively to a defendant (Article 19(3) of the Constitution).

17.     With regard to the case in hand, the Chilean State reports that Samuel Alfonso Catalán Lincoleo’s family currently receive, on a monthly basis, the benefits granted by the law; they have also received the lump-sum compensation payment equal to twelve monthly pension payments and the applicable medical benefits. The State reports that Sofía Lincoleo Montero, Mr. Catalán Lincoleo’s mother, receives CLP $106,367 (Chilean pesos); Adrina Albarrán, his wife, receives CLP $56,667; and that his son Samuel Catalán Albarrán also receives CLP $56,667, plus $147,327 to cover school enrolment and $360,000 for school fees.

18.     The State maintains that it cannot be blamed for the alleged violations and that it has no responsibility in the human rights violations that led to the opening of Case 11.771. It asks the Inter-American Commission to give consideration to the creation of the National Truth and Reconciliation Commission and to the provisions of Law 19.123, currently in force, as measures adopted to ensure respect for the human rights of Samuel Alfonso Catalán Lincoleo’s family.

IV.      ANALYSIS OF ADMISSIBILITY

A.      Jurisdiction of the Commission

19.     The Commission has determined that it is competent to examine violations of the American Declaration and the American Convention, provided that a situation in which rights protected by those instruments are being continuously violated effectively exists.[4] The Inter-American Court has established that, in principle, for states parties to the American Convention, the specific source of obligations regarding the protection of human rights is the Convention itself but that such states “cannot escape the obligations they have as members of the OAS under the Declaration.”[5] The petitioner is legally entitled to appear in the case at hand (locus standi) and he has made allegations regarding forced disappearances that constitute a pattern of ongoing violation of precepts enshrined in the American Declaration and the American Convention. The events began when the obligation of respecting the American Declaration was in force for Chile as a member state of the OAS,[6] and they have continued up until the date of the present report. Consequently, the IACHR is competent to study these alleged violations of the American Convention and the American Declaration and to adopt decisions with respect to them.

B.       Exhaustion of domestic remedies

20.     The petitioner claims that the remedies provided by domestic law have been exhausted. This process began with the complaint lodged on April 5, 1979, with the first-instance court in Lautaro and filed on October 7, 1981, under the terms of the amnesty law (Decree-Law N° 2191). Subsequently, Gerardo José Catalán Lincoleo, the victim’s brother, filed a criminal suit on March 18, 1992, against Sergio Fernando Alcayaga Barraza, a second lieutenant in the army, for the crime of kidnapping. The court declared itself incompetent and referred the case to the military prosecutor’s office in Temuco.

21.     In the military proceedings that followed, final dismissal of the case was ordered on November 24, 1995, with the terms of the amnesty applied to the accused officer. The Catalán Lincoleo family’s lawyers appealed, but a military judge dismissed their case. The litigants therefore sought a de facto remedy from the Military Court, which was admitted in a resolution issued on February 6, 1996. On April 10, 1996, the Military Court upheld the dismissal, but instead of basing its reasons on the amnesty, it argued that the case was dismissed because the case had already been judicially resolved (res judicata). The court applied this ruling to the proceedings that had previously been brought for the disappearance of Samuel Alfonso Catalán Lincoleo.

22.     Following this ruling, on April 23, 1996, Mr. Catalán Lincoleo’s representatives filed for its repeal with the Chilean Supreme Court of Justice. Chile’s highest court rejected this repeal bid on January 16, 1997, arguing that statutory limitations now applied to the action. The petitioners refer to this ruling as the “definitive and unchangeable sentence that closes off the judicial avenues in these proceedings.” The petitioners describe the legal effect of this ruling in the following terms:

The Supreme Court refrained from ruling on the merits of the repeal as sought and, to enable it to do so, offered an elaborate inadmissibility ruling. Thus, as indicated by its reading, the Court admitted another reason for criminal liability to have been extinguished, that of the application of statutory limitations and, accordingly, it holds that the judicial action was correctly cancelled.

With this ruling, the Supreme Court separated itself completely from the nature of the remedy and the legal question in dispute, since the ruling of the Military Court against which the appeal was filed determined the issue in question by applying the rule of res judicata to a case in which that was inadmissible. This mistaken application of the law led to the filing of the repeal suit in order to secure the nullification of that ruling.

(. . .)

In this case, the Supreme Court’s ruling and all the earlier decisions handed down in the proceedings fail to establish what crime was committed against the disappeared person. And, since none was established, it is surprising to hear arguments maintaining that statutory limitations apply.^[7]

23.     With respect to this case, the Chilean State has made no objection regarding compliance with the requirement that domestic remedies be exhausted.

24.     The IACHR concludes that the decision given on January 16, 1997, by the Supreme Court of Justice of Chile exhausted the domestic remedies in this case, as required by Article 46 of the American Convention and Article 20(c) of the Statute of the Inter-American Commission.

C.      Filing Period

25.     The petition was submitted within a period of six months following notification of the final decision under Chile’s domestic law, in compliance with Article 46(1)(b) of American Convention.

D.      Duplication of Proceedings and Res Judicata

26.     The substance of this petition is not pending in any other international settlement proceedings, nor is it the same as a petition that has already been examined by any other international body or the IACHR itself. Hence, the petition meets the requirements set forth in Articles 46(1)(c) and 47(d) of the American Convention.

E.       Characterization of the Alleged Facts

27.     The petition describes facts that, if proven, could constitute violations of rights guaranteed in the American Declaration and the American Convention. Specifically, the claim refers to the alleged violation of rights protected by Article I of the American Declaration and by Articles 1(1), 2, 8, and 25 of the American Convention. It is not evident that the petition is manifestly groundless or obviously out of order, and thus the Inter-American Commission deems that the requirements contained in Article 47(c) of the American Convention have been met.

28.     With regard to the enactment and enforcement of laws compatible with the American Convention (Articles 1 and 2), the IACHR is competent, under Article 42 thereof, to determine whether such provisions, including so-called “amnesty” laws and actions adopted thereunder, violate the obligations assumed by the state party in question.[8] In this connection, the Court has established that, “as a result of the foregoing, the Commission may recommend to a state the derogation or amendment of a conflicting norm that has come to its attention by any means whatsoever.”[9]

F.       Friendly Settlement

29.     The IACHR made itself available to the Chilean State and the petitioner on December 2, 1998, with a view toward beginning the procedure set forth in Article 48(1)(f) of the American Convention. The period of 30 days allotted for the parties to express their interest in friendly settlement proceedings in this case came to an end with no reply having been received.

G.      Conclusions on Admissibility

30.     The Commission believes that this case satisfies the formal requirements for admissibility set forth in Article 46(1) of the Convention and Article 32 of the IACHR’s Regulations. The petitioner has exhausted the remedies available under Chilean law and has made a complaint in which the IACHR is competent to examine the merits of the case.

V.      ANALYSIS OF MERITS

A.      General Considerations

31.     The petitioner’s version of the events surrounding the alleged violation of the right to life, liberty, and humane treatment is based on judicial investigations and the report of the National Truth and Reconciliation Commission. These interpretations of the facts have not been disputed by the State in the proceedings before the Inter-American Commission.

32.     This case requires a legal decision regarding the Chilean courts’ application of the amnesty law vis-à-vis the arbitrary arrest and forced disappearance of Samuel Alfonso Catalán Lincoleo, in order to determine whether it is compatible with the American Convention.

33.     The IACHR notes that the ruling of the Supreme Court of Justice that exhausted the Chilean domestic remedies closed off the legal avenues available to Samuel Alfonso Catalán Lincoleo’s relatives for obtaining justice in the country. Although that ruling did not directly apply the amnesty law, it did uphold the courts’ refusal to rule on the merits of the case in accordance with that precept. The decisions of the lower courts include the “total and definitive” dismissal of the complaint by the Chilean Military Court in accordance with the amnesty law, which led to the filing of the case on October 7, 1981. Similarly, the legal action brought on March 18, 1992, during the first democratic government, was definitively dismissed under the amnesty law on November 24, 1995. On appeal, the Military Court applied res judicata instead of the amnesty, arguing that the case had already been decided and upholding the dismissal. Finally, the case was taken to the Supreme Court of Justice and was dealt with as described above.

34.     The complaint alleges that the amnesty law is incompatible with the American Convention, while the Chilean State’s arguments focus on the limitations placed on the three branches of government by that domestic legal precept since the restoration of democracy. The Commission will analyze those arguments in this report.

35.     The State has not denied the involvement of its agents in the events of this case, which were perpetrated while the military dictatorship ruled Chile. In considering the nature and seriousness of the crimes whose judgment was affected by the amnesty law, we must not lose sight of the fact that the military government that was in power from September 11, 1973, to March 11, 1990, pursued a systematic policy of repression that created thousands of victims of forced disappearances, summary executions, extrajudicial killings, and torture. Referring to the State’s practices during that period, the IACHR said that:

That Government has used virtually all known means to physically eliminate dissidents, including: disappearances, summary executions of individuals and groups, executions ordered in trials lacking legal guarantees, and torture.[10]

36.     The OAS General Assembly has declared that the practice of forced disappearances is “an affront to the conscience of the hemisphere and constitutes a crime against humanity.”[11] In its 1988 decision in the Velásquez Rodríguez case, the Inter-American Court observed that international practice and doctrine have frequently categorized disappearances as a crime against humanity.[12] In its preamble, the Inter-American Convention on Forced Disappearance of Persons reaffirms that “the systematic practice of the forced disappearance of persons constitutes a crime against humanity.”[13] The social need to clarify and investigate these crimes cannot be considered equal to that of a mere common crime.[14]  Forced disappearances and related crimes, such as torture and summary execution, are of such gravity that several international instruments have established special standards for their adjudication, such as universal jurisdiction and exceptions to statutes of limitations, with the aim of avoiding impunity.[15]

37.     The Chilean State, recognizing its obligation to investigate past human rights violations, established a Truth Commission for the purpose of determining the facts and making the results public.  As a reparations measure, then-President Patricio Aylwin apologized to the victims’ families. He also publicly protested and criticized the decision in which the Supreme Court determined that application of the amnesty law had the effect of suspending the investigation into the systematic violations committed by the dictatorship.[16]

38.     The State points out the democratic governments’ inability to modify or invalidate the amnesty law, as well as the State’s obligation to respect the decisions of the judicial branch.  The State also argues that the measures it adopted were both effective and sufficient to fulfill Chile’s obligations under the Convention. While the petitioner recognizes the efforts made by Chile, he maintains that the State’s efforts have been insufficient and that to date, it has not met the obligation of investigating the facts, identifying responsibilities, and punishing the perpetrators of the human rights violations suffered by Samuel Alfonso Catalán Lincoleo.

39.     The State’s position is based on the separation of the responsibilities of the executive, legislative, and judicial branches of government. Nevertheless, the Inter-American Commission must consider the international responsibility of the Chilean State as a whole for the acts of its organs and agents whose active and passive participation in the crimes committed against Samuel Alfonso Catalán Lincoleo has not been disputed.

40.     The State argues that the executive branch, as an organ, is not responsible for the alleged violations because the democratic government has not enacted any amnesty laws. It maintains that it is unable to revoke the amnesty law or to adapt it or any other provisions to the American Convention. With respect to the application of the amnesty, the State can only act within the law and the Constitution, which establish the framework of its authority, responsibilities, and powers.

41.     The Commission considers that Decree-Law N° 2191 and its legal effects are a continuation of policy of human rights violations pursued by the military regime that governed Chile from September 1973 to March 1990.[17] Although the statute in question was enacted by the de facto government of Gen. Augusto Pinochet, it is still applied in order to protect the planners and perpetrators of those crimes whenever Chilean or foreign courts receive or attempt to examine cases concerning human rights violations. The legal consequences of the amnesty law and its application by the agencies of the State under the democratic governments that followed the military regime, as was intended by the de facto government, are entirely incompatible with the provisions of the American Convention.

42.     Under Chilean law, the executive, legislative, and judicial branches of government are separate and independent. However, from the point of view of international law, they must be considered as a single entity within the State for the purpose of determining responsibility for the violation of international norms.[18] The Chilean State cannot justify its lack of compliance with the Convention with the excuse that a previous government established the amnesty law. Nor can the State justify its failure to repeal the amnesty law, or its continued application, on the inaction and omission of the legislature or on the actions of the judiciary.

43.     Article 27 of the Vienna Convention on the Law of Treaties enshrines the precept of customary international law whereby States Parties to a treaty may not invoke provisions of their domestic laws as a justification for failing to comply with a treaty. In addition, the Inter-American Court has held 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.”[19]

44.     Responsibility for any denial of justice that Decree-Law N° 2191 may have caused--irrespective of the regime that enacted it or the branch of government that applied it or made its application possible--lies with the Chilean State. Even though the abduction and extrajudicial execution took place under the past military government, the State is internationally responsible for fulfilling its obligation to administer justice and punish the responsible agents.

45.     In accordance with the principle of continuity of the State, international responsibility exists independent of changes in government. In that regard, the Inter-American Court of Human Rights has asserted that:

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.[20]

B.       Obligation of Adopting Domestic Legal Provisions (Article 2 of the American Convention)

46.     The states parties to the American Convention have undertaken the obligation of respecting and guaranteeing all the rights and freedoms protected in the Convention with respect to persons under their jurisdiction and of adapting their legislation to permit the effective enjoyment and exercise of those rights and freedoms. Specifically, Article 2 of the Convention establishes the obligation of the states parties to adopt “such legislative or other measures as may be necessary“ to give effect to the rights and freedoms enshrined therein. Thus, the Inter-American Commission must examine the compatibility of the states parties’ domestic legislation with the rights enshrined in the American Convention.[21]

47.     Some states, in seeking mechanisms for national peace and reconciliation, have enacted amnesty laws that have left victims of serious human rights violations helpless and have deprived them of the right to access to justice. The adoption and application of such provisions is incompatible with the obligations acquired under Articles 1(1) and 2 of the American Convention.[22]

48.     The compatibility of amnesty laws with the American Convention has been examined on several occasions by the IACHR in connection with individual cases. In each of them, the IACHR found that the provisions under review allowed serious human rights violations committed against persons subject to the jurisdiction of the state party involved to go unpunished.

49.     The Inter-American Commission has repeatedly indicated that amnesty laws that bar access to justice in cases involving serious human rights violations render ineffective the states parties’ obligation of respecting the rights and freedoms recognized in the Convention and of ensuring their free and full exercise by all persons subject to their jurisdiction, without discrimination of any kind, as established in Article 1(1) thereof.[23] They thus eliminate the most effective means of enforcing human rights: the trial and punishment of violators.[24]

50.     As established above, precluding the possibility of judging those responsible for the illegal detention and forced disappearance of Samuel Alfonso Catalán Lincoleo, perpetrated by agents of the State under the former military regime, violates the right to access to justice and judicial protection enshrined in the American Convention. This denial of justice stems from the enactment and application of Decree-Law N° 2191, the amnesty law, issued by the military government for the benefit of its own members. The State has kept this law in force after ratifying the American Convention; in turn, the Chilean courts have ruled it to be constitutional and have applied it in hundreds of cases. The IACHR has already, on past occasions, expressed its opinion about this law and its application by the domestic courts in particular cases being incompatible with the Chilean State’s international obligations under the American Convention.[25]