Approved by the Commission at its session No. 2093 held on July 7, 2017.
163rd Special Period of Sessions.
Cite as:IACHR, Report No. 84/17, Petition 188-11. Admissibility. Marcos Luis Abraca Zamorano and Others. Chile. July 7, 2017.
REPORT No. 84/17
REPORT ON ADMISSIBILITY
MARCOS LUIS ABARCA ZAMORANO AND OTHERS
JULY 7, 2018
I. INFORMATION ABOUT THE PETITION
Unión de Ex Prisioneros Políticos de Chile (Association of Chilean Former Political Prisoners)
P-188-11: Marcos Luis Abarca Zamorano and Others1
P-262-12: Orlando Alexander Aguilar González and Others2
P-735-12: Guillermo Eusebio López Martínez
P-281-14: Eduardo Abarzúa Rivadeneira and Others3
Articles 5 (Humane Treatment), 8 (Fair Trial), 25 (Judicial Protection) and 63 (obligation to repair) of the American Convention on Human Rights,4 in relation to Articles 1.1 (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof, and Article 8 of the Inter-American Convention to Prevent and Punish Torture
II. PROCEDURE BEFORE THE IACHR5
Date on which the petition was received:
P-188-11: February 15, 2011
P-262-12: February 8, 2012
P-735-12: April 19, 2012
P-281-14: February 28, 2014
Additional information received at the stage of initial review:
P-188-11: September 7, 2012; May 23, 2013; June 5 and July 13, 2014; and April 21, 2015
Date on which the petition was transmitted to the State:
P-188-116: May 5, 2015
Date of the State’s first response:
P-188-11: September 4, 2015
Additional observations from the petitioning party:
P-188-11: March 29, 2016
Competence Ratione personae:
Yes, in all the petitions
Competence Ratione loci:
Yes, in all the petitions
Competence Ratione temporis:
Yes, in all the petitions
Competence Ratione materiae:
Yes; American Convention (deposit of instrument of ratification: August 21, 1990) and Inter-American Convention to Prevent and Punish Torture (deposit of instrument of ratification: September 30, 1988)
IV. ANALYSIS OF DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION
Duplication of procedures and International res judicata:
Rights declared admissible
Articles 5 (Humane Treatment), 8 (Fair Trial) and 25 (Judicial Protection) of the American Convention, in relation to Articles 1.1 (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof, and Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture
Exhaustion of domestic remedies or applicability of an exception to the rule:
P-188-11: Yes; September 1, 2010
P-262-12: Yes; September 2, 2011
P-735-12: Yes; December 2, 2011
P-281-14: Yes; September 30, 2013
Timeliness of the petition:
P-188-11: Yes; February 15, 2011
P-262-12: Yes; February 8, 2012
P-735-12: Yes; April 19, 2012
P-281-14: Yes; February 28, 2014
V. ALLEGED FACTS
The four petitions considered in this report were filed by the Unión de Ex Prisioneros Políticos de Chile on behalf of 1,720 alleged victims, who claim to have been subjected to political imprisonment and torture between September 1973 and March 1990, recognized by the National Commission on Political Imprisonment and Torture ("the Valech Commission"), and on behalf of the family members of those who died, in order to denounce that the State of Chile has violated their right of access to justice and a full redress for the damages caused by a state policy of persecution during the dictatorship. The petitioning party successively requested that petitions were joined together. On January 30, 2013, the IACHR proceeded to join petitions P-262-12 and P-753-12 to petition P-281-14, based on Article 29.1.d of its Rules of Procedure. Later, when petition P-281-14 was filed, it was joined to the rest.
Arguments in common
The petitioning party denounces that the domestic courts have rejected their claims for reparations, despite the fact that the alleged victims were kidnapped, imprisoned and physically and psychologically tortured by state agents, and therefore included by the Valech Commission in the list of survivors of political imprisonment and torture, a situation that was also confirmed by said Commission. The petitioner denounces the violation of its right to a fair compensation since the State, as the denounced party, through its State Defense Council ("CDE") declared their claims inadmissible and requested to declare them barred by the statute of limitations as it was over four years since the alleged acts of torture. Moreover, the petitioning party claims that the different competent judicial bodies dismissed the remedies on statute of limitations grounds, thus denying their right to fair reparations and failing to acknowledge the non-extinguishable nature of the serious violations giving rise to their claims. In view of this, the petitioner alleges the violation of Articles 5.1, 8.1, 25.1, 63.1, 1.1 and 2 of the American Convention, and of Article 8 of the Inter-American Convention to Prevent and Punish Torture.
The petitioner submits that the rejection of their compensation claims takes place in a generalized context that hinders the investigation, prosecution and punishment of the acts of torture committed during the dictatorship. In this regard, it claims that the State has not furthered any judicial investigations ex officio to prosecute the criminal responsibility of perpetrators of torture, that Decree Law No. 2,191 (self-amnesty) is still in force, that there is no appropriate definition for the crime of torture, and that by a legal provision, the information gathered by the Valech Commission must be kept under seal for a 50 years' term. In addition, the petitioning party asserts that through the application of "partial statutory limitations," the domestic courts benefit those responsible for crimes against humanity, by lessening their punitive sentences and ensuring that these are served out of jail. Finally, the petitioner claims that there is a lack of uniformity as regards the Supreme Court's grant of civil compensations, which has caused a continuous state of uncertainty among the survivors of the political imprisonment and torture.
Furthermore, the petitioning party alleges the existence of damages to the physical and moral integrity of the alleged victims and their family members, due to the court resolutions under which their right to access fair compensation is groundless and barred by statute of limitations. The petitioner requests the IACHR to consider the alleged victims' vulnerable situation in view of their bad economic situation, fragile health and old age, since most of them are over 80 years of age and a significant number of them is aged over 90 or died waiting for fair compensations. The petitioner indicates that some of the alleged victims remain in the countries of exile and that those who are in Chile assert that they have difficulty to access the health benefits of the Valech Commission (PRAIS-Osorno). The petitioner also indicates that as a result of their precarious situation, there have been several protests, including hunger strikes.
In turn, the State filed only one response concerning the four petitions in which it claimed that the petition is inadmissible. It submits that the domestic legal remedies set forth by the Chilean legal framework were not exhausted. In this regard, it asserts that only 250 out of the 1720 alleged victims proved that their claims meet the admissibility requirements, but that there is no information about any domestic remedy filed by the rest of them. Therefore, it claims that it cannot be said that the requirement of prior exhaustion of domestic remedies is met. In this regard, the State requests the Commission to declare this indivisible petition inadmissible concerning all the alleged victims involved, for non-compliance with the formal requirements.
P-188-11: Marcos Luis Abarca Zamorano and Others
The petitioning party indicates that on May 10, 2002 it lodged a civil compensation claim with the 28th Civil Court of Santiago, on behalf of 246 people whom the Valech Commission regarded as victims of political imprisonment, and torture. It indicates that on August 29, 2003 said Court ruled to dismiss their claims on the grounds that the civil action had been barred by statute of limitations as it was 13 years since the last detention complaint. The petitioner asserts that it resorted to the Court of Appeals of Santiago, and that on January 17, 2008 this Court confirmed the lower judgment. It submits that, as a result, it filed a cassation appeal against the merits before the Supreme Court, but the appeal was rejected on September 1, 2010 on the grounds that no human rights treaty establishes the non-extinguishable nature of actions aimed at holding the State liable for civil torts.
P-262-12: Orlando Alexander Aguilar González and Others
The petitioning party asserts that on September 28, 2005 it filed a civil compensation claim for damages before the 5th Civil Court of Santiago, on behalf of 511 people, survivors of political imprisonment and torture (28 of them died and are represented by a family member). It submits that on April 13, 2010, the Court ruled to dismiss their claims and found the civil action barred by statute of limitations as it was over 15 years since the end of the dictatorship. The petitioner appealed against this judgment before the Court of Appeals of Santiago, but on June 2, 2011 this Court confirmed the lower judgment and sentenced the claimants to pay for the court fees, the payment of which was demanded by the CDE. The petitioner submits that it appealed by way of cassation against this resolution before the Supreme Court and that on September 2, 2011 this Court rejected the appeal as it considered it groundless, and confirmed the lower judgment.
P-735-12: Guillermo Eusebio López Martínez
The petitioner indicates that on August 18, 2005 it filed a civil compensation claim before the 21st Civil Court of Santiago, on behalf of Guillermo Eusebio López Martínez for damages arising from the repression, kidnapping, torture and political imprisonment to which he was subjected by state agents between September 11, 1973 and April 20, 1978. It asserts that on October 8, 2007 the Court ruled on the matter, rejecting their claims and declaring the civil compensation claim extinguished. The petitioner submits that it appealed against this resolution before the Court of Appeals of Santiago, and that August 27, 2009 this Court confirmed the lower judgment. It claims that it appealed by way of cassation against this decision, but Supreme Court rejected it on December 2, 2011. The Supreme Court established that the rules of statute of limitations set forth in the Civil Code must be applied, and that there are not international rules establishing the non-extinguishable nature of the actions filed by the claimant.
P-281-14: Eduardo Abarzúa Rivadeneira and Others
The petitioner indicates that on May 25, 2007 it filed a civil compensation claim before the 27th Civil Court of Santiago, on behalf of 962 people whom the Valech Commission recognizes as victims (79 of them died and are represented by a family member). It asserts that on August 3, 2010 said Court ruled on the matter and partially endorsed the claim: it distinguished between the bills of damages based on the detention time proven; it denied some compensation claims on lack of information grounds; and it rejected all the actions brought by family members. The petitioning party asserts that this resolution was appealed against before the Court of Appeals of Santiago, and that the appeal was overruled on March 27, 2017 as the Court declared that the actions were barred by statute of limitations on the grounds that the period of statute of limitations does not take into account exceptions contained in the domestic law or the international law. The petitioner claims that it appealed against this resolution before the Supreme Court, and that on September 30, 2013, the cassation appeal was dismissed on statute of limitations grounds.
VI. EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION
The petitioning party denounces that in all four petitions included in this report there is a lack of access to civil reparations in favor of the alleged victims of torture, whose civil claims were dismissed on statute of limitations grounds, which the CDE alleges. The petitioner claims that these resolutions were subsequently confirmed in second instance by the Court of Appeals and in cassation by the Supreme Court, after which domestic legal remedies were exhausted. Moreover, it alleges that the State failed to comply its international obligations in that it did not start the corresponding criminal investigations ex officio into the acts of torture suffered by the alleged victims during the dictatorship, and that the State, instead, has maintained Decree Law No. 2,191 and ordered that the information gathered by the Valech Commission be kept under seal, thus obstructing their access to criminal justice.
On the other hand, the State alleges the lack of exhaustion of domestic remedies, on the grounds that only 250 out of the 1,720 petitioners involved in the four petitions meet the admissibility requirements. In this regard, the Commission notes that the State does not specify the reason to establish that only some of the alleged victims exhausted the domestic remedies, nor identify the 250 people who did exhaust the domestic remedies According to the information submitted by the parties and available from the files at the IACHR, 1,719 out of the 1,720 alleged victims included in the four petitions exhausted the domestic remedies through the first and second-instance judgments issued as a result of their civil actions. These judgments were later confirmed by the Supreme Court through the corresponding decisions, issued between September 1, 2010 and September 30, 2013. In view of this, the Commission concludes that these petitions meet the requirement set forth in Article 46.1.a of the Convention and Article 31.1 of the IACHR's Rules. Likewise, the petitions were lodged within the six months following the date of the final resolutions by which the domestic remedies were exhausted; therefore, they meet the requirement established in Article 46.1.b of the Convention and Article 32.1 of the Rules.
As regards Mr. Domingo Antonio Alvial Mondaca, who appears as the alleged victim in petition P-262-12, based on the information available, his name is not among the people who filed the civil claim before the 5th Civil Court of Santiago on September 28, 2005. Therefore, the Commission concludes that, as regards Mr. Alvial Mondaca, the petition does not meet the requirement established in Article 46.1.a of the Convention.
Concerning the alleged lack of judicial investigation into the acts of torture giving rise to the civil actions, the IACHR recalls that in cases where torture is alleged, the criminal investigation and proceedings constitute the effective and appropriate remedy, and that these must be promoted and furthered by the State.7 The petitioning party clearly submits that "the State has not furthered a legal investigation to criminally prosecute the victimizers or the perpetrators of torture. [The State] even ordered to keep the information gathered by the Valech Commission under seal." In this regard, under the IACHR's jurisprudence, the investigations furthered by the State are the ones to be considered for the purpose of deciding on a petition's admissibility.8 In this regard, the Commission concludes that the exception to the requirement of prior exhaustion of domestic remedies established Article 46.2.a of the Convention is applicable in this case. In view of the context and the characteristics of the petitions included in this report, the Commission believes that the petitions were submitted in a timely manner and that the admissibility requirement of timeliness is met.
VII. COLORABLE CLAIM
Based on the elements of fact and law presented by the parties, and in view of the nature of this matter and the context of the claims, the IACHR believes that, if proved, the alleged dismissal of the civil compensation claims for serious human rights violations on statute of limitations grounds; the alleged lack of investigation and prosecution of the acts of torture committed, and the purported damage caused by the denial of justice and fair reparations may establish possible violations of the rights enshrined in Articles 5 (Humane Treatment), 8 (Fair Trial) and 25 (Judicial Protection) of the Convention, in relation to Articles 1.1 and 2 of the same instrument, and of Article 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of the 1,719 victims and the family members of those who died.9
To find the instant petition admissible in relation to Articles 5, 8 and 25 of the American Convention, in connection with its Articles 1.1 and 2, and with Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture;
To notify the parties of this decision;
To continue with the analysis on the merits; and
To publish this decision and include it in its Annual Report to the General Assembly of the Organization of American States.
Done and signed electronically on the 7th day of the month of July, 2017. (Signed): Francisco José Eguiguren, President; Margarette May Macaulay, First Vice-President; Esmeralda E. Arosemena Bernal de Troitiño, Second Vice-President; José de Jesus Orozco Henríquez and Luis Ernesto Vargas Silva, Commissioners.
NAME LIST OF ALLEGED VICTIMS
ANNEX I P-188-11: Marcos Luis Abarca Zamorano and Others 1. Marcos Luis Abarca Zamorano