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The Human Rights
Committee, established under article 28 of the International Covenant on
Civil and Political Rights,
Meeting on 26 July 1999
Adopts the following:
Decision on Admissibility [FN***]
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[FN***] The text of an individual opinion signed by two Committee members is
appended to the present document.
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1. The author of the communication is Maria Otilia Vargas Vargas acting also
on behalf of her son, Dagoberto P�rez Vargas, a Chilean citizen who
disappeared in 1973, and was later confirmed to have been killed that year.
It is alleged that Mr. Dagoberto P�rez Vargas was a victim of violations by
Chile of articles 2; 5; 14, paragraph 1; 15, paragraphs 1 and 2; 16 and 26
of the International Covenant on Civil and Political Rights, and that the
rights of Mrs. Vargas Vargas have been violated as a family member. The
alleged victims are represented by Nelson G.C. Pereira of the Fundaci�n de
Ayuda Social de las Iglesias Cristianas.
The Facts as Submitted:
2.1 On 16 October 1973, an armed confrontation occurred between members of
the now defunct DINA (Direcci�n de Inteligencia Nacional)and members of the
rebel group MIR (Movimiento de Izquierda Revolucionario)of which Dagoberto
P�rez was a member. It was assumed that he was killed in the encounter, as
his body was never recovered, but the only news about his fate that his
family was able to gather was unofficial. None of the victim's relatives
were ever notified of the whereabouts of the body, the circumstances of his
death, where it had occurred or who had been responsible.
2.2 Proceedings to establish the circumstances of Mr. P�rez Vargas' death
were initiated in the Metropolitan Regional Court of Santiago (Juzgado de
Letras de Talagante, Regi�n Metropolitana) on 28 April 1991. A criminal suit
on charges of aggravated kidnapping resulting in murder and illegal
association were filed against X. On 24 August 1993, the Magistrate on the
Talagante Court declared that he had no competence to consider the case and
transferred the case to a military jurisdiction, as two military officers
appeared to have investigated the site of the incident. Counsel notes that
the Court of Appeal of San Miguel subsequently remitted the appeal to a
military jurisdiction.
2.3 On 24 August 1994, the 2nd Military Tribunal of Santiago (II Juzgado
Militar de Santiago) decreed that the case be formally discontinued (Sobreseimiento
definitivo) pursuant to Law 2.191 of 1978, without going into further
investigations. On 9 May 1995, the Military Court (Corte Marcial) endorsed
this decision. One of the civilian judges on the court dissented, arguing
that the proceedings should be returned to the investigating phase.
2.4 A complaint (Recurso de Queja) was filed with the Supreme Court on
grounds of abuse of power by the Military Tribunal and the Military Court,
which had dismissed the case under the provisions of the 1978 Amnesty
Decree. On 2 October 1995, the Supreme Court dismissed the complaint,
without giving reasons. With this, counsel argues, available domestic
remedies have been exhausted.
The Complaint:
3.1 Before the Supreme Court, the case was based on violations by the
Chilean authorities both of national law and international conventions.
Reference was made in this context to the 1949 Geneva Conventions, in force
for Chile since April 1951, under which certain illicit acts committed
during an armed conflict without international dimensions, are not subject
to an amnesty. In this respect, it was alleged that the events under
investigation had taken place during a state of siege ("Estado de sitio en
grado de 'Defensa Interna'") in Chile. Counsel alleges that by their acts,
the present Chilean authorities are condoning, and have become accessories
to, the acts perpetrated by the former military regime.
3.2 It is alleged that, regardless of how the events in question may be
defined, i.e. whether under the Geneva Conventions or under article 15,
paragraph 2, of the Covenant, they constitute acts or omissions which, when
committed, were criminal acts according to general principles of law
recognised by the community of nations, and which may not be statute-barred
nor unilaterally pardoned by any State. Counsel states that with the
application of the amnesty law, Decree no. 2191 of 1978, Chile has accepted
the impunity of those responsible for these acts. It is alleged that the
State is renouncing its obligation to investigate international crimes, and
to bring those responsible for them to justice and thus determine what
happened to the victims. This means that fundamental rights of the author
and his family have been violated. Counsel claims a violation of article 15,
paragraph 2, of the Covenant, in that criminal acts have been unilaterally
and unlawfully pardoned by the State.
3.3 Counsel alleges that the application of the amnesty law No.2.191 of 1978
deprived the victim and his family of the right to justice, including the
right to a fair trial and to adequate compensation for the violations of the
Covenant. [FN1] Counsel further alleges a violation of article 14 of the
Covenant, in that the victim and his family were not afforded access on
equal terms to the courts, nor afforded the right to a fair and impartial
hearing. Since the case was remitted to the military courts, the principle
of equality of arms was violated.
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[FN1] In this respect, reference is made to the Inter-American Commission's
decision in the Velasquez Rodriguez case.
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3.4 To counsel, the decision of the military tribunals not to investigate
the victim's death amounts to a violation of article 16 of the Covenant,
i.e. failure to recognize the victim as a person before the law.
3.5 As to the reservation entered by Chile upon ratification of the Optional
Protocol in 1992, it is alleged that although the events complained of
occurred prior to 11 March 1990, the decision challenged by the present
communication is the judgment of the Supreme Court of October 1995.
State Party's Observations and Counsel's Comments:
4.1 In submissions dated 6 December 1996, 12 February 1997 and 9 February
1998, the State party provides a detailed account of the history of the
cases and of the amnesty law of 1978, including information on the details
of the death of Mr. P�rez Vargas. It specifically concedes that the facts
did occur as described by the author's counsel. It was indeed in reaction to
the serious human rights violations committed by the former military regime
that former President Aylwin instituted the National Truth and
Reconciliation Commission by Decree of 25 April 1990. For its report, the
Commission had to set out a complete record of the human rights violations
that had been brought to its attention; among these was the author's case.
It is noted that his case is set out in Part II, Vol. I of the Commission's
final report; the conclusion was that his death was attributable to
'political violence'.
4.2 The State party submits that the facts at the basis of the communication
cannot be attributed to the constitutionally elected government(s) which
succeeded the military regime. It provides a detailed account of the
historical context in which large numbers of Chilean citizens disappeared
and were summarily and extrajudicially executed during the period of the
military regime.
4.3 The State party notes that it is not possible to abrogate the Amnesty
Decree of 1978, and adduces reasons: first, legislative initiatives such as
those relating to amnesties can only be initiated in the Senate (article 62
of the Constitution), where the Government is in a minority. Second,
abrogation of the law would not necessarily have repercussions under
criminal law for possible culprits, on account of the prohibition of
retroactive application of criminal laws. This principle is enshrined in
article 19 lit.3 of the Chilean Constitution and article 15, paragraph 1, of
the Covenant. Three, the composition of the Constitutional Court. Four, the
designation of the Commanders in Chief of the Armed Forces; the President of
the Republic may not remove the present officers, including General
Pinochet. Lastly the composition and attributions of the National Security
Council (Consejo de Seguridad Nacional) restrict the attributions of the
democratic authorities in all matters pertaining to internal or external
national security.
4.4 The State party further observes that the existence of the amnesty law
does not inhibit the continuation of criminal investigations already under
way in Chilean tribunals. In this sense, the amnesty decree of 1978 may
extinguish the criminal responsibility of those accused of crimes under the
military regime, but it cannot in any way suspend the continuation of
investigations that seek to establish what happened to individuals who were
detained and later disappeared. This has been the interpretation of the
decree both by the Military Court and by the Supreme Court.
4.5 The Government emphasizes that the Chilean Constitution (article 73)
protects the independence of the judiciary. As such, the Executive cannot
interfere with the application and the interpretation of domestic laws by
the courts, even if the courts' decisions go against the interests of the
Government.
4.6 With respect to the terms of the amnesty law, the State party points to
the necessity to reconcile the desire for national reconciliation and
pacification of society with the need to ascertain the truth of past human
rights violations and to seek justice. These criteria inspired ex-President
Aylwin when he set up the Truth and Reconciliation Commission. To the State
party, the composition of the Commission was a model in representativity, as
it included members associated with the former military regime, former
judges and members of civil society, including the founder and president of
the Chilean Human Rights Commission.
4.7 The State party distinguishes between an amnesty granted de facto by an
authoritarian regime, by virtue of its failure to denounce or investigate
massive human rights abuses or by adopting measures designed to ensure the
impunity of its members, and an amnesty adopted by a constitutionally
elected democratic regime. It is submitted that the constitutionally elected
governments of Chile have not adopted any amnesty measures or decrees which
could be considered incompatible with the provisions of the Covenant; nor
have they committed any acts which would be incompatible with Chile's
obligations under the Covenant.
4.8 The State party recalls that after the end of the mandate of the Truth
and Reconciliation Commission, another body - the so-called "Corporaci�n
Nacional de la Verdad y Reconciliaci�n" - continued the work of the former,
thereby underlining the Government's desire to investigate the massive
violations of the former military regime. The "Corporaci�n Nacional"
presented a detailed report to the Government in August of 1996, in which it
added the cases of 899 further victims of the previous regime. This body
also oversees the implementation of a policy of compensation for victims
which had been recommended by the Truth and Reconciliation Commission.
4.9 The legal basis for the compensation to victims of the former military
regime is Law No.19.123 of 8 February 1992, which
* sets up the Corporaci�n Nacional and mandates it to promote the
compensation to the victims of human rights violations, as identified in the
final report of the Truth and Reconciliation Commission;
* mandates the Corporaci�n Nacional to continue investigations into
situations and cases in respect of which the Truth and Reconciliation
Commission could not determine whether they were the result of political
violence;
* fixes maximum levels for the award of compensation pensions in every case,
depending on the number of beneficiaries;
* establishes that the compensation pensions are readjustable, much like the
general system of pensions;
* grants a "compensation bonus" equivalent to 12 monthly compensation
pension payments;
* increases the pensions by the amount of monthly health insurance costs, so
that all health-related expenditures will be borne by the State;
* decrees that the education of children of victims of the former regime
will be borne by the State, including university education;
* lays down that the children of victims of the former regime may request to
be exempted from military service.
In accordance with the above guidelines, the relatives of Mr. P�rez Vargas
have received and are currently receiving monthly pension payments.
4.10 In the light of the above, the State party requests the Committee to
find that it cannot be held responsible for the acts which are at the basis
of the present communication. It solicits, moreover, a finding that the
creation of the National Truth and Reconciliation Commission and the
corrective measures provided for in Law No.19.123 constitute appropriate
remedies within the meaning of article 2 of the Covenant.
4.11 The State party further recalls that with the transition to democracy,
the victims of the former regime have been able to count on the full
cooperation of the authorities, with a view to recovering, within the limits
of the law and the circumstances, their dignity and their rights. Reference
is made to the ongoing work of the Corporaci�n Nacional de Reparaci�n y
Reconciliaci�n.
5.1 In his comments, counsel takes issue with several of the State party's
observations. He contends that the State party's defence ignores or at the
very least misconstrues Chile's obligations under international law, which
are said to mandate the Government to take measures to mitigate or eliminate
the effects of the Amnesty Decree of 1978. Article 2 of the American
Convention on Human Rights and article 2, paragraph 2, of the Covenant
impose a duty on the State party to take the necessary measures (by
legislation, administrative or judicial action)to give effect to the rights
enshrined in these instruments. To counsel, it is wrong to argue that there
is no other way than to abrogate or declare null and void the 1978 amnesty
decree: nothing prevents the State party from amnestying those who committed
wrongs, except where the wrongs committed constitute international crimes or
crimes against humanity. For counsel, the facts at the basis of the present
communication fall into the latter category.
5.2 To counsel, it is equally wrong to argue that the principle of
non-retroactivity of criminal laws operates against the possibility of
prosecuting those deemed responsible for grave violations of human rights
under the former military regime. This principle does not apply to crimes
against humanity, which cannot be statute-barred. Moreover, if the
application of the principle of non-retroactivity of criminal legislation
operates in favour of the perpetrator but collides with other fundamental
rights of the victims, such as the right to a remedy, the conflict must be
solved in favour of the latter, as it derives from violations of fundamental
rights, such as the right to life, to liberty or physical integrity. In
other words, the perpetrator of serious crimes cannot be deemed to benefit
from more rights than the victims of these crimes.
5.3 Counsel further claims that from a strictly legal point of view, the
State party has, with the modification of Chile's Constitution in 1989 and
with the incorporation into the domestic legal order of international and
regional human rights instruments such as the American Convention on Human
Rights and the Covenant, implicitly abrogated all (domestic) norms
incompatible with these instruments; this would include the Amnesty Decree
D.L.2.191 of 1978.
5.4 In respect of the State party's argument relating to the independence of
the judiciary, counsel concedes that the application of the amnesty decree
and consequently the denial of appropriate remedies to the victims of the
former military regime derives from acts of Chilean tribunals, in particular
the military jurisdictions and the Supreme Court. However, while these
organs are independent, they remain agents of the State, and their acts must
therefore engage State responsibility if they are incompatible with the
State party's obligations under international law. Counsel therefore
considers unacceptable the State party's argument that it cannot interfere
with the acts of the judiciary: no political system can justify the
violation of fundamental rights by one of the branches of Government, and it
would be absurd to conclude that while the executive branch of government
seeks to promote adherence to international human rights standards, the
judiciary may act in ways contrary to, or simply ignore, these standards.
5.5 Counsel finally argues that the State party has misleadingly adduced the
conclusions of several reports and resolutions of the Inter-American
Commission on Human Rights in support of its arguments. To counsel, it is
clear that the Commission would hold any form of amnesty which obstructs the
determination of the truth and prevents justice from being done, in areas
such as enforced and involuntary disappearances and summary executions, as
incompatible with and in violation of the American Convention on Human
Rights.
5.6 In additional comments, counsel reiterates his allegations as summarized
in paragraphs 3.2 and 3.3 above. What is at issue in the present case is not
the granting of some form of compensation to victims of the former regime,
but the denial of justice to them: the State party resigns itself to arguing
that it cannot investigate and prosecute the crimes committed by the
military regime, thereby foreclosing the possibility of any judicial remedy
for the victims. To counsel, there is no better remedy than the
determination of the truth, by way of judicial proceedings, and the
prosecution of those held responsible for the crimes. In the instant case,
this would imply ascertaining the burial sites of the victim, why he was
murdered, who killed him or ordered him to be killed, and thereafter
indicting and prosecuting those responsible.
5.7 Counsel adds that his interpretation of the invalidity of Amnesty Decree
2.191 of 1978, in the light of international law and the Covenant, has been
endorsed by the Inter-American Commission on Human Rights in a Resolution
adopted in March 1997. In this resolution, the Commission held the amnesty
law to be contrary to the American Convention on Human Rights, and
admonished the State party to amend its legislation accordingly. The Chilean
Government was requested to continue investigations into disappearances that
occurred under the former regime, and to indict, prosecute and try those
held responsible. To counsel, the Commission's resolution perfectly sets out
Chile's responsibility for facts and acts such as those at the basis of the
present communications.
Admissibility Considerations:
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The Committee notes that the State party does not explicitly challenge
the admissibility of the communication, although it does point out that the
events complained of by the author, including the Amnesty Decree of 1978,
occurred prior to the entry into force of the Optional Protocol for Chile,
which ratified that instrument on 28 August 1992 with the following
declaration: "In ratifying the competence of the Human Rights Committee to
receive and consider communications from individuals, it is the
understanding of the Government of Chile that this competence applies in
respect of acts occurring after the entry into force for that State of the
Optional Protocol or, in any event, to acts which began after 11 March
1990".
6.3 The Committee notes that the author also challenges the judgment of the
Supreme Court of Chile of 2 October 1995 denying the request for the
revision of earlier adverse decisions rendered in respect to Mr. P�rez
Vargas' application by military courts.
6.4 The Committee notes that the acts giving rise to the claims related to
the death of Mr. P�rez Vargas occurred prior to the international entry into
force of the Covenant, on 23 March 1976, hence, these claims are
inadmissible ratione temporis. The Supreme Court judgement of 1995 cannot be
regarded as a new event that could affect the rights of a person who was
killed in 1973. Consequently, the communication is inadmissible in respect
of Mr. P�rez Vargas, under article 1 of the Optional Protocol, and the
Committee does not need to examine whether the declaration made by Chile
upon accession to the Optional Protocol has to be regarded as a reservation
or a mere declaration.
6.5 The Committee notes that the communication has been submitted by Mrs.
Mar�a Otilia Vargas Vargas, the mother of Mr. P�rez Vargas and that the
State party has addressed her status as a victim of alleged violations of
the Covenant. With the dismissal of the author's petition by the Supreme
Court in October 1995, all domestic remedies available to the author have
been exhausted. The State party itself has argued that Amnesty Decree 2.191
of 1978 cannot be abrogated or declared null and void, which must be
understood as meaning that any judicial challenge of the Decree,
constitutionally or otherwise, would inevitably fail. The Committee thus
concludes that the requirements of article 5, paragraph 2 (b), of the
Optional Protocol have been met in the present case in relation to Mrs.
Maria Otilia Vargas Vargas.
6.6 The Committee notes that the events complained of by Mrs. Vargas Vargas
occurred prior to the entry into force of the Optional Protocol for Chile.
However, the decision challenged by her is the judgment of the Supreme Court
of Chile of October 1995, i.e. acts which occurred after the entry into
force of the Optional Protocol for the State party. Thus, the Committee is
not precluded ratione temporis from considering the communication of Mrs.
Vargas Vargas.
6.7 The Committee notes that the claims made on behalf of Mrs. Vargas Vargas
are general in character and have merely been derived from the claims made
in respect of Mr. P�rez Vargas. She has not specified which of her rights
under the Covenant have been violated through the Supreme Court judgement of
1995. Consequently, the Committee finds that the claims made in respect of
Mrs. Mar�a Otilia Vargas Vargas have not been sufficiently substantiated for
purposes of admissibility and the communication is inadmissible under
article 2 of the Optional Protocol.
7. The Human Rights Committee therefore decides:
(a) that the communication is inadmissible;
1. (b) that the decision shall be communicated to the State party, and to
the author and her counsel.
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*The following members of the Committee participated in the examination of
the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr.
Prafullachandra N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms.
Elizabeth Evatt, Ms. Pilar Gait�n de Pombo, Mr. Eckart Klein, Mr. David
Kretzmer, Mr. Rajsoomer Lallah, Mr. Fausto Pocar, Mr. Martin Scheinin, Mr.
Hip�lito Solari Yrigoyen, Mr. Roman Wieruszewski, and Mr. Abdallah Zakhia.
**Pursuant to rule 85 of the Committee's rules of procedure, Ms. Cecilia
Medina Quiroga did not participate in the examination of the case.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Appendix
Individual opinion by Committee member Christine Chanet, concerning
communications Nos. 717/1996 and 718/1996 and co-signed by Mr. Fausto Pocar
concerning
communication No. 718/1996
I challenge the decision taken by the Committee, which, in dealing with the
two communications, dismissed the applicants on the grounds of the ratione
temporis reservation lodged by CHILE at the time of its accession to the
Optional Protocol.
In my view the question could not be addressed in this manner, in view of
the fact that judicial decisions taken by the State party were adopted after
the date it had specified in its reservation and that the problem raised in
connection with article 16 of the Covenant relates to a situation which, as
long as it is not permanently ended, has long-term consequences.
In the case in question, even if the actual circumstances referred to in the
two communications diverge, the attitude of the State regarding the
consequences to be drawn from the disappearances necessarily raised a
question as regards article 16 of the Covenant.
Under article 16, everyone has the right to recognition as a person before
the law.
While this right is extinguished on the death of the individual, it has
effects which last beyond his or her death; this applies in particular to
wills, or the thorny issue of organ donation;
This right survives a fortiori when the absence of the person is surrounded
by uncertainty; he or she may reappear, and even if not present, does not
cease to exist under the law; it is not possible to substitute civil death
for confirmed natural death;
These observations do not imply that this right is of unlimited duration:
either the identification of the body is incontestable and a declaration of
death can be made, or uncertainty remains concerning the absence or the
identification of the person and the State must lay down rules applicable to
all these cases; it may, for example, specify a period after which the
disappeared person is regarded as dead.
This is what the Committee should have sought to find out in this particular
case by examining the matters in depth.
Ch. Chanet (signed)
Fausto Pocar (signed)
[Done in English, French and Spanish, the French text being the original
version. Subsequently to be translated also into Arabic, Chinese and Russian
as part of the Committee's annual report to the General Assembly.]
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