acts and omissions related to the implementation of the investigation took place following
Chile’s acceptance of the Court’s jurisdiction, and based on the existence of independent illegal
acts that began to be executed also after the said acceptance of its jurisdiction.
22.
In this regard, they argued that the autonomous acts that occurred after ratification
of the Convention that are subject to the competence of the Court are: (a) the alleged
failure to open an investigation into “the torture, arbitrary detention, expulsion and other
acts” involving Mr. García Lucero; (b) the alleged haphazard implementation of the
investigation, once it was opened in October 2011; (c) the maintenance of Decree Law No.
2,191 in the domestic “legal system”; (d) the adoption of norms “that prevent the system of
justice from complying with its obligation to investigate […], such as article 15 of Law
1992,” and (e) the “domestic reparations” awarded to Mr. García Lucero.
23.
Lastly, the representatives indicated that even though Chile had not explicitly filed an
objection of “failure to exhaust domestic remedies,” this was revealed by its arguments.
They asked the Court to reject the objection, because the State had not filed the objection
on the first procedural occasion before the Commission, which the latter had noted when
deciding on the admissibility of the case.
B.
Considerations of the Court
24.
The Court, as an organ with jurisdictional functions, is empowered to determine the
scope of its own competence (compétence de la compétence/Kompetenz-Kompetenz). The
acceptance of the Court’s binding jurisdiction, executed in accordance with Article 62(1) of
the Convention, presumes that the State indicating this acceptance recognizes the Court’s
right to decide any dispute relating to its jurisdiction. 8
25.
The State affirmed the Court’s lack of material and temporal competence in a single
preliminary objection, and indicated that it was the temporal competence that was “violated
most blatantly.” The Court will now examine both aspects.
B.1.) Regarding the lack of material competence
26.
The Court observes that both the representatives and the Commission have
submitted arguments concerning the alleged violation of instruments regarding which the
Court has competence: namely, the American Convention and the Inter-American
Convention against Torture. Their arguments are related to the alleged lack of adequate
investigation and reparation and, as the Commission indicated, the said claims were
submitted by the petitioners at the time when the case was admitted. 9 For its part, the
State indicated that “the purpose of this case” was related to “the presumed failure by the
State to comply with the obligations to investigate and to provide reparation” (supra para.
17). Nevertheless, when citing the alleged lack of material competence, Chile did so in
general terms by asserting that “the Court’s competence should only address the claims
8
Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits reparations and costs.
Judgment of June 21, 2002. Series C No. 94, paras. 17 and 18, and Case of the Río Negro Massacres v. Guatemala.
Preliminary objection, merits reparations and costs. Judgment of September 4, 2012. Series C No. 250, para. 35.
9
In the Admissibility Report, the Commission, when describing the alleged facts, indicated that “the petition
set out issues relating to the supposed denial of justice owing to the failure to provide civil redress to a victim of
grave human rights violations, which had been shielded by criminal impunity owing to the application of an
amnesty law.” It also indicated that, in their presentations to the Commission, the petitioners had clarified that the
purpose of their complaint “focused on three issues: (a) the non-derogation – and consequently retaining in force –
of Decree Law No. 2,191 […]; (b) the failure to identify and prosecute those responsible, and to punish the authors
of [the] facts […], and (c) the failure to provide civil redress to victims of torture.” Available at:
www.cidh.oas.org/annualrep/20055p/Chile350.02pm.htm.
10