33
112. The parties also differ on the matter of the reimbursement of the taxes that were
withheld from the special bonus paid to Mr. García Lucero as an “exonerado politico”, under Law
20,134. As evidenced in the parties’ allegations and the established facts, the petitioners argue that
the 140,943 Chilean pesos withheld were never reimbursed, whereas the State contends that they
were. The Commission does not have any evidence to show that this money was in fact
reimbursed, but it also cannot disprove the petitioners’ allegation. In any case, if the State has not
reimbursed the 140,943 Chilean pesos owed in taxes (since as the State has pointed out this
special bonus was not taxable), the State would not be complying with its obligation to make proper
reparations to Mr. García Lucero.
113. As a corollary of the above, the Commission must make clear that full reparations in
this case include conducting a serious, exhaustive and impartial investigation into the alleged acts of
torture, which must be carried out by the Chilean State with the due diligence. 122 The Commission
will not elaborate further on this point, as the obligation to investigate was examined at length in
the earlier section on the analysis of law. So long as the State has failed in its obligation to
investigate the acts of torture, it has also failed in its obligation to make reparations to Mr. García
Lucero and his family, under the terms previously established by the Commission.
114. Additionally, the IACHR is of the opinion that the continuous suffering that Mr.
García Lucero and his wife endured due to the lack of adequate rehabilitation and treatment, as well
as the harm caused by the absence of an investigation and of full reparation for the acts of torture all of which occurred due to the State’s lack of compliance with its obligation to ensure the right to
personal integrity- tantamount to a violation of Article 5(1) of the American Convention.
115. Finally, the Commission recalls that the established case law of the organs of the
inter-American system is that the next of kin of victims of human rights violations may also be
regarded as victims. 123 In the instant case, the Commission observes that the impunity with respect
to the acts alleged and the failure to provide full reparations compounded the emotional anxiety
suffered by Mr. García Lucero’s wife, Elena, and his daughters (María Elena, Gloria and Francisca),
which is why the Commission finds that their right to mental and moral integrity, protected under
Article 5(1) of the American Convention, has been violated.
VII.
116.
violation of:
1.
CONCLUSIONS
The Inter-American Commission concludes that the Chilean State is responsible for
The right to a fair trial, recognized in Article XVIII of the American Declaration, the
right to a fair trial, to judicial protection and to personal integrity, in conjunction with
the general obligation to ensure human rights and its duty to adapt its domestic laws
(articles 8(1), 25(1), 5(1), 1(1) and 2 of the American Convention), and the duty to
investigate established in Article 8 of the Inter-American Convention to Prevent and
Punish Torture, to the detriment of Mr. García Lucero and his next of kin.
122
The Commission’s arguments and the Court’s conclusions on the matter of reparations in I/A Court H.R., Case
of Cabrera García and Montiel Flores Vs. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of
November 26, 2010. Series C No. 220, paragraphs 213-215.
123
I/A Court H.R., Case of Bueno Alves v. Argentina. Merits, Reparations and Costs. Judgment of May 11, 2007.
Series C. No. 164, para. 102; I/A Court H.R., Case of the Miguel Castro Castro Prison v. Peru. Merits, Reparations and
Costs. Judgment of November 25, 2006. Series C No. 160, para. 335; I/A Court H.R., Case of Vargas Areco v. Paraguay.
Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 155, para. 83, and I/A Court H.R., Case of
Goiburú et al. v. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006. Series C No. 153, para. 96.