7
“it has been shown that at the present time the domestic courts are not [applying the Amnesty law]
given the courts’ understanding that this law is not in conformity with international treaties and
human rights principles, which establish the obligation to prosecute and punish persons responsible
for crimes against humanity, no matter when those crimes were committed.” The State makes
reference to a Supreme Court ruling of September 24, 2009 (No. 8113-08) which concerned cases
of torture under the military dictatorship. In that ruling the Supreme Court held that Decree Law
2191 cannot be applied to cases of human rights violations and that crimes against humanity
cannot be declared time barred under the statute of limitations; it also held that amnesty laws do
not apply in the case of crimes against humanity, because crimes such as torture are egregious
human rights violations. The State maintains that this Supreme Court ruling denied the remedies of
cassation filed by the accused, who were ultimately sentenced to prison and accessory penalties,
among them disqualification to hold public office. The Supreme Court also upheld the civil suit
brought against one of the perpetrators, and ordered him to pay 10 million pesos (approximately
USD 18,315). The State goes on to say that this ruling refutes the petitioners’ allegations that the
criminal courts in Chile are not friendly to cases in which torture is alleged; it also refutes their
allegation that one cannot claim reparations through civil action. The State also asserts that this
Supreme Court ruling contradicts the petitioners’ allegation that torture is classified as a simple suit
under domestic torts law and not as a crime against humanity.
28.
As for reparations, the State asserts that the States’ obligation to make reparations
to victims of human rights violations has been interpreted as a general principle of public
international law and international human rights law. As for the scope of this obligation, the State
asserts that “reparation requires that the facts be brought to light, that those responsible be
identified and punished, and that the authorities acknowledge what happened; summing up, it
means that the State must take responsibility for redressing the harm caused as fully as possible.”
The State further states that reparations in cases of human rights violations have been interpreted in
two different ways. The first from an international law perspective, where reparations include
“restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.” The State
also asserts that “in the process of the transition to democracy, in which massive and systematic
human rights violations needed to be addressed, these criteria had to be redefined.” On this last
point, the State’s position is that the objective is that the reparation be adequate, effective, prompt
and in proportion to the seriousness of the violations and the harm suffered.
29.
The State asserts that as public policy, the driving principles of any reparations plan
must be to make it victim-centered and comprehensive so that it takes into account not just the
material aspects, but also the moral and social aspects. The State contends that its compliance
with the obligation to make reparations has been exemplary; and that it has been internationally
recognized that the public policy the State of Chile has fostered -referred to as the “Reparations
Plan or Program”- has been reparations-oriented.
30.
In response to the petitioners’ allegation that the State has not made adequate
reparations, the State points out some of its most important steps taken in the area of reparations
for the violations committed during the military dictatorship, namely: (i) the National Truth and
Reconciliation Commission (known as the “Rettig Commission”); (ii) the National Corporation for
Reparation and Reconciliation, whose functions were later taken over by the Continuity Program
under Law No. 19,123 and the Ministry of the Interior’s Human Rights Program; (iii) the Program on
Recognition of Persons Fired due to their Political Ideology (“Programa de Reconocimiento al
Exonerado Político”); (iv) the laws under which assistance was provided to Chileans who had been
in exile; (v) the laws adopted under the human rights proposal titled “No Tomorrow Without
Yesterday,” which was an initiative of President Lagos (Law 19,980 and Law 19,962); and (vi) the
“National Commission on Political Imprisonment and Torture to Clarify the Truth about Human
Rights Violations in Chile,” also known as the Valech Commission, and Law No. 19,992, which
establishes a reparations pension and other benefits (a benefit for minors born in prison or while