8
v)
vi)
41.
the failure by the Military Prosecutor’s Office to challenge the
decision rendered by the Court-Martial on March 25, 1998; and
the failure by the Supreme Court of Justice of Chile to control
the constitutionality of the Amnesty Law enacted by Decree
Law No. 2.191 of 1978, pursuant to the provisions of Article 80
of the Constitution;
b)
these actions or omissions by judicial authorities constitute a failure by
the State to comply with its obligations to conduct an effective
investigation and to provide an effective remedy which punishes the
accused for the commission of the crime. In all cases, there have been
specific and independent violations of the Convention, which were
subsequent to the recognition of the jurisdiction of the Inter-American
Court, and
c)
the acts in violation of the obligation of the State to adapt its
legislation to the provisions of the Convention are also issues over
which the Court has jurisdiction. In the specific case of laws opposing
the American Convention, their ongoing effectiveness, regardless of
the date of enactment thereof, is, in fact, a repetitive violation of the
obligations set forth in Article 2 of the Convention. Additionally, any
act in application of such law which affects the rights and liberties
protected by the Convention should be deemed as an independent
violation.
Arguments of the Representative
a)
this international proceeding was not started on the grounds of the
murder of Mr. Almonacid-Arellano, which occurred in September 1973,
but on the grounds of the denial of justice in the investigation into said
crime, which constitutes an independent violation, though related to
said murder;
b)
denial of justice started on September 25, 1996, when the military
courts claimed to have jurisdiction over the crime of murder; it
continued with Order of December 5, 1996 issued by the Supreme
Court, which in deciding whether the military or civilian courts were
competent to hear the instant case decided for the former; it later
continued with Order of January 28, 1997 issued by the Second
Military Court of Santiago, which dismissed the case, and was finally
completed with Order of March 25, 1998 issued by the Court-Martial,
which upheld the prior dismissal of the case. Therefore, all the events
which constituted denial of justice were subsequent to March 12,
1990, and
c)
the legal interest protected regarding the crime of murder is the right
to life and that protected regarding denial of justice is the integrity of
justice. Therefore, murder and denial of justice are related acts,
though legally independent and autonomous.
Considerations of the Court