10
of Decree Law No. 2.191 after the Chilean State accepted the jurisdiction of the
American Convention, and iii) the application of such Decree Law in the instant case
by the judicial military authorities. The foregoing facts constitute alleged violations to
the prejudice of Mr. Almonacid-Arellano’s next of kin. Neither the Commission nor
the representative have requested that the Court decide on the detention and death
of Mr. Almonacid-Arellano, nor have they claimed any procedural defect or violation,
or any other event occurred before the ratification of the Convention.
47.
Furthermore, the State alleged that “the criminal investigation [...] is a single
and ongoing unity which is permanent in time,” which “cannot be partitioned,
divided, separated or disassociated, not even materially or formally.” Thus, the State
has concluded that the alleged violation started prior to the recognition of the
jurisdiction of the Court, as the investigation proceeding regarding the death of Mr.
Almonacid-Arellano was started in September 1973.
48.
The Court deems that during the course of a proceeding separate facts might
occur which constitute specific and independent violations arising from denial of
justice.4 For instance, the decision of a judge not to allow the counsel for the defense
to participate in the proceeding;5 the prohibition imposed on the counsels for the
defense to interview their clients in private, to duly examine the record of the case,
to forward evidence for the defense, to challenge incriminating evidence, and to
prepare the arguments in due time;6 the intervention of ‘faceless’ judges and
prosecutors;7 the torture or ill-treatment inflicted on the defendant to exact a
confession from him;8 the failure to inform foreign detainees of their right to have
consular assistance;9 and the violation of the principle of coherence or correlation
between the charges and the judgment,10 among others.
49.
In view of the foregoing, the Court finds that it has jurisdiction over the facts
set forth by the Commission and by the representatives regarding the transfer of the
case to the military courts to the prejudice of the civil courts, and the application of
the Amnesty Law in the instant case by the military judicial authorities, as such facts
were subsequent to August 21, 1990. Said facts are set forth in detail in paras.
82(11) to 82(23) hereof and may constitute independent violations of Articles 8(1)
and 25 of the Convention, in relation to Article 1(1) thereof. Therefore, the Court
considers that they are not excluded by the limitation asserted by the State.
Furthermore, as regards the alleged “failure to investigate, prosecute, and punish
those persons responsible for the murder of Luis Almonacid” claimed by the
Commission (supra para. 40(a)(ii)), the Court notes that neither the Commission nor
4
Cf. Case of the Serrano-Cruz Sisters. Preliminary Objections, supra note 1, para. 84.
5
Cf. Case of the Indigenous Community Yakye Axa . Judgment of June 17, 2005. Series C No. 125,
para. 117.
6
Cf. Case of Castillo-Petruzzi et al. Judgment of May 30, 1999. Series C No. 52, paras. 135 to 156.
7
Cf. Case of Lori Berenson-Mejía. Judgment of November 25, 2004. Series C No. 119, para. 147.
8
Cf. Case of Tibi. Judgment of September 7, 2004. Series C No. 114, para. 146.
9
Cf. Case of Acosta-Calderón. Judgment of June 24, 2005. Series C No. 129, para. 125.
10
Cf. Case of Fermín Ramírez. Judgment of June 20, 2005. Series C No. 126, paras. 65 to 69.