-16contained no errors, since Articles 130 and 131 of the Geneva Convention regarding the Treatment
of Prisoners of War, adduced by the victim’s next of kin as the legal basis for the contention that
actions against war crimes are not subject to any statute of limitations, are not provisions that
state that actions of a financial or pecuniary nature do not prescribe. Thus, the Supreme Court
considered that in Chile’s legal system there was no impediment to the application of the statute
of limitations for actions to hold the Treasury liable for making reparation for damages other than
criminal damages. The CSJ considered that the idea of applying the statute of limitations
terminating an action for compensation contained in the Civil Code to actions addressing the noncontractual liability of the State “does not contradict its special nature, if one considers that they
(such actions) affect the financial implications of that liability, and that, in the absence of positive
provisions rendering them non-prescriptible, it was appropriate to apply the Common Law rules
that refer specifically to the matter, including Article 2.332 of the Civil Code, which deals directly
with the matter.
61.
Under Law 19.980 of 2004, the seven children of Hipólito Cortés received the following
reparation awards: Marcia Alejandra Cortés Barraza (10,000,000.00 Chilean pesos) Nora Isabel
Cortés Barraza (8,230,371.00 Chilean pesos), Hernán Alejandro Cortés Barraza (9,207,049.00
Chilean pesos), Eduardo Patricio Cortés Barraza (10,000,000.00 Chilean pesos), Miriam del Rosario
Cortés Barraza (10,000,000.00 Chilean pesos), Patricio Cortés Barraza (10,000,000.00 Chilean
pesos) and Jorge Cortés Barraza (10,000,000.00 Chilean pesos).49
A.6
Situation of Pamela Adriana Vivanco Medina and her case against the Chilean
Treasury
62.
According to the report of the Rettig Commission, on September 28, 1973, Ramón Vivanco,
an active member of the Communist Party who worked at the San Bernardo de Ferrocarriles
machine shop, was arrested along with 10 other people in a military operation carried out at that
workplace. The detainees were later executed by soldiers on October 6, 1973, at the Cerro Chena
detention center and their corpses were sent to the Institute of Forensic Medicine. The Rettig
Commission concluded that the death of these victims constituted a human rights violation, carried
out without due process of law by State agents.50
63.
Under the provisions of Law 19.123 of 1992, Mr. Vivanco’s daughter, Pamela Adriana
Vivanco Medina, received a compensation award and a pension, issued from July 1, 1991, until
December 31, 1993, when she became ineligible due to her age.
64.
On August 30, 2000, Ms. Vivanco filed a civil lawsuit before the 16th Civil Court seeking
compensation from the Chilean Treasury for moral damage caused by the death of her father. On
October 4, 2002, the court dismissed her claim citing the five-year statute of limitations period for
actions under ordinary law provided for in Articles 2.514 and 2.515 of the Civil Code. The judge
considered that the action had been brought more than five years after the date on which it became
enforceable, namely on March 4, 1991, the date on which the Rettig Commission published its
report. On January 22, 2003, Ms. Vivanco appealed said judgment before the CAS, which declared
the appeal void on May 6, 2003, because the appellant did not appear.
65.
Under Law 19.980 of 2004, the daughter of the victim received a reparation award consisting
of the difference between the amount she had received through the pension and the amount of the
award, which was 10,000,000.00 Chilean pesos.
49
Cf. Brief of observations of the State presented on November 21, 2008, before the Inter-American Commission.
50
Report of the Rettig Commission, Volume I, pages 225 and 226.