each offense must previously be delimited as clearly and precisely as possible,169 in an explicit,
precise, and taxative manner.170
163. When defining offenses of a terrorist nature, the principle of legality requires that a
necessary distinction be made between such offenses and ordinary offenses, so that every
individual and also the criminal judge have sufficient legal elements to know whether an action
is penalized under one or the other offense. This is especially important with regard to terrorist
offenses because they merit harsher prison sentences, and ancillary penalties and
disqualifications with major effects on the exercise of other fundamental rights are usually
established – as in Law No. 18, 314. In addition, the investigation of terrorist offenses has
procedural consequences that, in the case of Chile, may include the restriction of certain rights
during the investigation and prosecution stages.171
164. Consensus exists at the international level and, in particular, in the Americas about “the
threat that terrorism poses to democratic values and international peace and security, [as well
as for …] the enjoyment of human rights and fundamental freedoms.”172 Terrorism is a
phenomenon that jeopardizes the rights and freedoms of the persons subject to the jurisdiction
of the States Parties to the American Convention. Consequently, Articles 1(1) and 2 of this
Convention oblige the States Parties to take all those measures that are adequate, necessary
and proportionate to prevent and, as appropriate, to investigate, prosecute and punish these
types of acts. According to the Inter-American Convention against Terrorism, “the fight against
terrorism must be undertaken with full respect for national and international law, human rights,
and democratic institutions, in order to preserve the rule of law, liberties, and democratic values
in the Hemisphere.”173
165. In particular, when States take the necessary measures to prevent and punish terrorism
by defining acts of this nature as offenses, they are obliged to respect the principle of legality in
the terms mentioned above (supra paras. 161 to 164). Different United Nations bodies and
experts have underlined that domestic codification and definitions relating to terrorism should
not be formulated in an imprecise way that facilitates broad interpretations under which conduct
is punished that does not have either the nature or the gravity of that type of offense.174
169
Cf. Case of Fermín Ramírez v. Guatemala. Merits, reparations and costs. Judgment of June 20, 2005. Series C No.
126, para. 90, and Case of Liakat Ali Alibux v. Suriname, para. 61.
170
Cf. Case of Kimel v. Argentina, para. 63, and Case of Liakat Ali Alibux v. Suriname, para. 61.
171
Articles 3, 3 bis, 5, 11, 13, 15, 16 and 21 of Law No. 18,314 which “define terrorist acts and establish their
punishment.” Cf. Law No. 18,314, which defines terrorist acts and establishes their punishment, published in the official
gazette on May 17, 1984 (file of annexes to the Merits Report 176/10, annex 1, folios 5 to 11, file of annexes to the CEJIL
motions and arguments brief, annex B 1.1, folios 1740 to 1746, file of annexes to the FIDH motions and arguments brief,
annex 27, folios 817 to 823, and annexes to the State’s answering brief, annex 3, folios 84 to 87); Law No. 19,027 of
January 24, 1991, which “[a]mends Law No.18,314, which defines terrorist acts and establishes the corresponding
punishments” (file of annexes to the FIDH motions and arguments brief, annex 29, folios 825 to 827); affidavits prepared
on May 21, 2013, by expert witness Manuel Cancio Meliá, and on May 27, 2013, by expert witness Federico Andreu-Guzmán
(file of statements of presumed victims, witnesses and expert witnesses, folios 158 to 165, and 621 to 624).
172
Cf. Inter-American Convention against Terrorism, AG/RES. 1840 (XXXII-O/02), adopted at the second plenary
session
held on
June
3, 2002, second and
sixth paragraphs of the
preamble. Available at:
http://www.oas.org/juridico/english/ga02/agres_1840.htm.
173
Cf. Inter-American Convention against Terrorism, supra, eighth paragraph of the preamble.
174
Cf. UN Doc. CCPR/C/CHL/C0/5, 17 April 2007, Human Rights Committee, Consideration of reports presented by
States Parties under Article 40 of the Covenant, Concluding observations of the Human Rights Committee, Chile, para. 7
(file of annexes to the Merits Report 176/10, annex 8, folios 310 to 315), and UN Doc. A/HRC/6/17/Add.1, 28 November
2007, Human Rights Council, Report of the Special Rapporteur for the promotion and protection of human rights and
fundamental freedoms while countering terrorism, Martin Scheinin, Addendum, para. 20 (file of annexes to the Merits
Report 176/10, annex 10, folios 369 to 373).
57
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