7
15.
Similarly, regarding the obligation to ensure the investigation be executed in
ordinary courts, the State sent a copy of the amendment bill for the Military Justice
Code, which "was submitted for consideration before the National Congress" on July
3, 2007, and is yet to be approved. The Court values that the Executive Branch
proposed this initiative and that it has been submitted to the Chilean Legislative
Branch for its consideration, particularly due to the effects that an appropriate and
complete legislative reform could have on the State's appropriate compliance with its
general obligation to ensure the rights to judicial guarantees and judicial protection,
and in particular the principle of natural law. However, bringing the Chilean legal
system into conformity with international standards on military criminal jurisdiction
and the creation of legal restrictions for jurisdiction of military courts in terms of
subject matter and people is part of monitoring compliance with the ruling issued by
this Court in the Case of Palamara Iribarne v. Chile.13
16.
The Court considers that the information provided by the State reflects Chile's
principle of compliance with its international obligations to investigate and punish
those responsible for the human rights violations identified in this case. Accordingly,
the Court is waiting for complete and updated information on ongoing criminal
proceedings covering: (i) information on compliance with the criteria established by
the Court regarding the proper way to fully comply with the obligation to effectively
investigate, including those highlighted in Considering Clause ten of this Order; and,
(ii) information on measures or actions taken by the authorities, as a result of
proving the participation of the only defendant in this case in the extrajudicial
execution of Mr. Almonacid (supra Considering Clause 14).
II. Regarding the obligation to ensure that Decree Law 2.191 does not
continue to hinder the investigation, prosecution and, if applicable, the
punishment of those responsible for other similar violations in Chile
(operative paragraphs 145 of [the] Judgment)
17.
The State indicated that it had studied "various ways" to comply with this
aspect of the Judgment and that "it [had] deemed that the enactment of a bill to
interpret Article 93 of the Penal Code to be the most viable option." Said article
stipulates the grounds for the extinction of criminal liability. Furthermore, the State
indicated that it had sought to "harmonize the non-enforcement of DL 2191, an
Amnesty law, with the principles of res judicata and ne bis in idem, [and thus], in
that sense, it [had] entered into a legal course of action." With respect to the first
legislative amendment mentioned, Chile reported that in May 2008 "a bill intended to
interpret Article 93 of the Penal Code [was] pending, with a view to preventing the
enforcement of amnesty, pardon and prescription periods in cases on war crimes,
genocide and crimes against humanity." According to the State, this bill "seeks to
comply with the [J]udgment of [the] Court regarding the provision that Decree Law
2.191 must not hinder the investigation, prosecution and, where appropriate,
punishment of those responsible for the human rights violations that occurred in
Chile between 1973-1978." It added that the bill strives to enact an interpretive law
to clarify the true meaning and scope of existing domestic laws relating to "the
extinction of criminal liability in light of International Law on Human Rights." In its
August 2010 report, it submitted a copy of that bill14 and said it was in the second
13
Cf. Case of Palamara Iribarne v. Chile. Merits, Reparations and Costs. Judgment of November 22,
2005. Series C No. 135, dispositive point fourteen; Case of Palamara Iribarne v. Chile. Monitoring
Compliance with Judgment. Order of the Court of November 30, 2007, Considering Clause twenty, and
Case of Palamara Iribarne v. Chile. Monitoring Compliance with Judgment Order of the Court of September
21, 2009, Considering Clause fourteen and nineteen.
14
In the sole article of the aforementioned bill it envisages "establish[ing] the true meaning and
scope of the grounds for the extinction of legal liability provided for in Article 93 of the Penal Code, such
that it must be understood that the use of prescription periods, amnesty and pardon in criminal