4
6
Temptation of Christ” (Olmedo-Bustos et al. v. Chile, Judgment of February 5, 2001),
following the same line of reasoning, I stated that
"the international responsibility of a State Party in a human rights
treaty arises the moment an illegal international fact –act or omissionattributable to that State and in violation of the treaty under issue takes
place (tempus commisi delicti); (...) the effectiveness of a domestic law
provision, which per se entails a legal situation which affects the rights
protected by a human rights treaty, constitutes, within the context of a
specific case, a continued violation of said treaty; (...) the amendments
in the domestic legal system of a State Party necessary to its
harmonization with the rules and regulations of a human rights treaty
may constitute, in the context of a specific case, a way of non-pecuniary
reparation under said treaty” (...) (para. 40).
13.
In the cas d'espèce, the legislation applied to Mr. Palamara-Iribarne, although
amended to a certain extent, as recognized in this Judgment (paras. 91-93, 130 and
263), retains rules or provisions which are contrary to the general obligations set forth
in Articles 1(1) and 2 of the American Convention, reason for which additional violations
are generated per se, regardless of those related to the rights declared violated herein.
14.
The combination of the above mentioned rules, still in force, entails as main and
most serious consequence, that in Chile civilians may be subjected, in certain
circumstances, to the military criminal jurisdiction, placing them, when that occurs, in a
particular condition of vulnerability and non-protection, thus violating the general duty
to respect and make others respect, without any discrimination, the rights protected in
the American Convention (Article 1(1)).
15.
It is evident that the amendment of the Criminal Code by the Chilean State
regarding contempt and the criminal procedural amendment it carried out are
particularly important in order to fulfill the above mentioned general duties under the
Convention. However, as pointed out in this Judgment, those provisions are not enough
to achieve the protection of the rights consecrated in the American Convention
because, on the one hand, the State still enforces domestic legislation provisions which
contemplate the crime of contempt or criminal concepts which could lead to broad
interpretations that would allow that the above considered conducts -such as contempt
- to be penalized (paras. 91-93 and 254), and, on the other hand, it has excluded the
military jurisdiction from the above mentioned criminal procedural amendment (paras.
122 and 256-257).
16.
Consequently, as long as the State does not completely align the domestic law
provisions with the international standards of the American Convention and stops
fulfilling the general duty to respect and guarantee the respect for the conventionally
protected rights, it shall be committing additional violations of Articles 1(1) and 2 of the
Convention. Thus, in this case of Palamara-Iribarne, the Chilean State has violated and
continues to violate the general obligations set forth in Articles 1(1) and 2 of the
American Convention, - as they were in force at the time the facts of this case took
place and at present domestic law provisions which are not in agreement with the
international standards of protection of human rights set forth in those Articles of the
American Convention are still in force.
6
IACHR, Judgment of February 05, 2001, C Series, No. 73.
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