58
depend on the damage caused, both from the pecuniary and non-pecuniary point of
view. Reparations should not make the victims or their successors neither wealthier
nor poorer.158
138. In the chapter on Proven Facts, this Court held it proven that, since the return
to democracy, the Chilean State has pursued a policy of reparations for the violations
perpetrated during the military dictatorship. This policy has benefited surviving
victims and the next of kin of deceased or disappeared victims, and has sought
national reconciliation. The Court celebrates the steps taken by the State and
highlights the work of the Comisión Nacional de Verdad y Reconciliación (National
Truth and Reconciliation Commission), the Corporación Nacional de Reparación y
Reconciliación (National Reparation and Reconciliation Corporation) and the Comisión
Nacional sobre Prisión Política y Tortura (National Commission on Political
Imprisonment and Torture) (supra paras. 82(26) to 82(30)). Additionally, it is a nondisputed fact that Mr. Almonacid-Arellano’s next of kin benefited from this state
reparation policy (supra paras. 82(34) and 82(35)).
139. Nevertheless, the instant case refers to the denial of justice suffered by Mrs.
Gómez-Olivares and her children as a result of the facts analyzed in the previous
chapter. Hence, the Court, in accordance with the evidence collected during the
proceedings and in the light of the foregoing criteria, now proceeds to analyze the
claims filed by the Commission and the representative and the considerations of the
State, so that it may order the reparations it deems relevant.
140.
Arguments of the Commission
a)
in order to make reparations for the violations committed in the
instant case, the Court should instruct the State to:
i)
ii)
iii)
iv)
158
conduct a complete, impartial, and effective investigation of the
facts aimed at establishing the truth and punishing those
persons responsible for the murder of Mr. Almonacid-Arellano,
whether as perpetrators or instigators;
adopt legislative and other measures, in accordance with its
constitutional processes and the provisions of the American
Convention, with a view to finally suspending the effects of
Decree Law No. 2.191 in all instances and taking all judicial
proceedings in which it was applied back to the moment when
said Decree Law had not been applied;
guarantee the victims of human rights violations committed
during the military dictatorship that ruled the country between
September 1973 and March 1990, that they shall be entitled to
judicial protection and to a simple and prompt recourse,
pursuant to Articles 8 and 25 of the Convention;
adopt the necessary measures to guarantee that the cases
concerning human rights violations shall not be investigated or
tried by military courts, under no circumstances whatsoever;
and
Cf. Case of Montero-Aranguren et al., supra note 155, para. 118; Case of Ximenes-Lopes, supra
note 14, para. 210; and Case of the Ituango Massacres, supra note 14, para. 348.
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