61
damage which the Commission and the representatives allege the beneficiaries have
suffered as a consequence of the facts set forth in the instant case. Finally, the Court
shall order that this Judgment be published as reparation for non-pecuniary damage.
B) Adaptation of domestic law to conform to the American Convention and duty of
the State to continue investigating this case, identify, prosecute and, as appropriate,
punish those responsible
145. As explained in paragraph 119 of this Judgment, the Court finds that,
inasmuch as it seeks to grant amnesty to persons responsible for crimes against
humanity, Decree Law No. 2.191 is inconsistent with the American Convention and,
therefore, has no legal effects; consequently, the State must: i) ensure that it does
not continue to hinder the investigation of Mr. Almonacid-Arellano’s extra-legal
execution and the identification and, as appropriate, punishment of those
responsible, and ii) ensure that Decree Law No. 2.191 does not continue to hinder
the investigation, prosecution and, as appropriate, punishment of those responsible
for similar violations perpetrated in Chile.
*
*
*
146. The Court has found that the State has violated the rights established in
Articles 8 and 25 of the American Convention in relation to Article 1(1) thereof, to
the detriment of Elvira del Rosario Gómez-Olivares and Alfredo, Alexis, and José Luis
Almonacid-Gómez. This violation occurred for two reasons: i) the granting of
jurisdiction to the military courts to hear the case of Mr. Almonacid-Arellano’s death,
and ii) the application of Decree Law No. 2.191. The first violation resulted from
Order of the Supreme Court of December 5, 1996 (supra para. 82(17)), whilst the
second one was a consequence of the judgments of January 28, 1997 of the Second
Military Court of Santiago (supra para. 82(20)) and of March 25, 1998 of the CourtMartial (supra para. 82(21)).
147. In view of the foregoing, the Court hereby orders that the State set aside the
above mentioned domestic decisions and judgments, and refer the case file to a
regular court, so that, by way of criminal proceedings, all those responsible for Mr.
Almonacid-Arellano’s death are identified and punished.
148. The Court has previously ruled that the right to know the truth is included in
the right of victims or their next of kin to have the harmful acts and the
corresponding responsibilities elucidated by competent State bodies, through the
investigation and prosecution provided for in Articles 8 and 25 of the Convention.159
149. Once more, the Court wishes to highlight the important role played by the
different Chilean Commissions (supra paras. 82(26) to 82(30)) in trying to
collectively build the truth of the events which occurred between 1973 and 1990.
Likewise, the Court appreciates that the Report of the Comisión Nacional de Verdad y
Reconciliación (National Truth and Reconciliation Commission) includes Mr.
Almonacid-Arellano’s name and a brief summary of the circumstances of his
execution.
159
Cf. Case of Barrios Altos, supra note 140, para. 48. Case of Bámaca-Vélasquez. Judgment of
November 25, 2000. Series C No. 70, para. 201.
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