63
case and decided to dismiss it or to acquit a person responsible for violating human
rights or international law, was intended to shield the accused party from criminal
responsibility; ii) the proceedings were not conducted independently or impartially in
accordance with due procedural guarantees, or iii) there was no real intent to bring
those responsible to justice.162 A judgment rendered in the foregoing circumstances
produces an “apparent” or “fraudulent” res judicata case.163 On the other hand, the
Court believes that if there appear new facts or evidence that make it possible to
ascertain the identity of those responsible for human rights violations or for crimes
against humanity, investigations can be reopened, even if the case ended in an
acquittal with the authority of a final judgment, since the dictates of justice, the
rights of the victims, and the spirit and the wording of the American Convention
supersedes the protection of the ne bis in idem principle.
155. In the instant case, two of the foregoing conditions are met. Firstly, the case
was heard by courts which did not uphold the guarantees of jurisdiction,
independence and impartiality. Secondly, the application of Decree Law No. 2.191
did actually prevent those allegedly responsible from being brought before the courts
and favored impunity for the crime committed against Mr. Almonacid-Arellano. The
State cannot, therefore, rely on the ne bis in idem principle to avoid complying with
the order of the Court (supra para. 147).
156. On the other hand, the State, in order to fulfill its duty to investigate, must
guarantee that the necessary facilities shall be provided by all public institutions to
the regular court trying Mr. Almonacid-Arellano’s case (supra para. 147). Hence, the
former shall forward to said court any information or documents it may request,
bring before it the persons it may subpoena, and perform the actions it may order.
157. Finally, the State must guarantee that Elvira del Rosario Gómez-Olivares and
Alfredo, Alexis, and José Luis Almonacid-Gómez have full access to and capacity to
act at all stages and instances of said investigation, pursuant to the domestic law
and the provisions of the American Convention.164 The results of the investigation
shall be publicly disclosed by the State, so that the Chilean society may know the
truth about the events of the instant case.165
C)
158.
Pecuniary and non-pecuniary damage
Pecuniary damage entails income loss or detriment, expenses incurred as a
162
Cf. UN, Rome Statute of the International Criminal Court, adopted by the United Nations
Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN
Doc. A/CONF.183/9, July 17, 1998, Art. 20; Statute of the International Criminal Tribunal for the former
Yugoslavia, S/Res/827, 1993, Art. 10, and Statute of the International Criminal Tribunal for Rwanda,
S/Res/955, November 8, 1994, Art. 9.
163
Cf. Case of Carpio-Nicolle et al. Judgment of November 22, 2004. Series C No. 117, para. 131.
164
Cf. Case of Montero-Aranguren et al., supra note 155, para. 139; Case of Baldeón-García, supra
note 14, para. 199; and Case of Blanco-Romero et al. Judgment of November 28, 2005. Series C No. 138,
para. 97.
165
Cf. Case of Montero-Aranguren et al., supra note 155, para. 139; Case of Baldeón-García, supra
note 14, para. 199; and Case of the Pueblo Bello Massacre, supra note 138, para. 267.
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