54
contemplated in said Convention. The fact that such provisions have been adopted
pursuant to the domestic legislation or against it, “is irrelevant for this purpose.”148
To conclude, the Court, rather than the process of adoption and the authority issuing
Decree Law No. 2.191, addresses the ratio legis: granting an amnesty for the serious
criminal acts contrary to international law that were committed by the military
regime.
121. Since it ratified the American Convention on August 21, 1990, the State has
kept Decree Law No. 2.191 in force for sixteen years, overtly violating the obligations
set forth in said Convention. The fact that such Decree Law has not been applied by
the Chilean courts in several cases since 1998 is a significant advance, and the Court
appreciates it, but it does not suffice to meet the requirements of Article 2 of the
Convention in the instant case. Firstly because, as it has been stated in the
preceding paragraphs, Article 2 imposes the legislative obligation to annul all
legislation which is in violation of the Convention, and secondly, because the criterion
of the domestic courts may change, and they may decide to reinstate the application
of a provision which remains in force under the domestic legislation.
122. For such reasons, the Court determines that by formally keeping within its
legislative corpus a Decree Law which is contrary to the wording and the spirit of the
Convention, the State has not complied with the obligations imposed by Article 2
thereof.
d) Enforcement of Decree Law No. 2.191
123. The above mentioned legislative obligation established by Article 2 of the
Convention is also aimed at facilitating the work of the Judiciary so that the law
enforcement authority may have a clear option in order to solve a particular case.
However, when the Legislative Power fails to set aside and / or adopts laws which
are contrary to the American Convention, the Judiciary is bound to honor the
obligation to respect rights as stated in Article 1(1) of the said Convention, and
consequently, it must refrain from enforcing any laws contrary to such Convention.
The observance by State agents or officials of a law which violates the Convention
gives rise to the international liability of such State, as contemplated in International
Human Rights Law, in the sense that every State is internationally responsible for
the acts or omissions of any of its powers or bodies for the violation of internationally
protected rights, pursuant to Article 1(1) of the American Convention.149
124. The Court is aware that domestic judges and courts are bound to respect the
rule of law, and therefore, they are bound to apply the provisions in force within the
legal system. But when a State has ratified an international treaty such as the
American Convention, its judges, as part of the State, are also bound by such
Convention. This forces them to see that all the effects of the provisions embodied in
the Convention are not adversely affected by the enforcement of laws which are
contrary to its purpose and that have not had any legal effects since their inception.
In other words, the Judiciary must exercise a sort of “conventionality control”
148
Cf. Certain Powers of the Inter-American Commission of Human Rights (arts. 41, 42, 44, 46, 47,
50 and 51 of the American Convention on Human Rights.). Advisory Opinion OC-13/93 of July 16, 1993.
Series A No. 13, para. 26.
149
Cf. Case of Ximenes-Lopes, supra note 14, para. 172; and Case of Baldeón-García, supra note
14, para. 140.
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