62
150. Notwithstanding the foregoing, the Court considers it relevant to remark that
the “historical truth” included in the reports of the above mentioned Commissions is
no substitute for the duty of the State to reach the truth through judicial
proceedings. In this sense, Articles 1(1), 8 and 25 of the Convention protect truth as
a whole, and hence, the Chilean State must carry out a judicial investigation of the
facts related to Mr. Almonacid-Arellano’s death, attribute responsibilities, and punish
all those who turn out to be participants. Indeed, the Report of the Comisión
Nacional de Verdad y Reconciliación (National Truth and Reconciliation Commission)
concludes that:
From the standpoint of prevention alone, this Commission believes that for the sake of
achieving national reconciliation and preventing the recurrence of such events it is
absolutely necessary that the government fully exercise its power to mete out
punishment. Full protection of human rights is conceivable only within a state that is
truly subject to the rule of law. The rule of law means that all citizens are subject to the
law and to the courts, and hence that the sanctions contemplated in criminal law, which
should be applied to all alike, should thereby be applied to those who infringe the laws
160
which safeguard human rights.
151. The State may not invoke any domestic law or provision to exonerate itself
from the Court's order to have a criminal court investigate and punish those
responsible for Mr. Almonacid-Arellano’s death. The Chilean State may not apply
Decree Law No. 2.191 again, on account of all the considerations presented in this
Judgment, especially those included in paragraph 145. Additionally, the State may
not invoke the statute of limitations, the non-retroactivity of criminal law or the ne
bis in idem principle to decline its duty to investigate and punish those responsible.
152. Indeed, as a crime against humanity, the offense committed against Mr.
Almonacid-Arellano is neither susceptible of amnesty nor extinguishable. As
explained in paragraphs 105 and 106 of this Judgment, crimes against humanity are
intolerable in the eyes of the international community and offend humanity as a
whole. The damage caused by these crimes still prevails in the national society and
the international community, both of which demand that those responsible be
investigated and punished. In this sense, the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against Humanity161 clearly states
that “no statutory limitation shall apply to [said internationally wrongful acts],
irrespective of the date of their commission.”
153. Even though the Chilean State has not ratified said Convention, the Court
believes that the non-applicability of statutes of limitations to crimes against
humanity is a norm of General International Law (ius cogens), which is not created
by said Convention, but it is acknowledged by it. Hence, the Chilean State must
comply with this imperative rule.
154. With regard to the ne bis in idem principle, although it is acknowledged as a
human right in Article 8(4) of the American Convention, it is not an absolute right,
and therefore, is not applicable where: i) the intervention of the court that heard the
160
Cf. Report of the Comisión Nacional de Verdad y Reconciliación (National Truth and Reconciliation
Commission) (record of appendixes to the final written arguments of the State, Appendix 2, p. 2520).
161
Adopted by the General Assembly of the United Nations through Resolution 2391 (XXIII) of
November 26, 1968, entered into force on November 11, 1970.
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