-25on the victims of human rights violations, since these are different forms of reparation. Moreover, the
fact that they are assumed by the State voluntarily, as is the case of the aforementioned legislation,
does not imply the waiver of one of the parties or the prohibition for the justice system to declare their
validity, by the means authorized by law.71
98.
As for the suitability of domestic reparation mechanisms, in Colombia, for example, the
Court has considered that, in transitional justice scenarios, in which the States must assume their
duty to provide massive reparations to numbers of victims that may greatly exceed the capacities
and possibilities of the domestic courts, administrative reparation programs constitute one of the
legitimate ways of satisfying the right to reparation. In such contexts, these reparation measures
must be understood in conjunction with other truth and justice measures, provided that they
comply with a series of requirements related, inter alia, to their legitimacy and effective capacity
for comprehensive reparation.72 The fact of combining administrative and judicial reparations,
according to each State, can be understood as different (exclusive) or complementary in nature
and, in this sense, what is granted in one sphere could be taken into account in the other. However,
in the Chilean case it is understood that, according to the prevailing jurisprudential criteria, both
types of reparations complement each other, and whatever was granted under administrative
reparations programs would not be discounted in the judicial proceedings.
99.
Specifically regarding Chile’s administrative reparations program, this Court has previously
stated that it “views positively the reparations policy for human rights violations implemented by
the State.”73 Subsequently, in the case of García Lucero et al. v. Chile, the Court considered that:
[…] the existence of administrative programs of reparation must be compatible with the State’s
obligations under the American Convention and other international norms and, therefore, it cannot lead
to a breach of the State’s duty to ensure the “free and full exercise” of the rights to judicial guarantees
and protection, in keeping with Articles 1(1), 25(1) and 8(1) of the Convention, respectively. In other
words, administrative reparation programs and other measures or actions of a legal or other nature that
co-exist with such programs, cannot result in an impediment that prevents victims from filing claims for
reparations, in exercise of their rights to judicial guarantees and protection. In view of this relationship
between administrative reparation programs and the possibility of filing actions to claim reparations […]
according to treaty-based rights, the establishment of domestic administrative or collective reparation
programs does not prevent the victims from filing actions to claim measures of reparation.”74
100. The Court considers that the prevailing jurisprudential criterion at the domestic level,
regarding the complementary and non-exclusive nature of reparations granted through
administrative and judicial channels, is reasonable in relation to the right of victims of serious
human rights violations to have access to justice and to request a judicial declaration of State
responsibility, either for an individual determination of damages or, if applicable, to challenge the
sufficiency or effectiveness of the reparations received previously.
101. In conclusion, the jurisprudence of Chile’s Supreme Court of Justice in recent years has
certainly changed significantly towards a reasonable and consistent interpretation of its duty to
exercise an effective control of conventionality. The Inter-American Court positively welcomes this
jurisprudential change.
102. Consequently, this Court declares that the State is responsible for the violation of the right
of access to justice, in relation to the rights to judicial guarantees and judicial protection, recognized
71
Cf. Supreme Court of Justice of Chile. Second Chamber. Judgment of June 20, 2016. Case Record No. N 173-2016. Available at:
http://basejurisprudencial.poderjudicial.cl/
Cf. Case of the Displaced Afrodescendant Communities of the Cacarica River Basin (Operation Génesis) v. Colombia. Preliminary
objections, merits, reparations and costs. Judgment of November 20, 2013. Series C No. 270, para. 470.
72
73
Cf. Case of Almonacid Arellano et al. v. Chile, para. 161.
Cf. Case of García Lucero et al. v. Chile. Preliminary objection, merits and reparations. Judgment of August 28, 2013. Series C No.
267, paras. 190 and 192.
74