6
State explained that such a stage is secret and on July 6, 2009, it was ordered that
the investigation be heard and it was awaiting the respective court resolution.
Subsequently, in August 2010, it reported on some progress in the investigation
(supra Considering Clause 6(b)).
12.
The Court notes that during the monitoring compliance with the Judgment
stage it is essential that the State provide the Court information and complete
documentation that makes it possible to verify compliance by the responsible State
with the obligations ordered in the ruling. In order to fulfill the role of monitoring
compliance with the reparation measures for the violations committed against the
victims, and in view of the principle of adversary proceedings, in each case the Court
will assess the need, suitability or appropriateness of upholding the confidentiality of
information provided with regard to its use in the Order, but not regarding the
Parties' access to it.12
13.
Firstly, regarding the duty to ensure that Decree Law No. 2.191 does not
continue to hinder the investigation of the extrajudicial execution of Mr. Almonacid,
the Court believes that from the information provided by the State it can be deduced
that this duty has been guaranteed in this case to date through actions taken by
judicial authorities who have not implemented said Decree, respecting the provisions
of the Court to the effect that the Decree Law has no legal effect as it is incompatible
with the American Convention. Because the criminal proceedings recently started
the preliminary stage, it must be stressed that the State must take steps to continue
to ensure this factor in all phases and stages of said proceedings, including the total
and effective fulfillment of the obligation to investigate, prosecute and, where
applicable, punish those responsible for the extrajudicial execution of Mr. Almonacid.
14.
Secondly, the Court acknowledges that Chile has fulfilled the duties to rescind
the resolutions and judgments issued domestically which in turn gave jurisdiction to
the military courts and led to the conclusion of the investigation pursuant to Decree
Law No. 2.191 and that, consequently, allowed the case to be referred to ordinary
courts in order to continue with the criminal investigation. In this regard, the Court
values that in December 2008 the Chilean Supreme Court took the important
decision to rule that in this case "it is not possible to lodge a peremptory challenge
with a military court." As a result, the case was brought before the ordinary criminal
courts. Furthermore, in that same month the special visiting judge, designated by
the Rancagua Appeals Court to hear the investigation, issued a resolution ruling to
"pursue —in a civil court— the criminal preliminary investigation of case No. 40.184
of the First Court of Rancagua into the murder of Luis Almonacid Arellano."
Furthermore, said Judge also ordered: the reopening of case No. 40.184 of the First
Criminal Court of Rancagua to continue with its processing; the nullification of the
Resolution of the Second Military Court of Santiago of 28 January, 1997, that
acquitted two suspects in the murder case of Mr. Almonacid Arellano, and nullify the
Resolution of March 25, 1998, which confirmed the acquittal; and, prosecute one of
them, who is the retired Major of the Carabineros, on suspicion of murder. As
reported by the State, the case is at the preliminary stage before the ordinary
criminal courts and the Examining Magistrate has taken some steps to investigate
the death of Mr. Almonacid, in particular to determine the corresponding liability,
whereby it has been possible to prove the sole defendant's participation in the case
concerning the execution of Mr. Almonacid (supra Considering Clause 6(b)). The
State has not submitted information on what specific actions were taken as a result
of said attestation. However, the Court believes the aforementioned domestic
decisions comply with an important point of the obligation to investigate provided for
in the Judgment.
12
Cf. Case of the Pueblo Bello Massacre v. Colombia. Monitoring Compliance with Judgment. Order
of the Inter-American Court of Human Rights of July 9, 2009, Considering Clause ten.