4
within the context of a specific case, a continued violation of said
treaty; (...) the amendments in the domestic legal system of a State
Party necessary to its harmonization with the rules and regulations of a
human rights treaty may constitute, in the context of a specific case, a
way of non-pecuniary reparation under said treaty” (...) (para. 40).
13.
In the cas d'espèce, the legislation applied to Mr. Palamara-Iribarne, although
amended to a certain extent, as recognized in this Judgment (paras. 91-93, 130 and
263), retains rules or provisions which are contrary to the general obligations set forth
in Articles 1(1) and 2 of the American Convention, reason for which additional
violations are generated per se, regardless of those related to the rights declared
violated herein.
14.
The combination of the above mentioned rules, still in force, entails as main
and most serious consequence, that in Chile civilians may be subjected, in certain
circumstances, to the military criminal jurisdiction, placing them, when that occurs, in
a particular condition of vulnerability and non-protection, thus violating the general
duty to respect and make others respect, without any discrimination, the rights
protected in the American Convention (Article 1(1)).
15.
It is evident that the amendment of the Criminal Code by the Chilean State
regarding contempt and the criminal procedural amendment it carried out are
particularly important in order to fulfill the above mentioned general duties under the
Convention. However, as pointed out in this Judgment, those provisions are not
enough to achieve the protection of the rights consecrated in the American
Convention because, on the one hand, the State still enforces domestic legislation
provisions which contemplate the crime of contempt or criminal concepts which could
lead to broad interpretations that would allow that the above considered conducts such as contempt - to be penalized (paras. 91-93 and 254), and, on the other hand, it
has excluded the military jurisdiction from the above mentioned criminal procedural
amendment (paras. 122 and 256-257).
16.
Consequently, as long as the State does not completely align the domestic law
provisions with the international standards of the American Convention and stops
fulfilling the general duty to respect and guarantee the respect for the conventionally
protected rights, it shall be committing additional violations of Articles 1(1) and 2 of
the Convention. Thus, in this case of Palamara-Iribarne, the Chilean State has violated
and continues to violate the general obligations set forth in Articles 1(1) and 2 of the
American Convention, - as they were in force at the time the facts of this case took
place and at present domestic law provisions which are not in agreement with the
international standards of protection of human rights set forth in those Articles of the
American Convention are still in force.
17.
However, considering its valuable and respectable legal tradition, I cherish
hope that Chile, the land of Alejandro Álvarez, shall manage to correct this situation
soon, thus faithfully fulfilling this Judgment of the Inter-American Court -as it
exemplarily has with the previous Judgment of this Court in the case of "The Last
Temptation of Christ" (2001).
Antônio Augusto Cançado Trindade
Judge