145. The State contested the representatives’ challenge de jure of Chilean law,
considering, in relation to “article 15 of Law No. 19,992 [and] the semi-prescription” that
“no mention is made of this in the chapter on ‘Proven Facts’ [of the Merits Report], and it is
only in the chapter on the ‘Position of the petitioners’ that some of the arguments that the
presumed victims made against domestic laws are set out.” It added that the said pleadings
“go beyond the factual framework established in the presentation of the case by the
Commission ([Article] 40(a) of the Court’s Rules of Procedure)” and it is not admissible to
argue the violation of a right under the Convention on this basis.” With regard to the
confidentiality established by article 15 of Law No. 19,992, the State indicated that this was
established by law and responded to a valid objective, which was the success of the
investigation conducted by the National Commission on Political Imprisonment and Torture
and that the restriction seeks to “protect the right to privacy of the persons who gave
testimony, who are the sole owners of this information.” It added that the said Commission
was not a jurisdictional body.
146. Regarding the use of articles 150 A and 150 B of the Criminal Code in relation to
their temporal validity, the State indicated that:
The matter raised by the representatives […] is not relevant for the processing of the domestic
investigation proceedings, because the [domestic] court that is hearing the matter, when
deciding that there has been criminal conduct and that certain persons have participated in
this, proceeds to bring them to trial, indicating the crimes, the levels of participation, and the
criminal norms that have been violated. The same procedure is followed when bringing
charges in subsequent stages of the proceedings.
147. Regarding the crime of “torment,” the State indicated that the Inter-American
Commission had not considered the definition of the crime to be an obstacle or a mechanism
for impunity and that “[i]n relation to the investigation and sentencing for crimes against
humanity that occurred in [Chile], this definition has not represented a barrier to obtaining
justice. [… T]he current definition of the crime of “torment” does not result in a situation of
defenselessness for Mr. García Lucero or a violation of his rights. In addition, the State
indicated that three bills have been submitted that seek to adapt the law as regards the
crime of torture and that, on July 18, 2009, Law No. 20,357 was enacted criminalizing
crimes against humanity and genocide, and war crimes, and it establishes punishments for
acts of torture when committed in the context of such crimes.
148. With regard to “semi-prescription,” the State indicated that this mechanism is “a
general objective legal benefit that has nothing to do with the statute of limitations as a
cause of the extinction of criminal responsibility,” and that “it is never an impediment to a
judicial investigation.”
C.2) Considerations of the Court
149. The Court must analyze whether the investigation of the facts has been hindered as a
result of shortcomings arising from domestic laws or measures of another nature. To this
end, it should be noted that, as the Court has stated previously, the obligation to investigate
“acquires special and determinant importance and force based on the seriousness of the
violations committed.” 154 Consequently, in this case, given that the facts that must be
investigated were possibly inserted in a systematic practice occurring within a context of
gross human rights violations, the obligation to investigate in the way indicated previously
154
Cf. Case of Goiburú et al. v. Paraguay, supra, paras. 84, 128 and 131, and Case of García and family
members v. Guatemala. Merits reparations and costs. Judgment of November 29, 2012. Series C No. 258, para.
131.
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