against Torture has indicated the right of victims of torture to obtain “compensation,” as
well as “the most complete rehabilitation possible” and, in this regard, a “legal remedy.”
197. Now, in relation to the educational benefits and the “right” to “physical rehabilitation”
established by Law No. 19,992, it is a fact that the respective services are available to
people who are on Chilean territory, 206 and that, although Mr. García Lucero is entitled to
this “right,” he cannot enjoy it while he lives outside Chile. The said Law recognized as
beneficiaries all the persons recognized as victims on the list that forms part of the Valech
Commission’s Report, and failed to make any distinction in this regard. The Court takes note
of the dispute between the Commission and the parties on whether or not this circumstance
gives rise to State responsibility, but will not rule in this regard, because under its temporal
competence, it will not examine the original act that generated this, which is the torture, or
its legal consequences or the harm caused and, consequently, it will not examine Mr. García
Lucero’s rehabilitation requirements either (supra para. 37) 207 and, therefore, it is unable to
assess whether or not the State should take measures to this end. Nevertheless, even
torture and cruel, inhuman and degrading treatment (Cf. Case of Tibi v. Ecuador. Preliminary objections, merits,
reparations and costs. Judgment of September 7, 2004, Series C No. 114, paras. 244, 246 and 249; Case of Bueno
Alves v. Argentina, supra, paras. 134 and 178; Case of Bayarri v. Argentina. Preliminary objection, merits
reparations and costs. Judgment of October 30, 2008, Series C No. 187, paras. 170, 142 and 143; Case of
Fernández Ortega et al. v. Mexico, Preliminary objection, merits, reparations and costs. Judgment of August 30,
2010. Series C No. 215, paras. 251 and 289; Case of Rosendo Cantú et al. v. Mexico. Preliminary objection, merits
reparations and costs. Judgment of August 31, 2010. Series C No. 216, paras. 252, 253 and 278; Case of Vélez
Loor v. Panama, supra, paras. 263 and 308, and Case of Cabrera García and Montiel Flores v. Mexico, supra, paras.
260, 220 and 221. Regarding the said decision in the case of Bueno Alves v. Argentina, it should be clarified that
the representatives of the victim requested a compensatory amount for “medical and pharmaceutical expenses for
treatment and rehabilitation,” and that the Court considered the evidence for the expenses they had incurred to be
insufficient and determined, based on the equity principle, that a sum of money be granted).
206
In particular, it can be indicated, as regards “physical rehabilitation,” that the law ordered, that the right
established could be exercised or enjoyed by the incorporation of its holders as beneficiaries of the PRAIS Program.
Article 9 of Law No. 19,992 stipulated: “The following letter (d) should be added to the first paragraph of article 7
of Law No. 19,980: ‘(d) Those who are individualized on the List of Persons Acknowledged as Victims that forms
part of the Report of the National Commission on Political Imprisonment and Torture, created by Supreme Decree
No. 1,040 of 2003 of the Ministry of the Interior’” (file of annexes to the Merits Report, annex 15, f. 202).
According to information provided by the State in its answering brief, Law No. 19,980 “regulated, with legal rank,
the PRAIS program aimed at granting medical benefits to the victims recognized by the Law on Reparation and
Reconciliation.” Witness Paula Godoy Echegoyen, “National Head of PRAIS,” explained that “[t]he persons who have
lived or live in exile are beneficiaries of the program together with their family group, and receive attention […]
when they return to the country on a permanent or temporal basis,” and that there are no agreements with the
United Kingdom or other countries to provide the attention outside the country (affidavit provided by Paula Godoy
Echegoyen, merits file, tome II, fs. 566 to 574). María Luisa Sepúlveda, who was “Executive Vice-President” of the
Valech Commission, indicated the same in her testimony: she stated when referring to “[t]he persons who live
outside Chile,” that “they can only enjoy the health benefits in the country” (testimonial statement made by María
Luisa Sepúlveda, supra). In this regard, she stated that “none of the laws on reparations establish them as benefits
to be received abroad.” Similarly to all the above, Elena García testified that “[t]he PRAIS health system can only
be used in Chile, and not in the United Kingdom” (testimony of Elena García, merits file, tome II, fs. 499 to 516).
207
The Court takes noted that “[t]he Committee against Torture recommended to the State that it “take into
consideration the obligation to ensure redress for all victims of torture and that it consider concluding cooperation
agreements with countries where they reside so that they may have access to the kind of medical treatment
required by victims of torture.” In addition, the Committee urged the State “to take steps to ensure the necessary
funding so that each team from PRAIS or another organization can give effective care to all those entitled to it. […]
The Committee recommend[ed] that the State […] increase its efforts in regard to reparation, compensation and
rehabilitation so as to ensure fair and appropriate reparation for all victims of torture” (Committee against Torture,
forty-second session, Geneva, 27 April to 15 May 2009. Consideration of reports submitted by States Parties under
Article 19 of the Convention. Concluding observations of the Committee against Torture. Chile. CAT/C/CHL/CO/5.
23 June 2009, para. 18). Similarly, expert witness Sveaass stated that “[t]he right to reparation can never depend
on where the persons lives,” and that “[i]n situations where people have been forcibly expelled or exiled by the
authorities, the obligation to provide redress, which includes […] rehabilitation is even more evident.” She also
indicated that “implementing a principle of integral reparation that includes those in exile, may encourage them to
return to their country of origin” (expert opinion provided by Nora Sveaass by affidavit, merits file, tome II, fs. 524
and 525).
64