C. Regarding the alleged legal obstacles to the investigation C.1) Arguments of the Commission and of the parties 142. The Commission observed that an “essential component” of the State’s responsibility is that Chile maintains in force the amnesty legislation (Decree–Law No. 2,191), which is incompatible with the American Convention and which “had a direct and necessary impact on the obstruction of Mr. García Lucero’s right of access to justice.” 143. The representatives stated that “structural factors,” including several domestic laws, prevented an adequate investigation of acts of torture. Thus, they noted the following: (a) Chile “has not eliminated Decree [No. 2,191], or developed a judicial public policy […] to prevent members of the justice system from continuing to apply it”; (b) article 15 of Law No. 19,992 establishes the confidentiality for 50 years of “documents, testimony and background information provided to the “Valech Commission” by victims, 152 which is an obstacle to the investigation; (c) articles 150 A and 150 B of the Criminal Code, which refer to the crime of “torment” (tormento), “are not applicable to the era of the facts; [the State is] committing a serious basic legal error because the law was not in force at the time,” by initiating the investigation based on these articles, and (d) these articles and article 330 of the Code of Military Justice, which defines the crime of “unnecessary violence,” are contrary to international law. In this regard, they indicated that the definition of the crime of “torment” is different from the definition of torture in the Inter-American Convention against Torture. Articles 150 A and B of the Chilean Criminal Code do not use the words “torture” or “cruel, inhuman or degrading treatment” to define the punishable conduct, and the problem “is not merely one of wording, because the definition is clearly too restricted in relation to the requirements of international law in this regard.” Additionally, they set out the following arguments: Article 150 A applies only in relation to ‘a person deprived of liberty’ disregarding other potential victims[; n]either the Criminal Code nor the Code of Military Justice include attempt to commit torture[; t]he punishment applicable to the crime of torment and to that of unnecessary violence is not proportional to the severity of the crime committed and, also, article 97 of the Criminal Code establishes that, after 10 years, this punishable conduct is subject to a statute of limitations. 144. The representatives also indicated that article 103 of the Chilean Criminal Code includes the mechanism of “semi-prescription,” and pointed out that this reduces the criminal punishment in certain circumstances. They considered that the said article “establishes a reduction of the sentence when certain requirements are met,” which means that the applicable punishments are not proportionate to the crime. 153 152 They clarified that the Inter-American Commission had not referred to this article, but that the representatives had presented this argument during the processing of the case before the Commission at the hearing on October 27, 2008, and before this when they requested a working meeting in 2007. 153 In this regard, the representatives indicated that article 103 stipulates that “if the accused comes forward or is apprehended before the statute of limitations for the criminal action or the punishment comes into effect, but when half the time established for prescription in the respective case has elapsed, the court shall consider that the act has acquired two or more very special attenuating circumstances and no aggravating circumstance, and apply the rules of articles 65, 66, 67 and 68 either to impose the punishment, or to reduce the punishment that has been imposed.” This rule “does not apply to the statute of limitations for of short-term special and minor offenses.” They indicated that the Supreme Court of Justice of Chile had confirmed the application of this mechanism in a case relating to “torment.” Furthermore, they illustrated their arguments with references to judgments of the Chilean Supreme Court of Justice that, they stated, resulted in the application of punishments that were disproportionate to the severity of the crimes committed, by applying the “semi-prescription” to the sentences of perpetrators of crimes against humanity. 45