States parties shall enact legislation specifically providing a victim of torture and ill-treatment with
an effective remedy and the right to obtain adequate and appropriate redress, including
compensation and as full rehabilitation as possible. Such legislation must allow for individuals to
exercise this right and ensure their access to a judicial remedy. While collective reparation and
administrative reparation programmes may be acceptable as a form of redress, such programmes
may not render ineffective the individual right to a remedy and to obtain redress. 201
192. The Court notes the representatives’ observations that, contrary to the regulations
concerning the benefits for “those dismissed for political reasons,” Law No. 19,992, which
establishes reparations for victims of torture and “political imprisonment,” does not contain
provisions establishing that, when acceding to the respective reparations, the beneficiaries
renounce the possibility of filing other actions. According to their arguments (supra para.
190), according to treaty-based rights, the establishment of domestic administrative or
collective reparation programs does not prevent the victims from filing actions to claim
measures of reparation. Consequently, the Court must analyze whether Mr. García Lucero or
his family members were able to access appropriate remedies to file claims in relation to
measures of reparation.
D.2.2) Access to remedies to claim measures of reparation in this case
193. The representatives, and also the Commission, have indicated that the compensation
that the State awarded to Mr. García Lucero was insufficient to provide “integral reparation”
in this case and, in this regard, they took into account that Mr. García Lucero was unable to
access measures of rehabilitation (supra paras. 162, 164 and 165). As indicated, the Court
will not analyze whether the benefits granted and established for Mr. García Lucero resulted
in complete or integral reparation. However, it will assess whether there is any evidence to
determine if he or his family members were deprived of their rights to judicial guarantees
and protection.
194. Nevertheless, the Court does not find it pertinent to examine the arguments of the
representatives concerning: (a) the alleged impossibility of contesting the amount of the
reparations received by Mr. García Lucero by a remedy in the domestic jurisdiction, 202
because they did not explain their assertion that Chilean judges are not authorized to review
an amount established by law (supra para. 171). Also, they did not explain whether their
assertion reflected their legal opinion or an allegedly objective piece of information, or offer
any evidence in this regard; (b) the “remedies of a constitutional nature,” an argument that
was only introduced in the final written arguments (supra para. 171), so that it is timebarred and the State did not have the opportunity to contest it; (c) the supposed
“unjustified delay” in Mr. García Lucero obtaining the pension as “a person dismissed for
political reasons,” because they did not provide arguments, information of evidence that
would allow the Court to evaluate how the respective procedure unfolded, and (d) that the
201
Committee against Torture. General Comment No. 3 (2012), supra, paras. 17 and 20, respectively.
202
The State, for its part, only referred tangentially and imprecisely to the matter. It indicated that “the
pensions” that Mr. García Lucero receives would preclude a claim for “further compensation from the Treasury for
the same facts” and failed to explain which “pensions” it was referring to. According to information that the Court
has received, based on the arguments of the Commission and the parties, Mr. García Lucero receives a single
pension based on his status as “a person dismissed for political reasons.” Owing to the word used, it cannot be
understood whether the State’s observation refers to all the reparations obtained by Mr. García Lucero. In addition,
it is unclear whether it refers to the possibility of questioning the amount of “the pensions,” or to an independent
action for compensation, or to both matters. Consequently, the assertion is imprecise. Furthermore, the State
bases its observation on the fact that “the principle of unjust enrichment [is] a general principle of law (and, as
such, a source of international law).” Thus, what the State indicates must be understood as a vague statement of
an isolated legal opinion, and placed in the context of all the arguments provided by Chile. In addition, these
comments by the State appeared in a response provided in its final written arguments to questions posed by the
Court during the public hearing. In other words, it is not a response to the arguments of the representatives.
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