156. The Court underscores that, in their arguments, the representatives did not
specifically indicated which information, or documents, testimony or background information
protected by article 15 of Law 19,992 would be useful for advancing the investigation of this
specific case. The Court observes that, under this law, Mr. García Lucero could have access
to the documents, reports, statements and testimony relating to himself and even publicize
them or provide them to third parties. Finally, the Court notes that the said provision was
not applied in this case to refuse to provide information to any judicial authority and, to
date, there is no evidence that in this or any other way it has represented an obstacle that
has caused a specific prejudice to the investigations.
157. Based on the above and since the Court cannot analyze article 15 of Law No. 19,992
in the abstract because it was not applied and had no effects in this specific case, and the
Court’s contentious jurisdiction must be exercised to decide specific cases in which it is
alleged that an act of the State, executed against specific individuals, is contrary to the
Convention, 168 the Court does not find it in order to rule on article 15 of Law No. 19,992.
C.2.3) Regarding articles 150 A and 150 B of the Criminal Code and 330 of the Code
of Military Justice
158. The representatives argued that articles “150 A and 150 B of the Criminal Code are
not applicable to the time of the facts, [so that the State] was committing […] a legal ‘error’
because the law was not in force at the time.” In response, the State indicated that the
representatives’ argument “is not relevant for the processing of the domestic investigation
proceedings.” In addition, it mentioned the enactment of Law No. 20,357, which criminalizes
torture in the context of crimes against humanity, genocide and war crimes; however, the
facts do not reveal that this law is being applied in the investigation opened in this case.
Furthermore, following the submission of the respective information requested by the Court,
the State indicated that the wording of article 330 of the Code of Military Justice has not
been amended since 1970. The State also contested the representatives’ questioning of the
said articles and considered that it was not in order to declare any violation on this basis.
159.
In this regard, it should be noted that, in its Merits Report, the Commission alluded
to the representatives’ arguments that articles 150 A and 150 B of the Chilean Criminal
Code and Article 330 of the Military Criminal Code present diverse problems and the fact
that they had argued that “these provisions of Chile’s domestic law violate Articles 2 and
8(1) of the American Convention.” However, the Commission did not rule on this matter.
Also, even though the representatives indicated, with regard articles 150 A and 150 B of the
Criminal Code, the said “basic and serious legal error” mentioned in their brief with final
written arguments, they merely stated this, without indicating the norms they understood to
be applicable. In addition, they included arguments on precise aspects of these articles and
with regard to article 330 of the Code of Military Justice that would make these provisions
incompatible with the State’s international commitments. Nevertheless, they did not indicate
how, specifically in relation to the facts of this case, the said restriction of the crimes to acts
committed against persons deprived of liberty or the failure to punish attempted torture
would cause prejudice.
160.
Furthermore, the proven facts do not reveal that the 10-year statute of limitations
was applied, or prevented or limited in any way the evolution of the investigation of the
pertinent facts in relation to this case. Indeed, it can be seen that it did not prevent the
168
Cf. Case of Genie Lacayo vs. Nicaragua. Preliminary objections, supra, para. 50, and Case of Cabrera and
Montiel v. Mexico, supra, para. 207.
49