Report No. 402 (2020) IACHR. Petition No. 1549-11 (Chile)

Year2020
Case TypeAdmissibility
Respondent StateChile
CourtInter-American Comission of Human Rights
R. No. 402/20
















REPORT No. 402/20

PETITION 1549-11

REPORT ON ADMISSIBILITY


JOSÉ DOMINGO ADASME NUÑEZ AND FAMILY

CHILE

OEA/Ser.L/V/II.

D.. 420

10 December 2020

Original: Spanish



























Approved by the Commission electronically on December 10, 2020







Cite as: IACHR, R. No. 402/20, Petition 1549-11. A.. . José Domingo Adasme Núñez and family. Chile. December 10, 2020.





www.iachr.org


I. INFORMATION ABOUT THE PETITION

Petitioner:

Nelson Caucoto Pereira1

:

José Domingo Adasme Núñez y familia2

Respondent S.:

Chile3

Rights invoked:

Articles 4 (life), 5 (personal integrity), 7 (personal liberty), 8 (fair trial) and 25 (judicial protection) of the American Convention on Human Rights4 in relation to its Article 1.1 (obligation to respect rights) and 2 (domestic legal effects) of the same instrument.

II. PROCEEDINGS BEFORE THE IACHR5

Filing of the petition:

November 3, 2011

N. of the petition to the S.:

J. 16, 2016

S.’s first response:

December 28, 2016

Additional observations from the petitioner:

September 8, 2017

III. COMPETENCE

Competence Ratione personae:

Y.

Competence Ratione loci:

Y.

Competence Ratione temporis:

Y.

Competence Ratione materiae:

Y., American Declaration on the Rights and Duties of Man6 (Ratification of the OAS Charter on J.5., 1953); American Convention on Human Rights (deposit of the instrument made on August 21, 1990); Inter-American Convention to Prevent and Punish T.7 (deposit of the instrument made on September 30, 1988); and Inter-American Convention on Forced Disappearance of Persons (deposit of the instrument made on January 26, 2010)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:

No

Rights declared admissible

Articles 3 (juridical personality), 4 (life), 5 (personal integrity), 7 (personal liberty), 8 (fair trial) and 25 (judicial protection) of the American Convention in relation to its Article 1.1 (obligation to respect rights) and 2 (domestic legal effects) of the same regulatory body; Articles I (life, liberty, personal security and integrity), XVII (recognition of judicial personality and civil rights), XVIII (justice) and XXV (protection from arbitrary arrest) of the American Declaration; Articles 1, 6 and 8 of the Convention against T.; and Article I of the Inter-American Convention on Forced Disappearance of Persons

Exhaustion of domestic remedies or applicability of an exception to the rule:

Y., in the terms of section VI

Timeliness of the petition:

Y., in the terms of section VI

V. FACTS ALLEGED

  1. The petitioner denounces the extrajudicial arrest, torture and further forced disappearance of J.D.A.N. (hereinafter, “alleged victim”) in the context of the military coup in Chile, as well as the lack of reparations to his family for the damage caused, in violation of the rights to a fair trial and judicial protection.

  2. The petitioner argues8 that on October 16, 1973 the alleged victim was arrested in his home by military personnel of the Infantry Academy of San Bernardo. His home was raided without the corresponding court order. The soldiers took the alleged victim and told his family he would return the following day, after a declaration in San Bernardo. When he did not return, his relatives searched for him in several detention centers of the zone, in all of which they denied his presence; his whereabouts are unknown to this date. The petitioner indicates that a judicial investigation
    --details of which are unspecified--
    established that he was taken along with other detained to the hills of Codegua, close to Melipilla, where he was ultimately executed.

  3. On M. 24, 1974 a collective amparo petition in the name of 131 persons, among them the alleged victim, was filed before the Court of Appeals of Santiago. The petition was dismissed on November 28, 1974; this decision was confirmed by the Supreme Court on January 31, 1975, which assigned the First Criminal Court of Santiago as special inspecting judge to hear the cause. On September 25, 1975, the case was closed, and on September 29 of the same year it was temporarily dismissed; this decision was approved by the Court of Appeals on May 10, 1976. L., on M. 21, 1975, a presumed disappearance claim was filed before the Civil Court judge of Maipú-Buin, upon which several measures were ordered in different institutions, among them the Medical Legal Institute (IML); all of them stated having no track of the alleged victim. In November 1975, the file was closed and the case was definitively dismissed. On January 20, 1976, the Court of Appeals of Rancagua temporarily confirmed the dismissal, and on M. 23, 1977, the case was reopened when the government issued a list of deceased persons in a report submitted to the United Nations regarding the human rights situation in the country, which contradicted the version given by the IML.

  4. A new complaint was filed in September 1977 for the detention and later disappearance of the alleged victim, and in M. 1978, his family filed a lawsuit for cover-up against Colonel Jorge Dawling Santa María, Director of the Infantry Academy of San Bernardo, both added to the proceedings. The Court Minister assigned on A. 3, 1979 ordered a series of measures allowing the establishment of the falsehood of the list submitted to the UN by the government. The Minister excused himself from the matter, and on October 17, 1980, the casefile was forwarded to the II Military Prosecutor for a motion to dismiss. On May24, 1982, the case was temporarily dismissed. In M. 1984, a Military Court revoked the dismissal and ordered measures for the pursuance of the investigation; during 1985, 26 officers and non-commissioned officers of the Infantry Academy gave their testimony, all of them denying participation in the operations in Paine and surrounding areas. On November 22, 1985, the Military Prosecutor requested the application of the Amnesty Law, and the M.J. dismissed the case totally and definitively which resulted in the extinction of criminal liability of those allegedly incriminated. In February 1992 the M.C. revoked this decision and ordered the exhumation of six bodies in P. 29 of the General Cemetery, measure that did not take place due to a case before the 22 Criminal Court under the charge of illegal inhumation regarding all the remains that were deposited there, which had already been ordered and its corresponding exhumation already performed. As part of the latter case, anthropomorphic data of the alleged victim was provided; 108 tombs in P. 29 were exhumed in September 1991, and the bones collected were forwarded to the IML and subjected to identification process. Until 1992, when the Rettig R. was published, the alleged victim had not been identified; the documents submitted to the IACHR contain no information regarding the identification of the alleged victim or whether his remains were returned to his family.

  5. On October 9, 2001, a civil suit was filed before the 26th Civil Court of Santiago; its decision rendered on August 24, 2004 rejected the claims of the family of the alleged victim for reparations for the damage caused, in application of the statute of limitations for civil actions. By a decision dated October 29, 2008, the Court of Appeals of Santiago confirmed the first instance decision. The plaintiff challenged this decision with a cassation complaint before the Supreme Court, which was rejected on A. 14, 2011, following to the S.’s thesis of the applicability of the statute of limitations. On May 3, 2011, the First Instance Civil Court issued an enforcement order.

  6. As regards the lack of civil reparations, the S. raises no objections on the formal requirements; however, it reserves its rights to eventually present observations on the merits. Concerning the criminal aspect, the S. points out that the “P. 29” case is before the Court of Appeals at a summary stage.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

  1. The IACHR recalls that each time an alleged crime prosecutable ex officio is committed, the S. is bound to initiate and promote legal proceedings9; and that in such cases this is the adequate path to clarify the facts, judge and determine the punishment for those responsible. L., the Commission reminds that military justice is not a proper forum to rule on these claims, insofar as is does not offer an adequate remedy to investigate, judge and punish the alleged violations to human rights recognized in the American Convention, which were presumably committed by members of the security forces or with their collaboration or acquiescence. Finally, even though the S. mentions that there is still an ongoing domestic proceeding on the matter, the Commission notes that, more than 40 years later, there is yet no clarity as to the facts concerning the allegations of detention, torture and disappearance; nor have the perpetrators been punished. T., the Commission concludes that in the present matter the exception for exhaustion of domestic remedies set forth in Article 46.2.c of the American Convention is applicable. In light of the context and of the characteristics of the petition analyzed in the present report, the Commission considers that it was filed within a reasonable period and thus that it meets the...

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