Justice at last for Chilean exiles

A recent landmark decision from the Americas’ highest human rights court brings long-overdue hope that victims of torture in Latin America can obtain swifter and better access to justice.

NEIL HODGE

Almost two-and-a-half decades after the end of Augusto Pinochet’s dictatorship in Chile, during which 200,000 Chileans were forced into exile and over 38,000 survived torture, the Inter-American Court of Human Rights (IACHR) has upheld the right to reparation for an exiled Chilean torture survivor. This is understood to be the first time the Court – the highest human rights court for the Americas – has decided such a case.

The coup that brought Pinochet to power took place on 11 September 1973. Leopoldo Garci´a Lucero was arrested five days later. He spent over a year in several concentration camps and was routinely tortured, which has left him permanently disabled. He lost most of his teeth, his face was disfigured and his spine was seriously damaged. On 12 June 1975 Garci´a Lucero was expelled from Chile by ministerial decree and has been living in London with his wife and his three daughters ever since.


‘Garci´a Lucero and his family should feel proud that they have secured […] a reaffirmation from an international court that delays in rectifying atrocities and violations of law are a blight on our global conscience’


Ross Ashcroft
Chair, IBA Human Rights Law Working Group

In his claim, 80-year-old Garci´a Lucero argued that no one has ever been prosecuted or punished for his arbitrary detention and torture, and that Chile did not initiate an investigation into his case until 2011 – 38 years after the event and 20 years after the state became aware of the facts. He also claimed that the pension he had been receiving from Chile (arising from the loss of his job during the dictatorship) was insufficient to cover his needs in exile, and that he and his family have been unable to benefit from the health and education reparation programmes available to torture victims in Chile.

Justice for victims of torture

With help from London-based organisation Redress – a human rights group that seeks to end torture and bring justice for survivors – he took his case to the Inter-American Commission on Human Rights in 2002. The case was then transferred to the IACHR in 2011.

In its judgment at the end of last year, the Court ordered Chile to continue and finalise a criminal investigation ‘within a reasonable time’ into the alleged human rights violations suffered by Garci´a Lucero between his arrest in 1973 and his expulsion in 1975, and to pay him £20,000 in compensation for moral damages caused by the ‘excessive delay’ in opening an investigation into his case, noting that ‘at least 16 years, 10 months’ had passed since Chile first learnt of the facts, sometime before December 1994, and when it started to investigate in 2011, which was ‘incompatible’ with his disability and age.

According to Redress, it is the first time the Court has decided the case of a living survivor of human rights violations under Pinochet’s dictatorship, and in particular, one subject to torture and forced exile. ‘We welcome the judgment,’ says Carla Ferstman, director of Redress, ‘as it recognises that torture survivors in exile today still have the right to justice and reparation, despite being outside of the country and regardless of the passage of time. The judgment offers some hope to the many who may find themselves in the same situation. These are particularly vulnerable victims who have been denied justice for many years.’

The Court urged Chile to provide adequate funding to cover the costs of Garci´a Lucero’s treatment in the UK for continuing medical and psychological ailments, given that the UN Committee against Torture – which monitors countries’ implementation of the UN’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – had encouraged Chile to enter into cooperation agreements with countries hosting Chilean torture survivors to ensure they receive the necessary medical treatment. The Court also reiterated that Chile should provide ‘adequate, effective and prompt reparation’ to torture victims, as well as making it possible for victims to challenge the reparation measures already in place domestically.

Furthermore, the IACHR said that the country’s Decree-Law No 2.191, the so-called ‘amnesty law’, should not constitute an obstacle to investigating the facts in Garci´a Lucero’s case or prevent other victims from obtaining justice – a stance the Court has taken previously.


‘We welcome the judgment as it recognises that torture survivors in exile today still have the right to justice and reparation, despite being outside of the country and regardless of the passage of time’


Carla Ferstman
Director, Redress

Chile’s amnesty law was promulgated on 18 April 1978 by the then military junta, and grants amnesty to ‘all persons who committed, as perpetrators, accomplices or conspirators criminal offences […] between 11 September 1973 and 10 March 1978, provided they are not currently subject to a trial or convicted’. The legislation – which has not been removed from the Chilean legal system, and remains in force despite what the IACHR has previously stated in other cases – has effectively legitimised and legalised impunity in Chile for crimes against humanity during the dictatorship and thereafter, say lawyers. Other countries in the region, such as Brazil and El Salvador, still have amnesty laws to protect the military from prosecution, while Argentina and, more recently, Uruguay, have removed similar decrees.

Chile must comply

Chile must now comply with the judgment within a year, and publish a summary of it in the the Official Gazette. The full judgment should also be made available(for one year) on an official website that should be accessible for those living abroad.

Human rights groups have welcomed the Court’s decision. ‘This is a positive ruling. The Chilean state must now ensure that Garci´a is able to see those who tortured him face the courts,’ says Guadalupe Marengo, Americas programme deputy director at Amnesty International.

Ferstman believes that the case is significant because it is the first real torture case to go before the IACHR for Chile. ‘There have been other cases about the Pinochet era but it is the first case to deal with the provision of remedies for victims of torture,’ she says.

According to Ferstman, ‘the judgment deals with the particular circumstances of the 200,000 people forced into exile. Garci´acame to the UK with his family and because of his injuries he never learned English and led an isolated life. He also didn’t get the necessary health and medical support for his injuries. While Chile has put together a programme for survivors of torture living in Chile, it doesn’t benefit those that are not living there as Garci´a Lucero is excluded from these benefits. This judgment said that Chile had a responsibility to deal with the consequences of this: Chile is responsible for Garci´abeing in the UK, so Chile is responsible for ensuring that he has access to healthcare and support.’

Ferstman believes that the judgment is interesting in several other respects. ‘At the time that these events took place, Chile was not part of the American Convention on Human Rights which means that the Court did not focus on the crime of torture because it did not have
a responsibility under the Convention. Instead, the judgment focused on the failure of Chile to deal with the continuing impact of the torture that took place following the 1973 coup. The financial award deals with the continued denial of justice rather than the fact that torture occurred,’ she says.

Furthermore, Ferstman points out that the judgment also recommends – but does not force – Chile to enter into cooperation agreements with other states that are holding Chilean exiles. For example, the judgment says that Chile should actively locate and consider providing the same reparation as awarded to Garci´aLucero to other victims of torture living abroad, rather than just waiting for claimants to come forward.

‘The victims of torture under the Pinochet regime are now in their 60s or older and they cannot wait another 1015 years for Chile to deal with their cases in its own time. We are hopeful that this judgment will improve the chances of reparation of other victims of torture throughout South America too,’ says Ferstman.

Hans Corell, Vice-Chair of the Council of the IBA Human Rights Institute and the agent of the Swedish Government before the European Court of Human Rights between 1983–1994, says that ‘the most important lesson from this judgment for Chile and for other states under the jurisdiction of the IACHR is that states must not delay opening investigations into facts that relate to torture or other grave crimes even if these acts were committed at a time that does not fall under the jurisdiction of the IACHR
ratione temporis’.

‘This duty arises the moment the state is made aware of the alleged crimes,’ says Corell. ‘Such investigation must be conducted and concluded within a reasonable time in the ordinary jurisdiction, based on the domestic norms that will allow those responsible to be identified, prosecuted and punished, as spelt out in paragraph 220 of the judgment and paragraph 7 in the decision.’

Corell adds: ‘The judgment is rational and well-written and it makes it very clear what the responsibilities of the state are in terms of investigating torture claims. While each torture case before the Court will be judged on its own merits, it is fair to assume that the conclusions that the IACHR has drawn here about the length of time it has taken to investigate this case will be applicable to other countries in the region if they have also been slow to conduct similar investigations.’

However, some lawyers have mixed feelings about the wider ramifications of the IACHR decision. Juan Mendéz is UN special rapporteur on torture and visiting professor at the American University Washington College of Law, as well as an ex-officio council member of the IBAHRI. He welcomes the decision, and believes the Court’s request that a summary of the judgment be made available to exiles around the world ‘is an interesting new development’. However, he does not feel that the judgment will have a strong impact on the responsiveness of states in the region to speed up any criminal investigation.


‘The most important lesson from this judgment, for Chile and for other states under the jurisdiction of the IACHR, is that states must not delay opening investigations into facts that relate to torture’


Hans Corell
Vice-Chair, IBAHRI

He says: ‘The fact that the IACHR is focusing on torture cases and is shining a light on the lack of action by some states to bring cases to court quickly should be seen as positive. But in terms of the judgment itself there is little that is new or will pose states any real concerns. The reparation figure is a nominal fine really and is unlikely to lead to a flood of claims.’

Pablo Pejlatowicz, a lawyer at Asociación por los Derechos Civiles (ADC), a non-governmental organisation based in Argentina, and a junior lecturer on public international law and human rights at the University of Buenos Aires School of Law, also does not believe that the judgment has much impact for the successful prosecution of historic human rights abuse cases either in Chile or elsewhere in South America.

‘The key issue about this ruling is that it criticises Chile for its delay in investigating the case, and awards the claimant damages for that – which is essentially a fine. I, therefore, don’t think that it has much impact for the rest of South America, though it is important that the Court continues to punish countries for their reluctance to proceed properly,’ he says.

Mauricio Salas, partner at law firm BLP in Costa Rica, says that the García Lucero judgment is certainly a ‘first’ in several respects. ‘In and of itself, a favourable ruling in this forum constitutes moral reparation for the claimant and other victims of abuse and neglect,’ he says. ‘But I would hesitate to consider it a landmark decision in terms of IACHR jurisprudence. The rationale of the ruling is not reversing or expanding prior interpretation,’ adding that ‘a large burst of follow-up claims is unlikely’.

Salas says that one of the ruling’s more substantive issues relates to Chile’s amnesty law. ‘Although this was not a determining issue in this case, the Court recalled its decision in Almonacid Arellano v Chile[concerning a Chilean school teacher who was executed by the army in the days following the 1973 coup] whereby it affirmed that this decree lacks legal effect as it is contrary to the Inter-American Convention on Human Rights and cannot represent an obstacle for the investigation and punishment of those responsible to human rights violations in Chile,’ he says.

Overall, however, Salas believes that the judgment is not extraordinary. ‘In García Lucero, the reparation order by the Court is precisely for delay and omission to internally investigate torture,’ says Salas.

‘Delay cases, or failure to investigate cases, are not unknown in the IACHR. The ruling builds upon prior precedent concerning the obligation of a state to investigate torture cases. The Court not only states that this investigation must be done immediately after learning of such cases, but that even if there is no claim, there is a state obligation to investigate. This standard comes from older precedent such as Gutierrez Soler v ColombiaandVelez Loor v Panama,’ he adds.

Landmark for Latin America?

These two rulings have helped clarify countries’ duties with regards to torture cases, as well as the line that the IACHR will take in future human rights violations cases. In 1994, Wilson Guiterrez Soler was detained and tortured by police officers, as well as a private individual, in Bogota, Colombia. One of the key components of the case was that there had been a lack of proper, detailed forensic medical examinations to verify the victim’s torture claims. The IACHR subsequently concluded that states are under the obligation to investigate, to identify and to judge the people responsible for torture and other forms of ill-treatment and that they should follow international norms of human rights law and standards to ensure proper medical examinations are carried out to help torture victims bring prosecutions.

Jesús Vélez Loor was an Ecuadorian national who was arrested by Panamanian police in November 2002 for entering the country without appropriate documentation. With no legal representation or awareness of the proceedings against him, he was sentenced to two years imprisonment, but was deported back to Ecuador in 2003. Vélez Loor later testified that while imprisoned, he was subjected to tear gas, burns, sexual abuse and beatings resulting in a cracked skull. Although he reported his torture and the Panamanian Office of Foreign Affairs initiated an investigation, Panama made no further efforts to investigate his abuse.

In its first case addressing the vulnerability of irregular and undocumented migrants, the IACHR ruled against Panama in November 2010 saying that all migrants, irrespective of migratory status, must be guaranteed due process of law and full ‘enjoyment and exercise of human rights’. The Court also ruled that Article 67 of Panama’s 1960 Decree Law No.16 – which allows punitive sanctions for violation of the country’s migration laws – is incompatible with the Inter-American Convention to Prevent and Punish Torture when used as a basis for arbitrary incarceration.

While some lawyers may not see the Garci´a Lucero case as a landmark ruling, others see the judgment as a positive step. Juan Manuel Gutiérrez Bartol, assistant lecturer in human rights law, law and religion, and ethics at the University of Montevideo, Uruguay, says that ‘it is not the first time that the Court has ordered a state to investigate human rights violations under Latin American dictatorships, and it will probably not be the last. The compensation for moral damages is also likely to encourage other living survivors to bring their case to the Court’.

However, he adds that while Chile is obliged to comply in totum with the decision, ‘it is arguable if this decision should be followed in similar cases regarding other states’.

Ross Ashcroft, chair of the IBA’s Human Rights Law Working Group, says that ‘although he fears he will not see those who committed the atrocities directly brought to justice, Garci´aLucero and his family should feel proud that they have secured something far more valuable for the regional and international human rights narrative, and that is securing a mandated transparency by the Chilean government in rectifying the atrocities, and a reaffirmation from an international court that delays in rectifying atrocities and violations of law are a blight on our global conscience’.

Camila Urbina Escobar, project leader at human rights organisation Makaia in Colombia, believes that the judgment is important as a precedent in strengthening human rights in Latin America. ‘In Colombia there are thousands of people who have been tortured or exiled and this judgment perhaps gives more hope for them that they can bring a claim against the Colombian government for reparations and that the Inter-American Court will uphold it,’ she says.

Escobar believes that the Court took a very ‘pragmatic’ approach in its judgment. ‘The Court effectively focused on the denial of healthcare and rights of support than explicitly on the torture itself,’ she says. ‘Torture cases take a very long time to progress, so this judgment may make some access to justice easier for torture victims throughout Latin America,’ she adds.

However, while such rulings may give hope to torture victims throughout Latin America that justice may be possible, Escobar says that enforcing the IACHR’s judgments can be another matter.

‘Several countries in the region have a mixed record with regards to complying with the Court,’ says Escobar. ‘Colombia’s record is not as good as it should be, and Venezuela is getting a bad reputation for opting out of some aspects of human rights judgments that they do not agree with. The Court’s enforcement mechanisms can be seen as weak, which means that countries can circumvent these rulings, or only apply the parts they agree with,’ she adds.

In fact, Chile itself may not uphold all aspects of the Garci´a Lucero ruling. According to Ferstman, Chile has said that it will comply with the judgment with respect to reparations, but it remains unclear whether the country will comply with all the other recommendations.

Indeed, South America has had a chequered history with regards to prosecuting and effectively enforcing human rights violations, particularly those relating to torture. But changes are taking place: more countries are at least reviewing their amnesty laws and the legal mechanisms that may make it difficult to prosecute military personnel. Furthermore, it is increasingly apparent that the IACHR is ready to pronounce on torture cases if they cannot be resolved domestically. Given that approximately one-third of IACHR judgments handed down since 2009 have involved claims of torture, the Garci´a Lucero ruling is further evidence that torture is an issue of continuing concern for the Inter-American system.

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Neil Hodgeis a freelance journalist specialising in legal and business issues. He can be contacted at neil@neilhodge.co.uk.