ALFONSO CATALÁN LINCOLEO
On June 26, 1997, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission” or “the IACHR”)
received a complaint from lawyer Nelson Caucoto Pereira (“the
petitioner”) alleging the international responsibility of the Republic
of Chile (“the State”) in the forced disappearance of Samuel Alfonso
Catalán Lincoleo at the hands of State agents following his arrest on
August 27, 1974, and in the subsequent denial of justice.
The complaint reports that Samuel Alfonso Catalán Lincoleo, aged
29, an agricultural technician with ties to the Communist Party, was
arrested at 2:00 a.m. on August 27, 1974, at his home in the city of
Lautaro, Chile. The arrest was carried out by carabineros,
soldiers, and civilians, and Mr. Catalán Lincoleo’s relatives were told
that he was being held at a military facility in Lautaro. Samuel Alfonso
Catalán Lincoleo’s disappearance has continued since that day. His
family reported the incident to the Chilean judicial system in 1979, but
the proceedings were filed in October 1981 under Decree-Law N°
2191 of 1978, which ordered an amnesty for abuses committed following the
September 1973 coup d’état in Chile. Fresh legal action was
brought in 1992, which was definitively dismissed in November 1995 under
the aforesaid amnesty law. Finally, Chile’s Supreme Court of Justice
ruled on an appeal for annulment regarding the substance of the case in a
decision handed down on January 16, 1997, which declared that the time
allotted for legal action had expired under applicable statutory
As a result of its analysis, the IACHR concludes in this report
that the arrest and forced disappearance of Samuel Alfonso Catalán
Lincoleo at the hands of agents of the Chilean State made that State
responsible for violating the following rights protected by the American
Convention on Human Rights (the “American Convention”): the right to
life (Article 4), to humane treatment (Article 5), to personal liberty
(Article 7), to a fair trial (Article 8), and to judicial protection
(Article 25), all in conjunction with the obligation set forth in Article
1(1) of the same international instrument. The IACHR also concludes that
the incidents described herein constitute violations of the right to life,
liberty, and personal security protected by Article I of the American
Declaration of the Rights and Duties of Man (“the American
Declaration”). Finally, the Inter-American Commission determines that
2191 of 1978 is incompatible with the American Convention, which was
ratified by Chile on August 21, 1990, and, consequently, that the Chilean
State has not complied with Article 2 thereof by failing to adapt its
domestic laws to the provisions of the international instrument.
PROCESSING BY THE COMMISSION
On July 14, 1997, the Inter-American Commission transmitted the
pertinent parts of the petition to the Chilean State and gave it a period
of 90 days to submit information regarding the incident and the exhaustion
of domestic remedies.
The State’s reply was received on October 2, 1997, and was
forwarded to the petitioner. The petitioner’s comments were received on
December 2, 1997, and were transmitted to the Chilean State.
On February 10, 1998, the State sent its comments, which were
forwarded to the petitioner on February 25, 1998. The petitioner’s final
comments were sent to the Chilean State on April 25, 1998. On June 18, a
communication was received from the State in which it repeated its
position on this case and provided additional information about new legal
precedents in Chile under which application of the amnesty law could be
rejected. This communication from the State was passed on to the
On December 2, 1998, the IACHR placed itself at the disposal to the
parties to begin friendly settlement proceedings in this case. The 30-day
limit set for this purpose came and went without any reply from the
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioner maintains that the Chilean State is internationally
responsible for the arbitrary arrest and forced disappearance of Samuel
Alfonso Catalán Lincoleo and for the impunity associated with those
events. The petitioner states his position in the following terms:
forced disappearance of Samuel Alfonso Catalán Lincoleo is a crime
against humanity, the perpetrators of which can be granted no exoneration
of punishment. International law does not admit amnesties or statutory
limitations for crimes like these, which are condemned by the
international community as a whole. Under international instruments such
as the American Convention, the Covenant on Civil and Political Rights,
and others, these crimes are above the sphere in which a State may grant
pardons in exercise of sovereign power, and, with respect to these crimes,
explicit bans have been placed on the admissibility of statutory
limitations and amnesties.
crimes of this kind are not condemned by one country alone, but by all
nations. Their criminal nature does not originate in the national law of
one state, but in international law as agreed upon by all civilized
nations. This means that a single state, acting on an individual basis,
cannot erase the criminal nature of an action that the community of states
has defined as an “international crime.” For that reason, in applying
a statutory limitation, amnesty, or any other mechanism to exonerate the
perpetrators’ guilt, the first human rights violation is compounded by a
second one: that of impunity.
the case at hand, the Supreme Court’s ruling that statutory limitations
apply to the criminal proceedings brought--considering the debatable
conditions under which that ruling was given (or not, as the case may
be)--has had the grave effect of permanently ending a judicial
investigation intended to uphold truth and justice in connection with the
victim’s disappearance. That constitutes the denial of justice described
herein. The proceedings were closed, without even having determined the
victim’s whereabouts. The State irrevocably refuses to locate him.
Furthermore, it has obviously refused to hear about the events that befell
him and to identify and judge the perpetrators. By behaving in this
fashion, the Supreme Court has placed the Chilean State in grave
With regard to reparations, the petitioner questions the State’s
is the truth in this case? Were the killers of the victim indeed
identified? Do we know who finally hid the body? Is the whereabouts of his
truth of which the Chilean government speaks constitutes a part of the
events and was already known to the victim’s family even before the
National Truth and Reconciliation Commission was set up; it is, in other
words, a minimal truth, of which prior knowledge existed. What we need to
find out to complete the story and establish the whole truth is the
location of the victim’s body and the identity of the criminals. And
then, either simultaneously or subsequently, to judge and punish the
believing that the State has discharged its tasks because a state agency,
the National Truth and Reconciliation Commission, has recognized that the
victim was killed by state agents, is completely inadequate in accordance
with the demands that international law places on the Chilean State in
Position of the State
Regarding the alleged incidents, the Chilean State maintains the
It must be stressed that the constitutional government of Chile does not deny the events described in the submission from the victim’s representative. In fact, as soon as the democratic system was restored, President Patricio Aylwin, aware of the institutional difficulties inherent in dealing with the grave problem of human rights violations inherited from the military regime, set up the NATIONAL TRUTH AND RECONCILIATION COMMISSION by means of Interior Ministry Supreme Decree No. 355 of April 25, 1990; that is, one month after taking office. (Emphasis in the original.)
The State also reports that its compensation policy is essentially
set forth in Law 19.123, published in the Official Journal on February 8,
1992. This law provides victims’ families with a lifetime pension in an
amount no less than the average income of a Chilean family; a special
procedure for declarations of presumed death; special assistance from the
State for health care, education, and housing; the cancellation of
educational, housing, tax, and other debts owed to state agencies; and
exemptions from compulsory military service for victims’ children.
Regarding the legal considerations related to the substance of the
case, the State maintains that in exercising its right of free
determination, the Chilean people chose a way to recover their democracy
that meant accepting the institutional rules imposed by the dictatorship.
It notes that the acceptance of those rules further implied acceptance of
all the laws enacted by the dictatorship and the decision, within that
legality and in accordance with its rules, to improve them until a fully
democratic regime was achieved.
The State attests that “the democratic governments of Chile have
not enacted amnesty laws incompatible with the American Convention, and
emphasizes the fact that Decree-Law N°
2191 was issued in 1978 under the de
facto military regime.” It holds that it is inadmissible to accuse
the democratic governments of actions carried out many years before they
came to power or committed by other branches of government, whose
constitutional independence must be respected. It therefore requests that
the IACHR bear in mind the historical context and the special
circumstances of the country’s return to democracy, under which the new
government had to abide by the rules imposed by the de
facto military regime, which it was unable to modify other than in
accordance with the law and the Constitution.
In the State’s opinion, the constitutional government cannot be
required to infringe the institutionality it inherited or to attempt to
modify it by means other than that same legality. It can only be urged to
observe it or to work for its amendment or repeal, through the legal
channels that it itself provides. The State holds that although the
constitutional governments that followed the military regime share the
petitioner’s criticisms of the 1978 amnesty, its provisions can be
neither annulled nor repealed.
The State further notes that the democratic governments that came
after the dictatorship have shown absolute respect toward the independence
of the judiciary and have been unable to invalidate or annul the decisions
of the judicial branch, even when contrary to their own positions or
interests. Neither can a government undermine the tenure enjoyed by judges
and magistrates as a guarantee of their independence.
It adds that the Chilean Executive, acting alone, does not have the
power to annul legal provisions that have been recognized as valid by the
other branches of government. Regarding the possibility of the amnesty law
being repealed, the State explains that legal initiatives toward that end
must originate with the Senate (Article 62(2) of the Constitution), where
the ruling government does not enjoy a majority on account of the presence
of senators who were not elected by the popular vote. In any event, it
also holds that a repeal would not have any legal effects on any parties
ultimately accused of the crime, because of the principle under which
criminal law cannot be applied retroactively to a defendant (Article 19(3)
of the Constitution).
With regard to the case in hand, the Chilean State reports that
Samuel Alfonso Catalán Lincoleo’s family currently receive, on a
monthly basis, the benefits granted by the law; they have also received
the lump-sum compensation payment equal to twelve monthly pension payments
and the applicable medical benefits. The State reports that Sofía
Lincoleo Montero, Mr. Catalán Lincoleo’s mother, receives CLP $106,367
(Chilean pesos); Adrina Albarrán, his wife, receives CLP $56,667; and
that his son Samuel Catalán Albarrán also receives CLP $56,667, plus
$147,327 to cover school enrolment and $360,000 for school fees.
The State maintains that it cannot be blamed for the alleged
violations and that it has no responsibility in the human rights
violations that led to the opening of Case 11.771. It asks the
Inter-American Commission to give consideration to the creation of the
National Truth and Reconciliation Commission and to the provisions of Law
19.123, currently in force, as measures adopted to ensure respect for the
human rights of Samuel Alfonso Catalán Lincoleo’s family.
ANALYSIS OF ADMISSIBILITY
Jurisdiction of the Commission
The Commission has determined that it is competent to examine
violations of the American Declaration and the American Convention,
provided that a situation in which rights protected by those instruments
are being continuously violated effectively exists.
The Inter-American Court has established that, in principle, for states
parties to the American Convention, the specific source of obligations
regarding the protection of human rights is the Convention itself but that
such states “cannot escape the obligations they have as members of the
OAS under the Declaration.”
The petitioner is legally entitled to appear in the case at hand
(locus standi) and he has made allegations regarding forced
disappearances that constitute a pattern of ongoing violation of precepts
enshrined in the American Declaration and the American Convention. The
events began when the obligation of respecting the American Declaration
was in force for Chile as a member state of the OAS,
and they have continued up until the date of the present report.
Consequently, the IACHR is competent to study these alleged violations of
the American Convention and the American Declaration and to adopt
decisions with respect to them.
Exhaustion of domestic remedies
The petitioner claims that the remedies provided by domestic law
have been exhausted. This process began with the complaint lodged on April
5, 1979, with the first-instance court in Lautaro and filed on October 7,
1981, under the terms of the amnesty law (Decree-Law N°
2191). Subsequently, Gerardo José Catalán Lincoleo, the victim’s
brother, filed a criminal suit on March 18, 1992, against Sergio Fernando
Alcayaga Barraza, a second lieutenant in the army, for the crime of
kidnapping. The court declared itself incompetent and referred the case to
the military prosecutor’s office in Temuco.
In the military proceedings that followed, final dismissal of the
case was ordered on November 24, 1995, with the terms of the amnesty
applied to the accused officer. The Catalán Lincoleo family’s lawyers
appealed, but a military judge dismissed their case. The litigants
therefore sought a de facto remedy from the Military Court, which was admitted in a
resolution issued on February 6, 1996. On April 10, 1996, the Military
Court upheld the dismissal, but instead of basing its reasons on the
amnesty, it argued that the case was dismissed because the case had
already been judicially resolved (res
judicata). The court applied this ruling to the proceedings that had
previously been brought for the disappearance of Samuel Alfonso Catalán
Following this ruling, on April 23, 1996, Mr. Catalán Lincoleo’s
representatives filed for its repeal with the Chilean Supreme Court of
Justice. Chile’s highest court rejected this repeal bid on January 16,
1997, arguing that statutory limitations now applied to the action. The
petitioners refer to this ruling as the “definitive and unchangeable
sentence that closes off the judicial avenues in these proceedings.” The
petitioners describe the legal effect of this ruling in the following
Supreme Court refrained from ruling on the merits of the repeal as sought
and, to enable it to do so, offered an elaborate inadmissibility ruling.
Thus, as indicated by its reading, the Court admitted another reason for
criminal liability to have been extinguished, that of the application of
statutory limitations and, accordingly, it holds that the judicial action
was correctly cancelled.
this ruling, the Supreme Court separated itself completely from the nature
of the remedy and the legal question in dispute, since the ruling of the
Military Court against which the appeal was filed determined the issue in
question by applying the rule of res
judicata to a case in which that was inadmissible. This mistaken
application of the law led to the filing of the repeal suit in order to
secure the nullification of that ruling.
(. . .)
this case, the Supreme Court’s ruling and all the earlier decisions
handed down in the proceedings fail to establish what crime was committed
against the disappeared person. And, since none was established, it is
surprising to hear arguments maintaining that statutory limitations apply.
With respect to this case, the Chilean State has made no objection
regarding compliance with the requirement that domestic remedies be
The IACHR concludes that the decision given on January 16, 1997, by
the Supreme Court of Justice of Chile exhausted the domestic remedies in
this case, as required by Article 46 of the American Convention and
Article 20(c) of the Statute of the Inter-American Commission.
The petition was submitted within a period of six months following
notification of the final decision under Chile’s domestic law, in
compliance with Article 46(1)(b) of American Convention.
Duplication of Proceedings and Res
The substance of this petition is not pending in any other
international settlement proceedings, nor is it the same as a petition
that has already been examined by any other international body or the
IACHR itself. Hence, the petition meets the requirements set forth in
Articles 46(1)(c) and 47(d) of the American Convention.
Characterization of the Alleged Facts
The petition describes facts that, if proven, could constitute
violations of rights guaranteed in the American Declaration and the
American Convention. Specifically, the claim refers to the alleged
violation of rights protected by Article I of the American Declaration and
by Articles 1(1), 2, 8, and 25 of the American Convention. It is not
evident that the petition is manifestly groundless or obviously out of
order, and thus the Inter-American Commission deems that the requirements
contained in Article 47(c) of the American Convention have been met.
With regard to the enactment and enforcement of laws compatible
with the American Convention (Articles 1 and 2), the IACHR is competent,
under Article 42 thereof, to determine whether such provisions, including
so-called “amnesty” laws and actions adopted thereunder, violate the
obligations assumed by the state party in question.
In this connection, the Court has established that, “as a result of the
foregoing, the Commission may recommend to a state the derogation or
amendment of a conflicting norm that has come to its attention by any
The IACHR made itself available to the Chilean State and the
petitioner on December 2, 1998, with a view toward beginning the procedure
set forth in Article 48(1)(f) of the American Convention. The period of 30
days allotted for the parties to express their interest in friendly
settlement proceedings in this case came to an end with no reply having
Conclusions on Admissibility
The Commission believes that this case satisfies the formal
requirements for admissibility set forth in Article 46(1) of the
Convention and Article 32 of the IACHR’s Regulations. The petitioner has
exhausted the remedies available under Chilean law and has made a
complaint in which the IACHR is competent to examine the merits of the
ANALYSIS OF MERITS
The petitioner’s version of the events surrounding the alleged
violation of the right to life, liberty, and humane treatment is based on
judicial investigations and the report of the National Truth and
Reconciliation Commission. These interpretations of the facts have not
been disputed by the State in the proceedings before the Inter-American
This case requires a legal decision regarding the Chilean courts’
application of the amnesty law vis-à-vis
the arbitrary arrest and forced disappearance of Samuel Alfonso Catalán
Lincoleo, in order to determine whether it is compatible with the American
The IACHR notes that the ruling of the Supreme Court of Justice
that exhausted the Chilean domestic remedies closed off the legal avenues
available to Samuel Alfonso Catalán Lincoleo’s relatives for obtaining
justice in the country. Although that ruling did not directly apply the
amnesty law, it did uphold the courts’ refusal to rule on the merits of
the case in accordance with that precept. The decisions of the lower
courts include the “total and definitive” dismissal of the complaint
by the Chilean Military Court in accordance with the amnesty law, which
led to the filing of the case on October 7, 1981. Similarly, the legal
action brought on March 18, 1992, during the first democratic government,
was definitively dismissed under the amnesty law on November 24, 1995. On
appeal, the Military Court applied res
judicata instead of the amnesty, arguing that the case had already
been decided and upholding the dismissal. Finally, the case was taken to
the Supreme Court of Justice and was dealt with as described above.
The complaint alleges that the amnesty law is incompatible with the
American Convention, while the Chilean State’s arguments focus on the
limitations placed on the three branches of government by that domestic
legal precept since the restoration of democracy. The Commission will
analyze those arguments in this report.
The State has not denied the involvement of its agents in the
events of this case, which were perpetrated while the military
dictatorship ruled Chile. In considering the nature and seriousness of the
crimes whose judgment was affected by the amnesty law, we must not lose
sight of the fact that the military government that was in power from
September 11, 1973, to March 11, 1990, pursued a systematic policy of
repression that created thousands of victims of forced disappearances,
summary executions, extrajudicial killings, and torture. Referring to the
State’s practices during that period, the IACHR said that:
Government has used virtually all known means to physically eliminate
dissidents, including: disappearances, summary executions of individuals
and groups, executions ordered in trials lacking legal guarantees, and
The OAS General Assembly has declared that the practice of forced
disappearances is “an affront to the conscience of the hemisphere and
constitutes a crime against humanity.”
In its 1988 decision in the Velásquez Rodríguez case, the Inter-American
Court observed that international practice and doctrine have frequently
categorized disappearances as a crime against humanity.
In its preamble, the Inter-American Convention on Forced Disappearance of
Persons reaffirms that “the systematic practice of the forced
disappearance of persons constitutes a crime against humanity.”
The social need to clarify and investigate these crimes cannot be
considered equal to that of a mere common crime.
Forced disappearances and related crimes, such as torture and
summary execution, are of such gravity that several international
instruments have established special standards for their adjudication,
such as universal jurisdiction and exceptions to statutes of limitations,
with the aim of avoiding impunity.
The Chilean State, recognizing its obligation to investigate past
human rights violations, established a Truth Commission for the purpose of
determining the facts and making the results public.
As a reparations measure, then-President Patricio Aylwin apologized
to the victims’ families. He also publicly protested and criticized the
decision in which the Supreme Court determined that application of the
amnesty law had the effect of suspending the investigation into the
systematic violations committed by the dictatorship.
The State points out the democratic governments’ inability to
modify or invalidate the amnesty law, as well as the State’s obligation
to respect the decisions of the judicial branch.
The State also argues that the measures it adopted were both
effective and sufficient to fulfill Chile’s obligations under the
Convention. While the petitioner recognizes the efforts made by Chile, he
maintains that the State’s efforts have been insufficient and that to
date, it has not met the obligation of investigating the facts,
identifying responsibilities, and punishing the perpetrators of the human
rights violations suffered by Samuel Alfonso Catalán Lincoleo.
The State’s position is based on the separation of the
responsibilities of the executive, legislative, and judicial branches of
government. Nevertheless, the Inter-American Commission must consider the
international responsibility of the Chilean State as a whole for the acts
of its organs and agents whose active and passive participation in the
crimes committed against Samuel Alfonso Catalán Lincoleo has not been
The State argues that the executive branch, as an organ, is not
responsible for the alleged violations because the democratic government
has not enacted any amnesty laws. It maintains that it is unable to revoke
the amnesty law or to adapt it or any other provisions to the American
Convention. With respect to the application of the amnesty, the State can
only act within the law and the Constitution, which establish the
framework of its authority, responsibilities, and powers.
The Commission considers that Decree-Law N°
2191 and its legal effects are a continuation of policy of human rights
violations pursued by the military regime that governed Chile from
September 1973 to March 1990.
Although the statute in question was enacted by the de facto government of Gen. Augusto Pinochet, it is still applied in
order to protect the planners and perpetrators of those crimes whenever
Chilean or foreign courts receive or attempt to examine cases concerning
human rights violations. The legal consequences of the amnesty law and its
application by the agencies of the State under the democratic governments
that followed the military regime, as was intended by the de facto government, are entirely incompatible with the provisions
of the American Convention.
Under Chilean law, the executive, legislative, and judicial
branches of government are separate and independent. However, from the
point of view of international law, they must be considered as a single
entity within the State for the purpose of determining responsibility for
the violation of international norms.
The Chilean State cannot justify its lack of compliance with the
Convention with the excuse that a previous government established the
amnesty law. Nor can the State justify its failure to repeal the amnesty
law, or its continued application, on the inaction and omission of the
legislature or on the actions of the judiciary.
Article 27 of the Vienna Convention on the Law of Treaties
enshrines the precept of customary international law whereby States
Parties to a treaty may not invoke provisions of their domestic laws as a
justification for failing to comply with a treaty. In addition, the
Inter-American Court has held that “under international law a State is
responsible for the acts of its agents undertaken in their official
capacity and for their omissions, even when those agents act outside the
sphere of their authority or violate internal law.”
Responsibility for any denial of justice that Decree-Law N°
2191 may have caused--irrespective of the regime that enacted it or the
branch of government that applied it or made its application
possible--lies with the Chilean State. Even though the abduction and
extrajudicial execution took place under the past military government, the
State is internationally responsible for fulfilling its obligation to
administer justice and punish the responsible agents.
In accordance with the principle of continuity of the State,
international responsibility exists independent of changes in government.
In that regard, the Inter-American Court of Human Rights has asserted
to the principle of the continuity of the State in international law,
responsibility exists both independently of changes of government over a
period of time and continuously from the time of the act that creates
responsibility to the time when the act is declared illegal. The foregoing
is also valid in the area of human rights although, from an ethical or
political point of view, the attitude of the new government may be much
more respectful of those rights than that of the government in power when
the violations occurred.
Obligation of Adopting Domestic Legal Provisions (Article 2 of the
The states parties to the American Convention have undertaken the
obligation of respecting and guaranteeing all the rights and freedoms
protected in the Convention with respect to persons under their
jurisdiction and of adapting their legislation to permit the effective
enjoyment and exercise of those rights and freedoms. Specifically, Article
2 of the Convention establishes the obligation of the states parties to
adopt “such legislative or other measures as may be necessary“ to give
effect to the rights and freedoms enshrined therein. Thus, the
Inter-American Commission must examine the compatibility of the states
parties’ domestic legislation with the rights enshrined in the American
Some states, in seeking mechanisms for national peace and
reconciliation, have enacted amnesty laws that have left victims of
serious human rights violations helpless and have deprived them of the
right to access to justice. The adoption and application of such
provisions is incompatible with the obligations acquired under Articles
1(1) and 2 of the American Convention.
The compatibility of amnesty laws with the American Convention has
been examined on several occasions by the IACHR in connection with
individual cases. In each of them, the IACHR found that the provisions
under review allowed serious human rights violations committed against
persons subject to the jurisdiction of the state party involved to go
The Inter-American Commission has repeatedly indicated that amnesty
laws that bar access to justice in cases involving serious human rights
violations render ineffective the states parties’ obligation of
respecting the rights and freedoms recognized in the Convention and of
ensuring their free and full exercise by all persons subject to their
jurisdiction, without discrimination of any kind, as established in
Article 1(1) thereof.
They thus eliminate the most effective means of enforcing human rights:
the trial and punishment of violators.
As established above, precluding the possibility of judging those
responsible for the illegal detention and forced disappearance of Samuel
Alfonso Catalán Lincoleo,
perpetrated by agents of the State under the former military regime,
violates the right to access to justice and judicial protection enshrined
in the American Convention. This denial of justice stems from the
enactment and application of Decree-Law N°
the amnesty law, issued by the military government for the benefit of its
own members. The State has kept this law in force after ratifying the
American Convention; in turn, the Chilean courts have ruled it to be
constitutional and have applied it in hundreds of cases. The IACHR has
already, on past occasions, expressed its opinion about this law and its
application by the domestic courts in particular cases being incompatible
with the Chilean State’s international obligations under the American
Commissioner Claudio Grossman, a Chilean national, did not participate in
discussing and deciding on this case in accordance with Article 19(2)(a) of
the IACHR’s Regulations.
Petitioner’s submission, June 26, 1997, pp. 9–10.
Petitioner’s submission, December 2, 1997, p. 11.
State’s submission, October 2, 1997, p. 2. The State quotes the
report of the National Truth and Reconciliation Commission as regards the
1974, in the area around the city of Lautaro, numerous arrests were made
that led to the disappearance of a series of individuals of Mapuche ethnic
origin. Carabineros from the Lautaro detachment were actively involved in
these incidents, except for one arrest that was carried out by members of
the military and staff of the Investigations Police.
most of these cases, the relatives of the Mapuche individuals who were
arrested and subsequently disappeared generally bore the situation without
attempting any legal measure or other proceedings to locate the victims. The
reasons for this apparent passive attitude might have been fear, ignorance
of how to proceed, and a fundamental disbelief in the likelihood of
satisfying their demands through the institutions of the State.
August 28, 1974, members of the army and officers from the Investigations
Police arrested Samuel Alfonso Catalán Lincoleo, aged 29, apparently a
member of the Communist Party. The police officers acknowledged the arrest
in the corresponding criminal proceedings. Several family members and
employees were arrested along with Samuel Catalán, all of whom are in
agreement that they were taken to the barracks of the Concepción Regiment
light of the large number of reports that agree on the time of the arrests,
the circumstances surrounding them, the subsequent disappearance of the
victims (this case is related to the disappearance of Gervasio Héctor
Hauiquil Calviqueo), the fact that there has been no information about them
since then, and the similarity between the methods and procedures used in
the arrest of these Mapuches and those used in other cases in the area that
have already been investigated, the Commission concluded that all the
aforesaid persons disappeared following their arrests at the hands of agents
of the State and that, in this fashion, their human rights were violated.
See, for example, IACHR, Annual Report 1987–1988, Resolution 26/88, Case
Inter-Am.Ct.H.R., Advisory Opinion OC-10/89 “Interpretation of the
American Declaration of the Rights and Duties of Man Within the Framework of
Article 64 of the American Convention on Human Rights,” July 14, 1989,
Article 20 of the IACHR’s Statute establishes that:
relation to those member states of the Organization that are not parties to
the American Convention . . . the Commission shall have the
following powers, in addition to those designated in Article 18: (a) to pay
particular attention to the observance of the human rights referred to in
Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration . . .
(b) to examine communications submitted to it and any other available
information, to address the government . . . for information
deemed pertinent by this Commission, and to make recommendations to it, when
it finds this appropriate.
Petitioner’s submission, June 26, 1997, pp. 4 and 7.
Thus, the IACHR must, in a given case, determine whether “what the norm
provides contradicts the Convention and not whether it contradicts the
internal legal order of the State.” Inter-Am.Ct.H.R, Advisory Opinion
OC-13/93, Series A, paragraph 29.
Inter-Am.Ct.H.R, “International Responsibility for the Promulgation and
Enforcement of Laws in Violation of the Convention (Articles 1 and 2 of the
American Convention on Human Rights),” Advisory Opinion OC-14 of December
9, 1994, paragraph 39.
Yearbook on Human Rights 1985, Martinus Nijhoff Pub., 1987, p. 1063.
OAS General Assembly, Resolution AG/RES. 666 (XIII-0/83).
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988,
Series C, No. 4, paragraph 153.
Inter-American Convention on Forced Disappearance of Persons, Resolution
adopted at the seventh plenary session of the OAS General Assembly on June
9, 1994. OEA/Ser.P AG/doc.3114/94 rev.
OAS General Assembly, Resolutions AG/RES. 443 (IX-0/79), 742 (XIV-0/84), 950
(XVIII-0/88), 1022 (XIX-0/89), and 1044 (XX-0/90); IACHR, Annual Reports for
1978, 1980/81, 1981/82, 1985/86, and 1986/87, and Special Reports, including
Argentina (1980), Chile (1985), and Guatemala (1985).
Both the Inter-American Convention to Prevent and Punish Torture and the
Inter-American Convention on Forced Disappearance of Persons establish
universal jurisdiction for the crimes in question (Article 11 and Articles V
and VI, respectively). The Convention on Forced Disappearance also provides,
in Article VII, for exemption from a statute of limitations or, if that is
not possible, the application of limitations equal to those applying to the
most serious crimes.
President Aylwin stated:
also requires the clarification of the whereabouts of the disappeared as
well as the determination of individual responsibilities. Concerning the
first point, the truth established in the report (of the Truth and
Reconciliation Commission) is incomplete since in most cases in which the
remains of the detained, the disappeared, and the executed were not returned
to their families, the Commission did not have the means to determine their
IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.34,
doc.21, 1974; Second Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.37,
doc.19 corr., 1976; Third Report on the Situation of Human Rights in Chile,
OEA/Ser.L/V/II.40, doc.10, 1977; Report on the Situation of Human Rights in
Chile, OEA/Ser.L/V/II.66, doc.17, 1985.
See, in this regard: Ian Brownlie, Principles of Public International Law,
Clarendon Press, Oxford, 1990, 4th. ed. pp. 446–452; Benadava, Derecho
Internacional Público, Editorial Jurídica de Chile, 1976, p. 151.
Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988,
Ibid., paragraph 184.
IACHR, Report 29/92, Annual Report 1992–1993, paragraph 32.
IACHR, Annual Report 1985–1986, p. 204; Report 28/92 (Argentina), Report
29/92 (Uruguay), Annual Report 1992–1993; Report 36/96, Case 10.843
(Chile), Annual Report 1996, paragraph 49; Report 1/99, Case 10.480 (El
Salvador), Annual Report 1998, paragraph 107.
The Inter-American Court has indicated that this provision establishes the
obligation of states parties to guarantee the respect of each and every
right protected by the Convention. Inter-Am.Ct.H.R., Velásquez Rodríguez
Case, Judgment of July 29, 1988, supra, paragraph 162; Inter-Am.Ct.H.R., Godínez Cruz Case, Judgment
of January 20, 1989, Series C No. 5 (1989), paragraph 171; Inter-Am.Ct.H.R.,
Case of Neira Alegría et al., Judgment of January 19, 1995, supra,
paragraph 85. See also: IACHR, Annual Report 1996, OEA/Ser.L/V/II.95, Doc. 7
rev., March 14, 1997, Reports N°
36/96 (Chile), paragraph 78, and N°
34/96 (Chile), paragraph 76; IACHR, Annual Report 1992–93, OEA/Ser.L/V/II.83,
Doc. 14, March 12, 1993, Reports N°
28/92 (Argentina), paragraph 41, and N°
29/92 (Uruguay), paragraph 51; IACHR, Annual Report 1997, OEA/Ser.L/V/II.98,
Doc. 6 rev., April 13, 1998, paragraph 71.
IACHR Reports 28/92 (Argentina) and 29/92 (Uruguay).
IACHR, Report N°
25/98 (Cases 11.505, Alfonso René Chanfeau Oryce; 11.532, Agustín Eduardo
Reyes González; 11.541, Jorge Elías Andrónico Antequera, his brother Juan
Carlos, and Luis Francisco González Manríquez; 11.546, William Robert
Millar Sanhueza and Jorge Rogelio Marín Rossel; 11.549, Luis Armando Arias
Ramírez, José Delimiro Fierro Morales, Mario Alejandro Valdés Chávez,
Jorge Enrique Vásquez Escobar, and Jaime Pascual Arias Ramírez; 11.569,
Juan Carlos Perelman and Gladys Díaz Armijo; 11.572, Luis Alberto Sánchez
Mejías; 11.573, Francisco Eduardo Aedo Carrasco; 11.583, Carlos Eduardo
Guerrero Gutiérrez; 11.585, Máximo Antonio Gedda Ortiz; 11.595, Joel
Huaiquiñir Benavides; 11.652, Guillermo González de Asís; 11.657, Lumy
Videla Moya; 11.675, Eulogio del Carmen Ortiz Fritz Monsalve; and 11.705,
Mauricio Eduardo Jorquera Encina). See: IACHR, Annual Report 1997, OEA/Ser.L/V/II.98,
doc. 6, rev., April 13, 1998, pp. 520–559; Annual Report 1996, Reports N°
36/96 and 34/96, Chile, pp. 162–240. See also in this regard: Griego Case,
in: Yearbook of the European Convention on Human Rights, 1969, Martinus
Nijhoff, The Hague, 1972.