REPORT Nº 31/03
ALBERTO JARA OÑATE ET AL.
On August 4, 1999, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission, “the Commission, or
“IACHR”) received a petition lodged jointly by the Center for
Justice and International Law (CEJIL) and the Public Interest Clinic of
the University of Diego Portales (hereinafter “the petitioners”),
against the Republic of Chile (hereinafter “the State” or “the
State of Chile”), in which the petitioners allege that Messrs. Mario
Alberto Jara Oñate, Julio Cesar Cid Deik, Marcelino Esteban López
Andrade, José Exequel Tobar Muñoz, Fernando Villa Molina, Ciro Elías
Rodríguez Uribe, Mario Eduardo Araya Marchant and Sergio Iván González
Bustamante, all members of the Chilean Carabineros uniformed police,
were victims of an evaluation process conducted by the administration of
the Chilean Carabineros, in violation of their basic rights.
The petitioners alleged that the State was responsible for the
violation of their rights to a fair trial, respect for their honor and
dignity, protection of the family, equality before the law and judicial
protection and that the State has an obligation to respect and guarantee
human rights and the responsibility to incorporate into its domestic law
the provisions contained in Articles 1(1), 2, 8, 11, 17, 24 and 25 of
the American Convention. With
respect to the admissibility of the complaint, the petitioners alleged
the exhaustion of available domestic remedies for protecting the
guarantees that were violated. For its part, the State denied that it
has violated any of the provisions of the Convention and called on the
Commission to reject the arguments of the petitioners.
After reviewing the positions of the parties, the Commission
concludes that it is competent to consider the complaint lodged by the
petitioners, which, in the light of Articles 46 and 47 of the American
Convention, it deems admissible.
INITIAL PROCESSING BY THE COMMISSION
On August 4, 1999, the Commission received a petition filed by
the Center for Justice and International Law and the Public Interest
Clinic of the University of Diego Portales, in which the petitioners
alleged that the State of Chile had violated the rights of Messrs. Mario
Alberto Jara Oñate, Julio Cesar Cid Deik, Marcelino Esteban López
Andrade, José Exequel Tobar Muñoz, Fernando Villa Molina, Ciro Elías
Rodríguez Uribe, Marío Eduardo Araya Marchant and Sergio Iván González
Bustamante, enshrined in Articles 1(1), 2, 8, 11, 17, 24 and 25 of the
On August 10, 1999, the Commission transmitted the pertinent
parts of the complaint to the State of Chile and granted it a period of
90 days to submit information about the acts alleged and about the
exhaustion of domestic remedies.
On November 16, 1999, the State of Chile requested an extension
of the period allowed for the submission of its reply and the Commission
granted it a 60-day extension.
On May 15, 2000, the Commission reiterated the request to the
State of Chile for information, which it had previously made on August
10, 1999. On June 2, 2000,
the Permanent Mission of Chile to the Organization of American States
requested a further 90-day extension on the grounds that the competent
authorities had not provided the information requested to enable it to
respond to the petition. On
June 7, 2000, the Commission notified the State of Chile that the
maximum period allowed under Article 34(6) of the Regulations of the
Commission in force at the time had elapsed.
The information was received from the State on June 27, 2000 and
transmitted on July 11, 2000 to the petitioners, who were given a period
of 30 days to submit their comments.
On September 8, 2000, the IACHR informed the parties that it had
granted a hearing during its 108th session. The hearing took
place on October 10, 2000.
The comments of the petitioners were received on October 20, 2000
and transmitted to the State of Chile on October 26, 2000.
The Commission granted the State a period of 30 days within which
to submit its comments.
On January 29, 2001, the State submitted its comments, which were
communicated to the petitioners on February 5, 2002 and a period of 30
days granted for them to submit their reply.
On February 25, 2002, the petitioners requested a 60-day
extension for the submission of the requested comments.
On March 30, 2001, the Commission granted the petitioners a
30-day extension and communicated its decision to the State.
On May 16, 2001, the Commission received the comments of the
petitioners. In its
communication, the petitioners informed the Commission that they were
prepared to reach a friendly settlement.
This information was transmitted to the State on the same date
and a period of one month granted for it to submit its comments.
On June 18, 2001, the State of Chile requested an extension of
the period allowed for the submission of its reply and on July 2, 2001
the Commission granted an extension of one month.
On August 2, 2001, the State of Chile again requested and the
Commission granted a further one-month extension for the submission of
its comments. In their
communication of August 27, 2001, the petitioners objected to the
granting of that extension.
On September 24, 2001, the Commission reiterated to the State the
request for information that had been made on May 16, 2001 and requested
that the information be submitted as early as possible.
On October 1, 2001, it received the reply of the Chilean State to
the comments of the petitioners. The
reply was transmitted to the petitioners on the same date and a period
of one month granted for them to submit their comments.
On November 1, the petitioners’ reply was received and
transmitted to the State on November 21, 2001.
On January 17, 2002, the Commission received the State’s
response to the petitioners’ comments, in which the State expressed
its interest in having recourse to a mechanism for friendly settlement.
On January 30, 2002, the Commission transmitted this
communication to the petitioners.
POSITIONS OF THE PARTIES
Position of the petitioners
The petitioners allege that in May of each year all members of
the Carabineros de Chile undergo an annual evaluation of their personal
and professional performance records for the previous 12-month period.
The evaluation is carried out by the Carabineros Police and
Officer Review Board, in accordance with the provisions of Rule Nº 8 on
the selection and promotion of Carabineros personnel.
The petitioners alleged that they were informed in May 1998 of
the results of the exercise, which varied between evaluations of
“satisfactory” or “under observation”. Disagreeing with these
findings, they filed an appeal with the Board.
In June 1998, they were notified of a decision informing them
that they had been placed on List Nº 4 for dismissal, on the grounds
that they had been re-evaluated in the area of loyalty.
According to the petitioners, both the original grading and the
re-evaluation that were the grounds for the dismissal of the Carabineros
are a direct consequence of the demonstration organized on April 27,
1998 by a group of Carabineros wives to protest the low pay of their
husbands. The petitioners
allege that the disciplinary action taken against them because of the
demonstration by their respective spouses was taken into account during
the evaluation exercise of May 1998.
They claimed that the disciplinary proceeding had been instituted
to investigate the alleged involvement of the Carabineros spouses of the
women demonstrators in the planning of the demonstration.
On June 2, 1998, the proceeding concluded with a penalty being
imposed in first instance consisting in the dismissal of the Carabineros
husbands of the women who had participated in the demonstration.
The petitioners allege that this proceeding was the grounds used
by the Evaluation and Review Boards for placing them on the list for
dismissal and thus for expulsion from the institution.
On the question of admissibility, the petitioners allege that
they have exhausted the remedies available within the institution of the
Carabineros. They add that
on July 14, 1998, they filed an application for protection in the Court
of Appeals of Santiago, requesting that the Court find that their
constitutional guarantees had been violated and order the Carabineros de
Chile to conduct a fresh evaluation.
On January 28, 1999, the Court of Appeals rejected the
application on the grounds that it was not competent to examine the
grounds upon which the Evaluation Boards based the decision that had
resulted in the dismissal of the Carabineros, since the Boards were
sovereign and if the Court were to review the grounds for the decision
it would be setting itself up as another review body.
On February 1, 1999, the petitioners appealed this decision to
the Supreme Court of Chile, which upheld the ruling of the Court of
The petitioners allege that under the terms of Article 24 of the
Convention, the State of Chile is obliged to guarantee, without
discrimination of any kind, all of the rights provided for in its
domestic jurisdiction. The
petitioners contend that the alleged victims have been subject to an
arbitrary and discriminatory legal system, inasmuch as they had been
punished for the acts of third persons, thereby creating a special
statute of responsibility for Carabineros, which constitutes
According to the petitioners, the State intervened in their
family lives by seeking to determine the relations that should exist
between them and their spouses, which constitutes a violation of Article
11 of the American Convention. They
argue further that the State violated Article 17 of the Convention,
firstly because it promoted inequality between the members of the
families concerned and, secondly, because it deprived them of a home, of
their income and of other economic benefits.
On the question of due process, the petitioners allege that this
right was violated by the Chilean courts, which, in declining to review
the violations alleged, had left them without legal protection and
without any possibility for the arbitrary actions of the Evaluation
Boards against them to be reviewed by a court.
The petitioners questioned the evaluation process and argued that
it should be based exclusively on Article 9 of Rule Nº 8 on the
selection and promotion of Carabineros personnel, which provides as the
criteria for evaluation “the quality of the personal and professional
attributes of a subordinate official, taking into account the exigencies
and requirements of the post”. The
petitioners note that the conduct of the family members of the alleged
victims was evaluated as a “personal quality”, in violation, they
argue, of the provisions of the abovementioned Rule.
The petitioners further allege that the Evaluation Boards lacked
independence and impartiality, since they are part of a militarized
institution “governed by the values inherent in a body of this nature:
hierarchy, discipline, obedience and loyalty are values that form the
bases of such an institution and which cannot be undermined”.
Concerning the lack of independence of these Boards, the
petitioners allege that the Board’s decision is based not on its free
opinion but on the opinion of the hierarchical superiors of Board
members, on whom members depend for their promotion and advancement.
22. The petitioners also allege a violation of Article 25 of the
Convention, insofar as there was no serious or consequential review by
the Court of Appeals or by the Supreme Court of the penalties imposed by
the institution of Carabineros de Chile.
According to the petitioners, the Court of Appeals rejected the
appeal on the grounds that it was not competent to review the grounds on
which the Evaluation Boards based its decision, claiming that to do so
would mean setting itself up as another review body.
In referring to the Supreme Court’s decision, the petitioners
noted that the Court limited itself to determining that “the scope of
the concepts underlying the rules that govern the evaluations of
Carabineros in Chile permits the police authorities to act as they deem
petitioners therefore argue that they lacked an effective remedy to
protect their human rights that were violated.
In their reply to the State’s comments, the petitioners
declared that “the victims suffered various violations of the rights
enshrined in the Convention, as a consequence of a capricious and
arbitrary proceeding that was not substantiated in conformity with the
norms of due legal process and that the actions of the ordinary Courts
of the Republic of Chile constituted a clear case of denial of justice
or lack of judicial protection”.
They add that the State of Chile imposed on the Carabineros the
obligation to control the acts of their spouses, which they consider to
be interference in their private lives, in which the authorities have no
power to intervene in an arbitrary manner, and which, in turn,
constitutes a violation of their moral integrity, of the integrity of
their family and of their personal dignity.
24. The petitioners therefore argue that Articles 1(1), 2, 8, 11, 17,
24 and 25 of the Convention have been violated.
Position of the State
The State argued that account must be taken of the special legal
status of any police organization, under which its members and their
families are subjected to a treatment different from that accorded to an
ordinary person, because of the organization’s responsibility to the
society and to the State itself, and that this cannot be considered to
be inequitable or as promoting inequality.
It explained that this does not mean that the families of
Carabineros are treated differently by the law.
What it means is that “it imposes greater responsibility for
their actions and creates an indissoluble link between children and
wives and the function of the policeman father”.
The State denied that it had intervened in the family life of the
petitioners. It added that,
on the contrary, it was some of the spouses of the Carabineros who had
interfered through the press and in public demonstrations in the
relations between Carabineros de Chile as an institution and its
The State argued that the special nature of Carabineros de Chile
“makes it necessary to situate the actions of the institution and
those of its personnel in a conceptual and practical context that is
different from that exists in the civilian world, being essentially the
maintenance of strict internal discipline and respect for the
hierarchical order, as a consequence of which its personnel must be
governed at the administrative and disciplinary levels by the special
statutes that regulate and codify their actions from the professional,
personal and ethical perspectives.”
The State maintains that the evaluation exercise for the
Carabineros was consistent with the legal norms in force and that the
legality and legitimacy of the exercise was confirmed by the decisions
of the courts, which rejected the appeals filed by the affected parties.
It adds further that, as stated in the decision of the Supreme
Court of Chile, dated April 28, 1999, in dismissing the policemen, a
number of criteria were taken into account, including knowledge, sense
of responsibility, discipline, physical capacity, initiative and
loyalty, as permitted by Article 22 of Act Nº 18.691.
The Supreme Court determined, moreover, that there was no
evidence or ruling “that [the evaluation] was the result of
arbitrariness or abuse, or that it was contrary to the constitutional or
On the question of the violation of the right to legal safeguards
and judicial protection, the State observed that, in its application for
protection, the petitioners did not object to the evaluation exercise as
such and to the criteria for evaluating police personnel, and that the
court could not therefore review those aspects, since they were outside
the scope of its competence. It
added further that, in accordance with the norms in force, the
evaluation of Carabineros is done by Evaluation Boards and not by the
Court. To do otherwise would mean involving the judiciary in the process
and transforming the judicial branch into another forum for evaluation.
The State alleges that the petitioners did not exercise their
right of recourse to other available legal remedies and merely filed an
application for protection, which is an extraordinary remedy.
The State declared, lastly, that it had violated none of the
provisions of the American Convention and that the articles invoked by
the petitioners as having been violated had been fully respected.
They therefore requested the Commission to reject the arguments
of the petitioners.
COMPETENCE AND ADMISSIBILITY
A. Competence ratione
personae, ratione loci, ratione temporis and ratione materiae of the
Under Article 44 of the American Convention, the petitioners are
entitled to lodge complaints with the IACHR.
The petition names as the alleged victims individuals in respect
of whom Chile undertook to respect and guarantee the rights recognized
in the American Convention. With regard to the State, the Commission notes that Chile has
been a State party to the American Convention since August 21, 1990, the
date on which it deposited the corresponding instrument of ratification.
The Commission is therefore competent ratione
personae to consider the petition.
The Commission is competent ratione
loci to consider the petition, insofar as it concerns rights
protected by the American Convention that are alleged to have been
violated within the territory of a State party to the Convention.
The IACHR is competent ratione
temporis insofar as the obligation to respect and guarantee the
rights protected in the American Convention was already in force for the
State on the date on which the acts referred to in the petition are
alleged to have occurred.
Lastly, the Commission is competent ratione
materiae, because the petition denounces violations of human rights
that are protected by the American Convention.
Exhaustion of domestic remedies
Article 46(1) of the American Convention provides as a
requirement for the admissibility of a complaint the prior exhaustion of
remedies available under the domestic laws of the State.
The State did not present any preliminary objections related to
the failure to exhaust domestic remedies.
The Inter-American Commission is therefore of the view that the
State of Chile did not invoke in this petition the non-exhaustion of
domestic remedies during the initial phase of the proceeding.
The Inter-American Court has established on numerous occasions
objection asserting the non-exhaustion of domestic remedies, to be
timely, must be made at an early stage of the proceedings by the State
entitled to make it, lest a waiver of the requirement be presumed”.
The Commission therefore considers that the State of Chile
renounced its right to assert the objection of non-exhaustion of
domestic remedies, since it failed to do so at the first opportunity
which it had in the proceeding, namely, in its reply to the petition
that gave rise to the proceeding.
Time allowed for presentation
of the petition
In the petition under consideration, the IACHR has concluded that
the State of Chile tacitly renounced its right to assert the objection
of failure to exhaust domestic remedies, as a result of which the
requirement of Article 46(1)(b) of the American Convention is not
applicable. However, the
provisions of the Convention requiring the prior exhaustion of domestic
remedies and the lodging of the petition within a period of six months
from the date of the final judgment of the domestic jurisdiction are
Inter-American Commission must therefore determine whether the petition
under review was presented within a reasonable period.
In that connection, the IACHR observes that the original petition
was received on August 4, 1999 and that the last decision of a domestic
court was handed down on April 28, 1999.
The IACHR therefore considers that the petition was lodged within
a reasonable period of time.
Duplication of proceedings and res
The records do not show that the subject of the petition is
pending in another international proceeding for settlement, nor that it
duplicates a petition already considered by the Commission or by another
international organization. It therefore considers the requirements set out in Articles
46(1)(c) and 47(d) of the Convention to have been met.
Characterization of the acts alleged.
The State requested the Commission to reject the complaint
because it had fulfilled its obligations under the Convention in respect
of the Articles alleged by the petitioners to have been violated.
The Commission considers that it is not necessary at this stage
of the proceeding to determine whether or not provisions of the American
Convention have been violated. For
the purposes of admissibility, the IACHR must decide if the petition
states facts that tend to establish a violation, as provided for in
Article 47(b) of the American Convention, and if the petition is
“manifestly groundless ” or “obviously out of order”, according
to subparagraph (c) of the same Article.
The criteria for determining whether these requirements have been
met are different from those used to decide on the merits of a
complaint. The IACHR must
undertake a prima facie
evaluation to determine whether the complaint establishes an apparent or
potential violation of a right guaranteed by the Convention and not to
establish whether a violation has occurred.
Such an evaluation is a summary review that does not prejudice or
advance an opinion on the substance.
By establishing two distinct phases of admissibility and
substance, the Regulations of the Commission reflect this separation
between the evaluation to be carried out by the Commission for the
purpose of declaring a petition admissible and that required to
establish whether a violation has taken place.
With regard to the present petition, the Commission considers
that the arguments presented by the State require in-depth analysis
before any conclusions can be made. The IACHR therefore does not find that the petition is
“manifestly groundless” or “obviously out of order”. The IACHR finds further that, prima facie, the petitioners have satisfied the criteria set out in
Article 47(b) and (c).
The Commission considers that it is competent in this case to
evaluate the alleged violations of the rights to humane treatment, a
fair trial, protection against abusive or arbitrary interference in
private life, protection of the family, equality before the law and
access to simple and prompt judicial recourse, all of which are related
to the obligation to respect and guarantee rights and the duty to bring
domestic laws into line with the international commitments undertaken by
the State, which could constitute violations of the rights of the
alleged victims set out in Articles 1(1), 2, 5, 8, 11, 17, 24 and 25 of
the American Convention.
The Commission concludes that it is competent to consider the
complaint lodged by the petitioners concerning the alleged violation of
their right to humane treatment, a fair trial, protection against
abusive or arbitrary interference in their private lives, protection of
the family, equality before the law and access to simple and prompt
judicial recourse, all of which are related to the obligations to
respect and guarantee rights and the duty to bring domestic laws into
line with the international commitments assumed by the State.
In light of the arguments of fact and of law set out above and
without prejudice to the substance of the question,
Inter-American Commission oN Human Rights,
To declare the present petition admissible under Articles 1(1),
2, 8, 11, 17, 24 and 25 of the American Convention.
To notify the State and the petitioner of this decision.
To initiate the proceeding on the substance of the question.
To publish this decision and include it in the annual report to
be submitted to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C, on March 7, 2003.
Altoaguirre, President; Clare Kamau Roberts, Second Vice-President;
Members: Robert K. Goldman, Juan Méndez, Julio Prado Vallejo and Susana
In conformity with Article 17(2)(a) of the Rules of Procedure of the
IACHR, Mr. José Zalaquett, First Vice- President of the Commission
and a national of Chile, did not participate in the discussion or
voting on this case. .
Carabineros de Chile is a police, technical and military
institution created in 1927 that is part of the law enforcement and
public security forces of Chile.