RESOLUTION Nº 10/85
March 5, 1985
1. The complaint
filed with the Inter-American Commission on Human Rights on September
15, 1982 which reports of the refusal of the Government of Chile to
permit the entry of the Chilean citizen Edgardo Condeza Vaccaro into
2. Mr. Condeza
Vaccaro had left Chile in 1974 seeking political asylum and at present
resides in Colombia.
3. An application
for amparo had been filed with the Appeal Court so that the right of the
person affected to live in his homeland might be recognized, which
remedy was rejected by that tribunal and by the Supreme Court of Justice
4. In its reply of
November 8, 1983, the Government states, without providing proof
thereof, that Mr. Condeza Vaccaro is a member of the military branch of
the Movimiento de Izquierda Revolucionaria (MIR), an expert in rural and
urban guerrilla warfare, who has undergone training in Chile and
participated in a campaign against Chile in Colombia. The Government
also states that it considers him to be a highly dangerous person and
that, on September 14, 1981, his return to the country was temporarily
5. In his
observations on the information of the Government the complainant states
that he had belonged to the Movimiento de Izquierda Revolucionaria up to
l967, since when he has been a member of the Socialist Party of Chile.
He also states that he has never been a member of any armed group,
evidence of which is the fact that there is no specific charge against
him in the Courts of Chile.
6. The reply of
the Government to the observations of the complainant states that there
is no evidence that Mr. Condeza Vaccaro has ceased to be a member of the
Movimiento de Izquierda Revolucionaria and that, if he is a member of
the Socialist Party, it would be a common case of dual membership. It
also adds that Mr. Condeza Vaccaro may file a remedy of amparo with the
ordinary courts of justice in order to assert his rights.
7. On September
11, 1984, a list of 4,942 Chilean citizens whose entry into the country
is prohibited by the Government of Chile, including Mr. Condeza Vaccaro,
1. The remedies of
internal jurisdiction available to Mr. Edgardo Condeza Vaccaro for
asserting his right to reside in Chile have been exhausted.
2. The measure
affecting Mr. Condeza Vaccaro has been adopted pursuant to the
provisions of Transitory Provision 24 of the Constitution, which can
only be appealed to the authority that ordered it, i.e., the President
jurisprudence of the Supreme Court of Justice of Chile, established by
the decision of July 9, 1984 in the case of Messrs Jaime Insunza Becker
and Leopoldo Ortega Rodríguez, suggests that the remedy of amparo in
favor of Mr. Condeza Vaccaro would not be in order since, in accordance
with that judgment, the Judiciary of that country may only verify
fulfillment of the merely formal requirements of the decisions taken by
the President in the exercise of the powers granted him by the
above-mentioned Transitory Provision 24.
4. According to
the jurisprudence mentioned in the foregoing paragraph, the factual
bases of the decision of the President of Chile cannot be reviewed by
the Judiciary, which is the case in the situation affecting Mr. Condeza
5. The Government
of Chile has not provided any reliable evidence that may be used to
support its statement that Mr. Condeza Vaccaro is a highly dangerous
6. Since it is the
Government of Chile that is applying a penalty on the basis of the
foregoing considerations, the burden of proof is on it, in accordance
with the general principles of law.
7. The nature of
the decision adopted by the Government of Chile in the case of Mr.
Condeza Vaccaro and the procedure established by Transitory Provision 24
of the Constitution prevents the person affected from asserting his
rights in accordance with the rules that guarantee due process.
8. Since the
Government of Chile has not produced any convincing evidence in the case
of Mr. Condeza Vaccaro, it must be concluded that the prohibition of
entry into the country of which he is a citizen is based on political
considerations deriving from the ideas of the person affected, which
constitutes a violation of his right to equality before the law and of
his political rights in general.
9. The American
Declaration of the Rights and Duties of Man embodies the right to
residence and movement in Article VIII in the following terms:
person has the right to fix his residence within the territory of the
State of which he is a national, to move about freely within such
territory, and not to leave it except by his own will.
The American Declaration of the Rights and Duties of Man embodies
the right to due process in Article XXVI, which stipulates that:
accused person is presumed to be innocent until proved guilty.
person accused of an offense has the right to be given an impartial and
public hearing, and be tried by courts previously established in
accordance with preexisting laws, and not to receive cruel, infamous or
The American Declaration of the Rights and Duties of Man
recognizes the right to a fair trial in Article XVIII, which provides:
person may resort to the Courts to ensure respect for his legal rights.
There should likewise be available to him a simple, brief procedure
whereby the courts will protect him from acts of authority that, to his
prejudice, violate any fundamental constitutional rights.
The right to residence and movement is recognized by Article 19
(7) (a) of the Constitution of Chile.
view of the foregoing considerations,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES:
1. To declare that
the Government of Chile has violated the right to residence and movement
of Mr. Edgardo Condeza Vaccaro, embodied in Article VIII of the American
Declaration of the Rights and Duties of Man by preventing his return to
that country of which he is a citizen.
2. To declare that
the Government of Chile has violated the right to due process and the
right to a fair trial of Mr. Edgardo Condeza Vaccaro, embodied in
Article XXVI and XVIII of the American Declaration of the Rights and
Duties of Man, respectively.
3. To recommend to
the Government of Chile that it rescind, within a period of 60 days, the
prohibition of entry into the national territory that affects Mr.
Edgardo Condeza Vaccaro and that, should it find that there are
sufficient grounds, it bring him to a trial in which the rules of due
process are respected.
4. To communicate
this resolution to the Government of Chile.
5. If the
Government of Chile does not fulfill the recommendation made in
paragraph 3 above within the time limit specified, to include this
resolution in the report that will be submitted to the General Assembly
in accordance with the provisions of Article 59 (g) of the Regulations
of the Commission.