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Stream 1: Torture

 

Leopoldo Garcia Lucero was subjected to enforced disappearance, arbitrary detention, physical and psychological torture and other ill treatment in Chile under the Pinochet regime.

 

On 28 August 2013, the Inter-American Court issued its judgment. The Court ordered Chile to pay Mr. García £ 20,000 in moral damages and ordered it to continue and finalise a criminal investigation “within a reasonable time.” The Court also urged Chile to provide adequate funding to Mr. García to cover the costs of his treatment in the UK for continuing medical and psychological ailments.

 

Based on this decision the objective of this session will be to analyse past and present cases of torture in Chile, and to place the specific case of Chile in a broader regional comparative context with regards to efforts, on the one hand, to address legacies of torture in Latin America, and, on the other, to prevent its contemporary occurrence.

Carla Ferstman
Carla Ferstman joined REDRESS in 2001 as its Legal Director and became its Director in 2005.  She obtained an LL.B. from the University of British Columbia and an LL.M. from New York University and is working to complete a DPhil at the University of Oxford. 
 

REDRESS submitted a petition to the Inter-American Commission on Human Rights in 2002 arguing that Mr. Garcia Lucero’s rights under Articles 8 and 25 of the American Convention on Human Rights had been violated as he has not been provided with an effective remedy and full and adequate reparation for what happened to him. The Commission found the case admissible in 2005.  REDRESS had a working group meeting and formal hearing before the Commission in 2008 in order to try to reach a friendly settlement with Chile, but no agreement materialised. In 2011, the Commission sent the case to the Inter-American Court of Human Rights for a hearing. Mr Garcia, his wife and three daughters are victims in the case.

In 2012, REDRESS made submissions to the Inter-American Court of Human Rights, in particular on the issue of admissibility, as the torture took place before Chile ratified the American Charter on Human Rights. Based on the Charter and the Court's own jurisprudence, REDRESS argued that violations of victims' rights to access justice (investigation, sanctions, adequate reparation) are independent from the so called ‘substantive’ violation of torture. In cases where the Inter-American Court has not been able to establish a substantive violation of article 3 (freedom from torture), for instance due to lack of evidence, it has found procedural violations under articles 3 and 13.

On 14 February 2013, the Inter-American Court of Human Rights specified the modalities of witness (including expert witness) participation in the case.The Court considered Mr García’s case on 20 and 21 March 2013. Mr García testified during the hearing that took place on 20 March.

On 28 August 2013, the Inter-American Court issued its judgment. It ordered Chile to pay Mr. García £ 20,000 in moral damages and ordered it to continue and finalise a criminal investigation “within a reasonable time.” It also urged Chile to provide adequate funding to Mr. García to cover the costs of his treatment in the UK for continuing medical and psychological ailments.

Dr. Cath Collins
Cath Collins is Professor of Transitional Justice at the Transitional Justice Institute, School of Law, Ulster University and academic director of the Observatorio Justicia Transicional of the Universidad Diego Portales, Santiago de Chile.  Her PhD in political science is from the University of London (2005).
 
Garcia Lucero and the meeting of reparations and justice rights of torture survivors in Chile
 

The 2013 Garcia Lucero Inter-American Court verdict has significant limitations, given the Court’s essentially conservative decision not to pronounce on the original incident nor even on the question of present-day sufficiency of the Chilean state’s reparations programmes for survivors of torture.  Nonetheless, almost unnoticed among its other considerations, the judgment drops a quiet bombshell when it observes that the Chilean state ought to have initiated an ex officio investigation of the crime committed against Mr Garcia Lucero as soon as it was apprised, via his application to an administrative reparations programme, of the torture to which he was subjected by state agents. This aspect of the verdict would have significant political, legal and policy reverberations in Chile were it to be treated with anything like the attention and seriousness it deserves.  This is because the verdict cuts across recent major disputes about whether, how and by whom justice should be delivered for Chile’s tens of thousands of torture survivors.  Recent justice progress in domestic courts has been heavily focused on cases relating to absent victims – the dead or disappeared. Judges are openly reluctant to countenance taking on thousands of further investigations, and the single state body tasked with offering legal assistance is explicitly barred from extending services to survivors.  A recent (2004 and 2011) truth commission specifically for survivors of political imprisonment and torture attempted to concede only limited truth and reparations rights while evading justice implications altogether, setting an absolute secrecy provision on Commission proceedings that forbids even judicial authorities from accessing survivor testimony.  That prohibition is currently under severe normative and legal challenge.  The (separate) argument that the onus is on the Chilean state, rather than individual survivors, to initiate immediate legal proceedings for torture, in accordance with its Convention and ius cogens obligations, has not however been taken sufficiently seriously, partly due to widespread ignorance of the terms of the Garcia Lucero judgment. This paper will address how this aspect of the judgment leads us to question and challenge recent Chilean state practice in isolating administrative programmes from justice implications, and in requiring victims themselves to bear the burden of triggering compliance with ex officio obligations to investigate, prosecute and punish.

Maria del Carmen Fleitas Delgado and Briana Okuno 
 

Maria del Carmen Fleitas Delgado is pursuing a Master’s degree in Human Rights at the University College London. she did her undergraduate studies in Taiwan, obtaining a degree in International Relations and Diplomacy. .

 

Briana Okuno, is a Masters candidate in Human Rights at UCL. she did her undergraduate studies at St. Olaf College.

Barriers to Justice: A History of Impunity in Chile

 

In the last decade, the Inter-American Court has criticized existing amnesty laws that serve to shield perpetrators of massive human rights violations in Latin American countries attempting to achieve truth and reconciliation. In the cases of Almonacid and Barrios Altos, the Court made monumental rulings that found amnesty laws in Chile and Peru to be in violation of the Inter-American Convention of Human Rights. Although these “successful” rulings have addressed legacies of dictatorial regimes, there are still many hurdles that victims of torture must overcome in order to find true justice.

 

Chile has set up three commissions to address violations under his regime. As a result of these initiatives, much national and international attention has been paid to forced disappearances. However, thousands of victims of torture remain “second-class victims” in the eyes of the law, and virtually no efforts have been made to hold perpetrators accountable for their actions. The case of Garcia Lucero et al. v. Chile heard at the Inter-American Court of Human Rights was poised to reverse the amnesty law and immunity. However, despite the Court’s ruling in favor of Mr. Garcia Lucero and against Chile’s 1978 Amnesty Law, the government has done very little to address its human rights obligations to victims of torture. As such, the amnesty law is still in place and the Valech Truth Commission remains secret.

 

In this paper, we will analyse how these Inter-American Court of Human Rights judicial decisions affected domestic legal frameworks and institutions in Chile and Peru, and the impact they had on the ability of victims of torture to bring cases to domestic courts and achieve truth and reconciliation.

Alex Wilks
 

Alex is IBAHRI Principal Programme Lawyercovering Latin American region and projects in Afghanistan, Bahrain, East Timor, Hungary, Libya, and Sri Lanka. He has an LL.M in International Human Rights Law from the University of Essex, UK. 

Training Chilean judges in human rights: what’s the point?

 

Given the essential role of judges and lawyers as agents of the administration of justice, it is a widely-held assumption that training them in human rights law will better help protect human rights.  However, what is striking about the body of literature that exists on monitoring the performance of such capacity-building work is that there is very little concrete evidence that such trainings actually reduce human rights violations in a particular jurisdiction. This is surprising in view of the many national and international organisations working in the field. In fact, many commentators have expressed mounting concern about the ‘underwhelming evidence of success’ in such programmes and the need to develop a more serious research-based understanding of what works and what does not.

 

The International Bar Association’s Human Rights Institute (IBAHRI) undertakes human rights trainings for judges and lawyers around the world and has implemented major torture prevention judicial capacity – building projects in Mexico and Brazil. Although the scale and nature of the challenges are clearly different, Chile’s criminal justice system also suffers from several complex problems such as severe prison overcrowding, poor conditions of detention, gang violence and police brutality. In light of these challenges, what difference can training Chilean judges and lawyers in human rights make? This paper will consider this question from an international perspective, taking into account results and lessons learned from the IBAHRI’s Mexican and Brazilian training projects.

 

 

 

 

 

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