Chile and the unfinished business of justice and reparation

by Clara Sandoval

Dr. Clara Sandoval is a qualified lawyer and a Senior Lecturer in the School of Law at Essex University. She is the Director of the Essex Transitional Justice Network and Member of the Human Rights Centre as well as the Advisory Board of the Human Rights Clinic. She specializes on the Inter-American human rights system, transitional justice and reparations.

Forty years have passed since the coup in Chile and we are still waiting for justice and reparation for the majority of Pinochet’s victims. As a result of the dictatorship in Chile, there were more than 200,000 exiles, more than 38,000 survivors of torture (according to the Valech Commission) and roughly 3,000 persons subjected to enforced disappearance or extra judicial killings (according to the Rettig Commission).

Don Leopoldo García Lucero, his wife Elena and their three daughters are some of those victims. He was detained in 1973 in Santiago, passed through various detention centres (among them El Estadio Nacional, Tres Alamos and Chacabuco) where he was subjected to torture (physical and mental) and other cruel, inhuman or degrading treatment. In the summer of 1975 he was expelled from the country by decree. He arrived in the UK with his family as refugees. Since 1973 his life and that of his family has been on hold. He lives in London in social housing with his wife.

Chile has adopted important measures to deal with the legacy of mass atrocities, particularly in the area of reparation and memory, but most of them were for the benefit of the next of kin of those disappeared or killed. Meanwhile, justice (meaning the investigation, prosecution and punishment of the perpetrators of those crimes) and adequate, prompt and full reparation for torture survivors and their next of kin, those in exile and those victims who are both exiles and torture survivors remain an unfinished business.

Chile began its transition to democracy between 1988/90, and thirteen years later, in 2003, the Valech Commission was established to identify the survivor victims of torture, and only in 2004 some reparations were put in place to deal with the harm caused to torture survivors and their next of kin; these were primarily designed to provide redress to those living in Chile and not those in exile like Mr. García Lucero. In contrast, truth-seeking and reparation for victims of disappearances and killings took place just after the return to democracy at the beginning of the 1990s.

The investigation, prosecution and punishment of torture perpetrators remain a challenge in Chile. Very few cases are being investigated; the punishment of perpetrators is not proportional to the gravity of the crimes, and Chile lacks a specialized system (as it has for disappearances and killings) to investigate torture cases.

Furthermore, in Chile there are various obstacles to justice: the amnesty law remains in place (despite the judgment of the Inter-American Court in Almonacid Arellano v. Chile ruling it was contrary to human rights), and in particular, there is a law that decrees that all information that was collected by the Valech Commission remain secret for 50 years. However, this information is of extreme importance in the investigation of torture cases which occurred during the dictatorship given the difficulties to identify perpetrators without being able to cross-reference information with other persons who were detained in the same places and at the same time.

This is why the litigation against Chile in the case of Don Leopoldo García Lucero, his wife Doña Elena and their three daughters was important to REDRESS and to me as one of its lawyers. Victims, particularly torture survivors who are permanently disabled (like Don Leopoldo) and were unable to move on after what happened to them, and are in exile with their families, are extremely vulnerable people who have a right to justice and reparation, but face multiple barriers to making them a reality.

In this case, the Inter-American Court had, for the first time, the opportunity to decide on the denial of justice and of adequate reparation of a Chilean survivor of torture and his family as a result of the human rights violations committed during Pinochet’s dictatorship. The Court found that the state failed to start a prompt and immediate ex officio investigation in his case. In fact, although Chile had notice of what had happened to Mr. García Lucero at least since 1993, it only began to investigate in October 2011, once the case had been brought before the Inter-American Court. This is a significant finding. It means that the Court considers that despite the passage of time, and irrespective of the victims’ place of residence, Chile has an obligation to investigate, prosecute and punish the perpetrators of their torture.

While the Court found that Mr. Garcia suffered as a result of the denial of justice and awarded him moral damages, the Court dismissed our claim that Doña Elena (Mr. García’s wife) and their daughters also suffered as a consequence of the denial of justice. This is to be regretted. In particular Doña Elena has been a constant source of inspiration, support and strength for Mr. García. Her life project changed drastically. All of these years waiting for justice and reparation have meant that she had to leave her country to come to the UK, start a new life without adequate means to do so, in a different culture, in a language she does not speak, and with a completely different role in the family. She has dedicated her life to look after her disabled husband and their children and had to say good-bye to her own projects, family and culture. If justice and reparation had been provided in a timely and adequate manner, she would have had the opportunity to start over and would have been able to fulfil some of her personal goals.

The Court did not deal with the claims on reparations for torture because it considered that they were intrinsically connected to the torture, which was committed before the Court’s jurisdiction was established. This point, paradoxically, was not maintained by the Court in relation to the justice dimension of our argument. Still, the Court stated that there is a right to reparation that should be adequate, prompt and effective and refers to important documents such as the Basic Principles and Guidelines on the Right to a Remedy and Reparation and the General Comment No 3 of the Committee against Torture on Article 14 (reparations). The Court also considered that victims should have at their disposal remedies to request and challenge reparations at the domestic level.

The judgment, with all its positive and negative aspects, is just the beginning of a new chapter. Now we move towards implementation and will have a new opportunity to inform the Inter-American Court of how things develop in Chile in relation to Mr. García as it monitors compliance with its judgment. The Court ordered important reparations, including for Chile to continue investigating the torture of Mr. Garcia with due diligence and within a reasonable period of time; it further ordered Chile to pay 20,000 GBP as non-pecuniary damages for the delay of justice, taking into account Mr. García’s vulnerable situation; and it appealed to Chile to consider paying a reasonable sum of money to cover Mr. García’s medical services.

As a lawyer I feel that there is still unfinished business in terms of justice and reparation in Chilean cases like the one of Mr. García. The Court has left some doors open for future litigation, opportunities that we should seize because justice and reparation can help victims to deal with the harm they have suffered. One of the worrying things, however, is that Pinochet’s survivors of torture are getting old and are dying and they might not live to see justice done.

This blog is written on my personal capacity and does not represent the views of other lawyers in the case or those of REDRESS.


One response to “Chile and the unfinished business of justice and reparation

  1. Pingback: Reparations for Chile’s exiles: upcoming guest-post on the Inter-American Court decision in García Lucero | TerraNullius

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