I/A Court H.R., Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2007-1-e.pdf




It is not to be left to the will of states to decide which facts are excluded from jurisdiction of the Inter-American Court of Human Rights. This decision is a duty which is to be fulfilled by the Court in the exercise of its jurisdictional functions.


In a democratic state, the military criminal jurisdiction must have a restrictive scope, and must be exceptional and aimed at the protection of special legal interests related to the functions that the law assigns to the military. Therefore, it must only try military personnel for the commission of crimes or offences that due to their nature may affect military interests.


Crimes against humanity include the commission of inhuman acts, such as murder, committed in a context of generalised or systematic attacks against civilians. A single illegal act committed within this background would suffice for a crime against humanity.


As a norm of general international law (jus cogens), states cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions.


The judiciary is obligated to respect rights, as stated in Article 1.1 ACHR, even if the legislative power fails to set aside and/or adopts laws which are contrary to the American Convention. The judiciary therefore must exercise a sort of "conventionality control" between the domestic legal provisions, applied to specific cases, and the American Convention.




I. On 11 July 2005, the Inter-American Commission on Human Rights (hereinafter, the Commission) filed an application against the Republic of Chile to determine whether the State had violated Article 8 ACHR (Judicial Guarantees) and Article 25 ACHR (Judicial Protection) in relation to Article 1.1 ACHR (Obligation to Respect Rights) to the detriment of Alfredo Almonacid-Arellano's next of kin. The Commission also requested that the Court declare the State in violation of Article 2 ACHR (Obligation to Adopt Domestic Legal Remedies).


On 16 September 1973, police forces arrested Mr. Almonacid-Arellano at his home and then shot him as he climbed into the police truck. He died the following day. The persons responsible for his death received no sanction because a Chilean military court had dismissed the case due to an amnesty law that created limitations on criminal liability during the period of Mr. Almonacid-Arellano's death. The Commission's application, therefore, related to the status of the State's amnesty provision in light of the State's alleged obligations under the American Convention to investigate and punish the persons responsible for Mr. Almonacid-Arellano's death.


II. In its judgment of 26 September 2006, the Court determined that although it did not have jurisdiction ratione temporis to decide whether the detention and death of Mr. Almonacid-Arellano violated the Convention, it did have jurisdiction to decide facts that pertained to the criminal investigation and prosecution of the alleged perpetrators of his death because such proceedings in this case constituted specific and independent violations that arose out of the denial of justice. Specifically, the Court found jurisdiction to consider three issues that pertained to the State's obligations under the American Convention: first, the transfer of the proceedings to a military court instead of a civil court, second, the enforcement of the amnesty law after the State ratified the Convention, and third, the application of such a law in this particular case.


First, the Court held that the State violated the right to judicial guarantees embodied in Article 8.1 ACHR in relation to Article 1.1 ACHR because it granted a military court jurisdiction to investigate and try the alleged perpetrators of Mr. Almonacid-Arellano's murder. Such courts do not comply with the standards of competence, independence and impartiality necessary to obtain due process.


Second, the Court held that even though the amnesty law came into effect in 1978, before the Court's jurisdiction ratione temporis, the State bound itself to adapt its domestic legislation to the provisions of the Convention from the moment the State ratified the Convention in August of 1990.


The Court therefore specifically addressed the granting of amnesty for serious criminal acts contrary to international law by the military regime rather than the adoption of the amnesty law itself.


Third, the Court looked to the effects of the amnesty law as it pertained to the criminal investigation and prosecution of the alleged perpetrators. The Court found that at the time of Mr. Almonacid-Arellano's death, such an act constituted a crime against humanity under international law because the murder occurred in the course of a generalised or systematic attack against certain sectors of the civil population. Namely, the State had developed a policy to attack sectors of the civilian population considered to be opponents of the regime. The Court held that international law, and specifically, Article 1.1 ACHR (Obligation to Respect Rights), obligates states to try and punish the perpetrators of crimes against humanity. Such crimes are therefore not subject to amnesty laws. Because the State applied the amnesty law to the criminal investigation of Mr. Almonacid-Arellano's murder, the Court found the State in violation of Article 8 ACHR (Right to a Fair Trial) and Article 25 ACHR (Right to Judicial Protection) in relation to its obligations under Article 1.1 ACHR.


More generally, the Court determined that the State violated its obligation to modify its domestic legislation under Article 2 ACHR (Domestic Legal Effects) because it enforced and continues to keep in force the amnesty law which provides immunity from the prosecution of crimes against humanity.


The Court ordered the State, inter alia, to ensure that it does not continue to hinder the investigation, prosecution, and, as appropriate, punishment of those responsible for Mr. Almonacid-Arellano's extra-legal execution and to ensure that the amnesty law does not hinder the criminal process for similar violations perpetrated in Chile. Likewise, the Court ordered the State to set aside domestic judgments that had impeded the prosecution of the case and to refer the case to a regular court. Among other forms of reparation, the Court ordered the State to publish the facts and operative paragraphs of its judgment in the Official Gazette and another newspaper of wide circulation. The State was also ordered to pay costs and expenses.