CREATES COMPENSATION POLICY FOR GRAVE
HUMAN RIGHTS VIOLATIONS

I. INTRODUCTION

The State's obligation to compensate victims of grave human rights violations is founded on the principle that all States must respect and enforce respect for human rights. This obligation encompasses the prevention of violations, and if violations should occur, States have the obligation to investigate and take appropriate measures against individuals responsible for these crimes, as well as provide the direct victims or their close relatives judicial recourse and reparations.

Our country has subscribed and ratified various international instruments related to human rights that establish the right of victims to obtain reparations. However, no steps have been taken to bring national legislation in compliance with these agreements. This situation has meant that in judicial practice the State's extracontractual responsibility for human rights violations is treated in compensatory considerations as a mere proprietary issue regulated by regulations governing private rights with no implications for the public regulatory framework, to which it pertains by essence.

The application of norms on extracontractual responsibility set forth in the Civil Code on compensatory intentions resulting from or based upon a violation of human rights, result in a restriction of the victim's rights to demand compensation. Such restriction is based upon statutes of limitation, even though neither the Constitution nor the State Administration Fundamentals Law [Ley Organica General de Bases de la Administracion del Estado] establishes any time period for statutes of limitation in relation to the compensatory actions they set forth.

It is important to note that over the course of nearly ten years of litigation, a good number of judges and Courts of Appeals have accepted the doctrine that State responsibility in human rights is not subject to statutes of limitation.

However, in two recent resolutions, in response to a petition from the State Defense Council, the Civil Chamber of the Supreme Court ruled that compensation in such matters is affected by statues of limitations, effectively precluding judicial avenues from implementation of the reparations victims need.

The need to restructure the regulatory framework in this respect is also justified in the obligation the Chilean State assumed in light of international treaties ratified by our country, to endow victims with an effective and rapid recourse to enforce their rights before international bodies. At present, our judicial framework does not contemplate such actions. Within this framework, we propose implementation both substantive and procedural in nature, that facilitate effective reparations, in keeping with principles drafted by United Nations Special Rapporteur for the issue of Reparations, Mr. Theo Van Boven, that lawmakers should take into account.

II. PRINCIPLES AND RECOMMENDATIONS CONCERNING THE RIGHTS OF VICTIMS OF GRAVE HUMAN RIGHTS VIOLATIONS AND THE HUMANITARIAN RIGHT TO OBTAIN REPARATIONS

Reparations:
1. Reparations may be claimed individually, and when appropriate collectively, by the direct victims, their next of kin, or the persons who were responsible for the victim, or persons or groups (such as professional societies) associated with the victim.

2. International law sets forth that States have the duty to adopt special measures, when circumstances so ordain, to permit authorization of rapid and fully effective reparations. Reparations should offer solutions for justice, eliminating or repairing the consequences of the damage suffered. They must also act to impede new violations in the future through prevention and dissuasion. Reparations must be provided in proportion to the severity of the violations of the damage suffered, and shall comprise restitution, compensation, rehabilitation, satisfaction and guarantees that the violations will not be repeated.

3. Every State must inform the national and international public through private and official media of the procedures for claiming reparations.

4. Statutes of limitation shall be inapplicable during the periods in which recourses are ineffectual due to the violation of human rights or humanitarian law. Civil claimants of reparations resulting from serious human rights violations or humanitarian law shall not be subject to statutes of limitation.

5. Every State must quickly make available to competent authority all information in its possession that may be useful for reviewing reparation claims.

6. Decisions regarding reparations of victims of human rights violations or humanitarian law shall be adopted in a diligent and rapid manner.

Forms of reparations:
Reparations shall consist of one or several of the forms outlined below. The list is not exhaustive.

1. Restitution shall be aimed at restoring the situation existent prior to the violation of human rights or humanitarian law. It demands, among other things, reestablishment of freedom, family life, citizenship rights, work, property, and the return to the country of past residence.

2. Compensation shall be accorded for all damages resulting from a violation of human rights or humanitarian law, and that may be assessed in terms of economics. Compensation shall be granted for physical or mental damage, including pain, suffering and emotional anguish; loss of opportunities including educational opportunities; material damages and loss of income, including job loss, damage to reputation or dignity; expenses incurred in obtaining legal or expert assistance.

3. Rehabilitation shall be provided, consisting of medical and psychological attention as well as legal and social services.

4. Satisfaction and guarantees that the violation will not be repeated shall be provided. These shall include, when applicable, the cessation of existing violations; verification of the events and broad publicity in the media of the truth regarding what happened; an official statement or judicial resolution that restores dignity, reputation and rights of the victims and persons associated with him/her; a public apology that includes acknowledgement of responsibility; application of judicial or administrative sanctions of the persons responsible for the violations; commemoration and tributes to the victims; incorporation of human rights curriculum in teaching manuals, and incorporation in history texts of an accurate version of the violations of humanitarian and human rights; prevention of future violations of human rights, by the following means: ensuring that civil government authorities have effective control over the armed forces and police; limiting the jurisdiction of military tribunals to exclusively military crimes committed by military personnel; strengthening the independence of the judiciary; protecting the legal profession, its members and human rights defenders; prioritizing the improvement of human rights education in all sectors of society, and particularly with the armed forces and police, as well as law enforcement officials.

III. LEGISLATIVE PROPOSAL
The following modifications are proposed to Law 18.575, the State Administration Fundamentals Law [Organica de Bases Generales de la Administracion del Estado].

1. The following clauses shall be added to article 4.
Should the action or omission constitute a grave violation of human rights, the civil responsibility of the State shall not be subject to statutes of limitation and judicial investigation shall be the procedure applicable in this case.
The State Defense Council may mediate in the trial.
Appeals filed after the Courts of Appeals shall hear the trial court sentence.

2. Transitory Article
The right to compensation for moral damages inflicted shall be declared not subject to statutes of limitation, in the case of the following persons:

i. Surviving spouse, parents and children of persons who were made to disappear subsequent to arrest by actions of agents or persons belonging to or associated with offices of the State, during the period that covers September 11, 1973 to March 10, 1990, confirmed by the Report of the Truth and Reconciliation Commission created by Supreme Decree 355 of April 25, 1990.

ii. Persons who were deprived of freedom for political motives, due to provisions related to State of Siege between September 11, 1973 and March 10, 1990.

iii. Persons who were victims of torture or cruel and inhuman treatment between September 11, 1973 and March 10, 1990.

iv. Persons prohibited from reentering the country by order of administrative authority between September 11, 1973 and March 10, 1990.

Lawsuits filed by persons who have a judgment pending against the State of Chile due to the condition of victim involving one of the circumstances indicated previously, shall be granted priority in court hearing, under the terms established by clause two of article 162 of the Code of Civil Procedure.

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