Humberto Antonio Palamara Iribarne v. Chile, Case 11.571, Report No. 77/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 128 (2001).
REPORT No. 77/01
HUMBERTO ANTONIO PALAMARA IRIBARNE
October 10, 2001
On January 16, 1996, the Inter-American Commission on Human Rights
(hereinafter the Inter-American Commission or the IACHR)
received a complaint submitted by Humberto Palamara Iribarne, represented
by the Center for Justice and International Law (CEJIL) and Human Rights
Watch/Americas (together, the petitioners), which alleged the
international responsibility of the Republic of Chile (the State)
for having prohibited the publication of the book Ética y Servicios
de Inteligencia (Ethics and Intelligence Services)
by Mr. Palamara Iribarne, and for having convicted him of contempt of a
public authority (desacato) in
a trial without due process guarantees.
The petitioners argue that the facts alleged constitute violations
of the following provisions of the American Convention on Human Rights (the
American Convention): the right to a fair trial (Article 8),
the right to freedom of expression (Article 13), and the right to property
(Article 21). They also argue
that the case meets all the admissibility requirements set forth in the
American Convention. The State
argues that the human rights of Mr. Palamara Iribarne have not been violated,
as he was judged in keeping with Chilean legislation, which is compatible
with the due process standards of the American Convention; and that domestic
remedies in Chile were not exhausted.
Without prejudging on the merits, the IACHR concludes in this report
that the case is admissible, as it meets the requirements set forth in Articles
46 and 47 of the American Convention.
By virtue of the foregoing, the Inter-American Commission decides
to notify the parties of this decision and to continue with the analysis
of the merits regarding the alleged violations of Articles 8, 13, and 21
of the American Convention.
PROCESSING BEFORE THE INTER-AMERICAN COMMISSION
Mr. Palamaras petition was registered under number 11.571 and
forwarded to the Chilean State on January 26, 1996.
The State presented its observations on July 3, 1996. The petitioners
responded to these observations on September 13, 1996, and later submitted
further observations and additional information on April 15, 1997 and March
24, 1998. The State presented observations on February 13, 1997, July
30, 1997, and August 4, 1998. The
IACHR held hearings on the matter on October 7, 1997, and October 6, 1998,
during its 97th and 100th sessions, respectively.
The petitioners and Mr. Palamara Iribarne filed briefs on May 11,
1999 and December 22, 2000, urging that there be a decision in the case.
On March 1, 2001, during the Inter-American Commissions 110th
regular session, a working meeting was held with the parties at Commission
POSITIONS OF THE PARTIES ON ADMISSIBILITY
The complaint indicates that Mr. Palamara Iribarne wrote and tried
to publish a book called Ética y Servicios de Inteligencia
(Ethics and Intelligence Services) in which he addressed issues
related to military intelligence and the need to bring it into line with
certain ethical standards. Mr.
Palamara Iribarne, a retired Chilean Navy officer, was at the time of the
events a civil servant hired as a contractor by the Chilean Navy in the
city of Punta Arenas. The petitioners
allege that the text cited could be considered a press article, and that
it did not contain confidential information.
Despite this, in February 1993 Mr. Palamara Iribarne delivered four
copies of the book to the commander-in-chief of the Third Naval Zone of
On March 1, 1993, the aforementioned naval commander notified Mr.
Palamara Iribarne by phone that the publication of his book had been prohibited
by the Navy, out of consideration that its contents constituted an attack
on national security and national defense, and that accordingly all the
existing copies had to be collected.
Mr. Palamara Iribarne agreed to meet with Navy officers that same
day at 3:00 p.m. at the printing press where the book was to be published;
nonetheless, he later changed his mind and did not show up.
In response to his failure to show, also on March 1, 1993, the naval
authority filed charges before the Naval Court of Magallanes, giving rise
to criminal proceeding No. 464 for disobedience of military duties.
In the context of that proceeding, the Naval Tribunal convened in
the offices of the Ateli Limitada press, and seized the copies
of the book, as well as the originals, a diskette containing the full text,
and the galleys of the publication.
The Tribunal also went to Mr. Palamara Iribarnes home, where
it proceeded to seize the copies of the book found there, and to erase the
complete text of the book in question from the hard disk of his personal
The petitioners also state that the naval authorities ordered the
author of the book to refrain from making any critical comments, public
or private, written or spoken, that might be to the detriment of or that
might harm the image of the Institution, any naval authority, or those carrying
out the judicial case and administrative investigations against him.
The Chilean Navy performed two expert examinations to determine whether
the contents of the book constituted an attack on national security.
The result in both cases was that neither the confidentiality nor
security of the Navy was violated.
Humberto Palamara Iribarne called a press conference at his residence,
during which he criticized the action of the Office of the Naval Prosecutor
in the proceedings against him. In
response, criminal charges were instituted for contempt of authority (desacato);
a guilty verdict was returned, which was affirmed by the Supreme Court of
The petitioners note that even though Mr. Palamara Iribarne was a
civilian, the criminal proceeding against him took place in the military
courts. They note that the
courts were not impartial, as they are presided over not by civilian judges,
but by judges who are themselves members of the military.
The petitioners also allege that the hierarchical structure of the
Chilean military institutions, as well as the fact that the judges who sit
on those courts are active-duty members of the armed forces, make it impossible
to have a trial with respect for due process.
To the extent that the trial was not public, they argue that Mr.
Palamara Iribarne was not given adequate time and means to prepare his defense.
Accordingly, the petitioners argue that Mr. Palamara Iribarnes
right to be heard by an independent and impartial judge or court for the
determination of his rights was violated.
The petitioners argue that the domestic remedies relating to the
facts described as violative of his rights were exhausted by the Supreme
Court of Chiles judgment of July 20, 1995, which denied the complaint
appeal (recurso de queja) of the
Military Courts verdict against Mr. Palamara Iribarne finding him
guilty of desacato.
In its response, the State argues that domestic remedies were not
exhausted with respect to the facts alleged.
As for case No. 464 for disobedience of military duties, it asserts
that the ruling of the Naval Judge of Magallanes is still pending, and that
accordingly the facts addressed therein cannot be admissible before the
IACHR. And as for case No.
471 for desacato, the State asserts
that Mr. Palamara Iribarnes defense had available to it the remedies
of inapplicability and cassation, as to procedural issues and the merits.
It indicates that those remedies are effective and suitable for remedying
the situation that is the subject of the complaint, but that Mr. Palamara
Iribarnes defense counsel did not pursue them.
In contrast, it argues that the complaint appeal (recurso
de queja), which was filed, is merely disciplinary and so is not effective
The Chilean State argues, with regard to the merits issues in the
complaint, that there was no violation of the freedom of expression to the
detriment of Mr. Palamara Iribarne.
It alleges in this regard that the right to freedom of expression
is limited by respect for the rights or reputation of others, thus it argues
that Mr. Palamara Iribarne violated the right of persons to respect for
their honor and to recognition of their dignity.
The State further argues that, pursuant to the provisions of the
Ordinance of the Chilean Navy, one must have prior authorization granted
by the competent naval authority.
Even though that authorization was denied, Mr. Palamara Iribarne
sought to continue with the publication of his book.
The Chilean State asserts that Mr. Palamara Iribarne was under the
system for providing services to the Navy as part of the civilian
contract personnel, which gave him military status, and that he was
subject to the discipline and duties and obligations particular to the Navy.
The State notes that in the judgment of August 5, 1997, which decided
the motion for cassation on the merits (case No. 471 for disobedience of
military duties), the Supreme Court of Chile established that Mr. Palamara
Iribarne had military status as a contract employee of the Navy.
The State argues that Mr. Palamara Iribarne exercised his right to
defense, as the indictment against him was communicated to him previously
and in detail, and he was assisted by defense counsel of his own choosing.
According to the State, this impedes him from arguing impartiality
of the courts based on the argument that the trial was not public.
The State further notes in this regard that the Supreme Court may
include a member of the military to hear matters that come to it from the
military jurisdiction, and that this does not constitute a violation of
the guarantee of equality before the law.
In summary, the State argues that it did not violate any of Mr. Palamara
Iribarnes human rights, and that, in any event, domestic remedies
were not exhausted. In view
of all of the foregoing, the State asks that the Inter-American Commission
reject the petition.
Competence ratione personae,
ratione materiae, ratione temporis and ratione
loci of the Inter-American Commission
The petitioners are authorized by Article 44 of the American Convention
to present complaints to the IACHR.
The petition in this matter indicates as alleged victims individual
persons with respect to whom Chile undertook to respect and ensure the rights
enshrined in the American Convention.
As regards the State, the Commission notes that Chile has been a
party to the American Convention since August 21, 1990, when it deposited
the instrument of ratification. Therefore, the Commission is competent ratione personae to examine the petition.
The Commission is competent ratione
loci to hear the petition, as it alleges violations of rights protected
in the American Convention alleged to have occurred in the territory of
a State party to that treaty. In
addition, the IACHR is competent ratione
temporis as the obligation to respect and ensure the rights protected
in the American Convention was already in force for the State as of the
date of the events alleged in the petition.
Finally, the Commission is competent ratione
materiae, since the petition alleges violations of human rights protected
by the American Convention.
Other admissibility requirements of the petition
Exhaustion of domestic remedies
As arises from the positions summarized above, there is disagreement
between the parties on the issue of exhaustion of domestic remedies, requiring
the Commission to rule as to whether that requirement has been met.
It has been seen that the Chilean naval authorities began two proceedings
against Mr. Palamara Iribarne: Case No. 464 for disobedience of military
duties, and case No. 471 for desacato. The original complaint submitted to the Inter-American Commission
referred exclusively to the facts related to the proceeding on desacato,
although it mentioned the other proceeding--then pending--as part of the
context of harassment against Mr. Palamara Iribarne.
On March 24, 1998, the petitioners filed a supplementary brief to
include the facts related to the conviction of Mr. Palamara Iribarne, once
the judgment of the Supreme Court in case No. 464 was final.
Furthermore, the representatives of Mr. Palamara Iribarne recurred
to the Chilean courts to seek protection of his constitutional guarantees.
The petitioners allege in that connection:
with the development of the proceeding and while Palamara was held in preventive
detention, he and his family were notified that they had to leave the subsidized
housing that they were using within one week.
At the same time, Mr. Palamaras wife, Anne Ellen Stewart Orlandini,
in early March filed a constitutional motion for protection (recurso
de protección) (roll number 10-93) for the purpose of securing the return
of the books seized and to put an end to the disturbances of her psychological
integrity, and that of her family, stemming from the proceedings in the
case brought against her husband; said motion was dismissed March 24, 1993.
The petition refers, in essence, to Mr. Palamara Iribarnes
right to publish a book on ethics and military intelligence, and to the
judicial guarantees that should be observed to make a determination, before
Chilean judicial organs, as to the alleged violation of that right.
The petitioners initial allusion to case No. 464 for disobedience
of military duties is made for the evident purpose of explaining the factual
Therefore, the IACHR shall proceed to analyze the judicial proceedings
in case No. 471 for desacato against Mr. Palamara Iribarne in Chile in order to evaluate
whether the requirement provided for in Article 46(1)(a) of the American
Convention has been met. To
do so, a determination must be made as to whether domestic remedies in Chile
were exhausted when the Supreme Court of Chile dismissed the complaint appeal
(recurso de queja) filed by the
petitioners in that case, or whether, to the contrary, they should have
pursued the remedies of inapplicability and cassation, as indicated by the
The above-mentioned case No. 471 was initiated in the wake of statements
made by Mr. Palamara Iribarne in a press conference, when he criticized
the performance of the Office of the Naval Prosecutor in case No. 464, in
which he was accused of disobedience of military duties.
On May 25, 1993, the Commander of the Third Naval Zone, who also
served as Naval Judge of Magallanes, filed a complaint for desacato
against Mr. Palamara Iribarne before the Court of Appeals of Punta Arenas,
based on Articles 264 and 266 of Chiles Criminal Code.
On June 14, 1993, said Court of Appeals declared that it did not
have jurisdiction to hear the case, and removed it to the military jurisdiction--the
same Naval Judge of Magallaneswhere it was assigned case No. 471.
On September 7, 1994, the Naval Court of Magallanes handed down a
judgment absolving Mr. Palamara Iribarne, considering that the essential
element of desacato was not present,
as its declarations were directed against the Office of the Naval Prosecutor,
not against the person of the Naval Prosecutor nor against any other particular
person. Although that judgment
was not appealed, the Military Court of Valparaíso asserted jurisdiction
over the case through the mechanism of consultation, and in its judgment
of January 3, 1995, it decided to reverse the judgment of first instance,
and to find Mr. Palamara guilty of desacato. The penalty
consisted of 61 days of minor prison sentence, in its minimal degree,
fine of 11 basic salaries (sueldos
vitales), and suspension from any public post or office during the time
of the sentence.
On January 9, 1995, Mr. Palamara Iribarnes defense counsel
went before the Supreme Court of Chile to file a complaint appeal (recurso
de queja) against the judges of the military court that convicted him.
The Supreme Court dismissed the complaint appeal on July 20, 1995,
with which the conviction by the Military Court of Valparaíso became a final
judgment. The petitioners allege
that the judgment that rejected the complaint appeal was not appealable;
the Chilean State did not controvert this.
Referring to the remedy of inapplicability of the law, the petitioners
state that it has not been capable, historically, of producing the
results for [which] it was conceived, i.e. protection of the rights of persons
vis-à-vis the unconstitutionality of legal rules, and they support
this assertion with official statistics.
They also allege that the motion of cassation on procedural grounds
is not suitable or effective for the case of Mr. Palamara Iribarne, as it
only gave the Supreme Court competence to rule on procedural irregularities;
they also provided official statistics in support of their argument.
As for the remedy of cassation on the merits, they argue similarly
that it was not necessary to pursue it, since the complaint appeal filed
gave the Supreme Court the broadest powers to resolve the conflict in keeping
with the standards of the American Convention.
In contrast with the foregoing, the petitioners argue that the complaint
appeal (recurso de queja) had the necessary characteristics of being effective
and suitable when pursued by Mr. Palamara Iribarne:
This mechanism constituted the main form of challenging the resolutions
handed down on appeal, and, at the same time, the most suitable mechanism
for obtaining a pronouncement in a reasonable time from the Supreme Court.
In fact, the complaint appeal had become a veritable third instance
in the legislation and according to the prevailing practices in the Chilean
situation can be better depicted by reference to the number of complaints
resolved by the Supreme Court from 1985 to 1989, i.e. 10,490, of which 2,561
refer to criminal cases.... The practice of attorneys in Chile is to use
the complaint appeal, because it is definitely the one that allows them
to obtain final and timely pronouncements by the Supreme Court.
The Chilean State, from its first response to the IACHR, argued that
domestic remedies had not been exhausted for failure to pursue the three
procedural mechanisms already mentioned.
As for the first of these, the State indicates:
per Article 80 of the Constitution of Chile, the inapplicability remedy
(recurso de inaplicabilidad) is
heard by the Supreme Court, sua sponte,
or at the request of a party, in matters before it or which were submitted
to it in a motion filed in any type of proceeding before another court;
it may declare any legal provision that is contrary to the Constitution
to be inapplicable to those particular cases.
remedy may be invoked at any stage of the proceeding, and the Supreme Court
may order it suspended.
Accordingly, the claimant had guarantees for all the rights now
the subject of an international complaint under the Chilean constitutional
order, which gave him this judicial remedy to effectively uphold those rights.
Nonetheless, he did not pursue such a remedy at any point in the
As regards the procedural remedy of cassation, the State argues that
pursuing it would have enabled the claimant to go before the Supreme
Court to oppose the judgment of the Military Court of the Navy to annul
the guilty verdict, and it cites the possible grounds for pursuing
such a remedy according to Article 541 of the Chilean Code of Criminal Procedure.
The Chilean State adds that the complaint appeal does not,
technically speaking, constitute a judicial remedy directed against a ruling
or judgment that one seeks to challenge or correct.
It argues that to the contrary, it is a mere disciplinary action
against one or more particular judges, that does not subject to review by
the Superior Courts of Justice the constitutionality of the ruling, but
a possible error or abuse by the judges in the performance of their functions.
Furthermore, the State dismisses the petitioners allegations
as to the ineffectiveness and unsuitability of the remedies of inapplicability
and cassation, on procedural grounds and on the merits. It argues in this
regard that legally, procedural efficacy is not measured by the number
of remedies pursued, denied, or accepted, but by how they have been conceived
by the law.
The State notes that the inapplicability remedy may be pursued at
any time before the Supreme Court and that it is a special remedy
of the utmost usefulness and procedural and judicial efficacy.
The Inter-American Commission notes that the requirement established
in Article 46(1)(a) of the American Convention refers to the exhaustion
of available judicial remedies that are adequate and effective for solving
the alleged violation of human rights.
As the Inter-American Court has reiterated on several occasions,
if in a specific case the remedy is not suitable for restoring the legal
interest infringed and capable of producing the result for which it was
designed, it is obvious that one need not exhaust it.
In the matter submitted to the IACHR, even though he alleged the
lack of impartiality of the military courts, Mr. Palamara Iribarnes
representative recurred to the available fora and pursued, to its conclusion,
the desacato proceeding instituted
by the naval authorities. The complaint appeal with which that proceeding culminated,
according to the information in the record, considered the possibility of
the Supreme Court of Chile overturning the guilty verdict against Mr. Palamara
Iribarne, and of a declaration sua
sponte as to the inapplicability of the criminal provision on desacato that the petitioners argue violates the alleged victims
human rights. The possibility
that the highest judicial organ in Chile might take up the issue of inapplicability
sua sponte is mentioned expressly
by the Chilean State when it describes that remedy (supra 26). Furthermore,
it has been seen above that the petitioners provided ample statistical information
to support their arguments.
The Inter-American Commission observes that the Chilean State did
not dispute the official documentation or the doctrine invoked by the petitioners,
but that it repeated its position regarding the suitability of the other
remedies not pursued in Mr. Palamara Iribarnes case, based on its
The IACHR believes that the complaint appeal--in its legal conception
and in its interpretation and application by the Chilean courts--was suitable
to solve the situation alleged by the petitioners, who pursued it in the
time and manner provided for in Chilean domestic law.
In addition, the petitioners allege that the Supreme Court had full
and broad powers to declare the inapplicability of the law questioned in
the context of the complaint appeal.
In effect, Article 80 of the Chilean Constitution provides:
Supreme Court, sua sponte or upon
request by a party, in the matters that come before it, or that are submitted
to it in a motion filed in any proceeding before any other court, may declare
inapplicable for those particular cases any law contrary to the Constitution.
This remedy may be invoked at any stage of the proceeding, and the
Court may order the proceeding suspended.
The Chilean State had several opportunities to cure the alleged violation
of the fundamental rights of Mr. Palamara Iribarne in the procedure identified
as case No. 471 on desacato, in particular when the issue was raised before the highest
court through the complaint appeal.
In view of the foregoing, it would not be reasonable to impose on
the petitioners in this matter the burden of exhausting the additional remedies
that the Chilean State identified.
The IACHR concludes that the judgment handed down by the Supreme
Court of Chile on July 20, 1995, exhausted remedies in the Chilean domestic
jurisdiction in the case of Humberto Palamara Iribarne.
In addition, both parties agreed that domestic remedies had not been
exhausted with respect to the facts alleged in case No. 464 when the processing
of this matter began before the IACHR.
In its supplemental filing submitted March 18, 1998, the petitioners
argue that the judgment of the Supreme Court denying the motion of cassation
on the merits, handed down August 5, 1997, exhausted domestic remedies with
respect to those facts. After
said supplemental filing, the State did not raise any objection with respect
to the requirement set forth in Article 46(1)(a) of the American Convention.
Accordingly, the IACHR declares that domestic remedies were also
exhausted with respect to the arguments on the facts that gave rise to case
No. 464 against Mr. Palamara Iribarne for disobedience of military duties.
The Inter-American Commission concludes that it has been fully shown
that the requirement provided for at Article 46(1)(a) of the American Convention
has been met with respect to all the facts alleged in this matter.
Time period for submission
The petition was received January 16, 1996, within six months counted
from notification of the judgment of July 20, 1995, which exhausted domestic
remedies in Chile. Therefore, the requirement set forth at Article 46(1)(b) of
the American Convention has been met.
Duplication of procedures and res
The record in this case contains no information whatsoever that might
lead to a determination that this matter is pending before another international
organization or that it has been previously decided by the Inter-American
Commission. In view of the foregoing, it is concluded that the exceptions
provided for at Article 46(1)(d) and Article 47(d) of the American Convention
do not apply.
Characterization of the facts alleged
The complaint sets forth facts that the petitioners consider violate
Articles 8, 13, and 21 of the American Convention, and that have not been
controverted by the State. The
Inter-American Commission considers that the arguments on the facts must
be examined in the merits phase, to determine whether they constitute violations
of the American Convention. Accordingly,
the IACHR concludes that the requirements of Article 47(b) and (c) of the
American Convention have been met.
In keeping with Articles 46 and 47 of the American Convention, the
Inter-American Commission concludes that it is competent to declare this
case admissible and to examine the merits.
This conclusion is based on the arguments of fact and law set forth
above, and is reached without prejudging the merits.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible as regards the alleged violations
of the rights protected at Articles 8, 13, and 21 of the American Convention.
To notify the parties of this decision.
To continue to analyze the merits issues.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., October 10, 2001. (Signed):
Juan E. Méndez, First Vice-President; Marta Altolaguirre, Second
Vice-President; Robert K. Goldman, Peter Laurie, Julio Prado Vallejo, Hélio
Commissioner Claudio Grossman, a Chilean national, did not participate
in the consideration of or vote on this case, in keeping with Article
17(2) of the IACHRs Rules of Procedure.
The Ordinance of the Chilean Navy establishes at Article 89 that in
order for a member of the Navy or a person providing services to the
Navy to be able to publish an article that affects the interests of
the institution, or that contains secret or classified information,
one must have the prior authorization of the competent naval authority.
The petitioners stated:
this criminal proceeding, Palamara was accused of the crimes of disobedience
of military duties, provided for at Article 299(3) of the Code of Military
Justice, and the crime of disobedience, provided for at Article 337(3)
of the Code of Military Justice.
The first of these crimes was for the fact of not having requested
the authorization required for publication of the book, and the second
for having refused to deliver the book once so ordered by his superior.
from the petitioners, January 12, 1996, p. 2.
The Chilean State makes reference to the Report on the Compatibility
of Desacato Laws with the
American Convention on Human Rights, published by the IACHR in
Chapter V of its Annual Report for 1994.
In this regard, the Chilean State states as follows:
authority in respect of which the contempt was displayed--the Naval
Prosecutor of Magallanes--was slandered regarding the performance of
his judicial duties and by reason of his position, as he was accused
of supposed falsification, and of disrespect for the truth in a judicial
proceeding before him.
Accordingly, the legal grounds and reasoning set forth in the
above-noted Report by the Commission are not applicable, since Mr. Palamara
engaged in the criminal conduct defined at Article 264 of the Criminal
from the State of July 3, 1996.
In the same communication, the State argues that the desacato
provision in the Chilean Criminal Code has as its purpose the
protection of public employees when their reputation is gravely affected,
as in the case of Mr. Palamara and his accusations with respect to the
Office of the Naval Prosecutor.
The Chilean State explains that the situation would be different
if Mr. Palamara had limited himself to formulating critical assessments
... in the framework of due respect.
The Chilean State ratified the American Convention on August 21, 1990.
Communication from petitioners of January 12, 1996, p. 4.
The complaint of January 12, 1996 contains a title Context in
which the events giving rise to the present complaint took place,
under which is found information on the proceeding initiated by the
Naval Court of Magallanes as case 464. The following title is Events
giving rise to this complaint, and it begins with the description
of case 471 for desacato.
The petitioners report that the daily La Prensa Austral
of Punta Arenas, in its edition of May 7, 1993, reproduced the following
statements made by Mr. Palamara Iribarne at the press conference:
are reasons to believe that the Office of the Naval Prosecutor adulterated
legal documents and lied to the Court of Appeals when asked who made
the complaint that began the preliminary criminal proceedings and as
to the roll number of the criminal proceeding with which the investigation
was begun, all to avoid an unfavorable judgment.
from the petitioners of January 12, 1996, p. 4.
Communication from the petitioners of September 13, 1996, p. 5.
Therein, the petitioners cite official statistics according to
which from 1985 to 1989 of a total of 90 motions filed, only six
were ruled favorably upon by the Supreme Court, while 48 were rejected,
12 were declared inadmissible, and another 24 were terminated by abandonment
The petitioners state that of a total of 1,779 motions [of cassation
on procedural grounds] filed from 1985 to 1989 (in civil and criminal
cases), only 110 were met with favorable rulings, 938 were declared
inadmissible, and another 310 were abandoned, archived, or declared
lapsed. They explain that approximately 6% of the total
number of cassation motions heard by the Supreme Court are ruled upon
favorably, while approximately 53% are declared inadmissible for failure
to meet formal requirements and 23% are rejected for failing to comply
with substantive requirements.
Id., p. 7.
Id., p. 9.
Communication from the State of July 3, 1996, p. 3.
Article 541 cited by the Chilean State establishes 12 grounds
on which the procedural cassation remedy may be based, which include:
Failure to summons one of the parties; (b) the evidence in question
not having been received, or not having allowed one of the parties to
present its own or to undertake evidentiary procedures important for
resolving the matter....; (c) not having attached the pleadings presented
by the parties; (d) not having given notice to the parties of any evidentiary
procedure; (e) not having scheduled the case for hearing in the collegial
courts in the manner established in Article 1163 of the Code of Criminal
Communication from the Chilean State, February 3, 1997, p. 4.
Id., p. 3.
See, e.g., Inter-American Court of Human Rights, Exceptions to the Exhaustion
of Domestic Remedies (Arts. 46(1), 46(2)(a), and 46(2)(b) of the American
Convention on Human Rights), Advisory Opinion OC-11/90 of August 10,
1990, para. 36.