CONSIDERING:
- The complaint filed with the Inter-American Commission on
Human Rights on September 15, l982 which reports of the refusal of
the Government of Chile to permit the entry of the Chilean citizen
Edgardo Condeza Vaccaro into that country.
- Mr. Condeza Vaccaro had left Chile in l974 seeking
political asylum and at present resides in Colombia.
- An application for amparo had been filed with the Appeal
Court so that the right of the person affected to live in his
homeland might be recognized, which remedy was rejected by that
tribunal and by the Supreme Court of Justice of Chile.
- In its reply of November 8, l983, the Government states,
without providing proof thereof, that Mr. Condeza Vaccaro is a member
of the military branch of the Movimiento de Izquierda Revolucionaria
(MIR), an expert in rural and urban guerrilla warfare, who has
undergone training in Chile and participated in a campaign against
Chile in Colombia. The Government also states that it considers him
to be a highly dangerous person and that, on September 14, l981, his
return to the country was temporarily prohibited.
- In his observations on the information of the Government
the complainant states that he had belonged to the Movimiento de
Izquierda Revolucionaria up to l967, since when he has been a member
of the Socialist Party of Chile. He also states that he has never
been a member of any armed group, evidence of which is the fact that
there is no specific charge against him in the Courts of Chile.
- The reply of the Government to the observations of the
complainant states that there is no evidence that Mr. Condeza Vaccaro
has ceased to be a member of the Movimiento de Izquierda
Revolucionaria and that, if he is a member of the Socialist Party,
it would be a common case of dual membership. It also adds that Mr.
Condeza Vaccaro may file a remedy of amparo with the ordinary courts
of justice in order to assert his rights.
- On September 11, l984, a list of 4,942 Chilean citizens
whose entry into the country is prohibited by the Government of
Chile, including Mr. Condeza Vaccaro, was published.
WHEREAS:
- The remedies of internal jurisdiction available to Mr.
Edgardo Condeza Vaccaro for asserting his right to reside in Chile
have been exhausted.
- The measure affecting Mr. Condeza Vaccaro has been adopted
pursuant to the provisions of Transitory Provision 24 of the
Constitution, which can only be appealed to the authority that
ordered it, i.e., the President of Chile.
- The jurisprudence of the Supreme Court of Justice of Chile,
established by the decision of July 9, l984 in the case of Messrs
Jaime Insunza Becker and Leopoldo Ortega Rodr§guez, suggests that the
remedy of amparo in favor of Mr. Condeza Vaccaro would not be in
order since, in accordance with that judgment, the Judiciary of that
country may only verify fulfillment of the merely formal requirements
of the decisions taken by the President in the exercise of the powers
granted him by the above-mentioned Transitory Provision 24.
- According to the jurisprudence mentioned in the foregoing
paragraph, the factual bases of the decision of the President of
Chile cannot be reviewed by the Judiciary, which is the case in the
situation affecting Mr. Condeza Vaccaro.
- The Government of Chile has not provided any reliable
evidence that may be used to support its statement that Mr. Condeza
Vaccaro is a highly dangerous person.
- Since it is the Government of Chile that is applying a
penalty on the basis of the foregoing considerations, the burden of
proof is on it, in accordance with the general principles of law.
- The nature of the decision adopted by the Government of
Chile in the case of Mr. Condeza Vaccaro and the procedure
established by Transitory Provision 24 of the Constitution prevents
the person affected from asserting his rights in accordance with the
rules that guarantee due process.
- Since the Government of Chile has not produced any
convincing evidence in the case of Mr. Condeza Vaccaro, it must be
concluded that the prohibition of entry into the country of which he
is a citizen is based on political considerations deriving from the
ideas of the person affected, which constitutes a violation of his
right to equality before the law and of his political rights in
general.
- The American Declaration of the Rights and Duties of Man
embodies the right to residence and movement in Article VIII in the
following terms:
Every person has the right to fix his residence within the territory of the State of which he is a national, to move about freely within such territory, and not to leave it except by his own will.
- The American Declaration of the Rights and Duties of Man
embodies the right to due process in Article XXVI, which stipulates
that:
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public hearing, and be tried by courts previously established in accordance with preexisting laws, and not to receive cruel, infamous or unusual punishment.
- The American Declaration of the Rights and Duties of Man
recognizes the right to a fair trial in Article XVIII, which
provides:
Every person may resort to the Courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
- The right to residence and movement is recognized by Article 19 (7) (a) of the Constitution of Chile.
In view of the foregoing considerations,
RESOLVES:
- To declare that the Government of Chile has violated the
right to residence and movement of Mr. Edgardo Condeza Vaccaro,
embodied in Article VIII of the American Declaration of the Rights
and Duties of Man by preventing his return to that country of which
he is a citizen.
- To declare that the Government of Chile has violated the
right to due process and the right to a fair trial of Mr. Edgardo
Condeza Vaccaro, embodied in Article XXVI and XVIII of the American
Declaration of the Rights and Duties of Man, respectively.
- To recommend to the Government of Chile that it rescind,
within a period of 60 days, the prohibition of entry into the
national territory that affects Mr. Edgardo Condeza Vaccaro and that,
should it find that there are sufficient grounds, it bring him to a
trial in which the rules of due process are respected.
- To communicate this resolution to the Government of Chile.
- If the Government of Chile does not fulfill the
recommendation made in paragraph 3 above within the time limit
specified, to include this resolution in the report that will be
submitted to the General Assembly in accordance with the provisions
of Article 59 (g) of the Regulations of the Commission.
