Lectures: 39
The Court of Appeals of Santiago accepted the appeal for protection filed against the Navy and ordered the removal of the portrait and photograph of the former commander in chief of the military branch, Admiral José Toribio Merino Castro, from the General Secretariat and Command in Chief of the First Naval Zone, respectively.
In a divided ruling (case file 1.877-2022), the Fifth Chamber of the appellate court – made up of the ministers María Soledad Gutiérrez, Erika Villegas and the lawyer (i) José Ramón Gutiérrez – established the arbitrary and illegal action of the Navy by maintaining on display images of who was part of the military dictatorship during which crimes against humanity were committed.
“That in this order of ideas, the only reason given for not agreeing to the withdrawal of a photograph and portrait, is that they are located next to those of other people who held the same position as Mr. Merino’s,” the ruling states.
For the appellate court: “(…) such a distinction becomes illegal in light of the guarantee of non-repetition enshrined in article 63.1 of the Convention on Human Rights and applicable to our country in accordance with article 5 of the Constitution, which provides that “When it decides that there was a violation of a right or freedom protected in this Convention, the Court will order that the injured party be guaranteed the enjoyment of his violated right or freedom.”
“It will also provide, if this were a precedent, that the consequences of the measure or situation that has configured the violation of those rights and the payment of fair compensation to the injured party be repaired,” it adds.
“That in this way, as has been maintained by this Court in the income Rol 79.361-2019 and Rol 37.319-2021, the guarantee of non-repetition, which ultimately translates into measures aimed at preventing violations of the human rights, is in contrast to the action of the appellant by keeping on display photographs and portraits of someone who was part of a de facto government during which crimes against humanity were committed”, he affirms.
“That on the other hand,” he continues, “the maintenance of these photos and portraits becomes arbitrary when, without providing any grounds, he agrees to what was requested by the appellant, eliminating busts, photos, and tributes to Mr. Merino, from which it follows that adheres to what was sustained in the deduced action, however, it leaves a photograph and a portrait on display in two of its offices, which is contradictory to what was done and the fact of being exposed together with other commanders in chief, does not seem sufficient justification to keep displayed the image of who was part of a Military Junta, which as a de facto government committed acts of violation of human rights”.
“That, likewise, as has already been resolved by this Court, with regard to the right to mental integrity that the appellant invokes as affected, the lack of evidence or proof of the appellant’s suffering, as the respondent claims, is not appropriate with respect to the actor, who is classified as a victim in the list of Political Prisoners and Tortured, prepared by the Presidential Advisory Commission for the Classification of Disappeared Detainees, Politically Executed and Victims of Political Imprisonment and Torture known as the Valech Commission, which allows determining the impairment and This is detrimental to their mental integrity by keeping on display photos and portraits of those who were part of the dictatorial government under which their human rights were violated,” he concludes.
Therefore, be it resolved that:is welcomed the recourse for protection, only as soon as the Chilean Navy is ordered to remove the portrait and photograph of José Toribio Merino Castro from the General Secretariat of the Navy and Commander-in-Chief of the First Naval Zone, within three days since the present ruling becomes final.”
