Consequently, it mentioned the possible reform of this offense, which, nevertheless,
remains in force. In this regard, the Court recalls that the judgment in this case established
that the ambiguity and inadequate delimitation of the unlawful conduct established in article
264 of the Criminal Code, “could lead to expansive interpretations that would permit
conduct previously considered as disrespect for authority to be punished unduly under the
offense of threats.”7 Thus, on that occasion, the Court found that, if Chile wished to retain
this law, it should “specify the type of threat in question.”8
13.
In addition, the Court finds it pertinent to recall that in its orders of November 30,
2007, and September 21, 2009, it asked the State to provide information on the stages,
time frames, and content of the reform proposals aimed at complying with this operative
paragraph of the judgment. Although the Court assesses positively the State’s initiatives
designed to repeal article 284 of the Code of Military Justice and to amend or, if
appropriate, repeal article 264 of the Criminal Code, it must also emphasize the fact that,
almost six years after the judgment in this case was delivered, the State has not reported
any substantial progress in complying with this measure of reparation. Based on the
foregoing, in its next report, Chile must submit clear, detailed, and updated information on
the steps taken to adapt its domestic law to international standards on freedom of
expression, in relation to the said offenses of disrespect for authority and threats.
b) Regarding the obligation to adapt domestic law to international standards with
regard to the military criminal jurisdiction and to establish, by law, limits on the
jurisdiction over persons and subject matter of military courts, and the obligation
to guarantee due process in the military criminal jurisdiction and judicial
protection with regard to the actions of the military authorities (operative
paragraphs 14 and 15 of the judgment)
14.
In its brief of October 2009, the State indicated that the legislative strategy to reform
its military justice system was based on the separation of subject matters and the definition
of stages. Therefore, it had been decided to send three bills to the National Congress that
would “amend and repeal several norms of the [Code of Military Justice]” relating to: (a) the
jurisdiction and competence of military tribunals, and their proceedings; (b) military
offenses and their punishments, and (c) the creation and regulation of the powers of
military courts and military prosecutors, which would only enter into force when the last of
the said bills was implemented. Regarding these bills and other measures taken, Chile
advised, inter alia, that:
a) On October 13, 2009, a bill on military offenses and their punishments was
introduced into the Chamber of Representatives, as bill No. 6734-02; it established,
inter alia, the definition of the unlawful acts that correspond to the military courts.
The bill proposed, among other matters, “a definition of a military offense that is a
very different from the present regulations in the [Code of Military Justice].” The bill
also “restricts […] the jurisdictional scope of military courts to conducts that violate
rights that must be protected for the effective functioning of the Chilean Armed
Forces and Police Force.” In addition, it establishes other restrictions, such as “the
definition of military offenses, where the perpetrator must always be a member of
the military […],” a necessary condition when a military offense is committed;
7
Case of Palamara Iribarne v. Chile. Merits, reparations and costs. Judgment of the Inter-American Court of
Human Rights of November 22, 2005. Series C No. 135, para. 92.
8
Case of Palamara Iribarne v. Chile, supra note 7, para. 92.
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