91
164. All bodies which exercise functions which are materially jurisdictional have the
duty to adopt fair decisions based on the full respect for the guarantees of due
process as enshrined in Article 8 of the American Convention.199
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165. Besides the problems arising from the broad jurisdiction of military criminal
justice in Chile to try civilians and from the lack of impartiality and independence of
its courts, which is typical of their structure and composition, the Court shall analyze
whether the guarantees of publicity of the proceedings and those related to the right
to defense of the accused as enshrined in Article 8 of the Convention were respected
in the military criminal proceedings brought against Mr. Palamara-Iribarne.
166. To that end, the Court will bear in mind that one of the main requirements to
be met during their substantiation of criminal proceedings is their publicity. The right
to have a public trial is protected by various international instruments as an essential
element of judicial guarantees.200 Article 8(5) of the American Convention sets forth
that “criminal proceedings shall be public, except insofar as may be necessary to
protect the interests of justice.”
167. The right to a public trial as enshrined in Article 8(5) of the Convention is an
essential element of accusatory criminal procedural systems in democratic States
and is guaranteed by the oral stage of the proceedings, which is governed by the
immediacy principle whereby the accused may have immediacy with both the judge
and the evidence, and which facilitates access to the proceedings by the public.201
168. The publicity of criminal proceedings aims at preventing the administration of
secret justice, submitting it to the careful examination of the parties and the public,
and is related to the requirements of transparency and impartiality of the decisions
which are to be taken. Furthermore, it is a means for promoting confidence in courts
of law.202 Publicity specifically refers to the access to the information the parties to
199
Cf. Case of YATAMA, supra note 5, para. 149; Case of Ivcher-Bronstein, supra note 173, para.
104; and Case of the Constitutional Court, supra note 197, para. 71.
200
Cf. Articles 10 and 11(1) of the Universal Declaration of Human Rights; Article 14(1) of the
International Covenant on Civil and Political Rights; Article 6(1) of the European Convention on Human
Rights; Article 21(2) of the Statute of the International Criminal Tribunal for the Former Yugoslavia;
Article 20(2) of the Statute of the Criminal Tribunal for Rwanda; and Articles 67(1) and 64(7) of the Rome
Statute of the International Criminal Court.
201
Cf. Case of Lori Berenson, supra note 191, paras. 198-200; Case of Cantoral-Benavides. Judgment
of August 18, 2000. Series C No. 69, paras. 146 and 147; and Case of Castillo-Petruzzi et al, supra note
192, para. 172.
202
Cf. Osinger v. Austria, No. 54645/00, § 44, March 24, 2005; Riepan v. Austria, No. 35115/97, §
40, ECHR 2000-XII; and Tierce and Others v. San Marino, No. 24954/94, 24971/94, and 24972/94, § 88,
ECHR 2000-IX.
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