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and there have been bills that are “extremely restrictive of freedom of
expression.” To adapt Chilean legislation to international standards, in addition
to the abrogation of the crime of contempt of authority, it is necessary to
reduce the standard of protection of public officers “when so required in the
public interest.” The consequences of the recognition of contempt of authority
as a crime are the criminal penalty, on the one hand, and “the disqualification
of open and fierce criticism” towards authorities in active public duty, on the
other hand.
The crime of contempt of authority punishes the delivery and release of
speeches that are part of the democratic dialogue and the scrutiny that citizens
should perform; thus “sacralizing institutions” and rendering them immune to
criticism by the community.
Moreover, Section 89 of the Ordinance of the Chilean Navy restricts the
exercise of freedom of expression by the members of the Armed Forces.
Publication of a book by a civil servant does not “fall, strictly speaking,” under
the cases listed in that section, which should be interpreted restrictively since
“a book […] should be considered a distinctive artistic or intellectual work,
different from those expressly listed in that rule.”
2.
Alex Avsolomovich-Callejas, lawyer
The Constitution, the laws and regulations of Chile do not allow for a civil
servant hired as contractor to be considered a military officer, “therefore, they
cannot be held responsible for crimes that can only be committed by military
officers.” Only “those individuals whose status is contemplated in the rank or
personnel structure of the Armed Forces,” as specified in applicable rank
provisions, “can be considered military officers.” Said laws “take into account
the number of individuals composing each […] rank within the various branches
of the Armed Forces,” who compose its “permanent personnel.” The status of
“civil servants hired as contractors” is not contemplated in rank regulations, are
not part of the hierarchical structure, and are renewed on an annual basis, and
those holding said status are not considered personnel of the Armed Forces.
Section 91 of the Political Constitution of Chile sets forth that, as a general
rule, “admission to the rank or personnel system of the Armed Forces” must be
channeled through “the official troop schools.” An exception to said
Constitutional provision relates to “the professionals and ‘civil servants’ ranks
specified by law,” to avoid increasing the personnel structure through
regulations.
It would be absurd to extend the scope of Section 6 of the Code of Military
Justice and thus hold “any person joining a division of the Armed Forces” as a
military officer.
Section 10 of Constitutional Organic Law No. 18,948 of the Armed Forces,
among others, sets forth that “the staff of the Armed Forces is composed of
officers, permanent personnel and seafarers, and civil servants (excluding civil
servants hired as contractors).” Moreover, Section 3 sets forth that those hired
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