77
ii)
all procedural steps taken against Mr. Palamara-Iribarne were
written and, therefore, all submissions were filed in writing, including the
statements of witnesses. Mr. Palamara-Iribarne’s counsel was neither
allowed to submit his defense arguments orally and directly to the court
nor to tender evidence;
iii)
as some judicial functions have been delegated, the principle of
procedural immediacy was not observed. All statements given by Mr.
Palamara-Iribarne in the proceedings were taken by a court clerk. The
Naval Prosecutor has the power to decide which documents the court will
read and which ones it will not. The orders issued by the Military
Prosecutor as a general rule are not appealable;” and
iv)
the State has reformed ordinary criminal procedures (inquisitorial)
so that oral ones (accusatory) have been adopted in criminal proceedings.
b)
Regarding the right to a hearing before an impartial judge or court (Article
8(1) of the Convention), they argued that:
i)
the State has violated Mr. Palamara’s right not to be tried by a
military court, despite his civilian status. Furthermore, “an ambiguous
and extremely broad definition regarding who has military status for the
purpose of determining who is to be tried by the military courts” is in
violation of Article 8 of the Convention;
ii)
at the time Mr. Palamara wrote his book he was a civilian “contract”
employee of the Chilean Navy. Pursuant to the domestic legislation he
had civilian status, since as of January 1, 1993 he retired as a Navy
active-duty officer. “Therefore, he could not possibly commit any crime in
which is the military status of the perpetrator is an essential element
(military criminal offenses);”
iii)
“civilian contract personnel” are not included in the military’s rank
system and perform temporary tasks in order to meet contingent
institutional requirements. Furthermore, “pursuant to Article 6 of the
Code of Military Justice they are not subject to the jurisdiction of military
courts;”
iv)
“as civilian contract personnel are not hired through the Schools of
the Armed Forces, nor are they included in their rank system, they cannot
possibly be members of the permanent personnel of the Armed Forces;”
v)
in its judgment, the Court-Martial considered that “civilian
contract employees” have military status as they belong to the Armed
Forces permanent personnel. This interpretation opposes the provisions
of Article 91 of the Political Constitution of Chile, those of Article 10 of
the Ley Orgánica Constitutional de las Fuerzas Armadas (Armed Forces
Constitutional Organic Law), and those of Article 3 of the Estatuto del
Personal de las Fuerzas Armadas (Armed Forces Personnel
Regulations);
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