81
i)
criminal proceedings must be public, that is, not only must the
accused have access to the proceedings, but also society as a whole must
have the possibility to see how the punitive power of the State is
exercised; and
ii)
criminal judicial proceedings heard by military courts are not public;
instead, they consist of written procedures to which citizens have no
access. Furthermore, the investigation proceedings are not public. Even if
the record of the case were available to anyone, this would not make the
entire criminal proceedings public. Publicity of the proceedings should
comprise each procedural stage thereof. None of these requirements
were met in the proceedings brought against Mr. Palamara.
h)
Regarding the violation of Article 8 of the American Convention in relation
to Articles 1 and 2 thereof, the representatives argued that:
i)
the State has violated Articles 1 and 2 of the Convention as a result
of its failure to fulfill the duties to “respect” and “ensure” the free and full
exercise of all the rights and freedoms protected by the Convention, and
to adopt such domestic measures as may be necessary to enforce such
rights and freedoms; and
ii)
the State is responsible for these violations “as it has failed to adopt
effective judicial, legislative, and executive measures in order to legally
ensure the free and full exercise of human rights.”
119. Arguments of the State:188
a)
Regarding the alleged violations of the right to be tried by an impartial
judge or court (Article 8(1) of the Convention), the State argued that Mr.
Palamara-Iribarne held office as Deputy Chief of the Intelligence Department of
the Third Naval Zone before being hired by the Navy as a contract civilian
employee. Mr. Palamara-Iribarne was hired to perform the same duties as the
Deputy Chief of the Intelligence Department of the Third Naval Zone, “thus
being a member of the permanent personnel thereof.” The process of
retirement from the Navy as an active-duty officer concluded “after the facts
which gave rise to the above-mentioned judicial proceedings;”
b)
Article 6 of the Code of Military Justice provides that “any person who is
under the regulations for the permanent personnel of the Army, Navy […] shall be
deemed to have military status.” To the purpose of establishing whether the
perpetrator of a criminal offense has military status or not, this general
interpretative provision of the concept of “military” shall apply;
c)
188
Articles 5(3) and 7 of the Code of Military Justice address the military
The State did not submit any independent arguments to refer specifically to the alleged violation
of Article 8 of the Convention.
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