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iii) the first stage of said process, that included the establishment of twenty-seven
principles setting forth the action framework that all modifications to military criminal
justice – introduced pursuant to international standards- had to respect, has already
been completed. The first six principles incorporate International Humanitarian Law
rules and the following five principles establish the organic structure of the military
criminal jurisdiction system, incorporating military courts into the Judicial Power of
the State. The CERJM agreed to apply rules of regular criminal proceedings to
military criminal courts, taking into account the particular and specific nature of the
military. Principles twelve to twenty refer to different guarantees of due process:
public, oral and previous proceedings, in which documents or background
information which, due to their seriousness, may affect the defense of national
security, are kept secret and confidential; prohibition against multiple criminal
prosecution; presumption of innocence; prohibition against compelling a person to be
a witness against himself/herself and right to remain silent; legality of measures
depriving a person of or limiting his/her freedom; the in dubio pro reo principle; the
habeas corpus guarantee, and the independence of military courts. Principles twentyone to twenty-six establish the formal and material safeguards to be taken into
account in the definition and application of conduct considered criminal by the
military, such as the nullum crimen nulla poena sine lege praevia principle, the
freedom from ex post facto military criminal laws principle, the injuriousness
principle, the principle of proportionality between sentence and guilt, and the
prohibition against analogy. It pointed out that the CERJM has established that
‘military courts, in light of their special jurisdiction, have authority to hear cases
involving military crimes committed by military personnel’, and that ‘only under
certain circumstances that are extremely grave and particularly sensitive in relation
to the maintenance of order, hierarchy and discipline, will these courts have
jurisdiction to hear cases concerning certain ordinary crimes […] in times of war or
crisis”;
iv) likewise, work has been done to prepare a draft reform bill intended to amend
applicable military law, readapting criminal and criminal procedural rules and the
organic institutional design, as well as that of the operators of the system. Among
other changes, the bill includes a list of definitions that modify concepts like ‘times of
war’, excluding the notion of ‘domestic security” from its meaning and it eliminates
expressions such as 'state of siege', which made it possible to classify situations of
domestic commotion as war. Likewise, it includes more accurate definitions of
concepts like 'order', thus clarifying a fundamental notion for Military Criminal Law
and prohibiting compliance with any command that outrages personal dignity or
whose compliance may entail committing a crime. The bill also puts forward the
abolition of capital punishment and the establishment of aggravated life
imprisonment in a military prison as the maximum applicable sentence for
committing a military crime. The proposed classification of military crimes involves
four categories: insubordination crimes, including rioting, disobedience or insulting
seniors; war duty crimes, which presuppose the occurrence of the conduct in times
of war; crimes concerning senior officers' duties, including usurpation or dishonoring
juniors; and crimes related to the duty to provide military service. Regarding the
crimes, it added that “[a]ll definitions identify a specific perpetrator –the military
person-, so that there exists no ambiguity as to [who] must comply with these
criminally protected duties;”