7
v) as regards the procedural aspects of the reform, full consensus has been reached
on the application of the system of the 2000 Criminal Procedural Code to military
criminal courts. However, “some modifications have been introduced with regard to
ordinary criminal proceedings" which are "aimed at ensuring the confidentiality or
secrecy of certain background information and documents that, if disclosed,
communicated or made known, could affect the security of the Nation,” pursuant to
the international standards established by the Court for Chile in the Case of Claude
Reyes. The possibility of jurisdictional control is nevertheless admitted, in order to
protect the right to legal defense and not to undermine the condition of the accused
in the criminal proceedings, in such a manner that “the prosecuting body will have
controlled access to said information, enabling the courts to have the final say as to
whether said incriminating elements may be made available during the criminal
investigation." Regarding the creation of a military criminal system of an adversarial
nature, “it involves not only replacing the procedure inherent in the inquisitorial
system that is currently in force in the military justice, but also modifying the very
manner in which the State administers justice in military courts.” Likewise, work has
been done on sections that depend on and supplement the Criminal Procedural Code
“that is in force for all other Chilean citizens”, but that restrict the application of
certain rules of the Criminal Procedural Code, establish the rules that can be applied
under certain conditions or with certain amendments and include several rules which
are applicable in times of war, and
vi) a work schedule was prepared with a view to complying with the international
obligations that are pending compliance and that “[o]nce all stages are completed
[…], the Executive Power will introduce the bill/s dealing with the reform of military
criminal justice […]. Once introduced, the debate and legislative processing stage will
take place, during which the National will have to decide on the final content of the
law. Introduction of the bill is expected to occur in the second half [of 2009]."
Nonetheless, passing the bill depends on a stage of publication and discussion with
the civil society and on a technical and financial feasibility study.
15.
That in relation to what the State informed regarding said operative paragraphs, the
representatives observed that:
i) “the deadline for completing the work of the CERJM expired in December 2008,
without the State having submitted, to date, any bill to bring its domestic legal
system in line with the provisions of the Judgment. Although it pledged to finish
preparing the bill, in its latest submissions Chile “reports, again, on the work done by
the CERJM and refers to a new work schedule, according to which the State
apparently pledges to comply with the orders of the [...] Court." Hence, they
lamented the fact that the State does not have a bill yet, despite the different
deadlines it has fixed and failed to observe during the instant proceedings of
compliance with the Judgment. They noted that the political context of presidential
elections should not be invoked as yet another justification to delay compliance with
the orders of the Court;
ii)
regarding the principles, as they have held before the Court on previous
occasions, they enshrine guidelines of a very general and basic nature on which the
reform of Chilean military criminal justice is to be based. Likewise, “the State seems