Chile in order to evaluate whether the requirement provided for in Article 46(1)(a) of the American Convention has been met. To do so, a determination must be made as to whether domestic remedies in Chile were exhausted when the Supreme Court of Chile dismissed the complaint appeal (recurso de queja) filed by the petitioners in that case, or whether, to the contrary, they should have pursued the remedies of inapplicability and cassation, as indicated by the Chilean State. 23. The above-mentioned case No. 471 was initiated in the wake of statements made by Mr. Palamara Iribarne in a press conference, when he criticized the performance of the Office of the Naval Prosecutor in case No. 464, in which he was accused of disobedience of military duties.7 On May 25, 1993, the Commander of the Third Naval Zone, who also served as Naval Judge of Magallanes, filed a complaint for desacato against Mr. Palamara Iribarne before the Court of Appeals of Punta Arenas, based on Articles 264 and 266 of Chile’s Criminal Code. On June 14, 1993, said Court of Appeals declared that it did not have jurisdiction to hear the case, and removed it to the military jurisdiction--the same Naval Judge of Magallanes—where it was assigned case No. 471. 24. On September 7, 1994, the Naval Court of Magallanes handed down a judgment absolving Mr. Palamara Iribarne, considering that the essential element ofdesacato was not present, as its declarations were directed against the Office of the Naval Prosecutor, not against the person of the Naval Prosecutor nor against any other particular person. Although that judgment was not appealed, the Military Court of Valparaíso asserted jurisdiction over the case through the mechanism of consultation, and in its judgment of January 3, 1995, it decided to reverse the judgment of first instance, and to find Mr. Palamara guilty of desacato. The penalty consisted of 61 days of “minor prison sentence, in its minimal degree, fine of 11 basic salaries (sueldos vitales), and suspension from any public post or office during the time of the sentence.” 25. On January 9, 1995, Mr. Palamara Iribarne’s defense counsel went before the Supreme Court of Chile to file a complaint appeal (recurso de queja) against the judges of the military court that convicted him. The Supreme Court dismissed the complaint appeal on July 20, 1995, with which the conviction by the Military Court of Valparaíso became a final judgment. The petitioners allege that the judgment that rejected the complaint appeal was not appealable; the Chilean State did not controvert this. 26. Referring to the remedy of inapplicability of the law, the petitioners state that “it has not been capable, historically, of producing the results for [which] it was conceived, i.e. protection of the rights of persons vis-à-vis the unconstitutionality of legal rules,” and they support this assertion with official statistics. 8They also allege that the motion of cassation on procedural grounds is not suitable or effective for the case of Mr. Palamara Iribarne, as it only gave the Supreme Court competence to rule on procedural irregularities; they also provided official statistics in support of their argument.9 As for the remedy of cassation on the merits, they argue similarly that it was not necessary to pursue it, since the complaint appeal filed gave the 7 The petitioners report that the daily “La Prensa Austral” of Punta Arenas, in its edition of May 7, 1993, reproduced the following statements made by Mr. Palamara Iribarne at the press conference: There are reasons to believe that the Office of the Naval Prosecutor adulterated legal documents and lied to the Court of Appeals when asked who made the complaint that began the preliminary criminal proceedings and as to the roll number of the criminal proceeding with which the investigation was begun, all to avoid an unfavorable judgment. Communication from the petitioners of January 12, 1996, p. 4. 8 Communication from the petitioners of September 13, 1996, p. 5. Therein, the petitioners cite official statistics according to which from 1985 to 1989 “of a total of 90 motions filed, only six were ruled favorably upon by the Supreme Court, while 48 were rejected, 12 were declared inadmissible, and another 24 were terminated by abandonment or archived.” 9 The petitioners state that “of a total of 1,779 motions [of cassation on procedural grounds] filed from 1985 to 1989 (in civil and criminal cases), only 110 were met with favorable rulings, 938 were declared inadmissible, and another 310 were abandoned, archived, or declared lapsed.” They explain that “approximately 6% of the total number of cassation motions heard by the Supreme Court are ruled upon favorably, while approximately 53% are declared inadmissible for failure to meet formal requirements and 23% are rejected for failing to comply with substantive requirements.” Id., p. 7. 5

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