12. In its response, the State argues that domestic remedies were not exhausted with respect
to the facts alleged. As for case No. 464 for disobedience of military duties, it asserts that the
ruling of the Naval Judge of Magallanes is still pending, and that accordingly the facts
addressed therein cannot be admissible before the IACHR. And as for case No. 471 for
desacato, the State asserts that Mr. Palamara Iribarne’s defense had available to it the
remedies of inapplicability and cassation, as to procedural issues and the merits. It indicates
that those remedies are effective and suitable for remedying the situation that is the subject of
the complaint, but that Mr. Palamara Iribarne’s defense counsel did not pursue them. In
contrast, it argues that the complaint appeal (recurso de queja), which was filed, is merely
disciplinary and so is not effective or suitable.
13. The Chilean State argues, with regard to the merits issues in the complaint, that there was
no violation of the freedom of expression to the detriment of Mr. Palamara Iribarne. It alleges
in this regard that the right to freedom of expression is limited by respect for the rights or
reputation of others, thus it argues that Mr. Palamara Iribarne violated the right of persons to
respect for their honor and to recognition of their dignity.3
14. The State further argues that, pursuant to the provisions of the Ordinance of the Chilean
Navy, one must have prior authorization granted by the competent naval authority. Even
though that authorization was denied, Mr. Palamara Iribarne sought to continue with the
publication of his book. The Chilean State asserts that Mr. Palamara Iribarne was under the
system for providing services to the Navy as part of the “civilian contract personnel,” which
gave him military status, and that he was subject to the discipline and duties and obligations
particular to the Navy. The State notes that in the judgment of August 5, 1997, which decided
the motion for cassation on the merits (case No. 471 for disobedience of military duties), the
Supreme Court of Chile established that Mr. Palamara Iribarne had military status as a
“contract employee” of the Navy.
15. The State argues that Mr. Palamara Iribarne exercised his right to defense, as the
indictment against him was communicated to him previously and in detail, and he was assisted
by defense counsel of his own choosing. According to the State, this impedes him from arguing
impartiality of the courts based on the argument that the trial was not public. The State further
notes in this regard that the Supreme Court may include a member of the military to hear
matters that come to it from the military jurisdiction, and that this does not constitute a
violation of the guarantee of equality before the law.
16. In summary, the State argues that it did not violate any of Mr. Palamara Iribarne’s human
rights, and that, in any event, domestic remedies were not exhausted. In view of all of the
foregoing, the State asks that the Inter-American Commission reject the petition.
IV.

ANALYSIS

A.

Competence ratione personae, ratione materiae, ratione temporisand ratione
loci of the Inter-American Commission

3

The Chilean State makes reference to the “Report on the Compatibility of Desacato Laws with the American
Convention on Human Rights,” published by the IACHR in Chapter V of its Annual Report for 1994. In this regard, the
Chilean State states as follows: The authority in respect of which the contempt was displayed--the Naval Prosecutor of
Magallanes--was slandered regarding the performance of his judicial duties and by reason of his position, as he was
accused of supposed falsification, and of disrespect for the truth in a judicial proceeding before him. Accordingly, the
legal grounds and reasoning set forth in the above-noted Report by the Commission are not applicable, since Mr.
Palamara engaged in the criminal conduct defined at Article 264 of the Criminal Code. Communication from the State
of July 3, 1996. In the same communication, the State argues that the desacatoprovision in the Chilean Criminal Code
“has as its purpose the protection of public employees when their reputation is gravely affected,” as in the case of Mr.
Palamara and his accusations with respect to the Office of the Naval Prosecutor. The Chilean State explains that the
situation would be different if Mr. Palamara “had limited himself to formulating critical assessments ... in the
framework of due respect.”
3

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