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produced during the investigation will not be rendered invalid. At the end of
this procedure, the military judge, i.e. the office in charge of the military area
in question, will render judgment. There is no right to an oral and public
hearing; there is no right to defense or presumption of innocence.
Military justice is composed of individuals who are subordinated to a
hierarchical structure and are subject to an appointment and removal system.
The Court-Martial is composed of civilians and military officers. The CourtMartial hears on appeal the decisions of military prosecutors at the initial
stage and of military judges at the trial stage. The members of the CourtMartial cannot be removed from their judicial duties even if they are
removed from their positions. Judge advocates are attorneys and, in fact,
they draft judgments given that military judges are not lawyers.
The
Supreme Court has never exercised an effective control on the operation of
military powers in times of peace.
In Chile, individuals subject to proceedings before the military jurisdiction will
always spend ten to twenty days on remand custody since the law sets forth
that if the crime is punished with a certain minimum penalty, release on bail
can only be granted prior enquiry by the judge to the Court of Appeals and that
procedure takes a few days. During the first days of the investigation, judges
usually order that the individual be held on remand custody awaiting trial, not
due to actual precautionary needs but basically “to facilitate proceedings.” In
practice, the burden of proof is shifted and the presumption of innocence is
infringed. The defendant’s freedom is subject to the discretion of the
prosecutor since he may “order detention of defendant for up to five days,
without even providing reasons,” or he may order that the individual be held on
remand custody awaiting trial without providing any evidence to justify said
measure. “Release on bail” can also be granted.
“An order initiating a proceeding” does not contain much useful information for
the defense attorney and, sometimes, “[does not even contain] a thorough
description of the facts.” It contains references to the pages where the
grounds for the accusation are stated, but the attorney for defendant has no
access to the case file.
The Supreme Court has tolerated the inclusion of officers who have no relation
to the structure of the Court, to hear military cases even though the Political
Constitution does not provide that said Court may be composed by military
officers.
In Chile, there is a high percentage of civilians subject to proceedings before
military courts; though this situation has decreased during the last few years. A
person who feels damaged by a decision passed by a military prosecutor may
appeal that decision before the Court-Martial, which has a mixed composition.
Therefore, in fact, no appeal can be filed with the ordinary courts.
As that the military justice was excluded from the procedural reform, it is
difficult for the Supreme Court to overcome reluctance to review and
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