84
it has further alleged that civilian contract employees have military status. The
authorities who exercised the criminal jurisdiction in the trial of Mr. PalamaraIribarne, based on the interpretation of various provisions, understood that as a
civilian contract employee he should be deemed to have military status and thus be
subjected to the jurisdiction of military criminal courts (supra para. 63(70)).
128. As it has been proven, Mr. Palamara-Iribarne joined the Chilean Navy in 1972
and retired from the Navy as an active-duty officer on January 1, 1993 (supra para.
63(1)). In a previous case, the Court considered that a person having military status
and having filed an application for retirement from active duty could not be tried by
the military courts.193 In the instant case, it is also taken into consideration that, as it
results from the body of evidence, civilian contract employees are not included in the
military’s rank system, work in contingent areas which are under an annual renewal
system, do not hold positions which are described in the personnel regulations, are
not members of the permanent personnel, can be foreign, and have their contracts
for services extended annually. Furthermore, civilian contract employees perform
“temporary tasks” according to the institutional requirements, whereby they should
be subject to the sanctions provided for in labor legislation rather than in criminal
military laws.
129. In Chile Article 5 of the Code of Military Justice sets forth, inter alia, that it is
incumbent upon the military courts to hear the cases started for criminal offenses
included in said Code, except for those crimes which can be classified as military
criminal offenses committed by civilians as provided for in Articles 284 and 417 of
said Code which, inter alia, contemplate the criminal offense of contempt of
authority, and set forth that the proceedings brought for the commission of such
offenses must be heard by ordinary courts.
130. The above-mentioned Article 5 of said Code provides that civilians may be tried
by military courts in different cases, that military members may be tried by military
courts for the commission of ordinary crimes “committed […] in the course of their
military duties or as a result thereof […] or in military areas […] or facilities or offices
of the Armed Forces,” and that both may be tried for criminal offenses which are not
even described in the Code of Military Justice itself, as it recognizes the jurisdiction
of military courts over “those cases which, pursuant to special laws, are referred
there[to].”
131. Regarding the jurisdiction and proceedings brought for the criminal offense of
contempt of authority as described in the Criminal Code which was applied in the
case of Mr. Palamara-Iribarne, Article 26 of the Ley sobre Seguridad del Estado
(State Security Law) sets forth that the proceedings brought for such criminal
offense are to be heard in first instance by the appropriate Military Court, and on
appeals by the Court-Martial, where such offenses have been committed by persons
subject to the military jurisdiction or jointly by military members and civilians.
132. The Court considers that the provisions which define military criminal
jurisdiction in Chile do not restrict trials by military courts to criminal offenses which
193
Cf. Case of Cesti-Hurtado. Judgment of September 29, 1999. Series C No. 56, para. 151.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos