8
to have paid no heed to the objections made by [the representatives], especially in
connection with [p]rinciples X and VIII – related to the limits of the subject-matter
jurisdiction of military courts and the incorporation of military courts into the State
judicial system." Principle X, which refers to functional jurisdiction, includes a time of
war exception that enables military courts to hear cases concerning non-military
crimes. They added that the Court ordered the State to circumscribe the jurisdiction
of courts in such a manner that under no circumstances would a civilian be subjected
to the jurisdiction of military criminal courts. Hence, "any extension of the
jurisdiction of military courts - whether as an exception or not - to hear cases
concerning non-military crimes, transgresses the orders” of the Court. In relation to
principle VIII, which deals with the incorporation of military courts into the State
judicial system, they observed that “Chilean guidelines remain silent as regards the
filing of remedies with ordinary courts, given the strictly functional justification of
military courts.” The aforementioned principles do not refer to the manner in which
conflicts over jurisdiction with civilian courts are to be solved, and they include no
restriction preventing military courts from hearing cases concerning human rights
violations, and
iii)
regarding the limits of the subject-matter and personal jurisdiction of military
courts, the State, in the definition of military crime, makes no reference to the
specific perpetrator, that is to say, the military person. Hearing cases concerning
ordinary crimes and trying civilians for said crimes account for most of the actions
brought before military courts: 70% of military cases are filed against civilians and
only 25,1% against military personnel. More importantly, most cases pending before
the Juzgado Militar de Santiago [Military Court of Santiago] involve the crime of
insults against Carabineros [uniformed national police force and gendarmerie] and
the Armed Forces perpetrated by civilians. Therefore, they lamented the delay in
establishing these criminal definitions concerning behavior related to the professional
practice of the Chilean Navy, the Air Force and Carabineros [uniformed national
police force and gendarmerie]. Crimes committed by senior officers against their
military subordinates, such as degrading and inhumane treatment, constitute human
rights violations of an ordinary and non-military nature, and so they must heard by
ordinary and not by military courts. If the State applies the provisions of the Criminal
Procedural Code to military courts in a limited manner, it will create exceptions to
virtually all the judicial guarantees enshrined in the American Convention, for
example, limits on the information to be furnished to detainees, restrictions on the
public nature of oral proceedings, exceptions to the obligation to appear and testify,
control of the secrecy of the investigation and autonomous regulation of military
secrets. As regards rules that are to be applied in times of war, the State did not
furnish enough information to disprove the extension of the jurisdiction of military
courts beyond the limits set forth by international standards. Finally, as regards the
organic rules of military criminal courts that must ensure the competence,
impartiality and independence of their members, the representatives are concerned
over the fact that the State did not report on the actors and institutions that would
compose the prosecuting, jurisdictional and defense bodies of military justice.
16.
That the Commission welcomed the information furnished by the State regarding the
steps it is taking to comply with this reparation, positively valued the efforts that have been