9
reform to Military Justice must be more ample than the one presented today […]”,
and that therefore “[…] in an administrative act parallel to the sending of this bill,
[we created] through a Supreme Decree of the Ministry of National Defense the
Commission that will study [up to] the end of 2007, the comprehensive reform
proposal of Military Justice that [the President of the Republic] [will] send to the
National Congress during 2008.”
c) on October 17, 2007 the inaugural session of the Commission for the Study of
the Reform to Military Justice, whose mission is to achieve, in stages, the
comprehensive reform to the Code of Military Justice, was held at the National
Congress. The State informed that the bill presented by the Executive Power in
the month of July 2007 was the first of said Commission’s four work stages. The
second stage refers to the adjustment of internal legislation to international
norms in aspects such as forbidden armaments, crimes against humanity, norms
of international humanitarian law, etc.; the third stage will refer to the military
procedural reform “[…] trying to achieve the establishment of the due process;”
finally the fourth stage will cover the substantive military criminal law, through
the adjustment of the military criminal definitions. The State enclosed the Speech
of the Ministry of National Defense given in the inaugural session of said
Commission and a presentation of the Sub-Secretary of the Army before the
Constitution, Legislation, Justice, and Regulations Commission of the Senate,
where the information on the work stages to cover the different aspects related to
the reform to military justice are presented in detail.
28.
That regarding these operative paragraphs the representatives expressed that:
a) the State “has started actions that seek to comply with the operative
paragraphs regarding the obligation to adjust the domestic juridical ordinance to
international standards on military criminal jurisdiction, limiting the latter only to
hearing of crimes of duty committed by soldiers in active service.” However, they
stated that “understanding that these measures will require a technical and
gradual study that must be carried out in a reasonable period of time-, [they]
consider that the measures adopted by the State in order to comply with this
operative paragraph are insufficient. The mere creation of the inter-ministerial
commission a year after the judgment [was issued], is a lukewarm sign that does
not reflect the need and importance of adjusting the military criminal justice to
international standards. Besides, this is evident in the seriousness of the fact
[of…] a recent decision of the Constitutional Court of Chile, through which this
Tribunal has ruled that the crime of disobedience of military duties as defined in
the Code of Military Justice is constitutional.”
b) the bill sent by the Executive Power to the National Congress in July 2007 “[…]
does not adjust to international standards or to the requirements of the
international judgment whose compliance is being supervised.” Among other
reasons the representatives expressed that:
i) even though the reform establishes the general principle that Military
Tribunals will have jurisdiction “regarding soldiers” and to “prosecute all
matters of the military jurisdiction that may arise within the national
territory,” the principle is subject to so many exceptions, and of such a
nature, that the modification results in a matter of very little practical
effect;
ii) one of these exceptions results in leaving the competence of military
jurisdiction regarding acts committed by carabineros against civilians