79
v)
“as it is recognized by almost all national text writers, military
criminal procedures in peacetime are similar to ordinary inquisitorial
criminal procedures. Such procedures in Chile have been reformed as a
result of their incompatibility with the guarantees of due process as
enshrined by the American Convention;”
vi)
in the proceedings brought against Mr. Palamara for the criminal
offense of contempt of authority, several prosecutors took part who did
not have the required independence as they were “lay Prosecutors”
(fiscales no letrados).” Prosecutors who conduct the preliminary
investigations in the cases under the naval jurisdiction are known as
naval prosecutors and are appointed by the President of the Republic,
while “lay Prosecutors” (fiscales no letrados) are appointed by the
pertinent Commander-in-Chief, among subordinate naval officers when a
Prosecutor must be replaced; and
vii) the structure and organization of the Chilean military justice affects
the independence and impartiality of officials, thus breaching not only
Article 8(1) of the Convention, but also the right of every person to
judicial protection pursuant to the provisions of Article 25 thereof, “as the
State does not grant an effective domestic remedy for the defense of the
rights of those who have been subjected to judicial proceedings.”
d)
Regarding the right to defense (Article 8(2)(d) of the Convention), the
representatives argued that:
i)
the provisions of the Code of Military Justice -which sets forth a
number of limitations which unduly restrict the right to defense- were
applied in the proceedings brought against Mr. Palamara. The
participation of the defense counsel at the investigation stage is minimal
and it is the naval prosecutor who has the control of the proceedings and
takes all evidentiary procedures at this stage. As these are written, trial
becomes a mere repetition of what was done during the investigation
proceedings, which are not public, though they are the most relevant
stage regarding the evidence.
ii)
the violation of the right to defense is a problem inherent to the
structure of military criminal procedures, which are based on the military
criminal legislation in force in Chile;
iii)
the weakness of the defense is evident in the indictment. The
drafting of the writ of indictment, added to the confidentiality of the
investigation proceedings, prevent having access to the information about
the merits of the investigation and the charges;
iv)
“given the importance of the investigation stage of the proceedings
and the infringement of rights that takes place during this stage, a person
must have all the judicial guarantees recognized by the Convention.”
Therefore, Mr. Palamara “should have been in a position to challenge the
evidence gathered against him by the Naval Prosecutor at that time,
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