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which he was not allowed to do;”
v)
nor was he allowed to exercise his right to defense at the trial, as
the Naval Court dismissed the evidentiary measures requested by Mr.
Palamara’s defense counsel in the proceedings started for the criminal
offenses of disobedience and breach of military duties; and
vi)
the State violated the principle of procedural immediacy, since at
the trial the Naval Judge merely read the record of the case.
e)
Regarding the right to forward and contest evidence (Article 8(2)(f) of the
Convention), the representatives argued that:
i)
it is a fundamental tenet of the right to defense and due process;
and
ii)
in the judicial proceedings brought against Mr. Palamara, he was
neither allowed to exercise his right to forward evidence and contest it,
nor to cross-examine the witnesses who gave testimony in the
proceedings. Pursuant to the Code of Military Justice, at the investigation
proceedings the accused is not allowed to be present while witnesses
give testimony. When Mr. Palamara requested that some witnesses be
summoned to give testimony at the trial, his request was dismissed by
the Naval Prosecutor. At the trial no further statements of witnesses
were submitted, whereby Mr. Palamara was not able to cross-examine
the witnesses who had given testimony at both stages of the
proceedings.
f)
Regarding the right not to be compelled to be a witness against himself
(Article 8(2)(g) of the Convention), the representatives argued that:
i)
Mr. Palamara was not informed that he was entitled to remain
silent. Nor was he informed that he was entitled not to plead guilty, as
that is a right which is not contemplated in the Code of Military Justice.
The procedure through which such guarantee is sought to be met is by
resorting to the formula of “urging the accused to tell the truth,” that is,
assuming that the accused is not forced to incriminate himself for the
mere fact that he is not required to give his statement under oath. The
“only advantage [… is that] the accused cannot commit the crime of
perjury;”
ii)
the Code of Military Justice considers the statement as a means to
obtain a confession rather than as a means of defense; and
iii)
article 8(2)(g) of the Convention has been violated to the detriment
of Mr. Palamara “as he was compelled to make a statement in the
proceedings started against him.”
g)
Regarding the provision that sets forth that criminal proceedings shall be
public (Article 8(5) of the Convention), the representatives argued that:
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