94
179. The above-mentioned restrictions imposed on Mr. Palamara-Iribarne and his
defense counsel in Case No. 464 regarding the criminal offenses of disobedience and
breach of military duties and in Case No. 471 regarding the criminal offense of
contempt of authority, both brought before the Naval Court of Magallanes, violated
the guarantees inherent to the right to defense, as well as the right to obtain the
appearance, as witnesses, of experts or other persons who may throw light on the
facts, as enshrined in Article 8(2)(f) of the Convention.205
180. Furthermore, the Court must highlight that during both military criminal
proceedings Mr. Palamara-Iribarne made a statement before the Prosecutor on
several occasions. Regarding such statements the Court will make two observations.
On the one hand, on neither occasion did Mr. Palamara-Iribarne give testimony
before a competent, impartial, and independent judge or court, which is in violation
of Article 8(1) of the Convention. On the other hand, the various summonses served
on the accused did neither state the reason why he was requested to appear nor the
subject on which he was requested to give testimony. Nor was he informed that he
was entitled not to be a witness against himself. Due to the structure inherent to
military criminal proceedings and the resulting lack of impartiality, the Naval
Prosecutor cannot be put on an equal footing with the judge who guarantees the
right to a hearing. Therefore, the State has violated Article 8(1) and 8(2)(g) of the
Convention, to the detriment of Mr. Palamara-Iribarne.
181. In view of the foregoing considerations, the Court concludes that the State has
violated Article 8 of the Convention in relation to subparagraphs (1), (5), (2)(c), (2)(d),
(2)(f) and (2)(g), to the detriment of Mr. Humberto Antonio Palamara-Iribarne, and has
failed to fulfill the general duty to respect and guarantee the rights and freedoms
enshrined in Article 1(1) of the Convention. Furthermore, as its domestic legal system
contains provisions which oppose the guarantees of due process protected by the
above-mentioned subparagraphs of Article 8 of the Convention and which are still in full
force and effect, the State of Chile has failed to comply with the general duty to adopt
domestic measures as set forth in Article 2 of the Convention. Furthermore, as the
Chilean domestic legislation contains provisions which oppose the right to a hearing by
a competent court as provided in Article 8(1) of the Convention and which are still in
full force and effect, the State of Chile has failed to comply with the general duty to
adopt domestic measures as set forth in Article 2 of the Convention.
*
*
d)
*
The right to judicial protection
182. Article 25 of the Convention provides that:
1.
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution or
205
Cf. Case of Lori Berenson-Mejía, supra note 191, para. 185; Case of Ricardo Canese, supra note
172, para. 166; and Case of Castillo Petruzzi et al., supra note 192, para. 155 .
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