96
impaired his rights were ruled on by military courts that did not meet the impartiality
and independent safeguards and were not the competent tribunal previously
established by law and, therefore, the State violated his rights to simple and prompt
recourse or to any other effective remedy before a competent court or tribunal.
186. This situation was further aggravated by the fact that the Code of Military
Justice only allows appeals to be taken from very few of the rulings that are handed
down by the military criminal court authorities and affect the fundamental rights of
the defendants. Accordingly, Mr. Palamara-Iribarne was not able to lodge remedies
against certain adverse decisions issued by the military criminal court authorities,
such as the denial of access to the court records, as such decision was not open to
appeal (supra paras. 63(46) and 63(47)).
187. The Court takes due note of the fact that Article 20 of the Constitution of Chile
establishes the remedy of protection to safeguard the fundamental rights of persons
before the regular courts. In this case, however, it has been established that the
remedy pursued by Mr. Palamara-Iribarne’s wife for his and his family’s benefit
(supra para. 63(36)) to protect the constitutional guarantees to mental integrity, the
right to engage in any business activity, the right to property and copyrights was
neither adequate nor effective to protect the rights of Mr. Palamara-Iribarne, as the
Court of Appeals of Punta Arenas did, without even analyzing whether the alleged
violations of said fundamental rights had actually taken place, hold that the military
courts had jurisdiction in the matter and, accordingly, it could not rule on the
subject. Therefore, the State failed to ensure “that any person claiming such remedy
[would] have his rights determined by the competent authority provided for by the
legal system of the State.”
188. The right to fair trial is not exhausted by the processing of domestic
proceedings; it must also ensure, within a reasonable term, the right of the
alleged victim to secure judicial supervision to determine whether the decisions of
the military authorities were in fact made in conformity with the basic rights and
guarantees provided for in the American Convention, as well as those established
under Chile’s own domestic laws,210 which is not incompatible with a respect for
the inherent duties of the military authorities. Such supervision is essential when
the bodies exercising military jurisdiction, such as the Naval Court, exercise
powers that affect fundamental rights and which, without adequate supervision,
may lead to arbitrary rulings.
189. Accordingly, it is the Court’s view that the State has violated Article 25 of the
American Convention to the detriment of Mr. Palamara-Iribarne, as it failed to
guarantee his right to have access to effective judicial remedies that would protect
him from violations of his rights, and that it has failed to fulfill its general obligation
to respect and ensure the exercise of rights and freedoms provided for in Article 1(1)
of the Convention. Furthermore, considering that Chile’s domestic legal system
contains provisions which are in conflict with the right to be tried by a competent,
independent and impartial court or tribunal and are still in force, Chile has failed to
210
Cf. Case of the “Mapiripán Massacre” supra note 1, para. 216; Case of the Serrano-Cruz Sisters,
supra note 5, para. 66; and Case of 19 Tradesmen, supra note 195, para. 188.
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