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due to the nature of the military criminal legal interests protected are strictly military
and constitute serious offenses committed by military members who endanger such
legal interests. The Court highlights that such criminal offenses can only be
committed by military members during the performance of specific duties related to
the defense and external security of a State. In democratic States the jurisdiction of
military criminal courts in peacetime has tended to be restricted, if not to disappear,
whereby, where it has not, it should be reduced to the minimum and be inspired in
the principles and guarantees prevailing in modern criminal law.
133. In the instant case, the broad scope of military criminal jurisdiction applied to
Mr. Palamara-Iribarne resulted in the trial of a civilian contract employee by military
courts for the commission, inter alia, of criminal offenses which constituted an attack
on the “military duties and honor” or which implied “insubordination,” such as the
criminal offenses of disobedience and breach of military duties as provided for in the
Code of Military Justice, as well as for the commission of criminal offenses which put
“public order and security” at risk, such as contempt of authority.
134. It is clear that the criminal offenses for which Mr. Palamara-Iribarne was
convicted did not endanger any military legal interests susceptible of criminal
protection. The Court further understands that due to the ultima ratio nature of
military criminal law, bringing the foregoing criminal proceedings against Mr.
Palamara was not the least injurious means the State may resort to in order to
protect the interests of the Navy.
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135. Furthermore, besides the wide scope of military criminal jurisdiction as derived
from the definition of military criminal offenses and the reference to laws which
recognize the jurisdiction of military courts, it is to be emphasized that in Chile said
courts may hear numerous cases due to the fact that the status of the perpetrator of
military criminal offenses is not relevant.
136. Articles 6 and 7 of the Code of Military Justice set forth who is to be deemed to
have military status for the purpose of applying the jurisdiction of military courts and
refer to other laws to broaden this concept, whereby state authorities take into
consideration other legal and statutory provisions in order to interpret the abovementioned articles of the Code of Military Justice.
137. Furthermore, the Court notes that, as it results from the expert and
documentary evidence tendered by the parties, during the period from 1990 to 1996
most accused persons subject to the jurisdiction of military courts were civilians.
138. The Court further notes that both the above-mentioned Article 299(3) of the
Code of Military Justice and the criminal offense of disobedience as set forth in
Articles 334, 336, and 337, Title VII, Book III of such Code on “Insubordination
Criminal Offenses” applied to Mr. Palamara-Iribarne, sets forth that perpetrator of
such offenses must have “military status.”
139. The Court has pointed out that the application of military justice must be
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