82
jurisdiction over ordinary crimes rather than the categorization of a military
member. Said articles address the concept of “military” to the purpose of
classifying the military criminal offenses included in the Code, and do not affect
the general provision contained in Article 6 thereof;
d)
According to the Prosecutor of the Court of Appeals of Punta Arenas, “civil
servants who serve in the Armed Forces in general, and in the Chilean Navy in
particular, including those who have filed a retirement application as well as
those who are “Civilian Contract Personnel,” have “military status.” The above
Prosecutor concluded that Mr. Palamara-Iribarne as Lieutenant Commander
pending retirement from active duty and hired as a Civilian Contract Employee
under the employment system of the Chilean Navy had military status and,
therefore, was subject to the discipline thereof. Furthermore, as a military
member he was under the “jurisdiction of military courts;” and
e)
The Commission did not endorse any of the allegations regarding the
military status of the alleged victim. “Its silence and lack of recommendations
in this regard are a clear message about the irrelevancy of said allegations.”
Considerations of the Court:
120. The Court has established that the alleged victims or the representatives
thereof may invoke any rights other than those asserted in the application filed by
the Commission, as long as they are based on the facts alleged therein.189
121. In similar cases, the Court has found that “in order to clarify whether the State
has violated its international obligations owing to the acts of its judicial organs, the
Court may face the need to examine the related domestic proceedings.”190 Adhering
to precedent, the Court will consider all domestic proceedings which are relevant to
the instant case, in order to make an informed determination as to whether the
above-mentioned provisions of the Convention regarding due process and judicial
protection have been violated. To that end, the Court will particularly take into
consideration that the facts described in the instant case occurred mainly in the
context of the Chilean military jurisdiction in “peacetime,” and were the grounds for
the two criminal proceedings brought against Mr. Palamara-Iribarne, one for the
criminal offenses of disobedience and breach of military duties and the other for the
criminal offense of contempt of authority.
122. The Court bears in mind that in the last years Chile has implemented a deep
reform of the criminal justice, aimed at introducing the guarantees of due process in
criminal proceedings in order to shift from a written inquisitorial procedural system
to an accusatory procedural system which rests on the guarantee of being based on
oral procedures. Notwithstanding, the military jurisdiction has been excluded from
189
Cf. Case of Acosta-Calderón. Judgment of June 24, 2005. Series C No. 129, para. 142; Case of
YATAMA, supra note 5, para. 183; and Case of Fermín- Ramírez. Judgment of June 20, 2005. Series C No.
126, para. 88.
190
Cf. 78; Case of the “Mapiripán Massacre” supra note 1, para. 198; Case of the Moiwana
Community, supra note 185, para. 143; and Case of the Serrano-Cruz Sisters, supra note 5, para. 57.
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