Ekaterina Porras Sivolobova, legal intern at the Center for Justice and International Law in Buenos Aires, Argentina, writes about the military justice system in Chile....
ince Chile emerged as a democratic state in 1990, it has done very little to reform its military justice system to comply with international human rights standards. The military justice system in Chile denies its citizens due process rights and is inconsistent with basic international human rights principles. Military justice in Chile is essentially governed by the Code of Military Justice, which among other things establishes the scope of military jurisdiction. Since the Pinochet dictatorship, Article 3 and 5 of the Code of Military Justice have extended the reach of military jurisdiction to cover both civilians who commit crimes conceived as military crimes and military officials who commit common crimes.
The Inter-American Court of Human Rights ruled on November 22, 2005, in the case of Palamara Iribarne vs. Chile
, that military jurisdiction in Chile must be limited solely to crimes committed by military personnel in active service. The Court not only ruled that Chile must eliminate the application of military jurisdiction to civilians and inactive military personnel, but that Chile must guarantee due process of law and that court members must be competent, impartial, and independent. However, four years after this binding decision by the Inter-American Court for Human Rights, Chile has yet to comply with any of the rulings.
Chile has also failed to respect basic rights established in the American Convention of Human Rights (the Convention), and in particular, has failed to respect and uphold Article 8 (right to a fair trial) of the Convention. Article 8.1 of the Convention guarantees that every person will be heard by a competent, independent and impartial tribunal. However, a large number of the officials who work as prosecutors or judges in Chile's military tribunals do not even have a legal background, which brings their competency into question. In addition, the tribunals are comprised of active military officials subject to the hierarchical structure of the armed forces. As active members of the military, these military officials have the duty to obey higher ranking officers, and are subject to disciplinary measures and reports, making them unable to guarantee an impartial and independent decision to their colleagues.
Procedure in military tribunals also undermines the rights of the accused. Chilean military proceedings require the indictment to be kept secret, contrary to Article 8.5 of the Convention, which states that the "criminal proceedings shall be public." Under Article 130, the accused is not able to know the charges brought against him or her and does not have access to the investigations for the first 60 days. Since the file and investigations are kept secret, the accused does not have the adequate time nor means for preparation of his or her defense (Article 8.2 of the Convention). Furthermore, the accused is unable to examine witnesses as required by Article 8.2(f).
In order to address the injustices in the system, a reform to the Code of Military Justice must be made. In particular, it is essential to limit the jurisdiction of military courts so that under no circumstance will civilians be tried in the military system. Furthermore, the system should establish and guarantee that fair trials will be conducted in cases where carabineros (uniformed police) have committed human rights abuses.
Although civilians under military jurisdiction face harsh trials and are not afforded sufficient due process rights, carabineros tried for excessive and unnecessary use of force against the indigenous Mapuche community in southern Chile are not sufficiently nor justly prosecuted in military trials. The investigations covering these abuses often fail to bring forth and question all possible witnesses, fail to recover or examine all facts, and fail to exhaust all possible means to reach an impartial truth and objectively appreciating all evidence. The results of these investigations usually amount to nothing more than a disciplinary measure towards the carabinero.For example, a carabinero shot Alex Lemún (age 17) while he was accompanying a group of Mapuches in an effort to reclaim their ancestors' land. At the end of May 2009, a military judge declared a stay of proceedings, setting free the caribenero who was responsible for his death. Since Chile has decided to close the case and fails to acknowledge any form of responsibility towards the death of Alex Lemún, the case has been submitted to the Inter-American Commission with the hope that Chile will finally admit responsibility for Lemún's wrongful death.
However, a more recent decision demonstrates that Chile may be ready to be more objective in its military trials of carabineros. Matias Catrileo was shot by a carabinero under the same circumstances as Alex Lemún. Thus, when the military tribunal made its decision at the end of June 2009, a similar ruling was expected. However, the tribunal ruled for the prosecution, holding that the carabinero used unnecessary force resulting in the wrongful death of Matias Catrileo. This decision can be viewed as a historical outcome since it acknowledges the abuse against the indigenous Mapuches in the hands of the carabineros. It remains to be seen whether the decision regarding the death of Catrileo was an aberration or whether it signifies a new development for Chilean military tribunals, at least in cases involving severe human rights abuses by carabineros.
Four long years after the Palamara judgment by the Inter-American Court, the Chilean military justice system still has standards which contradict international human rights principles. Chile must reform the Code of Military Justice, to limit the military jurisdiction strictly to military crimes by military officials and to promote and establish responsibility for the crimes committed by the carabineros against the Mapuche community. For the military justice system to be compatible with international human rights standards, it is essential that Chile adapts its domestic military standards to international human rights norms pursuant especially to Article 8 of the American Convention of Human Rights. With the case of Alex Lemún pending before the Inter-American Commission and the recent developments in the case of Matias Catrileo, perhaps Chile will take positive steps to adopt international human rights standards and comply with the Palamara judgment.
In order to address the injustices in the system, a reform to the Code of Military Justice must be made. In particular, it is essential to limit the jurisdiction of military courts so that under no circumstance will civilians be tried in the military system. Furthermore, the system should establish and guarantee that fair trials will be conducted in cases where carabineros (uniformed police) have committed human rights abuses. Sources:
Inter-American Court of Human Rights. Palamara Iribarne v. Chile. Judgment of November 22, 2005.
Military Justice Code of Chile
American Convention of Human Rights
Photo credit: Mapuche International Link