Friday, February 7, 2014

Military trials for civilians -- Chile

In the 2005 case of Palamara Iribarne v. Chile, the Inter-American Court of Human Rights held that military courts could not try civilians, although it noted that during the period 1990-96, most of the accused persons subject to the jurisdiction of military courts in Chile had been civilians.  The facts involved Humberto Palamara-Iribarne, a retired Chilean Navy officer, who wrote a book entitled “Ethics and Intelligence Services,” in which he addressed issues related to military intelligence and the need to bring it in line with certain ethical standards.  Palamara-Iribarne had self-published approximately 1,000 copies of the book and all the copies, as well as the originals, were seized and he was prosecuted in military court for disobedience, convicted and sentenced to a prison term.  He then called a press conference at his residence and because of the press conference criminal charges were instituted for contempt of authority against him and he was again prosecuted in military court, found guilty and sentenced to an additional prison term.  The Court noted that he was retired and consequently a civilian and could not be subjected to military jurisdiction:

139.  The Court has pointed out that the application of military justice must be strictly reserved to active-duty military members, based on a previous case wherein it noted that “when [the] proceedings [against the victim] were started and heard, [he was] a retired  military member, and therefore, could not be trie[d] by the military courts.” Chile, as a democratic State, must respect the restrictive and exceptional scope of military courts, and exclude the trial of civilians from the jurisdiction thereof.

140.  The description of the criminal offenses of disobedience and breach of military duty as contained in the Code of Military Justice provides that the perpetrator must have “military status.” In this regard, the Court considers that Mr. Palamara-Iribarne, as a retired officer, did not have the “military status required to be the perpetrator of the criminal offenses charged, and therefore, the above military criminal provisions were not applicable to the accused. Furthermore, the Court considers that Mr. Palamara-Iribarne, at the time he wrote the book and set in motion its publication, did so in the legitimate exercise of his right to express his opinions and ideas freely.

141.  The Court considers that Chile has not adopted the necessary measures for Mr. Palamara-Iribarne to be tried by ordinary courts, since as a civilian he did not have the military status required to be deemed the perpetrator of a military criminal offense. The Court notes that, in Chile, establishing that a person has military status is a complex task which requires the interpretation of various provisions and regulations, which allowed the judicial authorities who applied them to make a broad interpretation of the concept of “military” in order to subject Mr. Palamara-Iribarne to the military courts.

             142.  Such broad jurisdiction of military courts in Chile, which allows them to hear cases which should be heard by civilian courts, is not in line with Article 8(1) of the American Convention.

              143.  The Court has pointed out that “[w]here the military courts find themselves competent to hear cases which    should be heard by ordinary courts, the right to be tried by a competent judge or court is violated, and so is, a fortiori, due process, which, in turn, is closely related to the right to a fair trial.” The trial of civilians is incumbent on the ordinary justice.             

In September 2010, Chile adopted Law No. 20,477, which was promulgated on December 30, 2010, and excluded civilians from the competence of military courts, in compliance with the Inter-American Court’s judgment in the Palamara-Iribarne case.  According to Human Rights Watch, military courts, however, still exercise jurisdiction over Carabineros, uniformed police that are part of the Armed Forces, for crimes committed against civilians, such as torture and ill-treatment.

As of August 2012, over 1,300 cases against military personnel and civilian collaborators have been presented to civilian courts for human rights violations during the Pinochet regime.


  1. I fully endorse the approach take by the InterAmerican Court of Human Rights and the adoption of Law No.20477 by Chile. Civilians should not be subjected to military justice whose objective is the maintenance and promotion of self and group discipline in the military in order to achieve operational readiness.
    In Canada trials before military tribunals result in the loss of important constitutional, procedural and sentencing rights such as the constitutional right to a trial by a jury, the right to a preliminary inquiry, the benefits attached to hybrid offences, the right to a conditional discharge, the right to serve the sentence of imprisonment in the community, to name a few.
    The Court Martial Appeal Court of Canada has taken under reserve a decision of a court martial involving the prosecution of a civilian pursuant to the military Code of Service Discipline: see Her Majesty the Queen v. Wehmeier CMAC-553
    It will be interesting to see the approach the CMAC will take with respect to the issue.

  2. For further (earlier) background on the Carabineros see Meredith Fensom, Judicial Reform, Military Justice, and the Case of Chile's Carabineros, 22 Int'l L.Q. 1 (Summer 2007),


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