The Supreme Court settled the dispute of jurisdiction between the Third Military Court, based in Valdivia, and the Yumbel Guarantee Court in a case in which the death of a first corporal of the Carabineros is investigated, who died after being found with a shot to the head, inside a bathroom at the Centinela Retention, a detachment dependent on the Fifth Police Station of Yumbel, on August 17 of last year.
In a divided ruling (case roll 21.903-2021), the Second Chamber of the highest court - made up of the ministers Manuel Antonio Valderrama, Leopoldo Llanos, María Teresa Letelier, Jorge Zepeda and the lawyer (i) Leonor Etcheberry - established that the knowledge of the process It will correspond to the ordinary justice and not to the military, since there is an indirect civil victim in the case, the minor son of the deceased.
"That the facts investigated, according to the accompanying antecedents, show that in a Carabineros compound an official of that police, at the end of his patrol shift, was found in the bathroom of the police unit, with a bullet impact in the head but with signs of life and that, transferred to a health center in serious condition, he died around 9:15 p.m., without any indication of civilian participation in the act, ”the ruling maintains.
The resolution adds: “That in relation to the prosecution of common crimes committed by personnel with military jurisdiction, the latest legal modifications to specialized military justice, following a trend that had been emerging since 1990, have been aimed at significantly restricting the jurisdiction of the military courts. Indeed, Article 1 of Law No. 20,477 of December 30, 2010, amended by Law 20,968, of November 22, 2016, in force at the time of the commission of the facts, provides: 'Restriction of the jurisdiction of military courts. In no case, civilians and minors, will be subject to the jurisdiction of the military courts. This will always be established in the ordinary courts with competence in criminal matters. For these purposes, it will be understood that a civilian is a person who does not have the status of a military man, according to article 6 of the Code of Military Justice . Thus, the jurisdiction was first established in the Ordinary Courts, excluding from the military judiciary any cause in which a civilian has been involved, either as a defendant or victim and minors, even when the perpetrator had military jurisdiction ( SCS Case No. 8055-2017; Case No. 8056-2017; Case No. 8140-2017, Case No. 19061-17 and Case No. 38.680-17) ”.
"That, consequently, despite the fact that the investigated events occurred inside a military compound, given that one of the indirect victims is a minor, it is appropriate for the matter to be heard by the Ordinary Courts," it orders.
Therefore, it is resolved that: "it is declared that the Yumbel Guarantee Court is competent to hear this matter, which must continue with its processing in accordance with the procedure contemplated in the Criminal Procedure Code."
Decision adopted with the votes against by Ministers Valderrama and Letelier.
There is a link to the decision itself at the foot of this page. Incidentally, is there an issue about adjudicating any case involving gendarmerie or constabulary members in military courts? This has been a concern elsewhere, e.g., in connection with Spain's Guardia Civil.
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