Wednesday, December 14, 2022

Civilian crime, military trial

The Constitutional Court of Chile has rejected a claim that it is unconstitutional for a military court to try a civilian offense (here, tax fraud). The decision in Carlos Frez Ramírez, No. 12.215-2021 (Chile Const. Ct. Nov. 9, 2022), is explained here in Diario Constitucional . Excerpt: (gracias, Google Translate):

Regarding previous rulings, the court warns that the specific case clarifies that this is not comparable to those that have led the Court to declare the inapplicability of article 5 No. 3 of the Code of Military Justice considering the exceptional nature of military justice. Indeed, on the one hand, the applicant does not have the status of a civilian or a military victim who is taken, by the contested legal norm, before the military court. On the other hand, in relation to the crime, although the case involves a common crime typified in article 239 of the Penal Code, in accordance with the criteria set forth in Nº 5893-19, it is conduct committed in the act of military service, of great institutional interest to the Army . . . 

On the other hand, the court argues that the administration of defrauded funds can be classified, without violating the Constitution, as an act of military service, or on the occasion of it, since it is so closely connected with the exceptional military function that only the applicant could authorize the processing of the reserved funds that would have been the object of the crime. In this line, it argues that all this debate is typical of a legality dispute that must be resolved in the judicial process, in all its instances, it is not up to this Court to anticipate that trial but only to judge on the constitutional or unconstitutional effects of the attribution of jurisdiction in the specific case.

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