Faced with the absence of a context of internal war, in the absence of armed struggle did threaten the monopoly of power reserved for the armed forces and police, are not legally justified subordination of law to this situation emergency. Nor was there occupation of territories by the enemy to warrant the use of military tribunals in time of war, enshrined in the Code of Military Justice. This code stipulates that military courts in time of war includes the national territory
declared a state of assembly or site, either by external attack or internal commotion, and foreign territory occupied by the Chilean arms. It is recalled that the military junta declared a state of internal commotion site, which was understood as a state or time of war. So legal declaration of war acted as a legal fiction and political justification for repressive measures not correspond to the reference context , employees and military courts in wartime.
How did the advice in discussion? In practice, contravening its own rules only apply its enforcement procedures, ignoring other legal effects of war, it did not recognize the legitimate use of force by their opponents, nor respected the character and rights prisoners, nor consider any of the principles established in international conventions on war. Note that in international law, as evidence of the unanimous and unconditional rejection of torture, it is banned from the laws, including laws of war, in which case it is permissible to kill
during combat operations, but not torture. Moreover, prosecutors, who competed in criminal matters instruct and substantiate all processes, collection and tabulation of relevant evidence, arresting the accused and producing evidence that would be the case, represented a link in the chain of repressive agents. Indeed, merely to receive and record history contrary to the defendants, omitting any action or proceeding that could benefit them and acquitted, being that they played investigate the truth of the facts and gather background
used to verify. However, the statements of the accused were never investigated, whichever reject the benefit of the official tests. Or, instead of personally question those involved, prosecutors often were content to interrogations by officials from observing the military courts, in areas outside them and extracting confessions under duress that adjusted to the requirements of the torturers. The process analysis reveals that, acting with fairness systematic neglect of due process, and even allowed prosecutors
led to torture as a valid method of interrogation. Same is true for other members of the military courts-is the case for auditors privileged punitive mission thereof.
not recognized the right of self defense. In criminal proceedings the accused enjoy various rights and guarantees. For example, to be informed of specific and clear of the facts against them, be assisted by counsel from the initial stages of the investigation, request to activate it and know its contents, seek dismissal of the case ; remain silent or testify without oath, and not be subjected to torture or to inhuman
cruel, inhuman or degrading (2) . However, the suspects through military tribunals in time of war to 1973, almost never have enjoyed the rights outlined above. In such standard military courts was a violation of these rights and guarantees. It was not known with certainty from the facts alleged. Hardly knew the cause of detention, even in cases where there were actual crimes involved. Sometimes he stopped to belong to an institution or company.
Other only be current or former officer of a particular government department.
In general, the involvement of lawyers in the various activities of the research was restricted to the end of them, they could act was for a short time. The lawyers, who are used to prevent the access to their clients, had to leave by tracking them in various detention centers, then attempt to obtain any document proving his arrest, after which press for being subjected to some form of trial that concluded the stage of "investigation" which usually result in torture. Just as was the situation, call a council of war could be appear as a step forward. He at least admitted the possibility of the defense, although not always immediate, as was common practice by prosecutors to reserve one day a month to the attention of lawyers and did not attend that event on the date provided, which The subjects discussed by them were delayed, as prolonged the captivity of their clients. Moreover, it was not possible to apply measures and decisions. It was not possible to know the proceedings. Arts
2. 183, 184 and 121del Code of Military Justice, in relation to art. 67 of the Criminal Procedure Code, art. 18 of the 1925 Constitution and Art. 105 of Geneva Convention regarding treatment of prisoners of war (Convention III).
addition, the construction of the judgments of military tribunals used to be very poor, a level significantly lower than typical of a judiciary.
lacked a solid body reflection. In many cases they gave
established the facts and crimes without major foundations are briefly indicated the defenses of the accused and is quickly rejected as contrary to previous findings. Usually not done a legal analysis of the behavior set, and these are easily framed in preselected criminal types. He even declared reprehensible conduct that never were legally setting instrumental crimes prosecutors. Often the mere confession was admitted to prove the offenses. And then there was
indiscriminate use of presumptions. There were statements that were content to endorse the conclusions of the prosecutor, who in turn, is limited to accepting the military or police complaint, in other cases not even mentioned the facts which are processed, or just generally were recorded.
To dispel any doubt about the vicious practices of the military tribunals in time of war, the Commission has considered illustrative bring up the contents or nature of some statements made by respondents.
They exemplify how military courts exercise after the September 11, 1973 departed significantly from the law and justice:
A) The rulings of military tribunals in time of war show a special behavior, as noun, significantly restricted the right to defense. Role In the process of Calama No. 114-74, 28 people were tried in Chuquicamata detained without due cause or reason. In fact, the War Council had to absolve them of the charge of having violated Article 4,
letter c) of the State Security Law. However, in phrases makers, the decision dated August 14, 1974 states: "4 .- That is the spirit of the military junta H. who currently heads the country's destiny not to punish people for ideas policies, but by the criminal acts they may have incurred and also his spirit of giving opportunity for citizens to be rehabilitated and become useful to society elements that are part; 5 .-
That, however, H. Martial seems to inconvenience
total and absolute presence and permanence of such individuals in this area, because although it was not possible to configure the crimes charged and the related responsibilities, is no less true that they are negative elements factor are not any guarantee for the security and tranquility that the country needs for national recovery. "As a result of the foregoing, the defendants were expelled from the mineral.
B) In assessing the evidence in conscience was common to use interpretations absolutely
conflict with the law, from which the martial sought to be exempted from minimum standards of logic, reasonableness and justification of decisions. It was not implemented as a method to find the conviction with more effort, but as an admission shows irregular or poorly established or assumed facts to prefer some background on others arbitrarily. No such assessment was delicate, difficult, reasoned that moves the conscience of the sentencing in checking the crime or the person responsible in order to form a conviction.
not ever said that the assessment of the evidence in conscience, and the failure consciousness, are reflections of larger and not merely licensing process. Role In the process of Linares N ° 12-73, where 76 people were tried for different facts, the court-martial expressed the appreciation of the evidence in conscience "is to fail entirely according to personal
convinced." He admits that the court has "more features a jury of a court of law ." He adds concepts such as: "The council of war uses free from all backgrounds, but it looks hindered by legal constraints," so that " has failed to make special considerations on the evidence "
The ruling of the court martial of Linares in the process of Roll No. 21-74, is even more specific. He says: " the power to assess the evidence in conscience give a true repeal of the rules that channel or limit the regulation of evidence, in terms that, in the words of one author, the court may fail entirely according to his personal conviction or , as case law has consistently held national resolve
consciousness means acting with inner knowledge of good and we should do evil to avoid . "
This could be possible that in the process of Role Conception No. 1726-73, to support the Council condemns War stated that "the defendant's confession can also help to establish the existence of crime" and that "it can not deduct the full existence of the offense for the defendant, who claimed to have destroyed the explosives he had in his house " . These decisions departed completely from the evidentiary rules of the Code of Criminal Procedure, legal body applicable also in the military judicial system (3)
(3) Article 194, paragraph three, of the Code of Military Justice, respect to Title IV of Part Two of Book II of the Code of Criminal Procedure.
C) In the Courts wartime military was abuse of assumptions, often torn, facts not proven. The fact of being a member, for example, a political party, trade union or other group, just to state responsibility for acts attributed to that group, although there was no precedent to suggest that the accused had participated in the event criminal act. Thus, in the process of Rol N ° 428-73 of Antofagasta, is judged to Socialist Party members
Tocopilla for violations of the Arms Control Act. The court martial sentence on December 12, 1973: " Indeed, in their intellectual qualities of top leaders and party activists Tocopilla socialist, could not ignore the storage of explosives and other war exists in the headquarters of the community and could not ignore the use was intended to give such items as terrorist plans drawn up by the top leaders of his party and
other subjects of the former People's Unit. This is why it weighs on all the serious presumption of liability established in the art. 8, final paragraph (later the penultimate), of the Firearms Control Act, not undermined by the defense or by the declaration made by the defendants. Indeed, this presumption applies when you discover a weapons storage and is presumed to be
be members of an armed group to fight the people listed as owners or authorized to possess weapons, or the inhabitants of the places where the stores are located and who leased or provided the land for the deposit. " . The Commander in Chief of the First Division approves the sentence on January 22, 1974. Thus, all the Socialists of Tocopilla were considered members of a group of armed combat.
Such circumstances occurred before September 11, 1973 . At that time, one of the victims worked as a teacher in Antofagasta, but as he was punished for having been arrested in Tocopilla.
In the process just mentioned, is created a penalty regardless of any statutory provision. The only defendant who is acquitted of the crimes under investigation for his "little or no culture" and "his low IQ," " as a security measure to control his behavior, he was sentenced to three years of monitoring by the Authority , ordering him to legal work for the good of the country and his own family . " This decision of the court martial completely away from right under the pretext of defending the homeland and family.
On the other hand, in the process of Roll N ° 29-74 of Osorno, followed against seven persons, the court martial considers " is well known that the MIR was prone to violence and cause chaos, and that each of its members knew or could not ignore the objective of achieving power through civil war and the crushing of the enemy, therefore, the mere fact of belonging to the MIR, or be supporter of it, indicating a concert to achieve unlawful purposes identified. was enough to belong to the MIR to punish a member or sympathizer, but not credited in criminal conduct.
D) In \u200b\u200bmany cases disproportionate penalties were applied. Thus, the FACH processes showed an unusual severity. In the famous trial of Roll N ° 1 - 73 are judged people for an alleged infiltration into the Air Force in order to destroy it and replace the other to allow the establishment of the dictatorship of the proletariat. Failure of the War Council expressed, among other things, that the defendants justified their actions with the "false pretense be brewing a military coup to overthrow the Marxist government."
also occurs earlier in the process of Roll No. 471-74 of Antofagasta, it is considered a second out of the air force, who is said to have belonged to a core of the MIR, have sung a song Marxist, have been indoctrinated to sabotage the aircraft and make a map of the Air Base, which was given to another person hiding. The court martial sentenced him to the single sentence of perpetual military prison, however that such conduct occurred prior to September 11, 1973. The sentence is approved by the Chief of the First Army Division. It must be remembered that the accused was assigned as counsel
a captain of the Chilean Air Force, who argued that the facts did not constitute the crime of treason
have occurred in peacetime, which dismissed his court-martial for believing that such crime can be committed in peacetime as in wartime. It should also be noted that the plane was not found, this, rather than legally deny its existence, as correpondÃa aggravated the situation of the defendant, as the fugitive militant course, as noted, " could have given to a foreign power with consequent irreparable damage "
E) In close connection with such disproportionate penalties, there were cases of criminalization of behaviors from very elementary and limited. This was in the process of Role N Osorno 54-75 ° initiated against 16 persons, who attributed the clandestine organization of the Socialist Party after the September 11, 1973 and who was punished for the crime of conspiracy set forth in Decree Law No. 77 1973 and other crimes in the Gun Control Act. However, two of the defendants were punished for the crime of espionage under Articles 245, No. 12, and 246 of the Code of Military Justice, because, according to the council of war, "and wrote extracted
military secrets and other data from the Engineer Regiment No. 4 Arauco, for delivery to the enemy and to favor the latter operations. " It has been established that there was an enemy to deliver secrets or operations that may have been aided.
can add other shows on the ease of establishing martial offenses with little reflection. In the process of Roll No. 4-73 of Punta Arenas, is judged Socialist Party activities in advance of the military coup. It says in the statement that this party " was intended to act offensively against opposition groups and the armed forces were estimated not affiliated with the Popular Unity government ." The statement listed after the alleged claims and perverse
Socialist Party (change the constitution to expel members of Congress and the judiciary, civil war cause, encourage indiscipline and disobedience to the members of the Armed Forces).
With these preparations was awarded to the accused crimes of military rebellion Article 265 of the Code of Military Justice and the crimes of Article 4, letters a), b) and d) of the Law on State Security. In this process occurs through the test range exceptional White Paper change of government in Chile.
In addition, public offenses are punished by members of the Armed Forces in time of war, according to article 284 of the Code of Military Justice, a defendant who, while under arrest, "shouted belligerent and rude to a headland custody that does not address him as using that crap uniform. "
F) When referred to the indiscriminate use of confession, touched more extensive material concerning the admissibility of evidence. Our legal system has evolved as to the nature of the evidence, but it has always set the rules of admissibility, so that judges could not and can not accept but those specifically identified media.
is another rule of certainty. Despite that, the review of military tribunals in time of war established in 1973 holds some surprises. As noted, we used the White Paper as a document that is sufficient unto itself, giving full faith to the text. The book of the accuser against the accused brandished without further care. No role in the process of the court martial of Los Angeles, there were 13 trial, he admitted the assessment of all "the evidence "
understood as all those elements meeting of
conviction process, " even if not those covered by the Code of Criminal Procedure ." So, could be considered a report of the Intelligence Service or a statement made by a defendant in a regiment, which was retracted in court. With this background, the court did not practice the measures ordered by law, but simply used against the accused.
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