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Minister visiting the Court Martial, prosecutor or military judge: the judicial fight over who will investigate the death of a conscript in Putre

Military or civil justice? That is the question that in judicial matters is hovering these days about what happened after the fatal instruction of the Army in the commune of Putre, in the Arica and Parinacota Region. Military operation that ended with the conscript Franco Vargas (18) deceased and a series of his companions with different medical pathologies.

Although the case is so far being investigated by the Military Prosecutor’s Office, both the mother of the deceased soldier – according to her autopsy – due to respiratory problems, other voices, such as the National Institute of Human Rights (INDH) have maintained that what happened in that investigation soldier must be tried in a civil court, after an investigation by the Public Ministry as they are common crimes.

Added to this is that the commander in chief of the Army, General Javier Iturriaga, has requested – through Military Justice – that the Court Martial assign a visiting minister to investigate what happened during a campaign by young people who carry out the Service. Military. For her part, the Minister of Defense, Maya Fernández, also requested that a visiting minister be appointed, this through a request, but to the Supreme Court.

From Arica, this Monday General Iturriaga maintained that the visiting minister’s request was made “with the understanding that we seek greater transparency in what we are doing, because the worst that can happen is that citizens lose confidence in their Army”.

In civil matters, this Tuesday the regional prosecutor of Arica, Mario Carrera, announced the opening of an investigation that will be led by Arica’s chief prosecutor, Anatole Larrabeiti. “As the Prosecutor’s Office, we have the duty, in the face of any complaint from any institution or person, to generate an investigation, to assign a prosecutor and carry out some procedures to make an informed decision regarding this person or institution that has made that complaint. We are at that stage right now, a stage of analysis, where we are actually going to see what course this complaint presented by the INDH takes,” explained the regional prosecutor.

Despite Iturriaga’s request, the mother of the deceased conscript – Romy Vargas – has raised objections since the day of her son’s death in the investigation being carried out by the Military Prosecutor’s Office. This is because, according to Franco Vargas, he died due to illegitimate pressures allegedly perpetrated by his superiors.

That is precisely the reason why the INDH also announced a complaint for everything that happened to the 45 conscripts who suffered health problems after the questioned military training. The head(s) of the Rights Protection Unit of the INDH, David Bahamondes He explained this Monday that these crimes of coercion are typified in the Penal Code and that it is up to the civil justice system to hear about them as they are within “common crimes” and not under military jurisdiction.

Ymay Ortiz, former director of the Human Rights Unit of the National Prosecutor’s Office, maintains what happened to the soldiers should be seen in civil justice after an investigation by the Public Ministry, precisely due to the type of crime. “24 years ago, Chile progressively adapted its criminal system to minimum principles of justice and compliance with constitutional guarantees, both for the accused and the victims, but not Military Justice,” she initially explains.

In that sense, he states that “the rules of military justice are also established by the Constitutional Court, as they are not jurisdictional courts, but rather a specialty court, that is, it hears a special type of crimes, it has to be interpreted restrictively and therefore it must be, its competence must be very exceptional.”

Ortiz adds that the military courts “They do not seem to offer guarantees that this investigation will indeed be carried out fairly. But also, if it is carried out in a serious, effective, independent, impartial and timely manner. Since military courts are also part of the structure of the Armed Forces, it seems that this requirement of impartiality, which requires an appropriate investigation for this type of events, is not met.”

For the lawyer Juan Carlos Manriquez, instead, “The events that occurred cannot yet be classified into any specific criminal offense, since they are under preliminary investigation. If it is established that they could constitute some kind of omission of military duties, particularly in the fulfillment of military duties, resulting in injuries or more serious injuries, they are within the jurisdiction of military jurisdiction because they have occurred in a military operation in a military context.”

Opinion also shared by the criminal Catherine Lathrop who explains that “this seems to be a more political than technical discussion, since the Law that modified the jurisdiction in matters of military courts is very clear. Thus, he points out that when there are civilians or minors, the applicable justice will be ordinary criminal justice. Thus, on the contrary, when the victim has the status of a soldier and the alleged crime is committed by another soldier in the exercise of his duties, the applicable justice will be military justice,” this considering that both Vargas and the rest of the conscripts They are considered military.

“It is known that there is a political discussion about whether or not to apply military justice for other contingent cases, but that is inapplicable to this specific case,” he concludes.

What happens if this is not resolved sooner? Manríquez states that “Eventually a competition dispute could arise between the Military Prosecutor’s Office and the visiting minister. But I think that in that case the most likely thing is that an understanding will be sought before that happens, because if both insist, then the hierarchical superior, the first one who began to investigate, decides, which in this case would be the Military Prosecutor’s Office in Santiago”.

But this is not the first time that justice will have to resolve this dispute regarding the jurisdiction of each court. The first of them is the so-called Palamara vs Chile case, which corresponds to the case of Humberto Palamara, a former military official, who was prohibited by military justice from publishing a book in which intelligence work was discussed. In this case, the Inter-American Court of Human Rights (IACHR) sentenced the State of Chile not only to compensate Palamara, but also to modify the legislation under which common crimes were heard in military courts.

For the human rights lawyer, Karinna Fernandez, in the case of the Putre conscripts “has to do with the legal assets at stake, as indicated by the Inter-American Court of Human Rights in the Palamara vs. Chile case. If they are not military legal assets, as is the case of life and integrity, the jurisdiction must be the ordinary criminal jurisdiction.”

And in addition to what was found by the IACHR, the Chilean justice system has also subsequently ruled on the matter. In 2014, the Constitutional Court (TC) resolved a controversy that existed between the INDH and the Military Justice, which was reviewing the case of a police officer who was attacked by other officials inside a police precinct. In that case, the court ruled that “the injuries suffered by the victim cannot be classified as actions that are part of an act of service, nor that their commission merits the possible application of a criminal offense that protects special legal rights of a military nature.” ”, maintaining that it should be resolved in a civil court.

“In light of the new standards on military jurisdiction, there is no constitutionally admissible justification for a person, civilian or military, to be prevented from exercising rights as a victim of a common crime, and to be deprived of a rational process.” and fair,” maintains the TC resolution.

But one of the most significant points of this ruling, says Ortiz, is that it resolves how the military justice process considers the victims and the guarantees it has in the judicial process.

In addition to what was determined by the IACHR and the TC, the Supreme Court has also ruled on the issue. There are pronouncements by judicial prosecutors regarding two cases. One of them has to do with a case of sexual crimes that occurred inside a police precinct, in which it was determined that in this type of events “they are still carried out by public officials, and that they have deviated from the duties imposed on them by their position, its knowledge and judgment corresponds to the common jurisdiction.”

For the former director of the Human Rights Unit of the Prosecutor’s Office “these different rulings of the Supreme Court in summary indicate that they have to be limited to those strictly military crimes, therefore, those crimes that protect legal assets of the military order (… .) those that are intended for the protection of State sovereignty, military honor, State security and other legal rights specifically related to war, that is, related to the military function. And therefore, we must exclude all those crimes that are intended to protect other legal rights such as the life and integrity of people.”

Although Minister Fernández’s request was through the Supreme Court, the Army’s requirement to have a visiting minister, as announced yesterday by the commander in chief of the Army, will be through the Court Martial.

The military court has a session this afternoon, starting at 2:30 p.m., where the Army’s request will be discussed and whether or not to raise the request to the Supreme Court so that, ultimately, everything can be settled there.

Those who know the process explain that in the event that the Supreme Court agrees to the request, and appoints a visiting minister, the selection of the investigating judge could fall to Minister Jenny Book.

Book is the other civilian minister who makes up the Court Martial, since Judge Ana María Osorio – the other civilian member of the court – is in charge of investigating fraud in the Army.

In that scenario, this would leave the case in their hands and not in the Public Ministry, nor in Military Justice.

In any case, it is believed that once the analysis process is opened in the Supreme Court, reports will be requested from each of the institutions that claim jurisdiction and thus determine who will be the one to investigate whether or not there was direct responsibility of the uniformed men. in the death of Franco Vargas.

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