discover the legal truth, because they were normally appropriate and, in any case, irreplaceable, to
elucidate the fate of the victim and to identify those responsible for his disappearance.
185. In this regard, the rights that are being investigated make it necessary to multiply efforts as
regards the measures that must be taken in order to achieve their objective, because the passage
of time bears a directly proportionate relationship to the limitation – and in some case, the
impossibility – of obtaining evidence and/or testimony, making it difficult and even useless or
ineffective, to carry out probative measures in order to clarify the facts that are being
303
to identify the possible authors and participants, and to establish the eventual
investigated,
criminal responsibilities, as well as to clarify the fate of the victim and to identify those responsible
for his disappearance.
186. Based on the foregoing, this Court concludes that the first investigation before the ordinary
jurisdiction was not conducted in a serious, effective and exhaustive manner.
ii. Investigation before the Third Permanent Military Court of Lima
187. In relation to the intervention of the military jurisdiction to examine acts that constitute
human rights violations, this Court considers that it has ruled abundantly in this regard and, for the
effects of the instant case, finds it sufficient to reiterate that, under the democratic rule of law, the
military criminal jurisdiction must have a restrictive and exceptional scope and its purpose must be
to protect special legal rights related to the functions intrinsic to the military forces. Consequently,
as the Court has indicated previously, the military jurisdiction should only try soldiers on active
duty for the perpetration of offenses or misdemeanors that, owing to their nature, violate legal
rights relating to the military system. 304
188. In addition, taking into account the nature of the offense and the legal right violated, the
military criminal jurisdiction is not the competent jurisdiction to investigate and, if appropriate,
prosecute and punish the authors of human rights violations; but rather the prosecution of those
responsible corresponds always to the ordinary system of justice. Thus, the Court has indicated
that “[w]hen military justice assumes competence for a matter that should be heard by ordinary
justice, the right to a natural judge and, a fortiori, to due process, is infringed,” 305 and this is
closely related to the right of access to justice. The judge in charge of hearing a case must be
competent, as well as independent and impartial. 306 Hence, the victims of human rights violations
and their next of kin have the right that these violations be heard and decided by a competent
court, in accordance with due process of law and access to justice. 307
189. With regard to Peru’s argument that, at the date of the facts of the case, the intervention of
military justice was understood to be in keeping with the standards of the Inter-American Court at
that time, the Court points out that, at least as of the judgment in the case of Durand and Ugarte
303
Cf. Case of Heliodoro Portugal v. Panama, supra, para. 150, and Case of García and family members v. Guatemala,
supra, para. 135.
304
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs. Judgment of May 30, 1999. Series C No.
59, para. 128, and Case of the Santo Domingo Massacre v. Colombia, supra, para.158.
305
Case of Castillo Petruzzi et al. v. Peru, supra, para. 130, and Case of Cabrera García and Montiel Flores v. Mexico,
supra, para. 197.
306
Cf. Case of Castillo Petruzzi et al. v. Peru, supra, para. 130, and Case of Cabrera García and Montiel Flores v.
Mexico, supra, para. 197.
307
Cf. Case of Radilla Pacheco v. Mexico, supra, para. 275, and Case of Nadege Dorzema et al. v. Dominican Republic.
Merits, reparations and costs. Judgment of October 24, 2012. Series C No. 251, para. 200.
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