v. Peru, in which it stated that the military criminal jurisdiction only applied to “soldiers for the
perpetration of offenses or misdemeanors that, owing to their nature, violate legal rights intrinsic
to the military system,” 308 it has been the Court’s consistent case law that the military jurisdiction
is not the competent jurisdiction to investigate and, when appropriate, prosecute and punish the
perpetrators of alleged human rights violations; but rather the prosecution of those responsible
corresponds always to the ordinary system of justice. 309 The factual situation of the Durand and
Ugarte case referred to the subduing of a prison riot in 1986, during which soldiers “used
disproportionate force that far exceeded their task and that resulted in the death of a large number
of prisoners.” 310 Therefore, this consideration is also applicable in the instant case in which the
events occurred in 1991. In addition, the Court reiterates that, regardless of the year in which the
violations occurred, the guarantee of an ordinary judge must be analyzed pursuant to the object
and purpose of the American Convention, which provides effective protection to the individual. 311
190. The allegations concerning a disappearance relate to acts that are closely related to criminal
acts and definitions that bear no relationship to the military discipline or mission. To the contrary,
the alleged acts committed by military personnel against Jeremías Osorio Rivera violated rights
protected by domestic criminal law and the American Convention, such as the victim’s dignity, and
his personal liberty and integrity. Consequently, the Court reiterates that the criteria that human
rights violations should be investigated and prosecuted under the ordinary jurisdiction does not
arise from the gravity of the violations, but rather from their very nature and from the right
protected. 312 It is evident that this conduct is clearly contrary to the obligations to respect and to
protect human rights and, therefore, it is excluded from the competence of the military jurisdiction.
Accordingly, the intervention of the military system of justice to investigate the enforced
disappearance of Jeremías Osorio Rivera between July 22, 1992, and October 1996, contravened
the parameters of exceptionality and restriction that characterize it, and signified the application of
a jurisdiction that operated without taking into account the nature of the acts involved. 313
191. Based on the above, the Court concludes that the State violated the guarantee of an
ordinary judge in relation to the investigation of the enforced disappearance of Jeremías Osorio
Rivera by the military jurisdiction.
iii. Second criminal investigation in the ordinary jurisdiction
192. The last valid jurisdictional action of the first proceeding was in July 1992, without reaching
a conclusive decision. Since proceedings in the military jurisdiction are contrary to the American
Convention and the first action in the ordinary jurisdiction in the second proceeding held based on
the complaint filed by Porfirio Osorio Rivera took place in 2004, the Court verifies a lack of
jurisdictional actions for more than 12 years. This is contrary to inter-American case law which
indicates that a prolonged delay may, in itself, become a violation of judicial guarantees. 314
308
Case of Durand and Ugarte v. Peru. Merits. Judgment of August 16, 2000. Series C No. 68, para. 118.
309
Cf. Case of Durand and Ugarte v. Peru. Merits, supra, paras. 117, 118, 125 and 126, and Case of the Santo
Domingo Massacre v. Colombia, supra, para. 158.
310
Case of Durand and Ugarte v. Peru. Merits, supra, para. 118.
311
Cf. Case of Vélez Restrepo and family members v. Colombia, supra, para. 244.
312
Cf. Case of Vélez Restrepo and family members v. Colombia, supra, para. 244.
313
Cf. Case of Fernández Ortega et al. v. Mexico. Preliminary objection, merits, reparations and costs. Judgment of
August 30, 2010. Series C No. 215, para. 177, and Case of Nadege Dorzema et al. v. Dominican Republic, supra, para. 197.
314
Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, reparations and costs.
Judgment of June 21, 2002. Series C No. 94, para. 145, and Case of Torres Millacura v. Argentina, supra, para. 116.
70
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents