411. The Court’s case law holds that a State incurs international responsibility for Article 2
of the American Convention not only when its domestic laws violate the Convention, 459 but
also when government officials, in applying a domestic provision, interpret it in a way that
violates rights protected by the Convention. 460
412. The Court notes that in the instant case, the Commission did not challenge the domestic
legal effects governing the possibility that crimes of function could be heard by the military
courts, but merely questioned the interpretation given by the Supreme Court when it settled
the jurisdictional dispute between the ordinary courts and the military courts, pointing to the
Court’s case law on the jurisdictional scope of military justice.
413. The Court agrees that this argument does not challenge Peruvian law, but rather a
practice by domestic authorities based on the decision by which the jurisdictional dispute was
settled when the Supreme Court extended the jurisdiction of the military justice system to
include crimes having no strict connection to military discipline or protected interests proper
to the military. It thus overlooked the Inter-American Court’s interpretation of such guarantees
concerning the scope of the military criminal jurisdiction. This line of reasoning is closely
related to the argument discussed above to the effect that the military criminal courts were
not competent to hear the facts of this case in light of the Court’s established case law on
Articles 8 and 25 of the American Convention.
414. The Court understands that the decision was specific to the particular case at hand and
that both the Constitutional Court 461 and the Supreme Court462 subsequently changed this
practice, setting general, binding principles according to which the military courts must limit
themselves to crimes of function determined on the basis of the protected legal interest, and
not common crimes entailing human rights violations.
415. The Court therefore does not find violation of Article 2 of the American Convention,
read in conjunction with Articles 8 and 25 thereof.
F. Lack of due diligence
Arguments of the parties and of the Commission
416.
The Commission offered no arguments on this matter.
417. The representatives emphasized that no process had begun as yet, nor had any
proceedings been undertaken at all, to discover whether military personnel had participated in
the execution of Eduardo Nicolás Cruz Sánchez, “even though there was evidence that the
Cf. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs.
Judgment of September 26, 2006. Series C No. 154, para. 123.
459
460
Cf. Case of Gomes Lund et al. ("Guerrilha do Araguaia") v. Brazil. Preliminary Objections, Merits, Reparations
and Costs. Judgment of November 24, 2010. Series C No. 219, paras. 172 and 174.
Cf. Constitutional Court, File 0017-2003-AI/TC, judgment of March 16, 2004, paras. 129 to 133 (evidence
file, volume VIII, annex 8 to the brief with pleadings, motions and evidence, folios 5249 to 5278). See also: Office
of the Ombudsman, Report 97, A dos años de la Comisión de la Verdad y Reconciliación, September, 2005, pp. 130
to 135 (evidence file, volume VII, annex 6 to the brief with pleadings, motions and evidence. folios 4842 to 4847).
461
Cf. Supreme Court, Permanent Criminal Law Chamber, jurisdictional dispute 18-2004, order of November
17, 2004; First Transitory Criminal Law Chamber, jurisdictional dispute 29-04, order of December 14, 2004, and
Permanent Criminal Law Chamber, jurisdictional dispute 8-2005, order of July 1, 2005. See also: Office of the
Ombudsman, Report 97, A dos años de la Comisión de la Verdad y Reconciliación, September, 2005, pp. 130 to 135
(evidence file, volume VII, annex 6 to the brief with pleadings, motions and evidence. folios 4842 to 4847).
462
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