43
mandatory review of military court decisions by the general jurisdiction, without which the
judgments of the Supreme Council of the Armed Forces could not become final unless they
were validated by the National Appeals Chamber. 174 By making this change in the context of
a transition to democracy, according to expert witness Bonadeo, the State introduced a
process of balance among the branches of government, assigning judicial responsibilities to
various bodies, consistent with enforceable international standards allowing military courts to
be considered admissible and to remain in operation.175
161. The Court believes, in this connection, that the remedy created under article 445-bis of
the Code of Military Justice was well suited to determine whether a human rights violation
had been committed and provided the means to correct it,176 because the accused had the
opportunity to lodge a wide range of remedies on alleged judicial error, illegal actions and
constitutional breaches, to be duly examined and resolved by the National Chamber of
Criminal Cassation and the Supreme Court, which held general jurisdiction and were
empowered to give finality to the judgment as delivered.
162. The Court takes note that, based on article 445-bis of the Code of Military Justice, the
professionally qualified defense counsel of the accused challenged the following matters to
the National Chamber of Criminal Cassation: (1) the Supreme Council of the Armed Forces
had failed to apply Amnesty Law 22.924 or the Law of Military Obedience 23.521; (2) the
criminal action had lapsed under the statute of limitations ; (3) the consistency principle had
been violated; (4) the formal statements by the accused at the hearing had been nullified;
(5) the expert testimony on accounting was nullified; (6) the accused had been held
incommunicado for periods in excess of the legally permitted maximum; (7) essential
evidence had not been brought forward; (8) promises were made to relieve the procedural
situation of the case in exchange for cooperating in the investigation of the suspected
offenses; (9) the actions by one of the military investigative judges were nullified, as it was
understood that he was not in psychological condition to participate in the proceedings; (10)
no evidence was available to verify the participation of the accused in the facts of the case;
(11) a request to view seized documentation was denied; (12) all the actions were nullified
because pages in the case file were missing, illegible or blank; (13) the principle of freedom
from ex post facto laws contained in the more beneficial criminal law was violated by the
174
Cfr. Articles 56 and 445-bis of the Code of Military Justice. Expert witness Bonadeo also stated that this
institution, more than a remedy, was actually a mandatory process of review of the judgments of military courts and
a procedure […] before a civilian chamber serving as a court of military jurisdiction.” Statement by expert witness
Armando Alberto Bonadeo (merits file, folio 1874).
175
176
Statement by expert witness Armando Bonadeo (merits file, folio 1873).
Cfr. Case of Ivcher Bronstein v. Peru. Merits, Reparations and Costs. Judgment of February 6, 2001. Series C
No. 7, par. 137, and Case of the Constitutional Court (Camba Campos et al.) v. Ecuador, par. 228. See also: Article
445-bis of the Code of Military Justice: Subparagraph 2: Allowable grounds for the appeal may be: (a) noncompliance
with the law or applying it incorrectly; (b) failure to uphold the essential forms that the law provides for the process;
consideration shall be given to whether the forms the law provides for the process were neglected, particularly in
decisions that: I. limit the right to defense; II. fail to consider evidence that is essential for judging the case; (c)
existence of evidence that could not be adduced or submitted for well-founded reasons. […]
Subparagraph 4: Having received the case files, the Chamber shall summon the parties to speak and grant a term
of 5 days for the accused to designate a professionally qualified defender; otherwise the court will do so on its own
motion. This summons will be issued and documented and will set the dates for other writs to be delivered in writing.
Within ten days after the order described in the above paragraph has been delivered, the appellant must submit
grievances and the plaintiff will be served the brief and will have the same amount of time to respond. If multiple
remedies have been lodged, the terms for expressing grievances of judicial error and replying to them will run
simultaneously. The parties may use the same briefs to request permission to produce evidence on new facts or
measures that, for admissible reasons, may not have been submitted or raised in the military courts. […]
Subparagraph 6: The hearing shall open with statements by the parties, summarizing their grievances or
strengthening the grounds for their arguments. The same hearing will receive additional evidence that has been
requested and admitted in advance. Defendants who so wish will be heard at this time.