DISSENTING OPINION OF JUDGE VIDAL RAMIREZ
1.
I dissent from the decision adopted in the Judgment that dismissed the
preliminary objections interposed by the agent of the Government of Peru, for the
following reasons:
1.1
Article 27 of the American Convention authorizes the States Parties, in
cases when necessary and in cases that include those which constitute
public danger or emergencies that threaten the independence or
security of the State, to adopt measures that as much as possible are
compatible with the obligations imposed by International Law and with
the rights and guarantees that that norm necessitates.
The Peruvian State has found it necessary to adopt measures of
defense before the armed and violent aggression inflicted on its
population by terrorist organizations that violated basic human rights.
In this emergency situation Peru classified the crime of aggravated
terrorism by the nomen iuris of treason against the fatherland and
provided that it be tried in the military jurisdiction.
1.2
In the present case, as the illegal acts were characterized as
aggravated terrorism, their perpetrators were subjected to the military
jurisdiction and tried in a previously and legally established
proceeding, which began on November 20, 1993, and ended with the
final judgment rendered on May 3, 1994.
1.3
The Political Constitution of Peru establishes that the filing of writs of
habeas corpus and amparo are not suspended during the time of a
state of emergency (article 200), and if exceptional laws issued have
established some restriction, the constitutional norm prevails over all
other legal norms, in application of the principle of the normative
hierarchy (article 51), for which reason writs of guarantee could and
can be filed by those accused of terrorism.
2.
By having submitted the complaint on the date of January 28, 1994, it is
therefore evident that, pursuant to Article 46(1)(a) of the American Convention, they
had not exhausted domestic remedies.
3.
I dissent from the rationale that supports the dismissal of the fourth objection
interposed by the agent of the Government of Peru, since the annulment of one
proceeding implies the opening of a new one, in which case the new trial does not
constitute a violation of the principle of non bis in idem.
4.
I dissent from the rationale that underlies the dismissal of the fifth and sixth
objections interposed by the agent of the Government of Peru inasmuch as Article 44
of the American Convention, in specifying the persons that can petition, distinguishes
non-governmental entities, from “a group of persons.” Nongovernmental entity is
understood to mean a legal entity duly established with representatives that must
act with the power of representation, since they act in contemplatio domini, for
which reason they should be accredited.