80
f)
Once the hearings have been completed, the parties’ arguments are
received, including the prosecutor’s oral opinion, and the chamber adopts two
decisions: a) “it agrees on the proven facts by vote and reads out the result
of this vote in a public hearing” and b) “in a separate act, it delivers
judgment, based on questions of fact that have been voted on previously”;
g)
As with jury verdicts, “questions of fact” are not grounded, but
adopted using the “criterion of conscience.” The vote on the questions of fact
established in Articles 281 and 283 of the 1940 Code of Criminal Procedure, is
a “different decision from the judgment, although connected to it.” Under the
Peruvian procedure, “the grounds for the judgment result from their
correspondence with the facts voted on”;
h)
On June 20, 2001, the National Terrorism Chamber voted on 55
questions of fact and declared that they had been proved; the Chamber
“sentenced the alleged victim in a separate act.” The “unacceptable
disregard” of this procedure in the application shows that the Commission did
not know it existed, and was totally unaware of its procedural significance;
i)
When the proceeding before the military court had been annulled, “the
case file was sent to [a] new prosecutor, who filed a new complaint, drawn up
according to his criteria and with no connection to the proceedings in the
military trial.” After the prosecutor’s complaint was filed, “a new judge
decided on the opening of the preliminary investigation in accordance with
norms that had no relation to those applied during the military proceeding”;
j)
The National Terrorism Chamber, “when organizing the oral
proceeding, made a clear difference between the probative procedures which
took place during the hearings, the proceedings during the pre-trial
investigation stage, and the records prepared before the start of the
preliminary investigation”;
k)
The alleged victim’s defense lawyer “requested the incorporation of the
records from the military jurisdiction during the debates of the oral
proceeding”;
l)
“[T]he procedures in force in Peru do not include any norm or
mechanism that allows a judge or a chamber to refuse to add to his own case
files, records and files prepared during the procedures carried out before the
order to open the pre-trial investigation (in this case, prior to August 28,
2000). Nor is there any procedure that prevents requesting the reading and
discussion of records prepared before the opening of the pre-trial
investigation”;
m)
“There are no norms in the Convention or in other international
instruments for the protection of human rights that make it obligatory to use
one specific legal theory regarding the procedural consequences of defects” in
the way evidence is processed;
n)
“The specific regime for excluding evidence adopted by the courts of
justice in each country, and the option they adopt, within the framework of
the alternatives recognized by the relevant comparative law, is not an issue
that can be decided under the rules of the American Convention”;
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