34
110. Based the above-mentioned considerations, the Court concluded that the
State violated dispositions of Articles 7(6) and 25(1) of the American Convention, to
the detriment of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera.
XIV
VIOLATION OF ARTICLES 8(1) AND 25(1)
THE RIGHT TO A HEARING WITH DUE GUARANTEES BY
A COMPETENT, INDEPENDENT, AND IMPARTIAL
TRIBUNAL AND THE RIGHT TO AN EFFECTIVE
RECOURSE.
111. Regarding the violation of Articles 8(1) and 25(1) of the Convention, the
Commission stated that:
a)
Article 8 of the Convention involved different rights and guarantees
that have as their main purpose to protect the right of every person to a fair
process and to make sure the State judicially ensures the rights.
b)
Gabriel Pablo Ugarte was denied the right to an attorney when was
declaring before the police;
c)
military tribunals aware of the case acted "in open contradiction to the
autonomy and impartial principles which must inform [to them] to comply
with what it is stipulated in the Convention". Impartiality and independence
of the tribunal are key topics of minimal guarantees of justice administration
and Article 8 must always be interpreted in the widest terms, in compliance
with the purpose and aim of the treaty.
d)
military tribunals are not independent, impartial, or competent bodies,
because they belong "according to the Peruvian Organic Law of Military
Justice [Executive Order No. 23.201] to the Ministry of Defense; that is, it is
an special court subordinated to an agency of the Executive Branch". Judges
in the military exclusive court are, similarly, members of the Armed Forces in
active duty, (Articles 22 and 31 of Executive Order No. 23.201). Besides, it is
not necessary to be an attorney to become a tribunal member of this court.
Thus, it is logic to say that if the judicial post depends on the military rank or
the status of active officer, decisions adopted by the judge or tribunal shall be
affected by an interest incompatible with justice. This might imply that an
officer could lack the needed autonomy and impartiality to investigate events
such as the ones in El Frontón.
e)
proceedings before the military exclusive court constitutes an effective
recourse to protect the victims and relatives' rights and repair the damages
caused. In this case events were not investigated, and the liable parties were
not punished either. The War Hall of the Supreme Council of the Ministry of
Justice concluded that those who participated in subduing the riots had no
responsibility. On the other hand, authorities did not make the necessary
efforts to save the largest amount of lives possible after the prison was
demolished, they did not implement the proper proceedings for the
identification of bodies.
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