8
30.
As to the first and seventh preliminary objections, the Court observes that
the question of non-exhaustion of domestic remedies is purely one of admissibility.
On this point, the Court determines that the State has not specified in an
unambiguous manner the remedy which would exhaust the domestic proceedings
and the effectiveness of that remedy. In this respect, it must be pointed out that in
accordance with the principle of good faith that must prevail in an international
proceeding, it is necessary to avoid any ambiguous statement that could result in
confusion.
31.
As has been stated in the jurisprudence of the Court, the State claiming
non-exhaustion has an obligation to prove that domestic remedies remain to be
exhausted and that they are effective (Velásquez Rodríguez Case, Preliminary
Objections, Judgment of June 26, 1987. Series C No. 1, para. 88; Fairén Garbi and
Solís Corrales Case, Preliminary Objections, Judgment of June 26, 1987. Series C
No 2, para. 87; Godínez Cruz Case, Preliminary Objections, Judgment of June 26,
1987. Series C No. 3, para. 90; Gangaram Panday Case, Preliminary Objections,
Judgment of December 4, 1991. Series C No. 12, para. 38; Neira Alegría et al.
Case, Preliminary Objections, Judgment of December 11,1991. Series C No. 13,
para. 30; Castillo Páez Case, Preliminary Objections, Judgment of January 30,
1996. Series C No. 24, para. 40; Loayza Tamayo, Preliminary Objections, Judgment
of January 31, 1996. Series C No. 25, para. 40).
32.
As to the aforementioned preliminary objections, it has been established
that in the course of the criminal proceedings before the exclusive military
jurisdiction two judgments were issued, one on March 5, 1993, by the Special Naval
Court and the other on April 2, 1993, (supra 2.b) by the Special War Council; two
subsequent judgments were issued by the Supreme Court of Military Justice, one
on August 11, 1993 (supra 2.c), that decided the motion for annulment of the
Judgment of April 2 and the other on September 24 of the same year (supra 2.e)
that decided an extraordinary remedy of review of the Judgment of August 11,
1993. Finally, a judgment of the Supreme Court of Peru on October 22, 1993
(supra 2.f). declared a motion for review of the Judgment of September 24, 1993,
to be inadmissible. It is proved that the September 24, 1993 Judgment of the
Supreme Council of Military Justice had the effect, provided for in the judgment, of
placing Cantoral-Benavides under the jurisdiction of the regular courts, with the
result that he was subjected to another criminal trial. Under these circumstances,
it is shown that the criminal proceedings before the military jurisdiction had
concluded.
33.
It is worthwhile to note that when the Supreme Council of Military Justice
decided that Cantoral-Benavides should be tried in the regular courts, he was not
released despite having been acquitted. On September 23, 1993, the attorneys for
Cantoral-Benavides filed a writ of habeas corpus, which was dismissed on
September 29 of the same year by the Twenty-Sixth Criminal Court of Lima (supra
2 (d)). They then also filed a motion for review on October 22, 1993, that was
brought before the Supreme Court of Justice. It is demonstrated, therefore, that
Cantoral-Benavides made use of all the domestic remedies, including the writ of
review, which is extraordinary in character. With the judgment of the Supreme
Court, domestic remedies were exhausted. Consequently, the Court dismisses the
first and seventh preliminary objections raised by the State.
34.
As to the argument of Peru concerning the alleged failure to exhaust
domestic remedies, based on the failure to file a writ of review against the October
6, 1995 Judgment of the Supreme Court of Justice in the civilian jurisdiction, as it
has been established already (supra 33) that domestic remedies were exhausted