63
illusory. Every element which determines the severity of the punishment should correspond
to a clearly identifiable objective and be compatible with the Convention.
197. Likewise, it must be noted that the principle of res judicata provides protection from
another judgment only when this judgment is reached with due respect for the guarantees
of due process, in conformity with the Tribunal’s jurisprudence on this subject.205 On the
other hand, if new facts or evidence are discovered which make it possible to ascertain the
identity of those responsible for grave human rights violations, investigations can be
reopened, even if the case ended in an acquittal with the authority of a final judgment.
198. Finally, the State has the non-derogable duty to directly provide redress to the
victims of human rights violations for which it is responsible according to the standards of
attribution of State responsibility and reparation established by the Court in its
jurisprudence. Moreover, the State must ensure that the reparation claims formulated by
the victims of grave human rights violations and their next of kin do not encounter
excessive procedural burdens or obstacles that could present an impediment or obstruction
to the satisfaction of their rights.
b)
Proceedings in the Military Criminal Courts
199. The Commission alleged that, in this case, the application of the military criminal
justice system constituted a violation of the “principle that cases should be tried by an
appropriate and impartial judge [juez natural], of due process, and of access to adequate
judicial recourse.” The representatives agreed with the Commission and added that the
intervention of the military criminal justice system clearly obstructed the investigation in the
ordinary criminal courts. During the proceedings before the Court, the State acknowledged
that the military criminal courts did not have jurisdiction to hear the case. Nevertheless, it
indicated that, in the present case, the intervention of the military criminal justice system
“has diminished notably” and that the case file had been “transferred to the ordinary justice
system.” It also indicated that “at the time of the facts, the authorities of the InterAmerican system had not yet issued their rulings on the military criminal justice system;
however, as they have become known, the State has been developing a policy that
establishes limits to that system, in accordance with the terms and scope indicated at the
international level.”
200. The Court has established that the military criminal courts should have a restrictive
and exceptional scope, bearing in mind that they should only judge members of the armed
forces when they commit crimes or misdemeanors that, owing to their nature, affect rights
and duties inherent to the military system.206 In this regard, when the military justice
system assumes jurisdiction over a matter that should be heard by the ordinary justice
system, the right to have a case tried by the appropriate judge is affected.207 This
guarantee of due process should be examined taking into account the object and purpose of
the American Convention, which is the effective protection of the individual.208 For these
205
Cf. Case of Almonacid Arellano et al., supra note 16, para. 154.
Cf. Case of La Cantuta, supra note 8, para. 142; Case of Almonacid Arellano et al., supra note 16 para.
131; and Case of the Pueblo Bello Massacre, supra note 12, para. 189.
206
207
Cf. Case of Almonacid Arellano et al., supra note 16, para. 131; Case of Palamara Iribarne. Judgment of
November 22, 2005. Series C No. 135, para. 143; and Case of the 19 Tradesmen, supra note 33, para. 167.
208
Cf. Case of the 19 Tradesmen, supra note 33, para. 173.
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