5
an operation executed, coordinated and concealed by the Grupo Colina, with the
knowledge and superior orders of the intelligence services and of the then President
of the Republic himself” (para. 114). When referring to the forced disappearance of
the victims, the Court accurately remarked that
"the international liability of the State is aggravated when the disappearance is
part of a systematic pattern or practice applied or tolerated by the State, as it
constitutes a crime against humanity which implies a crass abandonment of the essential
principles on which the Inter-American system is grounded.
(...) The international liability of the State is configured in an aggravated
manner due to the context in which the facts were perpetrated, (...) as well as the flaws
regarding protection and investigation obligations (...).”4
18.
Also, this Court has ruled that the respondent Government itself has
acknowledged “the partiality of the judges of the criminal courts in the trial of the La
Cantuta events" (para. 144). The Court repeated its understanding in the sense that
“in a democratic constitutional state, the jurisdiction of military criminal courts must
be restrictive and exceptional” (para. 142). In this case, there was “manipulation of
legal and constitutional mechanisms,” obstruction of the investigations of the
ordinary justice, “irregular deviation of the military jurisdiction investigations,” with
the aim of “securing impunity for those responsible” (para. 143).
19.
It is significant that, regarding that matter, the Peruvian Constitutional Court
itself, in its Judgment of November 29, 2005 (re: S. Martín Rivas), warned that
considering the circumstances of the cas d'espèce,
"there is evidence that the purpose of the criminal process filed within the
military jurisdiction environment was to prevent the petitioner from being held liable for
the acts charged with. Those circumstances are related to the existence of a systematic
plan to promote impunity regarding human rights and crimes against humanity,
particularly regarding to acts committed by Grupo Colina, to which the petitioner is
linked.
In fact, that systematic plan is expressed by: (i) the deliberate prosecution of
ordinary crimes by military bodies (...); (ii) the enactment, during that term, of amnesty
laws 26,479 and 26,462. (...).”5
20.
In the same Judgment, the Peruvian Constitutional Court added that, also in
the case of Barrios Altos, in its opinion, "there are numerous objective elements
which show that the prosecution of the petitioner for crimes against humanity (...)
was not really aimed at investigating and punishing him in an effective way.”6 That is
to say, the Peruvian Constitutional Court itself set forth the manipulations, on the
part of the military jurisdiction, to conceal a criminal State practice, and to guarantee
the impunity of those who were liable.
21.
Said Law denial was not disregarded - it could not be so - by this Court. In
this Judgment in the case of La Cantuta, this Court, coherently with its Judgments of
Barrios Altos (2001) and Almonacid et al. (2006), pondered, specifically regarding
the legal concept of res judicata, that the principle of non bis in idem is not applied
when the process, not independently or impartially instituted, boiled down to exempt
4
Paragraphs 115-116 (emphasis added).
5
Peru Constitutional Court, Judgment of November 29, 2005 (re: S. Martín Rivas), file No. 45872004-AA/TC, p. 19, paras. 81-83.
6
Ibid., p. 18, para. 78.
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