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Peruvian legislation, it is not requirable, either constitutionally or legally, and
it constitutes an optional parallel route; and that, in accordance with Article
173 of the Constitution, the military jurisdiction is competent to judge
civilians only in cases of crimes of treason, terrorism and breach of the law of
obligatory military service.
The expert, Valentín Paniagua Corazao, added that an alleged crime of fraud,
such as that imputed to Gustavo Cesti Hurtado, falls outside the terms of
military jurisdiction; that if a judge is not competent to issue a provisional
order of arrest, neither is he competent to judge or convict; and that, in the
case of Gustavo Cesti Hurtado, the writ of habeas corpus definitively exhausts
the instance, having the force and effect of res judicata. Likewise, he
declared that the Constitution commits the President of the Republic to
complying with judgments pronounced by the Judiciary and seeing that they
are complied with, and that no person may delay the execution of judgments
or impede their execution; that judgments pronounced with regard to
petitions for habeas corpus “may not be revised” and “exceptions may not be
presented to them”, constitute res judicata only if they are favorable to the
claimant, must be published in order to raise awareness and “confidence in
the Constitution” in society, and “may not be appealed”. With regard to the
military justice system, the expert advised that, according to the Constitution,
civilians are excluded from its scope of competence and its only purpose is to
prosecute and punish the so-called “service-related crimes”.
During the examination by the State, the expert declared that there is an
impediment to filing a petition for habeas corpus and a jurisdictional dispute
simultaneously because, according to the Law of Habeas Corpus and Amparo,
actions to protect rights are not admissible if the victim elects the parallel
route; that, once the action to protect rights has concluded, there is no
impediment to filing a jurisdictional dispute, but that the victim would not be
obliged to do so because he would already enjoy juridical freedom and is not
obliged to do what the law does not require. The expert concluded that “it
would be irrational that, having achieved the most effective means of
defending personal freedom, he would wish… to submit himself… to an
absolutely useless and unnecessary procedure...”. Lastly, the expert stated
that the petition for habeas corpus is filed not only against a violation, but
also against the threat of the violation of a right, that it constitutes the most
effective means to ensure the legal protection of the right threatened, and
that, although it is true that Article 139 of the Constitution establishes that no
person may interfere in judicial proceedings that are under way, it is also
certain that judges are obliged to defend the principle of the judge with
general jurisdiction and the jurisdiction ordained by law, so that, if there is
opposition between these obligations, “the option is absolutely inevitable in
favor of the person who has been deflected from the jurisdiction previously
established by law”.
In reply to questions from members of the Court, the expert declared that
Article 105 of the 1979 Constitution enshrined the principle that treaties and
agreements signed by Peru form part of national law and have constitutional
rank and that the 1993 Constitution eliminated this provision and, in its place,
established that the courts are obliged to interpret Peruvian constitutional law
in the light of international human rights law.