39
c)
when the military jurisdiction is expanded to include civilians, the
independence and impartiality of judges cannot be guaranteed. The armed
forces are responsible for combating subversion and, at the same time,
assume the function of judging those accused of belonging to irregular armed
groups.
109.
For its part, the State alleged that:
a)
Article 233(1) of the Peruvian Constitution of 1979 established that
military justice and arbitrational justice were separate from regular or
common justice, a provision contained in Article 139(1) of the Constitution in
force and in numeral III of the preliminary chapter of the Organic Law of
Military Justice (Decree Law No. 23.201);
b)
in accordance with Decree Law No. 25.659, the so-called “faceless
judges” who try the crime of treason against the fatherland in the military
jurisdiction have the required professional credentials. Said jurisdiction is
made up of officers of the Military Justice Corps who have a law degree, and
its composition, as well as the recruitment and promotions of its officers are
regulated by Article 623 et seq. of the Organic Law of Military Justice (Decree
Law No. 23.201) and complementary rules;
c)
the “faceless judges” in both the military and regular courts issue
decisions in their field of competence when judging the crimes of treason
against the fatherland and terrorism, and convict or acquit the accused as the
case may be; and
d)
the special military tribunals that investigate and judge the crime of
treason against the fatherland, and the tribunals of the regular criminal court
system qualified to hear cases of terrorism, were the ideal jurisdictional
organs, given the gravity of the internal situation in Peru in 1992 and 1993.
Said tribunals fell within the scope of Article 8(1) of the Convention, and the
special legislation complied with the provisions of Article 27(1) of same.
*
*
*
110. Article 8(1) of the American Convention reads:
Every person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established by
law, in the substantiation of any accusation of a criminal nature made against him or for
the determination of his rights and obligations of a civil, labor, fiscal, or any other
nature.
111. The Court notes that Decree Law No. 25.744, of September 27, 1992,
regarding trials of treason against the fatherland, granted the DINCOTE investigative
powers regarding the corresponding crimes and determined that same should be
tried by military judges even if committed by civilians, in a summary proceeding “in
the theatre of operations,” as provided for in the Code of Military Justice.
112. It is important to point out that the military jurisdiction is established in
several laws, in order to maintain order and discipline within the armed forces.
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