classifications, such as in this case in the ordinary criminal law and in military criminal law; rather,
the legal system of each State must decide the question of jurisdiction in a manner that prevents
the splitting up of a single fact.
105. In sum, what violates the American Convention is imposing multiple punishments for the
same act or omission, given that the judicial guarantee presumes that a single act or omission
shall not be subject to multiple proceedings.
106. Based on the foregoing, the Court concludes that the State is internationally responsible
for the violation of Article 8(4) of the Convention in relation to the ordinary criminal proceedings
and the military criminal proceedings.
B.1. Criminal proceedings and military disciplinary proceedings
107. Regarding the criminal penalties mentioned and the administrative disciplinary sanction
imposed, the Commission and the representative claimed that the authorities did not clearly define
the facts and disciplinary reasons for the investigation of the alleged victim and that the
Investigative Council for Junior Officers failed to clearly define the facts that corresponded to each
of the grounds invoked. According to the Commission, the facts referred to in these proceedings
are the same as those discussed in the ordinary and military criminal proceedings. Moreover, the
State did not present its arguments regarding the difference between the crime of failure to obey
a lawful order and that legal concept as a disciplinary offense, or the distinction between the crime
of illicit drug trafficking and that legal concept in the disciplinary jurisdiction. Therefore, the State
combined criminal offenses with disciplinary offenses, meaning that it imposed two different
penalties based on the same legal grounds, subject matter and parties, in violation of Article 8(4)
of the Convention.
108. Firstly, the Court considers that the Commission’s claim that the State’s judicial and
military-administrative authorities failed to clarify the grounds for their decisions must be analyzed
in relation to right to adequate grounds, which will be addressed in chapter VIII.3 infra.
109. Secondly, the purpose of this chapter is to determine whether the State violated the
principle of ne bis in idem by carrying out military disciplinary proceedings and two criminal
proceedings (ordinary and military) against the same party, based on the same legal grounds and
in relation to the same subject matter or protected juridical rights. It is an undisputed fact that in
both criminal proceedings and in the disciplinary proceedings the person tried and punished was
Jorge Enrique Rosadio Villavicencio. Therefore, the analysis required is whether the facts
(grounds) and subject matter of the aforementioned proceedings are the same.
B.1.1 Ordinary criminal proceedings and military disciplinary proceedings
110.
Regarding the identity of the facts, it has been confirmed that the same factual background
was used in the ordinary criminal proceedings and disciplinary proceedings. In fact, in the
disciplinary proceedings, the order of March 3, 1995, issued by the Army General Command,
decided to retire the alleged victim “[pursuant to] that proposed by the Division General of the
Army General Command.”98 In the Minutes of the Investigative Council for Junior Officers of
February 7, 1995, signed by the presidency of the Division General,99 the following facts were
considered proven in relation to then Lieutenant Rosadio Villavicencio:
[…] he authorized three illegal drug-trafficking flights (on August 17, 24 and 31, 1994), but reported
only the last flight (August 31, 1994) to the Command position of the Leoncio Prado Detachment;
[…] he permitted the installation and operation of a laboratory to prepare basic cocaine paste at the
Sión location, and
98
99
Order of the Army General Command, No. 0527 CP/EP/CP-JAPE 1d (evidence file, folio 82).
Minutes of the Investigative Council for Junior Officers, Session No. 007-95 (evidence file, folio 55).
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