VIII.3 RIGHT TO JUDICIAL GUARANTEES AND RIGHT TO FREEDOM FROM EX POST FACTO LAWS (ARTICLES 1(1), 8(1), 8(2) AND 9 OF THE AMERICAN CONVENTION) 138. In the instant case, the Commission and the representative claimed a series of additional violations to the judicial guarantees of Mr. Rosadio Villavicencio in each of the proceedings that he was subject to. The Court will now analyze the alleged additional violations claimed in relation to: A) the disciplinary proceedings; B) the ordinary criminal proceedings, and C) the military criminal proceedings. A. Military disciplinary proceedings: Alleged violation of the right to be assisted by legal counsel, right to defend oneself, right to a hearing, right to the presumption of innocence and right to adequate grounds A.1. Arguments of the Commission and the parties 139. The Commission indicated that, in the disciplinary proceedings: (i) the alleged victim was unable to appear at the hearing before the Investigative Council that would recommend his retirement, due to the existence of provisions whereby, if a summoned Officer was detained, his presence was not necessary. Thus, the alleged victim was denied the right to a hearing and to submit evidence for the defense, which constituted a violation of the right to defend himself, even though another army officer who was also detained and was subject to disciplinary proceedings was allowed to appear. Furthermore, it claimed that: (ii) in the Order of the Investigative Council for Junior Officers which recommended the retirement of Mr. Rosadio Villavicencio, which was the basis for the decision of the Army General Command, it was considered proven and a key element of analysis that the alleged victim was accused in the military and ordinary criminal jurisdictions. This is contrary to the principle of presumption of innocence, as it entails considering a priori that the accused is guilty of that which he is accused of. Lastly, the Commission argued that: (iii) the recommendation of the Investigative Council for Junior Officers and the decision of the Army General Command of February 7, 1995, to retire the alleged victim violated the duty to provide grounds and the right to freedom from ex post facto laws. Based on the foregoing, the Commission concluded that the State violated Articles 8(1) and 8(2) of the American Convention, in relation to 1(1) thereof, to the detriment of Mr. Rosadio Villavicencio. 140. The representative agreed with the Commission. Furthermore, it argued that Peru deprived Mr. Rosadio Villavicencio of the possibility “to have legal counsel of his own choosing, and did not provide him with one either” during the statement of September 5, 1994, before the Inspectorate of the Leoncio Prado Detachment. In addition, it claimed that Supreme Decree 09, which allegedly permitted the Investigative Council to issue its recommendation without hearing the accused was not applicable because that decree was never published in the “El Peruano” Official Newspaper and was therefore not binding. Similarly, it claimed that the investigation in the disciplinary proceedings against the alleged victim should have been performed by the Inspectorate of the Army’s Intelligence Division (DINTE) and not the Inspectorate of the Leoncio Prado Detachment, which violated Article 8(1) of the Convention. It also claimed the violation of the presumption of innocence, insofar as the Inspectorate of the Leoncio Prado Detachment took the statements of Colonel M to be the absolute truth, with no objections. Lastly, it claimed the violation of Article 9 of the Convention. 141. The State argued: (i) regarding the alleged victim not appearing at the hearing before the Investigative Council, that hearing the accused is not necessary in all cases of disciplinary investigation, such as in the case of common crimes, including illicit drug trafficking, when there is a legal and material impediment that cannot be overridden by the administration, namely, a judicial detention order. The foregoing is according to Supreme Decree 049 of 1991, which modified Supreme Decree 09 of 1985 of the Regulations of the Investigative Councils for Army Officers. Regarding the failure to publish the referred Regulations in the El Peruano Official 32