75
but ordinary felonies, and secondly, in the specific case of Vladimiro
Montesinos, he was not a member of the military in active duty. The undue
exercise of jurisdiction by the military courts in the prosecution of the
perpetrators of the facts denounced was possible pursuant to applicable
domestic legislation which established a wide scope of subject-matter and
personal jurisdiction. In this sense, the above mentioned norms infringed
Article 8(1) of the American Convention in relation to Articles 1(1) and (2)
thereof;
h)
with the incorporation of amnesty laws to its legal system, and during the
time when they were applied and had effects, the State violated the rights to
a fair trial (Article 8(1)) and to judicial protection (Article 25), in relation to
the duties of protection and guarantee (Article 1(1)) and the duty to adapt
domestic legislation to conform to international standards (Article 2), to the
detriment of the victims and their next of kin, and
i)
the State has violated the rights embodied in Articles 8(1) and 25(1) of the
Convention, in relation to Articles 1(1) and 2 thereof, to the detriment of the
victims and their next of kin, inasmuch as it failed to provide effective judicial
remedies substantiated by competent, independent and impartial judges
within a reasonable term and to adapt domestic provisions to conform to the
principles of Articles 8(1) and 25(1) of the Convention, and, particularly, in
view of the fact that it approved, applied and kept in force up to the present a
norm (the Military Code of Justice) which does not clearly and accurately
specify who may be tried by military courts.
Arguments of the State
132. The State partially acquiesced to the alleged violation of Articles 8 and 25 of the
Convention (supra paras. 45, 46 and 53) and remarked, inter alia, that:
a)
b)
c)
d)
it does neither deny the occurrence of the facts nor that they took place due
to acts or omissions of State representatives (public authorities or officials),
which incriminates the State. However, it explains the context in which the
State responded to the impunity that prevailed until late 2000, when the
State modified its behavior following the democratic transition and the
reinstatement of the Rule of Law in the country;
immediately after the fall of former President Alberto Fujimori, the State
adopted concrete measures to reestablish fluent relations with the interAmerican protection system, strengthen the Rule of Law and avoid impunity
for crimes against human rights and to the prejudice of public property;
these specific facts and the reinstitutionalization of the country have enabled
both the Attorney General´s Office and the Judiciary to restart the
investigations and conduct proceedings, pursuant to the evidence gathered,
to reverse the impunity that has prevailed for numerous and egregious
human rights violations;
the Transition Government created the Comisión de la Verdad (Truth
Commission) in order to elucidate the processes, facts and responsibilities of
terrorist violence and human rights violations perpetrated between May 1980
and November 2000, attributable both to terrorist organizations and State
agents. This Commission issued a Final Report by late August 2003, which
constitutes a step forward in the elucidation of the facts, the vindication of all
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