17
declared “the absence of merit” to move to an oral trial for the crime of collaboration
with terrorism, questioning such order for the trial to commence, that accused the victim
for two “incompatible” crimes. Thus, the process was limited to the accusation for the
crime of terrorism-affiliation.
48.
Notwithstanding the foregoing, this Tribunal points out that the Judgment of the
Supreme Court, refers to the crime of “collaboration” in its Considering paragraphs to
determine the responsibility of Mrs. De La Cruz Flores, however, the crime imputed to
the defendant in the second process is that of “affiliation to a terrorist organization.”
Indeed, despite that previously it was considered that a trial for collaboration was not
going to be promoted (supra Considering 47) that Chamber pointed out that:
“regarding that alleged by the appealing defendants, in the sense that providing medical
attention shall not constitute any crime, it shall be established that the crime of terrorist
collaboration, in its diverse legal expressions since its introduction in the national arrange of
punishments, represses those linked in some way with the material execution of any act of
collaboration that favors the commission of the crimes of terrorism or the materialization of the
purposes of a terrorist group; that, without prejudice of that stated in the Final Judgment of
December 2004 […], it shall be added that the acts of collaboration that are relevant for the
definition of the crime, firstly, should be related to the activities and purposes of the terrorist
organization, and, in second place, they shall materially favor the terrorist activities themselves
[…]; that, the typical conduct shall, then, contribute with its suitability, to the consecution of
execution of a specific purpose: to favor the commission of crimes of terrorism or the
realization of the purposes of a terrorist organization.” (emphasis added)
49.
Taking into account these precedents, the Court observes that the internal
judicial authorities fall in the same irregular conduct pointed out in the Judgment of
Merits when applying an article that does not define the criminal conducts for which Mrs.
De la Cruz Flores was convicted. Indeed, in the first procedure, considerations regarding
her affiliation to a terrorist group were made, and she was convicted for her
collaboration within it. In the second process, the judicial authority makes considerations
regarding the collaboration with such group and she is convicted for affiliation to it (she
is convicted for “be[ing] link[ed] or connect[ed] as a clandestine collaborator to the
purposes of the terrorist organization.”) Furthermore, in both cases, this is to say, either
for the crime of collaboration or for the affiliation, the acts imputed to Mrs. De La Cruz
are linked to medical acts allegedly committed by her (supra Considering 23 and 24).
This, besides verifying again the ex post facto application of Decree Law No. 25475
before the absence of a clear correspondence between the facts imputable to the victim
and the entry into force of such norm that, in any event, was applied despite not being
the most favorable regarding the amount of the sentence. Finally, the Court verified
that in the process, negative consequences resulted from the victim denying her
culpability.
50.
Thus, the Tribunal verifies that the first operative paragraph of the Judgment has
not been fulfilled in the new process followed against Mrs. De La Cruz Torres, in the
extent of observing the principle of protection from ex post facto laws.
*
*
*
51.
For all the foregoing, the Tribunal points out those elements that demonstrate
that the second process followed against Mrs. De La Cruz Flores has been carried out in
conformity with the first Operative Paragraph of the Judgment, have not been submitted.
Thus, the Court deems that the State shall carry out all the concrete and pertinent
procedures to fulfill such operative paragraph, and to adequate the second process
followed against the victim to the principles of legality, protection from ex post facto