exhausted with the decision of the Supreme Court rejecting the final “recurso de hecho,” and
that in each case the alleged victim filed a petition within six months from the date of
notification of that judgment. With respect to the State’s contention that the alleged victims
have not exhausted domestic remedies with respect to their claims for compensation, the
petitioners maintain that they did in fact file an administrative action seeking compensation for
the period they were held in preventive detention in excess of the final judgment rendered–
and were denied.
B.
The State
31. In its submissions before the Commission, the State first emphasizes that the exercise of
military jurisdiction in the criminal proceedings against the defendants was in full accordance
with national and international law. The State notes that the defendants were members of
military personnel at the time of the crimes for which they were ultimately convicted, and that
the crimes were integrally linked to their military service. Further, the State maintains that its
military tribunals were set up by the legislative branch to dispense justice in such cases, and
were not subordinate to the executive. Accordingly, the State affirms that War Councils, such
as that which issued the sentence of conviction, are tribunals of justice with appeal before the
federal jurisdiction, thus fully respecting the guarantees of the right to a second instance
review of any conviction.
32. The State underlines that military jurisdiction is a necessary corollary to the special
characteristics of the military as an institution and the distinct values protected by military
codes. Consequently, military tribunals are competent and constitutional to judge military
personnel for crimes set forth in the Code of Military Justice. On the basis of its position with
respect to the validity of military jurisdiction in this case, and in relation to the so-called
“doctrine of fourth instance” the State affirms that the Commission would only be competent
to review claims insofar as the petitioners alleged some failure to comply with the procedures
set forth in the Code of Military Justice or that the proceedings had violated the American
Convention.
33. With respect to the alleged violations of the right to liberty under Article 7 of the American
Convention, the State emphasizes that the alleged victims regained their liberty approximately
10 years ago, so that this aspect of the petition is essentially moot and should be dismissed.
The State notes that the claims before the Commission to the effect that the orders authorizing
the preventive detention of the alleged victims were not duly founded were raised before both
the Supreme Council and the National Chamber of Criminal Casation, and rejected as lacking
any basis. With respect to the petitioners’ claim that the alleged victims should be
compensated for the time spent in detention, in particular that which exceeded the length of
the prison sentences issues, the State indicates that they did not invoke or exhaust internal
remedies for such compensation, so that such claims were inadmissible pursuant to the terms
of Article 46(1) of the American Convention.
34. With regard to the petitioners’ claims concerning detention incommunicado, the State
affirms that the decision to extend this form of detention for certain alleged victims was duly
founded in conformity with the Code of Military Justice. While this foundation was not recorded
for certain other alleged victims, the State notes that the Supreme Council of the Armed
Forces considered this a disciplinary infraction on the part of the judge concerned, but
determined that it did not give rise to any nullity in the proceedings, and that this
determination was upheld on appeal by the National Chamber of Criminal Casation. Similarly,
with respect to the petitioners’ allegations concerning threats or mistreatment at the time of
the alleged victims’ initial declarations, the State indicates that such claims were placed before
the competent judicial authorities and judged to be without merit.
35. In response to the claims that the alleged victims were not tried within a reasonable time
in violation of the guarantees of Article 8, the State contends that the calculation of
reasonableness should take into account the number of persons involved, the kind of proof
that had to be obtained, and the duration of the facts under investigation. The State notes that
in the present instance, the proceedings involved 32 defendants, a principal file of over 14,000
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