54
209. The Court, viewing the evidence adduced in the case file, notes first of all that the
application of common criminal laws was expressly allowed under article 510 of the Code of
Military Justice (supra par. 203). That is, the special laws (the military code) pointed to the
substantive general laws (provisions from Book I of the Criminal Code) to supplement its own
in cases of military crimes. The Court therefore holds that the specific application of the
provisions from Book I of the Criminal Code – including article 67 and the institution of
“consequences of the trial” – was legal and predictable, as stated by the Supreme Court. An
examination of the relevant law shows that the application of the general criminal provisions
had been established prior to the military criminal laws.
210. It is thus clear that there was no “change” in the procedural rules or violation of the
principle of freedom from ex post facto laws in the decision by the Supreme Court to reject
the request to apply the statute of limitations to the criminal action.
211. Still unanswered is the argument by the representatives that the application of the
military criminal law led to more severe punishment for their clients. It is necessary in this
matter to clarify that the decision by the Supreme Court did not limit the court that would
eventually judge the appeal on the merits (National Chamber of Criminal Cassation) in terms
of setting the sentence, nor did it order the use of the military criminal rules in preference to
the general criminal rules. To the contrary, the sentencing decision was made, as this Court
has recommended in the past, in strict adherence to the provisions of the law, rigorously
matching the criminal conduct to the codified crime. The evidence in the case file shows that
the National Chamber of Criminal Cassation performed this task by handing down final
sentences for the defendants, such that the decision on the statute of limitations did not entail
a harsher penalty, as the representatives have claimed, and therefore, this argument should
be dismissed.
212. The Court would also discuss the claim that Mr. Candurra received no reply to his petition
for the statute of limitations during the article 445 bis hearing (that is, following the Supreme
Court decision). In the first place, it is clear that when the National Chamber of Criminal
Cassation judged the matter, it adhered to the earlier decision by the Supreme Court, because
the claim was based on the same facts and arguments that had already been weighed.
Nevertheless, the National Chamber of Criminal Cassation, in the discussion of its decision on
the appeal, also addressed the argument for invoking the statute of limitations in the following
terms:
The reintroduction of [the petition] before this Chamber to invoke the statute of limitations
[…] is based on the same grounds that the Supreme Court already considered when it
resolved the matter; therefore, because the circumstances examined by the High Court
at that time have not changed, it is mandatory to uphold its view and not to admit the
declaration of the statute of limitations as requested. […]
[Regarding the] petition lodged […] by Mr. Mastroestéfano and Mr. Cueto based essentially
on the view that since the early stages of the proceedings there have been undue delays
that undercut the guarantees set forth in the American Convention […], recently
incorporate[d] into the Constitution[,] it is evident that the amount of time the process
took in the military jurisdiction cannot compare to the “unusual and extended” period
cited by the Supreme Court as the basis for its judgment in the “Mozzatti” case being cited
[in which the Court declared null and void the actions conducted and invoked the criminal
statute of limitations].200.
200
Grounds for the March 20, 1995 judgment by the National Chamber of Criminal Cassation, April 3, 1995
(evidence file, folios 2299 to 2301).