7
29.
The petitioners claim that the State violated Articles 8 and 25 of the American
Convention in relation with Article 1(1) of this treaty and Articles 1, 6 and 8 of the Inter-American
Convention to Prevent and Punish Torture, to the detriment of Valdemir Quispealaya Vilcapoma, since
the Supreme Court of the Republic settled the dispute over jurisdiction in favor of the military courts. In
this sense, they indicate that the jurisprudence of the Inter-American Court establishes that in a
democratic State governed by law, military jurisdiction should have a restrictive and exceptional
application and be directed toward protecting the special legal interests related to the aspects of law
assigned to the military forces. They claim that in the present case, the State has violated the standard
set by the Inter-American Court in the Case of Palamara Iribarne v. Chile with respect to the right to be
tried by a competent, independent and impartial judge or court.
30.
The petitioners state that the Ombudsman has already pronounced on the legal
interests affected in the case of Valdemir Quispealaya, concluding that the assault on a soldier and the
harm to his physical integrity have no relation to the institutional goals that correspond to the Armed
Forces according to Article 165, and that the Code of Military Justice does not include the crime of
serious injuries.
31.
The petitioners indicate that the State did not initiate an investigation ex oficio for the
torture committed against the alleged victim, but that the claim instead originated in a complaint filed
by the party. They add that it was not carried out with due diligence and was inefficient, since the party
responsible for the crime was neither investigated nor punished. They state that furthermore, the State
did not provide the victim with reparations that were proportionate to the seriousness of the lasting
effects of the torture that he suffered.
32.
The petitioners claim that the investigations were not carried out with due diligence
because the judicial authorities did not apply the “Protocol of Medical-legal Recognition for the
Detection of Injuries or Death as the Result of Torture,” which was in force at the moment of the events.
This includes physical and mental examinations, auxiliary examinations, and several sessions of
treatment, concluding with a detailed and in depth report on the injuries that the victim presents. They
claim that the Protocol of Istanbul was similarly not applied.
33.
Finally, the petitioners request that in the present case the IACHR grant the following
measures of reparation: a) training for members of the Peruvian Armed Forces that are in charge of
training recruits who perform voluntary military service, particularly regarding the use of force and the
application of disciplinary measures that respect human rights; b) design of a “Manual of disciplinary
measures of the Armed Forces” which stipulates the disciplinary measures that are permitted; c)
training for prosecutors and judges regarding the crime of torture and its difference from the crime of
injuries; d) implementation of the Protocol of Istanbul; and e) measures of full reparation
commensurate to the serious physical and psychological effects of the torture committed against
Valdemir Quispealaya Vilcapoma, as well as that suffered by his family, who have supported him during
the domestic proceedings; f) a judicial investigation of those responsible for the torture committed
against Mr. Quispealaya.
B.
The State
34.
The State alleged that when the IACHR issued its Admissibility Report, there was a
proceeding before the military courts for the alleged facts, and that reparations have been made in this