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With regard to habeas corpus, the witness declared as follows:
a decision already exists that meets all legal requirements, pronounced by a
judge with general jurisdiction, it has even been published in the official gazette
‘El Peruano’ but, to date, there has been resistance to comply with this
constitutional action of habeas corpus and I insist that this situation is of
considerable concern to Peruvian lawyers. This judgment should have been
complied with already, and this non-compliance has given rise, not only to the
responsibility of the judges who applied resistance, but it has even signified
that a totally irregular process has subsequently been initiated, which violates
constitutional and procedural guarantees and which has caused a person to be
deprived of his liberty up until now.
b.
Testimony of Percy Catacora Santisteban, Major General in the
Peruvian Air Force
Percy Catacora Santisteban is a lawyer and a Major General in the Peruvian
Air Force.
According to the witness, the concept of the independence of military justice
consists in a series of “principles and rights of the jurisdictional function [such
as] the unity and exclusivity of the jurisdictional function. There is not, nor
can there be, any independent jurisdiction, except for the military and
arbitrational jurisdiction”. Military justice is completely independent, so that
interference from other organs, be they judicial or administrative, is not
allowed. Since the military justice system is independent, the officials who
work in it are also autonomous and independent. Article 192 of the Code of
Military Justice sanctions whosoever attempts or aspires to direct or
determine the conduct of a military proceeding or of a military judge.
Percy Catacora defined the autonomy of military justice as follows: “the
judicial official does not depend on other outside higher, political,
administrative instances… there can be no… interference because, to the
contrary, if the authorities do not respect the autonomy of jurisdictional
institutions, the Nation’s legal system is harmed”. The habeas corpus granting
Gustavo Cesti Hurtado his liberty and lifting his impediment to travel abroad
implied manifest interference in the autonomy and independence of the
military justice system.
With regard to res judicata, he stated that for this figure to exist in a military
procedure, all that is required is a jurisdictional decision by military judges,
without the participation of the judge of general jurisdiction through the
consultation mechanism. Under the military justice system, final judgments
are not consulted with any outside body and even less with the ordinary
jurisdiction. They become enforceable when they are appealed or reviewed
before the Supreme Council of Military Justice. In the military justice system,
a final judgment may be annulled by the court itself, but only in specific
circumstances and with special requirements, through an extraordinary
appeal for review of final judgment.
The witness stated that he was familiar with the Cesti Hurtado case, as he
had been involved in it as a member of the Court-Martial. In his opinion, the
habeas corpus violated the principles of independence and autonomy of the
military justice system. Basically, this recourse related to a jurisdictional