95. It is therefore clear that, according to a dogmatic interpretation of the Convention whereby it is inadmissible to understand any of its provisions as contrary to the Universal Human Rights System or any of the criminal laws of the countries in the region, Article 8(4) of the Convention must be understood to strictly prohibit multiple punishments for a single crime. Consequently, it is important to determine in this case whether the penalty imposed on the victim in the ordinary criminal jurisdiction and that imposed in the military criminal jurisdiction refer to the same crime or to two separate crimes. In this regard –although it was not claimed by the parties– it is worth noting that some doctrine has considered the military criminal jurisdiction to be of an “administrative” nature, argument that is dismissed ab initio in the instant case due to the clear criminal nature of the penalty imposed on the alleged victim. 96. It can be inferred from Article 9 of the Convention that crimes cannot be other than “acts or omissions”; therefore, what the Convention prohibits is that a person who was acquitted or convicted for an act or omission be penalized once again for the same act or omission. This necessarily requires determining whether the alleged victim incurred in one or two acts. 97. The criminal laws of Peru in fact raise this question; Article 48 of the Criminal Code of Peru states that: “[w]hen several provisions are applicable to the same fact, the greater penalty will be applied for up to the maximum amount, and it can be increased up to one fourth […].” This is the concept of “ideal concurrence,” in which a punishment –according to the law– is regulated by the “principle of absorption” (the greater penalty absorbs the lesser one), or, as in Peruvian law, by “aggravation of punishment” (the greater penalty is increased to a certain extent, making it graver), solutions that, with slight variations, are reiterated in all criminal codes. The Criminal Code of Peru, as that of other State Parties and the global criminal codes in general, requires answering that question in order to distinguish between an “ideal concurrence” (one act, a single offense, one penalty) from “real concurrence” (two or more acts, two or more independent offenses; hence, two or more penalties). Although the codes differ with regard to the applicable penalties, there is a governing principle that one act can only give rise to one offense and, therefore, only one punishment, whereas multiple acts give rise multiple offenses and thus multiple punishments, which can be accumulated or joined, according to the different legal solutions, which are not worth delving into at this time. 98. A single act requires as a minimum that there be a single decision of intent, which is necessary, but not sufficient, to determine whether it constitutes a single act. Evidently, when there is a single movement it is not possible to consider the existence of multiple acts; however, in general, a single act encompasses multiple movements. In that case, a single intent must be present. 99. In this case it is not necessary to consider all possible doctrinal difficulties when determining the existence of a single act; it is sufficient to point out that when there are multiple legal classifications this does not multiply the acts. Rather, we are dealing with the hypothesis of a single crime (a single act) with multiple legal classifications, or a clear case of “ideal concurrence” in which there is a plurality of applicable criminal code provisions to a single act. 100. It is quite clear in this case that the two convictions have the same factual background, meaning that they refer to the same act of which the alleged victim was accused. In fact, the Permanent War Council of the Sixth Judicial Military Area, in its judgment of December 15, 1997,94 in which it decided to convict Mr. Rosadio Villavicencio for the crime of failure to obey a lawful order in the military criminal jurisdiction, the act that constituted the offense was the same act for which he was convicted in the ordinary jurisdiction. This is because in the judgment the Permanent War Council, after reiterating the proven facts, mentions in its sole considering paragraph that “[…] the facts committed by intelligence lieutenant ROSADIO VILLAVICENCIO 94 Judgment No. 025-97, Case No. 1594-0648, of December 15, 1997 (evidence file, folio 143). 24

Seleccionar párrafo de destino3