5
18.
Also, this Court has ruled that the respondent Government itself has acknowledged
“the partiality of the judges of the criminal courts in the trial of the La Cantuta events"
(para. 144). The Court repeated its understanding in the sense that “in a democratic
constitutional state, the jurisdiction of military criminal courts must be restrictive and
exceptional” (para. 142). In this case, there was “manipulation of legal and constitutional
mechanisms,” obstruction of the investigations of the ordinary justice, “irregular deviation of
the military jurisdiction investigations,” with the aim of “securing impunity for those
responsible” (para. 143).
19.
It is significant that, regarding that matter, the Peruvian Constitutional Court itself,
in its Judgment of November 29, 2005 (re: S. Martín Rivas), warned that considering the
circumstances of the cas d'espèce,
"there is evidence that the purpose of the criminal process filed within the military
jurisdiction environment was to prevent the petitioner from being held liable for the acts charged
with. Those circumstances are related to the existence of a systematic plan to promote impunity
regarding human rights and crimes against humanity, particularly regarding to acts committed by
Grupo Colina, to which the petitioner is linked.
In fact, that systematic plan is expressed by: (i) the deliberate prosecution of ordinary
crimes by military bodies (...); (ii) the enactment, during that term, of amnesty laws 26,479 and
26,462. (...).”5
20.
In the same Judgment, the Peruvian Constitutional Court added that, also in the case
of Barrios Altos, in its opinion, "there are numerous objective elements which show that the
prosecution of the petitioner for crimes against humanity (...) was not really aimed at
investigating and punishing him in an effective way.”6 That is to say, the Peruvian
Constitutional Court itself set forth the manipulations, on the part of the military
jurisdiction, to conceal a criminal State practice, and to guarantee the impunity of those
who were liable.
21.
Said Law denial was not disregarded - it could not be so - by this Court. In this
Judgment in the case of La Cantuta, this Court, coherently with its Judgments of Barrios
Altos (2001) and Almonacid et al. (2006), pondered, specifically regarding the legal concept
of res judicata, that the principle of non bis in idem is not applied when the process, not
independently or impartially instituted, boiled down to exempt the accused from his criminal
liability, thus configuring and “apparent” or “fraudulent” res judicata (para. 153), which
constitutes the Law denial itself.
22.
Finally, the extensive and detailed Final Report of Peru´s CVR determines the facts
which configured the State criminal practice during the period at issue. The cases of La
Cantuta (1992),7 Barrios Altos (1991),8 Huilca Tecse (1992),9 among others, are therein
fully described with high degree of detail. When determining the “legal frame of forced
5
Peru Constitutional Court, Judgment of November 29, 2005 (re: S. Martín Rivas), file No. 4587-2004AA/TC, p. 19, paras. 81-83.
6
Ibid., p. 18, para. 78.
7
CVR, Final Report, op. cit. supra No. (3), sections 2(19), pp. 605-632, and 2(22), pp. 233-245.
8
CVR, Final Report, op. cit. supra No. (3), section 2(45), pp. 475-493.
9
CVR, Final Report, op. cit. supra No. (3), section 2(58), pp. 629-647.
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