12
Military Justice and the Full Chamber of the Special Supreme Military Tribunal
handed down the judgments of August 11 and September 24, 1993, respectively,
what they did was to renounce jurisdiction, as this was the "procedural formula
employed by military justice;" and that, on the contrary, the military jurisdiction
made full use of its competence when it analyzed and ruled on questions of merit.
According to the Commission, Ms. María Elena Loayza-Tamayo was therefore
acquitted three times and convicted once.
g.
Finally, the Commission holds the view that the action of an attorney for a
defendant may not be used "in a malicious and unfounded attempt to link the
defense counsel to unlawful activities imputed to her client." It therefore requested
the Court to "compensate" Ms. María Elena Loayza-Tamayo's defense attorney for
DINCOTE's intimidation tactics and false accusations.
38.
In its answer to the application and in its closing arguments, Peru expressed its
views, which the Court summarizes as follows:
a.
In its answer to the application, Peru expressed the view that in the
consideration of the facts and arguments on which the Commission's application was
based, account should be taken, first and foremost, of Article 233, paragraph 1, of
the 1979 Political Constitution of Peru, which was in force until it was superseded by
the 1993 Constitution, and which stipulated
that the arbitration courts and the military courts were exceptions to the principle of
unity and exclusiveness of the jurisdictional function of the Peruvian Judiciary, a concept
which was later enshrined in the current Constitution.... Consequently, ... for a better
understanding, in referring to the intervention of military judges, the term Military
Justice or, in any event, Military Jurisdiction sh[ould be] used.
b.
With regard to the procedural aspects, Peru claimed that for the interAmerican system of human rights to function, it was necessary for domestic
remedies to be filed and exhausted, although exceptions to that rule do exist. That
in the instant case, both the Commission and the Inter-American Court "have
assumed undue jurisdiction" in that at the time the petition was filed Ms. María Elena
Loayza-Tamayo's trial was still pending and she had not been notified of a final
ruling. In its closing arguments, the State insisted that "the application was
inadmissible on the ground of non-exhaustion of domestic remedies."
c.
The State also argued that the Commission did not observe due process of
law since it failed to inform Peru that it had admitted the complaint, as it is required
to do by Article 48 of the Convention and that during the public hearing held on
February 5, 1997, the Commission conceded that the decision on admissibility was
made on the final report.
d.
According to the answer to the application, Ms. María Elena Loayza-Tamayo
was apprehended on the accusation of a repentant terrorist. However, Peru, in the
same brief, claimed that the arrest had not been the result of Angélica TorresGarcía's accusation, who was not a repentant terrorist, and for that reason it had not
undertaken the verification procedure required by the Ley de Arrepentimiento ("Law
of Repentance"), inasmuch as the detention
was carried out in response to actions by the National Intelligence
Bureau, which learned that Ms. María Elena Loayza-Tamayo was a