191. As in previous cases,259 the Court has considered that, given the conclusion that the
military justice system is not competent, it is not necessary to rule on other arguments
regarding the independence or impartiality of the military jurisdiction or the possible
violation of other parameters of the rights to judicial guarantees and to judicial protection.
Nevertheless, the Court considers it necessary to point out some of the irregularities in the
proceeding that led to impunity in the case.
192. Thus, the Court observes, inter alia, that: (a) the investigation was carried out by
military officials and judges, (supra paras. 56 to 62); (b) there is no record of any ballistics
report; (c) the presumed victims were not allowed to take part in the proceedings; (d) in the
investigation, the State did not individualize the injured persons, so that these facts
remained unpunished (supra para. 58); (e) the evidence before the Court does not show
that the arrest warrant against the indicted soldiers was executed (supra para. 58), and (f)
the investigation did not establish whether the use of force respected the principles of
legality, necessity and proportionality.
193. In addition, with regard to the judicial decisions adopted, the Court notes that the
judgment of the Joint Court Martial Appeals Court that acquitted the three soldiers who had
been convicted in first instance, merely ordered the “acquittal” of the accused based on
articles 321 and 327 of the Dominican Criminal Code. In this regard, the Court observes that
article 321 refers to the grounds for excusing the crime of murder, if it has been preceded
by “provocation, or serious threats or violence” (supra para. 62). In this case, it has been
established that the victims never offered any resistance or posed any danger to the
soldiers, a fact confirmed by the soldiers themselves during interrogations conducted in the
investigation of the event (supra para. 83). Moreover, the Court underscores that article 327
referred to by the Joint Court Martial Appeals Court in its judgment had been annulled by
Law No. 24-97 of January 28, 1997 (supra para. 62).
194. In addition, the Court found it proved that the First Instance Court of the Montecristi
Judicial District rejected the request made by the next of kin of the deceased of September
30, 2002, that an investigation be opened in the ordinary jurisdiction (supra paras. 63 and
64). In addition, the decision of the Supreme Court of Justice of January 3, 2005, rejected
the appeal for the appointment of an ordinary judge disregarding the provisions of the
Convention that restrict the military jurisdiction. Based on the foregoing, the Court finds that
both judicial decisions obstructed the participation of the next of kin of the deceased in their
capacity as victims.
195. Furthermore, the Court recalls that the principle of “res judicata” signifies the final
nature of a judgment only when this is reached respecting due process in accordance with
this Court’s case law on the matter.260 Specifically regarding the concept of res judicata, the
Court has indicated that the ne bis in idem principle is not applicable when the proceeding
that culminates in the dismissal of the case, or the acquittal of the person responsible for a
human rights violation, and absolves the accused of criminal responsibility, is not conducted
independently and impartially in accordance with due procedural guarantees, or when there
is no real intention of bringing those responsible to justice.261
196. The Court also considers that “apparent” res judicata occurs when the factual
analysis reveals that judicial investigation, the proceeding and the judicial decisions were not
259
Cf. Case of Usón Ramírez v. Venezuela, supra, para. 124, and Case of Cabrera García and Montiel Flores v.
Mexico, supra, para. 201.
260
Cf. Case of Carpio Nicolle et al. v. Chile, supra, paras. 131 and 132; Case of Almonacid Arellano et al. v.
Chile, supra, para. 154, and Case of the La Rochela Massacre v. Colombia, supra, para. 197.
261
Cf. Case of Almonacid Arellano et al. v. Chile, supra, para. 154.
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