57
that it [was] obvious that the […] objection not only contest[ed] the probative validity of
the evidence submitted in the pre-trial investigation, but also its effects on the trial,
owing to the statements made by [a] police agent […]; consequently, the significance of
this police investiation report, as regards the nature, methods used and evidence
provided in that report, could not be considered accessorily, but as an essential part of
the proceeding, in the process to establish the facts, assess the evidence, interpret and,
finally, apply the norms, which the Panel w[ould] carry out in due course. Therefore, the
said objection [...] is inadmissible.185 (The highlighting appears in the original.)
88(63) Regarding the alleged victim’s defense lawyers objection to the “allegedly
unlawful origin of the evidence submitted,” the National Terrorism Chamber indicated
that:
The defense alleged that the proceedings in the pre-trial and the judicial investigation in
the military jurisdiction only produced ‘inadmissible evidence’, because they had not
respected even the minimum rules of defense and jurisdictional control. However, even
though the police investigation took place at the same time as the military court’s
jurisdictional investigation, it complied with the legal norms in force at the time, and
although application of those norms was extremely restrictive and abusive, this did not
make the evidence inadmissible, but meant that there were probative defects that had
to be serenely assessed within the constitutional framework, because the police
authority acted in the belief that it was duly complying with the law, but under the
jurisdictional control that the military court should have exercised, so that this Panel
[did] not waive its powers to assess legality when deciding the evidence that could or
could not be incorporated into [the...] proceeding.186
88(64) Regarding the objection raised by the alleged victim’s defense lawyer on
“the unconstitutionality of the legislative framework in force for the punishment of
subversive acts, which had been enacted in a critical context of violent circumstances
with notorious functional restrictions for juridical agents,” the National Terrorism
Chamber stated:
first[, …] when times and situations change, legislation should also gradually eliminate
restrictive norms; in this situation, the courts, via the broad control entrusted to them
under the second part of Article 138 of the Constitution, should gradually cease to apply
those provisions of the laws in force whose social legitimacy and constitutional grounds
are no longer reasonable[; …] judges are not slaves to the literal meaning of the law,
but by a comprehensive evaluation of the constitutional and sociological aspects, by
adequate methods of interpreting the legislation[,] they arrive at an application of the
law which is based more on criteria of rationality and social and legal fairness; and […]
second[, …] [the Peruvian] system] has adopted the principle of proportionality; […]
when it has determined the existence of criminal liability, it has been imposing sanctions
well below the legal limits […]; in other words, [it cannot be said] that a proceeding is
irregular merely because the definition of the crime is very open or contains very severe
sanctions, since the norm establishes the framework of legality, but the Judiciary
establishes the framework of justice [.]187 (the highlights appear in the original)
88(65) When examining the probative evidence, the National Terrorism Chamber,
in the sixteenth considering paragraph of the judgment of June 20, 2001, granted
“full certainty of truth” to the seizure of “military uniforms” in the domicile of the
185
Cf. judgment handed down by the National Chamber of Criminal Organizations and Groups on
June 20, 2000 (file of appendixes to the application, tome 2, appendix 23, folios 662 to 739; and file of
probative evidence provided by the State, tome 11, folios 8967 to 9045).
186
Cf. judgment handed down by the National Chamber of Criminal Organizations and Groups on
June 20, 2000 (file of appendixes to the application, tome 2, appendix 23, folios 662 to 739; and file of
probative evidence provided by the State, tome 11, folios 8967 to 9045).
187
Cf. judgment handed down by the National Chamber of Criminal Organizations and Groups on
June 20, 2000 (file of appendixes to the application, tome 2, appendix 23, folios 662 to 739; and file of
probative evidence provided by the State, tome 11, folios 8967 to 9045).
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