86
149.
In this regard, the Court has stated that, in doing so:
[…] the military tribunal acted ultra vires[,] usurped jurisdiction and arrogated to itself
the powers of the regular judicial organs, inasmuch as Decree-Law 25,475 (crime of
terrorism) stipulates that the aforesaid crime is to be investigated by the National Police
and the Ministry of the Interior, and tried in the civil courts. Further, the regular judicial
authorities were the only organs with the power to order the detention and
imprisonment of the person accused.247
150. In view of the above, the Court declares that the State violated Article 8(1) of
the Convention, in relation to Article 1(1) thereof, by trying the alleged victim in the
military jurisdiction for the crime of treason.
b)
Criminal proceeding in the ordinary jurisdiction
151. On August 28, 2000, after having declared that the special appeal for review
of res judicata was admissible, the Supreme Council of Military Justice forwarded a
copy of the whole file against Lori Berenson to the Attorney General’s office, so that
the preliminary investigation in the ordinary criminal jurisdiction could be carried out,
and also the trial before the National Terrorism Chamber, which delivered a
judgment convicting her on June 20, 2001 (supra para. 88(69)). Then, on July 3,
2001, pursuant to the legislation in force in Peru, the alleged victim’s defense lawyer
filed an appeal for annulment against the judgment delivered by the National
Terrorism Chamber (supra para. 88(70)), which was rejected by the Supreme Court
of Justice on February 13, 2002 (supra para. 88(72)).
152. The Court considers that, during the civil proceeding, the alleged victim’s
right to be heard by a competent, independent, and impartial tribunal, previously
established by law, was respected, in both the first and second instance.
153. The representatives of the alleged victim argued that the judges in the civil
jurisdiction lacked independence and impartiality (supra para. 130(2)(f)). The Court
observes that the alleged victim’s defense lawyer filed an objection on May 2, 2001,
which was rejected by the National Terrorism Chamber, because it had been “filed
during the continuation of public hearing No. 19 (supra para. 88(59)). Article 40 of
the Peruvian Code of Criminal Procedure established that this objection should have
been “filed before the same tribunal, up to three days before the hearing was set.”248
154.
In this regard, the Human Rights Committee has indicated that:
The purpose of Article 5, paragraph 2(b) of the Optional Protocol is, inter alia, to direct
possible victims of violations of the Covenant provisions to seek, first, satisfaction from
the competent State Party and, also, based on individual complaints, to allow States
Parties to examine the implementation of the provisions of the Covenant, in their
territory and by their organs and, if necessary, to remedy the violations that occur
before the Committee hears the matter.249
247
Cf. Case of Loayza Tamayo, supra note 25, para. 61.
248
Cf. Article 40 of the Peruvian Code of Criminal Procedure (file of probative evidence provided by
the State, tome 12, folios 9174 to 9342).
249
Cf. UN. Human Rights Committee, T.K. vs France, (220/1987), report of November 8, 1989,
para. 8(3).
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