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concerning Decrees 591 and 600, the Court, in its Judgment of January 27, 1995, on
preliminary objections in this matter, determined that it could not examine the abstract
compatibility of those decrees and the American Convention, but reserved the power to
examine the merits of the case and the effects of their application on the human rights
protected by the Convention (Genie Lacayo Case, Preliminary Objections, supra 4, para.
51).
83.
The analysis of the proceedings has led the Court to determine (supra 72), that it is
clear that Decrees 591 and 600 concerning trials in the military courts were applied in this
Case; it is therefore appropriate to examine whether the provisions applied conform to the
precepts of the Convention.
84.
That conformity must be examined exclusively insofar as its concerns the procedural
rights of Mr. Raymond Genie-Peñalba, who is the interested party in this matter, but not in
relation to the defendants in the case, inasmuch as the case is not being heard by this
Court; the fact that it involves a military court does not per se signify that the human rights
guaranteed the accusing party by the Convention are being violated.
85.
The evidence given in this matter shows that Mr. Raymond Genie-Peñalba was able
to participate in the military proceeding, submit evidence, avail himself of the appropriate
remedies and, lastly, apply for judicial review before the Supreme Court of Justice of
Nicaragua, whose remit it is to rule on the merits of the criminal case and determine, as
appropriate, whether specific procedural rights were violated. Consequently, the interested
party cannot claim that the application of the decrees on military trials have restricted his
procedural rights protected by the Convention (supra 72).
86.
With regard to the argument that the decrees breach Article 8(1) of the Convention
in that they affected the impartiality and independence of the military tribunals that heard
the case, because of both their composition -especially in the second instance, in which
senior army officers were involved- and the possible use of ideological elements such as
that of the "Sandinista juridical conscience", established in Article 52 of Decree 591 on
evaluation of evidence, and Article 4(9) of Decree 600 which replaces criminal responsibility
with disciplinary responsibility, this Tribunal feels that although those provisions were in
force when the military case was heard and that they could have impaired the independence
and impartiality of the military tribunals that heard the case, they were not applied in this
specific Case (supra 72).
87.
On the other hand, while it is true that in the military judgment of first instance the
court invoked, inter alia, Article 11 of Decree 591 in which the expression "Sandinista law"
was used, that term has only a superficial ideological connotation since, according to the
aforesaid precept that forms part of the Chapter on the objectives of the military criminal
process, the purpose of that process is to
solve crimes, identify their perpetrators and guarantee proper enforcement of the Law, so that
any person guilty of a crime of commission or misdemeanor receives fair punishment and that no
innocent person should be punished. Likewise, it must contribute to the strengthening of
Sandinista legality in military institutions, to the prevention and eradication of crimes and
misdemeanors among soldiers,and to their education in strict compliance with the laws,
regulations and commands, and the exigencies of military discipline.
These guidelines are common to general military criminal law regardless of the political
orientation of the State in question, and in this Case the use of that epithet does not affect
this conclusion; it has not been proven that the invoking of Article 11 has either diminished
the impartiality and independence of the tribunals or violated Mr. Raymond Genie-Peñalba's