21
With regard to Article 12 of the Law on Military Status, which establishes that
officers on active duty and in reserve are subject to the terms of the Code of
Military Justice and to the Investigation Councils, the expert declared that this
is clearly an administrative law because it regulates the administrative status
of an officer. “[I]n the chapter relating to retired officers… it does not say
that military justice does not apply to a retired officer”.
Regarding petitions for a writ of habeas corpus, these are not admissible
against a judicial decision resulting from an ordinary proceeding. Moreover,
according to Article 16 of the Law of Habeas Corpus, this action is not in order
during pre-trial proceedings against the petitioner or when the latter has been
brought to trial for the facts that originate the habeas corpus petition.
To the question of whether the military authority may fail to consider and
apply a judgment pronounced by the Judiciary, the expert answered that
Article 3 of the Organic Law of Military Justice establishes that military justice
is autonomous and independent, because it is constitutional justice,
contemplated in the Constitution.
Lastly, the expert declared that he had been able to examine the proceedings
of the jurisdictional disputes that were forwarded to the Court by the Peruvian
State, and he stated that the procedure used in these proceedings is not the
appropriate one for filing jurisdictional disputes, since these should be filed
before the judge who considers that he has jurisdiction, not before the
military justice system, saying that the latter is not the competent
jurisdiction.
*
*
*
62.
In its decision on preliminary objections, the Court resolved that it would duly
integrate the reports of the experts, Samuel Abad Yupanqui and Valentín Paniagua
Corazao (supra 55), on the issue of the exhaustion of domestic remedies, into the
pool of evidence. In continuation, the Court summarizes these reports:
a.
Report of the expert, Samuel Abad Yupanqui, Professor of
Constitutional Law at the Catholic University of Peru and Defense
Counsel specialized in constitutional affairs for the Office of the
Peruvian Public Defender
Samuel Abad Yupanqui was summoned by the Court, at the request of the
Commission, to present a report on the habeas corpus decision and its
immutability, finality and consent from the standpoint of constitutional and
procedural law. In this regard, he stated that the Office of the Public
Defender had considered a complaint presented in the Cesti Hurtado case and
described the steps taken as a result of this and, in particular, the motives for
decision 012 of the Public Defender, issued in 1997, which has been added to
the pool of evidence (supra 55), and the reasons for filing an amicus curiae
brief before this Court. The expert also described some judicial decisions in
habeas corpus actions and, in particular, referred to the judgment
pronounced on June 19, 1998, by the Constitutional Tribunal in the petition
for habeas corpus filed by Carlos Alfredo Villalba Zapata (supra 56) and to the
similarity of the facts that motivated it to those of the instant case.