35
the competence of the jurisdictional organ of the special Military Justice System”
(infra 69), and found such allegations without merit.
128. In particular, this Court has taken note of the opinion of the Public Law
Chamber (supra 71) according to which, in view of the provision in Article 103 of the
Peruvian Constitution, Gustavo Cesti Hurtado was not subject to military jurisdiction
regarding the charges of which he was accused. The Public Law Chamber decided
that the subject matter of the charges fell within ordinary jurisdiction (“they are of
an ordinary substantive type”); moreover, in the absence of the constitutional
requirements for Gustavo Cesti Hurtado to be considered a member of the armed
forces on active duty (‘an active member of the armed forces”), he could not be
subjected to arrest or trial under the military justice system. The Public Law
Chamber also maintained that the petition for habeas corpus was the appropriate
means of protecting the freedom of Gustavo Cesti Hurtado against “coercive acts
carried out by any person or entity of any rank or level of competence”.
129. This Court has also taken into consideration the decision of the Constitutional
Tribunal of June 19, 1998, in the case of Carlos Alfredo Villalba Zapata (Case 58596-HC TC), in which, with reference to a very similar situation, it maintained a
similar opinion about the pertinence of habeas corpus as a means of protecting the
liberty of a retired military officer and about the appropriate jurisdiction to hear
charges brought in relation to the alleged perpetration of common-law crimes. In
that case, the Constitutional Tribunal revoked the decision of the Public Law
Chamber that declared habeas corpus inadmissible and, “revising it”, declared it with
merit. Furthermore, in its reasoning, the Tribunal stated that retired members of the
armed forces are “excluded from the possibility of perpetrating service-related
crimes” because
on recovering the full exercise of their civil rights, as established in Article 70 of
Legislative Decree 752, Law on the Military Status of Army, Navy and Air Force Officers,
they no longer belong to the armed forces, and therefore the constitutional legal regime
in force for civilian cases applies to them.
The decision taken by the Public Law Chamber on the situation of Gustavo Cesti
Hurtado concluded the matter that concerns this Court in relation to Articles 7 and
25 of the Convention, because a tribunal with competence on protective measures
adopted a final, unappealable decision conceding habeas corpus to the petitioner and
protecting him from the objective threat to his liberty resulting from procedures
initiated under military jurisdiction. This decision does not impede the competent
authorities, if appropriate, from taking decisions on the criminal responsibility of
Gustavo Cesti Hurtado with regard to the illegal acts attributed to him. Such
decisions do not concern the Court, but rather the competent domestic tribunals.
130. As the Peruvian State has alleged, Peruvian legislation embodies recourses
other than habeas corpus to settle jurisdictional disputes between different judicial
organs. However, it is also certain that, according to the American Convention and
Peruvian legislation itself, the judge of the petition for habeas corpus has the latitude
to deal with the competence of the official who has ordered deprivation of liberty.
Indeed, in the context of the facts of the instant case, the judicial authority
responsible for deciding on habeas corpus should have examined the information
available in order to define whether the intended arrest was arbitrary.
This
information necessarily included the competence of the authority who issued the
order of arrest, taking into consideration the alleged facts and the circumstances of
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