40 Therefore, its application is reserved for military personnel who have committed crimes or misdemeanors in the performance of their duties and under certain circumstances. In this regard, the military jurisdiction was regulated under Peruvian law (Article 282 of the Constitution of 1979). The transfer of jurisdiction from the regular courts to military courts, and the subsequent trying of civilians for the crime of treason against the fatherland in these courts, as in this case, excludes the appropriate judge from hearing such cases. In this regard, the Court has said that “[w]hen the military courts assume jurisdiction over a matter that should be heard by the regular courts, the right to the appropriate judge is violated, as is, a fortiori, due process, which, in turn, is intimately linked to the right of access to justice.”58 113. In a recent case, the Court determined that [i]n a democratic state of law, the criminal military jurisdiction is to be restricted and exceptional in scope and intended to protect special juridical interests linked to the duties assigned to the armed forces by law. Therefore, civilians are not to be judged in this jurisdiction, and only military personnel are to be tried for crimes or misdemeanors which, by their very nature, harm the juridical interest of the military.59 114. The Court considers that the military courts of the State that judged the alleged victim for the crime of treason against the fatherland do not meet the requirements of independence and impartiality established in Article 8(1) of the Convention. The Court considers that in a case such as the present one, the impartiality of the judge is affected by the fact that the armed forces have the dual function of combating insurgent groups with military force, and of judging and imposing sentence upon members of such groups. On another occasion, this Tribunal asserted that according to the Organic Law of Military Justice, the appointment of the members of the Supreme Council of Military Justice, the highest ranking body within the military jurisdiction, is the responsibility of the Minister of the pertinent sector. The members of the Supreme Military Council, in turn, determine the promotions, professional incentives and assignment of duties of their subordinates. This fact raises questions regarding the impartiality of the military judges. 60 115. For these reasons, the Court concludes that the State violated, to the detriment of Luis Alberto Cantoral-Benavides, Article 8(1) of the American Convention. It also concludes that, as a result of this determination, Article 8(2)c), d) and f) (the means necessary to prepare a proper defense, to choose a lawyer, to question witnesses), 8(4) (non bis in idem) and 8(5)(a public trial), as they pertain to the military criminal trial of Luis Alberto Cantoral-Benavides, were also violated. Violation of Article 8(2) of the Convention Presumption of Innocence 116. As regards the violation of Article 8(2) of the Convention, the Commission alleged that: 58 Castillo-Petruzzi et al. Case, supra note 9, para. 128 59 Durand and Ugarte Case, supra note 45, para. 117 60 Castillo-Petruzzi et al. Case, supra note 9, para. 130