42
of the offenses of abduction, forced disappearance of persons and murder against the
alleged victims.
80(47)On December 17, 1993, the Sixteenth Criminal Court in Lima started inquiry
proceedings against the persons accused of the alleged perpetration of the reported
offenses.
80(48) Yet on the same day, December 17 1993, by way of a submission of a “conflict of
jurisdiction,” the SCMJ Board Prosecutor challenged the jurisdiction of the Sixteenth
Criminal Court in Lima so that the Court would refrain from hearing the case pending with
the military court relating to the same issue of facts and against the same defendants.
80(49) In his legal opinion submitted on January 17, 1994, Prosecutor Víctor CubasVillanueva concluded that the facts should be investigated by an ordinary court. On January
18, 1994, Criminal Court Judge Carlos Magno-Chacón “remitted history information” to the
National General Attorney´s Office as the court considered there was reasonable evidence
pointing to the commission of the offense of prevarication and abuse of authority by the
Prosecutor Víctor Cubas, owing to the “use of inconvenient language” that might be
unbecoming of a prosecutor, and ordered the remission of the relevant file of record to the
Supreme Court of the Republic for all relevant legal purposes.38
80(50).On February 3, 1994, the Criminal Chamber of the Supreme Court, composed of five
members, passed a divided decision on the type of the court that should hear and
determine the syndicated action filed against military members for their responsibility in the
case of La Cantuta, as three of Chamber members held in support of the military court, and
two members in support of the ordinary court.
80(51) On February 8, 1994, congressman Julio Chu-Meriz presented a bill proposing that
conflicts of jurisdiction could be solved by the affirmative vote of only three members of the
Criminal Chamber of the Supreme Court. Said bill was submitted to consideration and
approved on the same day by the affirmative vote of the members of the “Democratic
Constituent Congress” On the following day, the then President of the Republic, Alberto
Fujimori, enacted Law No. 26.291, whereby conflicts of jurisdiction must be solved by the
simple majority of votes of the members of the Criminal Chamber, and that the said votes
must be cast by secret ballot.
80(52) On February 11, 1994, by operation of the referenced law and by way of Supreme
Court Judgment, the Supreme Court Criminal Chamber ordered that the investigation of the
facts of the case of La Cantuta be delegated to the military court and carried by the
Investigation Board of the Supreme Council of Military Justice.
80(53) On February 21, 1994, the Lima Bar Association filed a complaint challenging the
constitutionality of Law 26,291, with the Chamber of Constitutional and Social Affairs of the
Supreme Court of the Republic. On March 15, 1994, said jurisdictional body decided that the
constitutional challenge was not admissible on the grounds of lack of jurisdiction of the
Chamber to hear constitutional challenges to laws, as said jurisdiction is vested with the
Constitutional Tribunal. The Bar Association filed an appeal against this decision, but said
38
Cf. Legal opinion of Government Attorney Víctor Cubas-Villanueva of January 17, 1994 (record of
Appendixes to Application, Appendix 15.b, pp. 418-21), and resolution of January 18, 1994 passed by Criminal
Court Judge Carlos Magno-Chacón (record of Appendixes to Application, Appendix 15(c), pp. 422-3).
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