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application of law 23.049 to the new system of military jurisdiction; (14) the sanctions ordered
by the Supreme Council of the Armed Forces were “exorbitant;” (15) irregularities took place
during the deliberation; (16) no professionally qualified defender was present during the
processing of the case in the military jurisdiction; (17) raids and seizures were conducted
without warrants from the Military Judge of Criminal Investigation; (18) article 445-bis of the
Code of Military Justice was unconstitutional; (19) article 366 of the Code of Military Justice
was unconstitutional because it limited the right to defense by prohibiting subordinates from
lodging charges against their superiors; (20) the lower court assigned an improper legal value
to proven facts, and (21) the principle of equality before the law was violated because higherranking members of the Air Force did not come under criminal investigation.
163. The Court also found that the response by National Chamber of Criminal Cassation to
each of the complaints of judicial error submitted by the defense of the accused was individual,
well-founded, and consistent. In this regard, the Court would like to emphasize at least the
following considerations articulated by the National Chamber of Criminal Cassation: (1) with
respect to the application of the Amnesty Law and the Law of Military Obedience, it was argued
that the accused had provided no evidence to demonstrate their relationship with the socalled “Vulcano” group, and therefore they did not qualify for consideration under these laws,
and the petition by the defense was denied; (2) with respect to the statute of limitations on
the case, the Chamber held that the reintroduction of the objection was based on the very
same factors that had already been judged by the Supreme Court, and therefore, given that
the circumstances weighed by the high court had not changed, its conclusions remained in
effect and the petition for the statute of limitations was denied; (3) with respect to the alleged
violation of the principle against ex post facto application of the most beneficial criminal law,
the Chamber held that this rule was applicable only to the provisions of substantive criminal
law, and not to procedural rules, so it denied this defense motion, and (4) regarding the lack
of professionally qualified defense, the Chamber held that it had not been proven that the
defense counsel assisting the alleged victims had in any way undermined their rights and that
in the appellate stage, governed by article 445-bis, the defense is provided by attorneys.
164. The Court added that the defense attorneys had lodged appeals of exception to the
judgment by the National Chamber of Criminal Cassation and the chamber had declared these
remedies inadmissible because the complaints of judicial error already introduced by the
defense had been settled, and the judgment being challenged had not been shown to depart
in any way from the applicable laws or to lack grounds such as could have wrested validity
from this judicial act.
165. The defense teams then filed a writ of queja with the Supreme Court for having denied
the earlier appeal of exception, and it was dismissed for lack of independent grounds.
166. The Court therefore concludes, taking a full view of the entire process in the instant
case, that the later intervention of judicial bodies in the general jurisdiction under the
requirement for judicial review of decisions by the military courts, under article 445-bis of the
Code of Military Justice, offered a new opportunity to litigate the points challenged in the
military courts and establish appropriate criminal liabilities. The judgments originally handed
down by the Supreme Council of the Armed Forces were amended as a result, the sentences
were reduced, one charge was dismissed and one of the accused was acquitted. The action
by the general jurisdiction did not breach guarantees of judicial competence, independence
and impartiality. Thus the Court, given the particular details of the instant case and the
question of its jurisdiction ratione temporis, and by virtue of the judicial review of the case in
the general jurisdiction, which upheld guarantees of due process and the principles of judicial
independence and impartiality, holds the State not to be in violation of articles 8(1) and 25(1)
of the American Convention in injury of the alleged victims.