23.
Furthermore, the Court stresses that the public authorities must diligently ensure
the principles of criminal legality, the right to defense, and the obligation to guarantee
the rights of those deprived of liberty under the Court’s jurisprudence and the relevant
international law. In particular, the State must fully guarantee the principles of the public
and adversarial nature of the proceedings and immediacy of the evidence, bearing in
mind the Court’s jurisprudence, to the effect that the “elements of evidence arising from
[a] military trial” are “inadmissible, taking into account the circumstances in which they
were produced,”25 and that the imposition of restrictions on the victims’ defense counsel
violates the right of the defense to question witnesses and summon people to appear
who could shed light on the facts.26
24.
Lastly, the Court notes that the information provided by the representatives about
the enactment of a new law, Law No. 29.423, derogating Legislative Decree No. 927,
and which would affect the access to prison regime benefits for the victims in this case,
exceeds the purpose of the obligations that are covered in the monitoring of the
judgment. As such, the Court does not consider it relevant to rule on this.
25.
Taking the foregoing into consideration, given that 12 years have passed since
the judgment in this case was handed down, and that there is no specific and current
dispute between the parties concerning the scope of the reforms ordered, the Court will
proceed to conclude monitoring compliance with this measure of reparation. The Court
highlights that, although some aspects of the anti-terrorist laws have not been examined
in the context of this Order, this does not impede future examination in the context of
other contentious cases.
B)
Obligation to find the proceedings against Jaime Francisco Sebastián
Castillo Petruzzi, María Concepción Pincheira Sáez, Lautaro Enrique Mellado
Saavedra, and Alejandro Luis Astorga Valdez invalid, because they were
incompatible with the American Convention, and to order that they be
guaranteed a new trial with full respect for due process of law (Operative
paragraph thirteen of the judgment)
26.
Before presenting the information and observations of the parties on compliance
with this obligation, the Court finds it relevant to specify the type of violation of judicial
guarantees that were declared in the judgment handed down in this case. 27 The Court
declared as proven that Jaime Francisco Sebastián Castillo Petruzzi, Lautaro Enrique
Mellado Saavedra, María Concepción Pincheira Sáez, and Alejandro Luis Astorga Valdez,
Chilean nationals, had been detained on October 14 and 15, 1993, under an operation
conducted by the Direccion Nacional contra el Terrorismo [National Anti-Terrorism
Directorate] (DINCOTE for its Spanish acronym). The Court ruled on the scope of the
codification of the crimes for which the victims were tried and the ambiguity in their
formulation, especially as regards treason. In this way, the Court established that the
crime of treason was closely linked to the crime of terrorism, as can be inferred from
comparing article 2, subparagraphs (a), (b) and (c), of Decree Law No. 25.659 (crime of
treason) and articles 2 and 4 of Decree Law No. 25.475 (crime of terrorism), concluding
that the failure to strictly distinguish the criminal actions, “violates the principle of
legality established in Article 9 of the American Convention.”
25
Cf. Case of Lori Berenson, supra note 12, para. 174.
26
Cf. Case of Castillo Petruzzi et al., supra note 11, para. 155.
27
Cf. Case of Castillo Petruzzi et al. V. Peru. Merits, Reparations and Costs, Judgment of May 30, 1999.
Series C No. 52, paras. 113 to 173.
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