negligence,” and sentenced him to 16 months in prison, by judgment of
November 29, 1996. That resolution was later annulled by the Supreme
Court of Military Justice itself. In the new judgment handed down by the
Consejo Superior de Guerra Permanente of the Sixth Judicial Zone of the
Army, on December 15, 1997, he was found guilty of the offense of
disobedience, offense against the duty and dignity of the office, falsity,
negligence, and abuse of authority. It was on this judgment that the
Supreme Council of Military Justice later ruled, on June 30, 1998,
convicting him of the offense of disobedience with a maximum sentence
of 28 months in prison, of which he was given notice, upon his request,
on January 18, 1999.
14. She stated in this regard that the offense of disobedience
provided for in Article 158 of the Code of Military Justice provides that
“those who fail to carry out a service order without justified cause
commit disobedience.” The petitioner argues that there was a “service
order”; accordingly, the acts performed by Mr. Rosadío Villavicencio
were performed strictly in keeping with it.
15. In relation to the proceedings in the regular courts, the
petitioner indicates that an investigation was opened into both the
victim and the other persons accused along with him of the crime of
illicit narcotics trafficking, with injury to the State. She states that
during the judicial investigation, the statement by Mr. Rosadío
Villavicencio on the so-called “Plan Angel” was corroborated by the other
members of the military accused with him and by his superior, (Peruvian
Army) Col. Emilio Murgueytio, who intervened as a witnessed. In
addition, she alleges that her son invoked the objection of Nature of the
Act, by which he argued the acts of which he was accused were not
criminally justifiable.2
2[2] Article 5 of the Code of Criminal Procedure establishes: “Against a criminal action,
one may invoke the objections of nature of proceeding, nature of act....
That of nature of proceeding may be invoked when the accusation is
substantiated in a manner distinct from what is proper in a criminal
proceeding. The objection of nature of act may be invoked when the
conduct denounced does not constitute a crime or is not criminally
justiciable.
The objections may be invoked at any stage of the process, and may be
resolved by the judge sua sponte.
If the objection of nature of
proceeding is declared to be well-founded, the proceeding will be
regularized in keeping with the applicable procedure. If any of the other
objections are declared to be well-founded, the proceeding shall be
considered to have concluded, and the case will be archived with
prejudice.” The trial judge declared the objection of nature of the act
unfounded, and found Mr. Jorge Rosadío Villavicencio guilty of the crime
of illicit drug trafficking, by judgment of April 17, 1996, sentencing him
4