as they were committed in the line of service, because the shooting practice took place at the
facilities of the military base, and noncommissioned officer Ilaquita Quispe was the instructor
of that practice not only for the soldier in question, but also for the troops under his
responsibility, or in other words he was performing his duties. Consequently, the crime
involved was a crime in the course of duty, and comes exclusively under the jurisdiction of the
military courts.
16. When the hearing to issue judgment was convened on August 19, 2004, the Military Court
acquitted Juan Ilaquita Quispe. This decision was appealed by the military prosecutor, and at
the present time it is in the judge’s chamber’s for review [a despacho para vista].2
17. The petitioner concludes that the Peruvian State violated Article 8 of the American
Convention when it decided in favor of the military criminal court and assigned the trial to that
jurisdiction, as it is not an impartial and competent tribunal. It further reiterates that Law
26926 of February 21, 1998 incorporated into the Peruvian Criminal Code Title XIV-A on
crimes against humanity, including the crime of torture, which in turn states in its Article 5
that crimes of this sort are to be judged in the courts of the ordinary jurisdiction.
B.
The State
18. The State indicated that in general terms it agreed with the factual account of the acts that
occurred at the military unit against Valdemir Quispialaya Vilcapoma, and with the judicial
proceedings conducted in the ordinary courts and in the military courts.3
19. It stated that in accordance with the Organic Law of Military Justice, Article 4 of DecreeLaw 23201, the Supreme Court of Justice is the authority responsible for settling jurisdictional
disputes that arise between the military courts and ordinary courts, and that the judgments it
issues in these matters are unappealable, and the final recourse in the procedures followed by
the petitioner.
20. The principal argument used by the Criminal Chamber of the Supreme Court of Justice to
determine the jurisdiction was that the conduct of noncommissioned officer Juan IIaquita
Quispe involved acts performed in his capacity as a noncommissioned officer in the Peruvian
Army, in the line of duty and on a military base, and that such conduct therefore constitutes a
crime in the course of duty, as it affects exclusively military legal interests and the disciplinary
order of the Armed Forces, and should be referred to the military courts and the military code
of justice.
21. In accordance with Article 139, paragraph 1, of the Political Constitution, Military
Jurisdiction is an exception to the principle of the exclusivity and unity of the Judiciary, and it
is restricted in nature and has constitutional limits pertaining to the functional activities of that
jurisdiction.
22. The State of Peru points out that in a judgment issued by the Constitutional Court on
August 24, 2004 regarding an unconstitutionality case brought by the Ombudsman’s or Public
Defenders’ Office [Defensoría del Pueblo] against various articles of Law 24150, it found that
violations of the jurisdiction of the military courts are violations of its own specific and relevant
legal interests related to the existence, organization, operations, and fulfillment of the
purposes of the military institution. It further stated that such a violation is a violation of the
duty-related obligation that the agent was obliged to maintain, to fulfill, or not to fulfill.
23. The State contends that the author injured a legally protected military interest that
implicates the functions constitutionally and legitimately assigned to the Armed Forces and the
Police, while the agent was in active service and performing his military duties. These are
requirements that must all be met at the time that the act occurs.4
2
3
4
Electronic message of January 19, 2003, from the petitioner.
Report No 63-2004-JUS/CNDH-SE, received on October 4, 2004. I Background information.
Id. II Considerations.
3
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