27
terrorism) stipulates that the aforesaid crime is to be investigated by the National Police and
the Ministry of the Interior, and tried in the civil courts. Further, the regular judicial
authorities were the only organs with the power to order the detention and imprisonment of
the persons accused. As may be seen from the foregoing, the aforementioned Decree-Laws
Nº 25.659 (crime of treason) and Nº 25.475 (crime of terrorism) separated the jurisdiction
of the military and civil courts, assigning the crime of treason to the former, and the crime
of terrorism to the latter.
62.
Secondly, Ms. María Elena Loayza-Tamayo was tried and convicted by application of
an exceptional procedure in which it is obvious that the fundamental rights embodied in the
concept of due process were greatly restricted. Those proceedings do not meet the criteria
of a fair trial, since the presumption of innocence was not observed; the defendants were
not allowed to challenge or examine the evidence; the defense attorney's power was
curtailed in that he could not communicate freely with his client or intervene in all stages of
the proceeding in full possession of the facts. The fact that Ms. María Elena Loayza-Tamayo
was convicted in the civil courts on evidence allegedly obtained in the military courts -even
though the latter lacked jurisdiction- militated against her on two occasions in the civil
courts.
63.
Peru, by means of the military courts, breached Article 8(2) of the Convention, in
which the principle of innocence is embodied, by accusing Ms. María Elena Loayza-Tamayo
of a different crime to the one for which she was prosecuted and convicted, without having
jurisdiction to do so, since, in any event, as indicated above (supra, para. 61) that charge
could only be brought by the competent civil courts.
64.
The Commission contends that Ms. María Elena Loayza-Tamayo was coerced into
testifying against herself and admitting that she had participated in the acts for which she
was charged. There is no such evidence on the record, for which reason the Court deems
that there is no proven violation of Article 8(2)(g) and 8(3) of the American Convention.
65.
The Commission requested reparation for Ms. Carolina Loayza-Tamayo, defense
counsel for Ms. María Elena Loayza-Tamayo, for the alleged intimidation tactics and false
accusations to which she was subjected by DINCOTE. The Court observes that the
aforesaid attorney was not listed as a victim in the report submitted to the State by the
Commission, in accordance with Article 50 of the Convention, and therefore deems the
request to be inadmissible.
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66.
With regard to the Commission's complaint of the violation of the judicial guarantee
that prohibits double jeopardy, to the detriment of Ms. María Elena Loayza-Tamayo, the
Court observes that the principle of non bis in idem is established in Article 8(4) of the
Convention in the following terms:
4.
An accused person acquitted by a nonappealable judgment shall not be subjected to a
new trial for the same cause.
This principle is intended to protect the rights of individuals who have been tried for specific
facts from being subjected to a new trial for the same cause. Unlike the formula used by
other international human rights protection instruments (for example, the United Nations
International Covenant on Civil and Political Rights, Article 14(7), which refers to the same
"crime"), the American Convention uses the expression "the same cause," which is a much
broader term in the victim's favor.