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67.
In the instant Case, the Court observes that Ms. María Elena Loayza-Tamayo was
tried in the military criminal courts for the crime of treason, which is closely linked to the
crime of terrorism, as may be seen from a comparative reading of Article 2(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.)
68.
Both Decree-Laws refer to actions not strictly defined, so that they may be
interpreted similarly within both crimes, in the view of the Ministry of the Interior and the
corresponding judges and, as in the case under consideration, of the "Police (DINCOTE)
itself." Consequently, the aforementioned Decree-Laws are contrary to Article 8(4) of the
American Convention in this regard.
69.
The Special Naval Court, in its judgment of March 5, 1993, which remained in force
after all the available appeals had been exhausted, acquitted Ms. María Elena LoayzaTamayo of the crime of treason, specifying that since
there is evidence and signs in the records that suggest liability ... for the crime of terrorism, an
unlawful activity codified in Decree Law Number twenty-five thousand four hundred and seventyfive, it is appropriate that a certified copy of all the police and judicial files be remitted to the
Provincial Prosecutor ... so that the appropriate authority may take cognizance of them and act in
accordance with their legal powers....
70.
The Court does not accept the State's argument that the judgment of March 5, 1993,
"merely finds that the acts attributed to Ms. María Elena Loayza-Tamayo do not constitute
the crime of treason, but that of terrorism, [since] the term acquittal used by the Military
Justice ... is not used with its usual meaning ...". In the aforementioned judgment, which
concluded a case in which others were also involved, the Tribunal, in referring to some of
them, used the phrase "relinquished jurisdiction to consider the case in regard to .... . "If
the judicial intention had been to restrict its ruling to a matter of no jurisdiction, it would
have used the same term when referring to Ms. María Elena Loayza-Tamayo. It did not do
so, but used the term "acquittal" instead.
71.
The Commission submitted copies of several judgments rendered by the military
tribunals to demonstrate that, when that jurisdiction deems itself to lack jurisdiction to hear
a similar case, it uses the juridical concept of "relinquishment." In one such case, the
Special Naval Court Martial decided "[its r]elinquishment ... in favor of the civil courts, and
that the proceedings should be remitted to the District Attorney in charge, inasmuch as
they constitute facts relating to the crime of Terrorism, so that it may rule according to its
jurisdiction; and they returned them."
72.
The Court observes that the Special Naval Examining Magistrate, in acquitting Ms.
María Elena Loayza-Tamayo and other defendants, handed down a judgment using the
usual procedure, when he said
Administering Justice on behalf of the Nation, weighing objectively the evidence for and against,
in exercise of the authority conferred in Article One of Decree-Law twenty-five thousand seven
hundred and eight, and Article One of Decree-Law twenty-five thousand seven hundred and
twenty-five, in accordance with the Constitutional Law of the sixth of January nineteen hundred
and ninety-three.
He also ruled the request concerning "the payment of civil reparation inadmissible," such
reparation being proper only when a person is acquitted, and not when the court deems
itself to lack jurisdiction.