E/CN.4/1995/111
page 35
(c)
As long as the Regional Justice System exists, the crimes falling
under this jurisdiction should be clearly defined so as to avoid acts which
constitute a legitimate exercise of political dissent and social protest being
considered as "terrorism" or "rebellion". Furthermore, defendants before
regional courts must enjoy full respect for their right to a fair trial. The
severe restrictions currently in place, including those affecting the right to
habeas corpus, a procedure essential for protecting people deprived of their
liberty from torture, disappearance or summary execution, should be
eliminated.
(d)
Effective protection should be provided for all members of the
judiciary and the Public Ministry from threats and attempts on their lives and
physical integrity, and investigations into such threats and attempts should
be carried out with a view to determining their origin and opening criminal
and/or disciplinary proceedings, as appropriate.
(e)
Likewise, provision should be made for effective protection of
persons providing testimony in proceedings involving human rights violations,
as appropriate.
118. The excavation, exhumation and evaluation by experts in the forensic
sciences of remains which may belong to victims of extrajudicial, summary or
arbitrary executions are an integral part of the obligation to conduct
thorough investigations referred to above. They must be carried out in
accordance with the highest standards of expertise by specialists in forensic
archaeology, anthropology, pathology and biology. In this context, the
Special Rapporteurs wish to refer to the Model Protocol for Disinterment and
Analysis of Skeletal Remains, included in the Manual for the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
(ST/CSDHA/12 and Corr.1), a document disseminated by the Crime Prevention and
Criminal Justice Branch of the United Nations Centre for Social Development
and Humanitarian Affairs. The Special Rapporteurs call on the Government to
ensure that the necessary forensic expertise and ballistic analysis are made
available throughout the country with a view to obtaining maximum evidence in
each case under investigation.
119. In addition, the system of special offices of the Fiscalía assigned to
military units has been seen by many observers as effectively providing a
colour of legitimacy to cover acts by the armed forces intended to ensure that
those they capture and seek to have prosecuted are successfully convicted in
the so-called regional tribunals that operate with anonymous judges and
official witnesses. As stated above, and on the basis of the decision by the
Constitutional Court referred to in paragraph 86 above, these acts, which
include arrests and gathering of evidence for prosecution, should be carried
out exclusively by civilian judicial police, in which case there would be no
need for these special offices to continue functioning.
120. As for the military justice system, measures must be taken in order to
ensure its conformity with the standards of independence, impartiality and
competence required by the pertinent international instruments. Due regard
should be given, in particular, to the Basic Principles on the Independence of
the Judiciary, adopted by the Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, held at Milan from
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