E/CN.4/1999/63/Add.2
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academic freedom, which is simply one manifestation of freedom of opinion and
expression. In this case, moreover, the trial is held in the military courts
and the maximum penalty is life imprisonment. Under Act No. 26.508 of
20 July 1995 any beneficiary of the Repentance Act who commits a terrorist
offence is guilty of treason.
4.
Extension of the concept of terrorism to ordinary offences
55.
Legislative Decree No. 895 of 1998, enacted to “combat organized crime
by armed groups”, punishes as a perpetrator of “aggravated terrorism” (even if
it is an ordinary offence) any member or accomplice of a criminal group who
carries firearms or explosives to commit any offence against life, physical
integrity, health, property, individual freedom or public security, even if
the perpetrator acts alone. The maximum penalty is life imprisonment. The
Working Group believes that this is yet another violation of the principle of
legality.
B.
1.
Procedural measures to combat terrorism
Extension of the jurisdiction of the military courts
56.
The 1979 Constitution provided that military courts could try civilians
only in the case of evasion of compulsory military service and treason during
a war with another country. This important limitation was brought to an end
with laws subsequent to 5 April 1992. Article 4 of Act No. 25.659 states that
certain offences, such as treason, which are committed by civilians and in
which no exclusively military interest is at stake may be transferred to
military courts.
57.
Article 173 of the 1993 Constitution goes even further, since it allows
military courts to try the offences of “terrorism determined by the law”, a
law which has not yet been enacted, so that they continue to be within the
jurisdiction of the civil courts.
58.
Decree-Law No. 25.659 of 1992 also established a procedure, but
Decree-Law No. 25.708 provided that summary proceedings would apply to trials
“in the theatre of operations”.
59.
There are six areas of military justice. At the first level are the
judges (around 30) who conduct the investigations and hand down sentences, of
whom 50 per cent are military lawyers, according to the President of the
Supreme Council of Military Justice (CSJM), General Guevara. At the second
level are the courts-martial, made up of three military judges, one of whom is
a lawyer. The highest level is the Supreme Council of Military Justice, which
is composed of eight judges, an auditor and a public prosecutor, which
functions in Chambers with five members, three of them lawyers.
60.
Conflicts of jurisdiction between civil and military courts are settled
by the Supreme Court (art. 141 of the Constitution). This is the only area
where the civil courts have pre-eminence over military courts since the other
case provided for is an appeal on cassation in the event of the death penalty
for treason in wartime, which is not applicable.
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