Peru Military Criminal Law: Background

The first Peruvian Code of Military Justice was enacted on December 20, 1898, during the government of Nicolas de Pierola. It was developed as part of Army reorganization work commissioned by the ruling referred to a French military mission headed by Colonel Paul Clement. After promulgating the Code of Military Justice of 1939 (Law No. 8991 of October 16, 1939), Code of Military Justice of 1950 (Decree Law No. 11380 of May 29, 1950), the Organic Law of Military Justice, 1963 (Decree Law No. 14,612 of July 25, 1963), the Military Justice Code of 1963 (Decree Law No. 14,613 of July 25, 1963). In turn, the decree law No. 23 201 (from July 19, 1980) and No. 23 214 (from July 24, 1980), respectively, approved the Organic Law of Military Justice and the Code of Military Justice rules - the latter two - who were being questioned by the Ombudsman before the Constitutional Court (2003) and the beginning of a total reform of military justice, which is not over until today (2009). The Code of 1898 marked definitely determined and the parameters of military justice during the past century.

And while some of its postulates were ignored or relativized by some minor modification, the basic outline of the military justice orientation remained steeped in the old code, basically dependent on the executive. Thus was preserved in the organizational structure of military justice to the investigating judges, courts-martial and courts Supreme Council as permanent; not changed the assumptions of jurisdiction in criminal matters of war, the military judges had legal training; civilians could be understood by the military courts, the military criminal law work without further statement of general principles, the bases of the punishability not been modernized or updated, the system of penalties not altered significantly, the description of the offenses military in nature always violated the principle of limitation (lack of legality, lack of equality before the law, etc..) procedures were the same (ordinary, extraordinary and campaigning, etc.). On July 24, 1980, just four days of the transfer of political power to civilian then President of Peru Major General EP Francisco Morales Bermudez, promulgated by the Fifth Code of Military Justice by Decree Law No. 23,214, which is said , was based on the need to adapt the military criminal law to the new Political Constitution of Peru of 1979 in line with the evolution and development of the Armed Forces and National Police.

Nothing less true, Military Justice stayed the same, who ran it knew that sooner or later would be the subject of complaints and criticism for its excesses and that a major reform avecinaría and tried to prevent this measure were the legislators who propose reforms for it is so from mid-1980 began a process of "self-reform? within the military justice system, slowly but gradually began to be called the first judges lawyers, and then legal voice in the councils of war, in the early nineties Attorney created the first level of the Courts, in 1994, for the first time CSJM was the Chair of General EP undertaken by a lawyer.

Finally, on October 24, 1996 consolidated all these reforms in the Law No. 26 677 and also joined the military criminal procedure model the "summary process?. However, these internal reforms of the military criminal justice, were accompanied by an expansionist spirit of the Military Courts, which immediately extended their area of ​​jurisdiction to try offenses committed by civilians outside the protection of legal strictly military, to hear cases other acts of terrorism and organized crime typical of common offenses committed by civilians. In this context, institutions involved in the defense of human rights ombudsmen, bar associations, universities and a large number of academic specialists in the field, said repeatedly the need for substantial reform of military justice. Paths constitutional claims presented to the Constitutional Court found that many articles of the Basic Law and the Code of Military Justice were declared unconstitutional. A new and recent legislation in this area (Law N º 28665 - Law of Organization, Functions and Powers of the specialized jurisdiction in criminal matters Military Police, and Legislative Decree No. 961 - Code of Military Justice, Police) were also being questioned, it filed two lawsuits challenging the constitutionality of that law

One by the Attorney General and another by the Dean of the Lima Bar Association. The result was the declaration of unconstitutionality of much of this new law, again causing legal uncertainty in the administration of military justice police (Exp. No. 0004-2006-PI/TC and 0006-2006-PI/TC). Given the above circumstances, Congress passed Law No. 28934, whose first article regulating the temporary use of the Military Justice Law Enforcement "to the passage of the Act to correct any regulatory gaps that are generated, the remaining void the articles declared unconstitutional Law No. 28665, or nation of a new law governing the military justice system?. Finally, the Constitutional Court repealed certain sections of Legislative Decree No. 961 and declared the law No. 28665. On January 11, 2008, is published in the Official Journal "El Peruano? the so-called "Law on Organization and Functions of the Military Court Police? - Law No. 29812 -, replacing the Law of Organization, Functions and Powers of the Special Court in Penal Military Police (Law No. 28 665). Finally, at present (2009) Military Justice in Peru is organized in accordance with the rules established in Law N º 29812 and the standards applicable substantive and procedural requirements are contained in the Code of Military Justice Police (Legislative Decree N º 961 º ) with the modifications ordered by the Constitutional Court.

However, pending a lawsuit challenging the constitutionality of Law No. 29,812 filed by the Bar Association of Lima on March 2, 2009. The Lima Bar Association has identified at least 18 items unconstitutional