Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers Since the military tribunal had in this case already failed the independence test, the Commission did not find it necessary also to decide whether the fact that the tribunal was presided over by a military officer was another violation of the Charter.116 ***** In its judgment on the merits of the case of Castillo Petruzzi et al., the Inter-American Court of Human Rights found that the military tribunals that had tried the victims for the crimes of treason “did not meet the requirements implicit in the guarantees of independence and impartiality that Article 8(1) of the American Convention recognizes as essentials of due process of law”.117 In 1992 a decree-law had extended the competence of military courts to try civilians accused of treason “regardless of temporal considerations”, while previously they had been allowed to do so only when the country was at war abroad. DINCOTE, the National Counter-Terrorism Bureau, “was given investigative authority, and a summary proceeding ‘in the theatre of operations’ was conducted, as stipulated in the Code of Military Justice”.118 The pertinent parts of the Court’s reasoning read as follows: “128. ... Transferring jurisdiction from civilian courts to military courts, thus allowing military courts to try civilians accused of treason, means that the competent, independent and impartial tribunal previously established by law is precluded from hearing these cases. In effect, military tribunals are not the tribunals previously established by law for civilians. Having no military functions or duties, civilians cannot engage in behaviours that violate military duties. When a military court takes jurisdiction over a matter that regular courts should hear, the individual’s right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process are violated. That right to due process, in turn, is intimately linked to the very right of access to the courts. 129. A basic principle of the independence of the Judiciary is that every person has the right to be heard by regular courts, following procedures previously established by law. States are not to create ‘tribunals that do not use the duly established procedures of the legal process ... to displace the jurisdiction belonging to the ordinary courts or judicial tribunals’.119 130. Under article 8(1) of the American Convention, a presiding judge must be competent, independent and impartial. In the case under study, the armed forces, fully engaged in the counter-insurgency struggle, are also prosecuting persons associated with insurgency groups. This considerably weakens the impartiality that every judge must have. Moreover, under the Statute of Military Justice, members of the Supreme Court of Military Justice, the highest body in the military judiciary, are appointed by the minister of the pertinent sector. Members of the Supreme Court of Military Justice also decide who among their subordinates will be 116 Ibid., loc. cit. 117 I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, in OAS doc. OEA/Ser.L/V/III.47, doc. 6, Annual Report I-A Court HR 1999, Appendix IX, p. 263, para. 132. 118 Ibid., p. 262, para. 127. 119 The Court here quoted the United Nations Basic Principles on the Independence of the Judiciary. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 143