36
101. The Court has previously held that “international law does impose certain
limits on the broad powers enjoyed by the states” and that “nationality is today
perceived as involving the jurisdiction of the state as well as human rights issues.”84
This is recognized in regional instruments and in Article 15 of the Universal
Declaration.
102. In the case before the Court, the nationality of the Chilean citizens was never
at issue. At no time was their right to that nationality ever questioned or impugned;
neither was there ever any intention to create or artificially impose, between Peru
and the defendants, the bond that is distinctive of nationality and the ties of
allegiance and loyalty that follow therefrom.
Whatever the consequences of
nationality in law, they exist solely with respect to Chile and not Peru, and are not
altered by the fact that the criminal behavior in question is classified as treason.
“Treason” is simply the nomem iuris that the State uses in its laws and does not
mean that the defendants somehow acquired the duties of nationality that Peruvians
owe.
103.
The Court therefore finds that Article 20 was not violated in the instant case.
IX
VIOLATION OF ARTICLE 7(5)
(RIGHT TO PERSONAL LIBERTY)
104.
Article 7, paragraph 5 of the American Convention provides that:
Any person detained shall be brought promptly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial within a reasonable time or
to be released without prejudice to the continuation of the proceedings. His release may
be subject to guarantees to assure his appearance for trial.
105.
Arguments of the Commission:
a)
Peru violated Article 7 of the Convention by not bringing the alleged
victims before a judge within the reasonable time required under the
Convention. In the case under study, “the military judge was not
notified of the arrests, searches and expert reports and opinions until
30 days after the fact,” whereas the Convention requires that any
person detained is to be brought before a judge either immediately or
after an acceptable delay. An acceptable delay would be the “amount
of time needed to prepare the transfer”;
b)
States “have a right and a duty to defend themselves against terrorist
attacks.” The issue here, however, is whether a government of laws
must ensure the guarantees of due process in the case of persons
detained on suspicion of having committed terrorist acts;
c)
While Article 27 of the Convention regulates states of emergency,
international case law holds that states of emergency must be ones in
which there is a danger to the nation; even then, only certain rights
are derogable.
The fact that some rights are not among the nonderogable rights named in Article 27(2) of the Convention does not
84.
Cf. Proposed amendments to the naturalization provisions of the Constitution of Costa Rica, supra
note 82, paras. 32-33.