38
required and that “any action on the part of the public authorities that goes beyond
those limits, which must be specified with precision in the decree promulgating the
state of emergency, would … be unlawful.”86 The limits imposed upon the actions of
a State come from “the general requirement that in any state of emergency there be
appropriate means to control the measures taken, so that they are proportionate to
the needs and do not exceed the strict limits imposed by the Convention or derived
from it.”87
110. As to the State’s alleged violation of Article 7(5) of the Convention, the Court
is of the view that those Peruvian laws that allow the authorities to hold a person
suspected of the crime of treason in preventive custody for 15 days, with the
possibility of a 15-day extension, without bringing that person before a judicial
authority, are contrary to the provision of the Convention to the effect that “[a]ny
person detained shall be brought promptly before a judge or other officer authorized
by law to exercise judicial power [...].”
111. Applying the laws in force to this specific case, the State held Mr. Mellado
Saavedra, Mrs. Pincheira Sáez and Mr. Astorga Valdez in custody, without judicial
oversight, from October 14, 1993, to November 20, 1993, the date on which they
were brought before a military court judge. Mr. Castillo Petruzzi, for his part, was
detained on October 15, 1993, and brought before the judge in question on
November 20 of that year. This Court finds that the period of approximately 36 days
that elapsed between the time of detention and the date on which the alleged victims
were brought before a judicial authority is excessive and contrary to the provisions of
the Convention.
112. The Court therefore finds that the State violated Article 7(5) of the
Convention.
X
VIOLATION OF ARTICLE 9
(PRINCIPLE OF NULLUM CRIMEN NULLA
POENA SINE LEGE PRAEVIA AND FREEDOM
FROM EX POST FACTO LAWS)
113.
Article 9 of the Convention provides that:
No one shall be convicted of any act or omission that did not constitute a
criminal offense, under the applicable law, at the time it was committed. A
heavier penalty shall not be imposed than the one that was applicable at the
time the criminal offense was committed. If subsequent to the commission of
the offense the law provides for the imposition of a lighter punishment, the
guilty person shall benefit therefrom.
114.
Arguments of the Commission:
86.
Habeas corpus in emergency situations (Arts. 27(2), 25(1) and 7(6) American Convention on
Human Rights), Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8., para. 38, and Judicial
guarantees in states of emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights),
Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 36.
87.
Judicial guarantees in states of emergency (Arts. 27(2), 25 and
Human Rights), supra note 86, para. 21.
8 American Convention on