13
the Fourteenth Criminal Court of the Judicial District of Lima, Attachment VI to the
application; testimony of Augusto Zúñiga-Paz). This judgment was appealed before
the First Criminal Chamber of the Superior Court of Justice of Lima, which upheld it
(Decision of December 27, 1993 of the First Criminal Chamber of the Superior Court
of Justice of Lima, Attachment VII to the application; testimony of Augusto ZúñigaPaz); and
i.
ever since Mr. Castillo-Páez's disappearance, although a process was
instituted to ascertain his whereabouts and secure his release, he has not been
released by the police nor has any information about him been provided (Testimony
of Cronwell Pierre Castillo-Castillo and Augusto Zúñiga-Paz).
VII
44.
Before considering the arguments of the parties, the Court must examine Peru's
claim that both the Inter-American Commission and this Tribunal improperly assumed
jurisdiction to hear this Case, on the ground that the remedies under the State's domestic
law had not been exhausted.
45.
The Court considers that, with that declaration, Peru attempts to reopen at the
present stage on the merits of the Case, a matter of admissibility which was firmly and
definitively disposed of by this Court in its judgment of January 31, 1996 (supra, para. 21)
for which reason it rejects that argument as being exceedingly out of order.
VIII
46.
Once it has been proven that the detention and disappearance of Ernest Rafael
Castillo-Páez are imputable to Peru, inasmuch as they were committed by members of its
National Police, the Court intends to examine those facts in the light of the American
Convention.
IX
47.
The Court now considers whether Article 7 (Right to Personal Liberty) was violated
by the State. That article establishes in its pertinent parts that:
1.
Every person has the right to personal liberty and security.
2.
No one shall be deprived of his physical liberty except for the reasons and under the
conditions established beforehand by the constitution of the State Party concerned or by
a law established pursuant thereto.
3.
No one shall be subject to arbitrary arrest or imprisonment.
4.
Anyone who is detained shall be informed of the reasons for his detention and shall be
promptly notified of the charge or charges against him.
5.
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 if the proceedings. His release may
be subject to guarantees to assure his appearance for trial.
6.
Anyone who is deprived of his liberty shall be entitled to recourse to a competent court,
in order that the court may decide without delay on the lawfulness of his arrest or
detention and order his release if the arrest or detention is unlawful. In State Parties
whose laws provide that anyone who believes himself to be threatened with deprivation
of his liberty is entitled to recourse to a competent court in order that it may decide on