55. In the present case, with regard to the question of admissibility, the petitioner alleges that
she is exempt from the requirement to exhaust the remedies available under domestic law in
accordance with Article 46.1 of the American Convention, by virtue of the fact that her case
falls within the sphere of the exemptions to the rule of prior exhaustion as defined in Article
46.2 of the Convention. In this respect, the petitioner alleges that Peruvian legislation does not
afford due process of law for the protection of the rights which in the petition are alleged to
have been violated and that she has been denied access to the remedies under domestic law
and prevented from exhausting them. Specifically, the petitioner alleges that Peruvian
terrorism legislation, which forms the basis of the charges against her (Decree Law No.
25,475), is legally defined in such a way as to be vague and imprecise. Secondly, she alleges
that her trial took place at a time when the judiciary was losing power to the executive, and
she states that she was prevented from exhausting the remedy of habeas corpus because once
Decree Law No. 25659 had come into force, in August 1992, the right to interpose a writ of
habeas corpus was revoked in cases involving accusations of terrorism. The petitioner also
states that she was prevented from exhausting remedies under domestic law because she was
obliged to leave Peru from fear for her life. She states that she applied for asylum in the United
Kingdom, and while this request was being processed, up until February 1997, she had to face
the fear and uncertainty of possible repatriation. Consequently, she states that she was living
in a country in which the language was foreign to her, with inadequate financial resources, and
in which she did not have easy access to specialist legal advice concerning the inter-American
system. Finally, she states that following this any possibility of seeking legal remedy under
domestic law was closed to her with the Government enacted Laws No. 26479, and 26,472,
known as the “Amnesty Laws.”
56. For its part, the State alleges that the petition does not comply with the corresponding
requirements for admissibility because the remedies available under domestic law have not
been exhausted prior to the submission of the complaint. The State alleges that in the present
case, the finding of acquittal which was handed down on June 18, 1993 by the Superior Court,
ordering the release of the petitioner did not bring an end to the legal proceedings pending
against her because a higher instance existed in domestic law. In effect, the State says that
the Supreme Court of Justice reviewed the acquittal and finally decided that it needed to carry
out new oral hearings, and this did not amount to a violation of due process. Consequently,
criminal proceedings are still pending in the domestic legal system for the alleged crime of
terrorism. In addition, the State mentions that Peruvian legislation provides for the observation
of due process and legal protection by means of different remedies, which have not been used
by the petitioner, and that therefore the exception provided for by Article 46.2.a. is not
applicable. Furthermore, the State claims that during the police investigation and trial of the
petitioner, she had access to her defense lawyer as well as the participation of the Public
Prosecutor’s office (Ministerio Público) and, as can be seen from the petition, she did not lodge
any complaint or denunciation of the alleged abuse or prevention from exercising her right to a
defense.
57. In view of the allegations from both parties, the Commission considers it pertinent, in
order to examine to what extent the requirement established in the Convention of prior
exhaustion of domestic remedies has been complied with, to make a preliminary finding
regarding the object of the complaint lodged before the IACHR. In this respect, the
Commission points out that in reference to the petitioner’s allegations, the content of the
petition concerns various issues relating to the alleged arbitrary arrest, detention conditions,
abuse, and alleged failure to guarantee due process in the trial of the alleged victim.
58. In this regard, the Commission notes that at the time when the detention and subsequent
trial of Mrs. Feria took place, the writ of habeas corpus had been suspended in the Peruvian
jurisdiction under the terms of Decree Law No. 25,659, in relation to those accused of crimes
of treason against the nation and terrorism. 4 The remedy of habeas corpus provides basic and
4 IACHR, Report into the human rights situation in Peru, OAS/Ser.L/VII.83, Doc. 31, March 12, 1993, paragraphs 22,
23, and 24, and I/A Court H.R., and Loaysa Tamayo Case, Judgment September 1997. Series C. No. 33, paragraphs
51-54.
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