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under the military justice system with an order of arrest because he does not meet the
constitutional requirements to be considered an active member of the armed forces as
set forth in Article 173 of the Constitution since he was not carrying out work or
functions as a member of the armed forces in connection with the facts that are
attributed to him, and the principle of the extension of military jurisdiction is not
applicable in the present case; ELEVENTH: This being so, and being immune from the
proceeding filed under the military justice system, the order of arrest issued against the
petitioner, referred to in the third whereas clause, implies an imminent threat to his
constitutional right to liberty, so that this panel of judges with constitutional competence
must re-establish this right which has been violated; in the understanding that the
liberty of the person is the supreme expression of the very essence of the human being,
and all the fundamental concepts to achieve social peace and the reign of the rule of the
law are addressed to this end, according to the provisions of the Universal Declaration of
Human Rights; TWELFTH: In view of the foregoing, as the institution of habeas corpus
relates to the protection of the personal liberty of each person, providing protection from
coercive acts carried out by any person or entity of any rank or level of authority or
competence that violate the right to liberty, it is the appropriate procedure given its
legal status as a constitutional guarantee that can be processed immediately and,
accordingly, it is applicable in the present case […]
As a consequence of the arguments transcribed above, the Public Law Chamber
ordered
that the order of arrest and the impediment to leave the country should be lifted
immediately and also that the proceeding against Gustavo Adolfo Cesti Hurtado should
be ceased.
This decision was notified to the Public Prosecutor of the Peruvian Army and the
Public Prosecutor of the Ministry of the Interior of Peru on February 18, 1997.
72.
On February 26, 1997, the Examining Magistrate of the Supreme Council of
Military Justice declared that the decision of the Public Law Chamber was
inapplicable, and he communicated this decision to the Chamber on March 3 that
year.
73.
By a decision of March 6, 1997, the Public Law Chamber of the Superior Court
of Justice of Lima qualified the decision of the Examining Magistrate of the Supreme
Council of Military Justice as a “unilateral and out-of-court act, totally alien to the
habeas corpus procedure’; it declared that the said decision did not constitute “a
legal action of any kind that… [might be] capable of altering or invalidating the
decision of the Public Law Chamber”; that all authorities are obliged to comply with
judicial decisions; and that none of them may set aside judicial decisions with the
force and effect of res judicata, modify their content or delay their execution, without
incurring responsibility.
C.
Detention of Gustavo Cesti Hurtado
74.
On February 27, 1997, Gustavo Cesti Hurtado requested the Examining
Magistrate of the Supreme Council of Military Justice to lift the order for his arrest
and the impediment to leave national territory and to suspend the criminal action
initiated against him under the military justice system, in compliance with the
decision of the Public Law Chamber,
75.
On February 28, 1997, Gustavo Cesti Hurtado was arrested and imprisoned.
D.
The criminal action against Gustavo Cesti Hurtado under the military
justice system
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