30
c)
Mr. Cantoral-Benavides was held prisoner even though the judgment
rendered on August 11, 1993, which was considered res judicata, ordered his
release. This happened because an illegal motion for review was accepted.
An extraordinary motion for review of a final judgment for acquittal is not
permitted in either a military or regular criminal proceeding. According to
Article 690 of the Code of Military Justice, there are four situations in which a
motion for review of a guilty verdict is permitted, but none of them applied to
the circumstances of this case because the judgment of August 11 was a
judgment for acquittal;
d)
Mr. Cantoral-Benavides’ detention and the trials he was subjected to
were not supported by reasonable grounds of incrimination; and
e)
given the above, Mr. Cantoral-Benavides’ detention constitutes a
violation of the right set forth in Article 7(2) and 7(3) of the Convention.
67.
For its part, the State alleged that;
a)
on February 6, 1993, when Mr. Cantoral-Benavides was detained, the
Department of Lima and the Province of Callao were under a state of
emergency, in accordance with Article 231.a) of the Peruvian Constitution of
1979. Said Article states that, under a state of emergency, the constitutional
guarantees set forth in Article 2, subsections 7 (inviolability of domicile), 9
(freedom of movement in national territory), 10 (freedom of association) and
20.g) (arrest with a warrant or by police authorities in cases of a crime
detected in the act) of the same Constitution, could be suspended. The state
of emergency was legally decreed by the President of the Republic, with the
consent of the Council of Ministers;
b)
the arrest or detention of Mr. Cantoral-Benavides was neither arbitrary
nor illegal since it was carried out within the constitutional and legal
framework in force in Peru, meaning that his personal liberty was not violated
under the terms of Article 7 of the Convention; and
c)
since it is a rule of procedure, there is room for interpretation as to the
use of the motion for review in the military jurisdiction.
*
68.
*
*
Article 7 of the American Convention states, in numerals 1 to 5, 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
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