31
reasonable time or to be released without prejudice to the continuation of the
proceedings. His release may be subject to guarantees to assure his appearance for
trial.
69.
The Court will now examine whether Mr. Cantoral-Benavides was detained for
the reasons and under the conditions set forth in the Peruvian Constitution and in the
laws established pursuant thereto.
70.
The Peruvian Constitution of 1979, in force at the time of the events, states in
Article 2.20.g):
No one may be detained without a written warrant from a judge, except in the case of
crimes detected in the act, in which case the police are authorized to carry out the
detention.
In any case, the detainee must be brought before the corresponding court within
twenty-four hours, depending on the distance involved.
Exceptions are cases of terrorism, espionage and drug trafficking, in which police
authorities may arrest and hold the alleged perpetrators for a term not to exceed fifteen
calendar days, and are responsible for reporting same to the Office of the Public
Prosecutor and the Judge, who may assume jurisdiction prior to the expiration of this
term.
71.
Article 231.a) of the Peruvian Constitution of 1979, stated:
The President of the Republic, with the consent of the Council of Ministers, decrees, for
an indefinite period of time, in all or part of the national territory, and reporting same to
the Congress or the Standing Commission, the states of emergency considered in this
Article:
a)
State of emergency, in cases of disturbances of the peace or internal order, of
catastrophes or of grave circumstances that affect the life of the Nation. In such cases,
the constitutional guarantees related to personal liberty and security, inviolability of
domicile, freedom of association and freedom of movement in national territory, covered
in subsections 7, 9 and 10 of Article 2, and in subsection 20-g of the same Article 2 […],
may be suspended
72.
This Tribunal has noted that
[S]ince the suspension of guarantees must not exceed […] the exact amount of time
needed to respond to the emergency, all actions taken by the public powers that exceed
those limits are illegal; these limits must be specified in the provisions decreeing the
state of emergency, even within the situation of juridical exception in force.40
73.
As part of its efforts to combat terrorism, the State issued Decree Laws No.
25.475, which refers to the crime of terrorism, on May 5, 1992, and No. 25.744,
which refers to the crime of treason against the fatherland, on September 27, 1992.
The first states, in Article 12.c), that a person allegedly implicated in the crime of
terrorism can be held under arrest for a period not to exceed fifteen calendar days,
and that same is to be reported within 24 hours to the Office of the Public Prosecutor
and the criminal judge. According to Article 2.a) of Decree Law No. 25.744, said
term of 15 days could be extended for an equal period without the person being
brought before a judicial authority. This Court has noted that such provisions
contradict the Convention, which states “Any person detained shall be brought
promptly before a judge or other officer authorized by law to exercise judicial
power.”41
40
Habeas Corpus in emergency situations (Articles 27(2), 25.(1) and 7(6) of the American
Convention on Human Rights). Advisory Opinion OC-8/87, of January 30, 1987. Series A No. 8, para. 38.
41
Castillo-Petruzzi et al.Case, supra note 9, para. 110.
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