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held in custody for a term longer than two thirds of the penalty requested by the Public
Prosecutor in the indictment; 2. the possibility that the defendant escapes justice or
thwarts the evidentiary procedures has disappeared, and 3. the defendant fulfills the
bail imposed or, if appropriate, the insolvent offers a personal bail.
122. In turn, regarding release, Article 4 of Legislative Decree No. 926 of February
20, 2003, set forth that “[t]he annulment declared according to [said] Legislative
Decree shall not result in the release of the defendants, nor shall it entail the
suspension of the existing summonses.”
123. The first supplementary provision of Legislative Decree No. 926, consistent with
Article 4 thereof, set forth that the detention time limit provided in Article 137 (supra
para. 120) of the “Criminal Procedural Code in the proceedings to which [said]
Legislative Decree is applied [,] shall be calculated as from the date of issuance of the
order declaring the annulment.”
124. The annulment of the criminal proceedings instituted against Wilson García-Asto
and heard by “faceless” judges was ordered on January 15, 2003 by the Third Criminal
Chamber of the High Court of Justice of Lima (Tercera Sala Penal de la Corte Superior
de Justicia de Lima), which revoked the decision of November 27, 2002, declaring the
writ of habeas corpus filed on his behalf to be groundless, and ordering that the case
file be forwarded to the competent authority within forty-eight hours, so that the
pertinent legal steps be taken (supra para. 97(31)). However, only on March 10, 2003
did the First Special Criminal Court for Terrorism (Primer Juzgado Especializado Penal
en Delito de Terrorismo) ordered the commencement of the investigation proceedings
in the new trial instituted against Wilson García-Asto, wherein the precautionary
measure of imprisonment was ordered (supra para. 97(34)). During that term of one
month and twenty-five days, the alleged victim was deprived of freedom without
having been neither sentenced nor prosecuted.
125. By virtue of the foregoing, the Court considers that during the term between
January 15, 2003 and March 10, 2003, Wilson García-Asto was arbitrarily deprived of
freedom, in violation of Article 7(3) of the Convention.
*
126. The Court is aware of the legislative changes advanced by Peru so as to grant
new proceedings to the persons who were tried for terrorism by “faceless” judges or in
trials before the military jurisdiction (supra paras. 97(5) to 97(9)). However, upon
analyzing the precautionary measure of deprivation of freedom imposed upon the
alleged victim, the Court shall analyze whether the State has proceeded in accordance
with the provisions of the Convention regarding the exceptional application of
deprivation of freedom in the instant case.
127. The Court notes that the First Special Criminal Court for Terrorism (Primer
Juzgado Especializado Penal en Delito de Terrorismo), in the order for pre-trial
proceedings to be commenced issued on March 10, 2003, upon stating the grounds for
alleging procedural danger in the case of Wilson García-Asto as the basis for ordering
the precautionary measure of preventive detention, stated that:
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