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hearing, the Commission argued that, as in the Case of J. v. Peru, the State had “raised the
issue of [a state of] emergency for the first time” before the Court; thus, while the petition was
being processed, it was unaware that the State’s justification for the way in which the arrest had
been carried out was a state of emergency. It also indicated that this gave rise to the possibility
of a situation of estoppel, because the Commission had adopted a substantive and procedural
position in the Merits Report, based on the fact that the State’s arguments had made no
reference to a state of emergency. It also argued that, when the State cites a state of
emergency, it has the burden of proving why it was necessary to apply the restrictions that were
in force under the state of emergency, and it has not done so in this case. Consequently, the
Commission considered that the restrictions concerning the ability to make an arrest without a
court order and in the absence of a situation of in flagrante delicto, and for longer than provided
for by law should be analyzed in detail and individually in keeping with the specific case, and
should not be dismissed owing to the generic existence of a state of emergency. It also indicated
that the generic citing of “permanent flagrante delicto” should be considered exceptional and
respect the guarantees required in cases of detention. It also stressed that the State had not
presented any kind of documentary evidence to support its argument, but rather based itself on
documents prepared after the victim’s arrest. Lastly, in its final written observations, the
Commission considered that the victim’s arrest was unlawful.
b) Non-compliance with the guarantees established in Article 7(4) of the Convention,
because the DIVISE agents who arrested the presumed victim did not record her detention. In
those circumstances, the Commission concluded that the presumed victim had not been notified
promptly of the reasons for her detention. It added that the State had not presented any record
that proved compliance with the said guarantees, but had merely identified a document dated
after the presumed victim’s arrest in which she indicated that she had been informed of the
reasons for her detention. In this regard, it observed that the victim’s statement in that
document did not specify when she was notified of the reasons for her detention. In addition,
the Commission argued that the detention was arbitrary because the State had not argued that
it was strictly necessary and proportionate for the State agents to make the arrest using blows,
insults and threats, taking into consideration the standards that regulate the use of force.
c) Non-compliance with the provisions of Article 7(5) of the Convention, and also Article
7(3), because the detention of Gladys Espinoza became arbitrary, contrary to this instrument,
because, following her arrest on April 17, 1993, she remained incommunicado for several days
and was only brought before a judicial authority of the military jurisdiction on June 24, 1993,
eighty days after her arrest. The Commission also indicated that Peru had not explained why, in
Gladys Espinoza’s case, the guarantee of judicial control had been suspended, and emphasized
that the State’s argument that Gladys Espinoza Gonzáles was brought before a judge within 30
days “has no relevance for the analysis of the case” because, in numerous judgments and even
in the Case of J. v. Peru, “the Court has maintained that the absence of judicial control, even for
the 15 days established by domestic law at that time, violates the right established in Article
7(5) of the American Convention.” Lastly, the Commission argued that, from the time of the
presumed victim’s arrest until November 25 that year, article 6 of Decree Law No. 25,659
prohibited the presentation of an application for habeas corpus in favor of individuals involved in
proceedings for terrorism or treason, which is contrary to Article 7(6) of the Convention.
104. The representatives presented similar arguments to those of the Commission and added
that the arrest of Gladys Espinoza and the detention regime to which she was subjected were
characterized by numerous irregularities that constituted gross violations of the guarantees
established in Article 7 of the Convention. They indicated that these violations took place in a
context that, at the time, was characterized by the generalization of arbitrary detentions and
investigations of individuals accused of terrorism, which is relevant to the analysis, above all,
because it was sought to shield the actions of the State agents during the detention of Gladys
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