50
1993, the judgment delivered that day by the Military Investigating Judge was read in the
DINCOTE offices in Ms. Espinoza’s presence (supra paras. 77 and 78).
132. In sum, the Court has insufficient evidence to establish how long Gladys Espinoza’s
detention lasted without judicial control. Therefore, for the purposes of this judgment, the Court
will consider that Gladys Espinoza remained at least 30 days without being brought before a
judge. In the cases of Castillo Petruzzi et al. and Cantoral Benavides, the Court found that the
laws of Peru, according to which a person presumably implicated in the crime of treason could
be kept in preventive detention for a period of 15 days, extendible for a similar term, without
being brought before a judge, was contrary to Article 7(5) of the Convention, and considered
that the period of approximately 36 days that elapsed between the arrest and the date on which
the victims were brought before the courts was excessive and contrary to the Convention. 211 In
addition, in the Case of J. v. Peru, the Court considered that, even in a context of suspension of
guarantees, it was not proportionate that the victim, who had been arrested without a court
order, remained detained at least 15 days without any form of judicial control, because she was
presumably implicated in the crime of terrorism. 212
133. In view of the fact that, in this case, it has been proved that Gladys Espinoza, who was
accused of being implicated in the crime of treason and who was subjected to the norms in force
at the time of the facts (supra para. 115), was not brought before a judge for at least 30 days, it
is appropriate to apply the conclusions reached in the cases indicated in the preceding
paragraph. Moreover, although neither of the parties questioned whether the supervisory judge
offered the necessary guarantees of competence, independence and impartiality, the Court has
indicated that the fact that the victim was brought before a military criminal judge, does not
meet the requirements of Article 7(5) of the Convention. 213 Consequently, the Court finds that
this detention, without judicial control pursuant to the standards of the Convention, was
contrary to Article 7(5) of the American Convention, in relation to Article 1(1) of this instrument,
to the detriment of Gladys Carol Espinoza Gonzáles.
134. In other cases, the Court has indicated that prolonging detention without the person
being brought before the competent authority makes it arbitrary. 214 Consequently, the Court
considers that once the period of detention had been extended, given the failure to bring the
detainee before a supervisory judge promptly and, subsequently, owing to the continuation of
the deprivation of liberty by order of the military judge, it became an arbitrary detention.
Therefore, the Court declares the violation of Article 7(3), in relation to Article 1(1) of the
American Convention, to the detriment of Gladys Carol Espinoza Gonzáles.
B.4. Article 7(6) of the American Convention (right to recourse to a competent judge
or court for a decision on the lawfulness of the arrest or detention), in relation to
Article 1(1) of this instrument
135. The Commission and the representatives argued the violation of Article 7(6) of the
Convention to the detriment of Gladys Espinoza because it was prohibited to present an
application for habeas corpus in favor of individuals involved in proceedings for terrorism or
treason (supra paras. 103.c and 104.c). Article 7(6) of the Convention protects the right of
anyone deprived of liberty to recourse to a competent judge or court for a decision on the
211
Cf. Cases of Castillo Petruzzi et al. v. Peru, supra, paras. 110 and 111, and Cantoral Benavides v. Peru, supra,
para. 73.
212
Cf. Case of J. v. Peru, supra, para. 144.
213
Cf. Case of Cantoral Benavides v. Peru, supra, para. 75.
214
Cf. Case of Cabrera García and Montiel Flores v. Mexico, supra, para. 102, and Case of J. v. Peru, supra, para.
144.
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