66
para. 88(74)(i)). The medical care provided to the alleged victim was deficient
(supra para. 88(74)(v)). Lori Berenson suffered circulatory problems and had
Reynaud’s syndrome (supra para. 88(74)(v)). She also had problems with her vision,
because her cell was lit with artificial light.
107. The United Nations Committee against Torture has stated that the detention
conditions in the Yanamayo Prison, which it knew because of its investigations,
implied cruel and inhuman treatment and punishment. The Committee considered
that the State should close this establishment.223
108. The detention conditions imposed on the alleged victim in the Yanamayo
Prison, as a result of the application of Article 20 of Decree Law No. 25,475 and
Article 3 of Decree Law No. 25,744 by the military courts, constituted cruel, inhuman
and degrading treatment, which violated Article 5 of the American Convention. Some
of these conditions varied after a certain time, such as the continuous solitary
confinement. However, this did not change the Court’s previous conclusion.
109. Consequently, the Court concludes that the State violated Article 5(1), 5(2)
and 5(6) of the American Convention, in relation to Article 1(1) thereof to the
detriment of Lori Berenson.
IX
ARTICLE 9 OF THE AMERICAN CONVENTION
IN RELATION TO ARTICLE 1(1) THEREOF
(FREEDOM FROM EX POST FACTO LAWS)
Arguments of the Commission
110.
Regarding Article 9 of the Convention, the Commission argued that:
a)
The State violated the right embodied in Article 9 of the Convention to
the detriment of the alleged victim, “by convicting her of the crime of
collaboration with terrorism established in Article 4(a) and (b) of Decree Law
No. 25,475”;
b)
The civil trial against the alleged victim “was initiated based on a
charge for the crime of terrorism, and with an order to open the pre-trial
proceedings that required a new preliminary statement from the [alleged
victim] and the processing of a new trial pursuant to Decree Law No. 25,475”;
c)
The definition of terrorism established in Article 2 of Decree Law No.
25,475, conceived ‘in an abstract and ambiguous manner,” and the definition
of the category of collaboration with terrorism, referred to in Article 4 of this
Decree Law, “are incompatible per se with the principle of legality embodied
in Article 9 of the American Convention”;
d)
Acts of collaboration can never be considered autonomous categories
of crime: they are related to the crime of terrorism, which “is extremely
general”;
223
Cf. UN Committee against Torture. Investigation in relation to Article 20: Peru. 16/05/2001.
A/56/44, paras. 144-193. (Inquiry under Article 20), para. 183 and 184.
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