9
with the October 22, 1993 Judgment of the Supreme Court of Peru, the Court
dismisses the argument of the State.
VII
LAPSING
35.
The Court will now consider the second, third, fourth, and sixth preliminary
objections pertaining to the alleged lapse of the complaint to the Commission and
of the application to the Court.
36.
As to this point, the State argues that:
a)
on the date the complaint was lodged with the Commission or when
the Commission transmitted the pertinent parts of it to Peru, the six month
period from the date on which the alleged victim was notified of a final
judgment as established by Articles 46(1)(b) and 47(a) of the American
Convention and by Article 38 of the Regulation of the Commission had
already expired, inasmuch as in this case this period should be counted
"from the end of the trial in the Exclusive Military Jurisdiction with the
execution of the Judgment of August 11, 1993, or September 24, 1993."
The State also argued that the Commission was opportunely informed of
that circumstance on September 7, 1994;
b)
the lapse does not only refer to the trial of Cantoral-Benavides in the
military court but also to his alleged arbitrary and illegal arrest, his alleged
torture and illegal treatment at the hands of members of DINCOTE on
February 6, 1993, and his alleged arbitrary detention due to the order to
release his twin brother, Luis Fernando Cantoral-Benavides, instead of
ordering his freedom in accordance with the judgment rendered on August
11, 1993 by the Supreme Court of Military Justice; and
c)
it is also untimely to make the demand in the application, Section
I.(7) Purpose of the Application, for compensation, as the period to make
this demand had already expired.
37.
As to this point, the Commission argued that:
a)
when the State made its allegations concerning
lapse it was
confused as to the manner in which the time periods should be calculated,
since the petition was lodged with the Commission on the date of April 18,
1994, four days before the expiration of the six month period, as counted
from the Judgment of October 22, 1993; the original text of the petition was
received on April 20, 1994, within the period established by Article 46(1)(b)
of the Convention, and the Commission transmitted this petition to Peru on
August 24, 1994;
b)
Peru contradicted itself when it alleged, on the one hand, that
domestic remedies had not been exhausted at the time that the petition was
lodged with the Commission and, by maintaining on the other, that when
the petition was filed the time period to do so had expired.
c)
Peru could have interposed objections of untimeliness in the
proceedings before the Commission, but it did so only subsequently before
the Court; and