case, subparagraph (h) of Article 13 of Decree Law No. 25.475 results in a
disproportionate and unreasonable restriction of the right of the natural judge and is also
unconstitutional.” 14
16.
Regarding the prohibition for a lawyer to defend more than one accused,
regulated by Article 18 of Decree Law No. 25.475, this norm was annulled by Law No.
26.248, 15 a situation that was subsequently recognized in the Constitutional Court’s
judgment.
17.
Regarding the possibility of incommunicado, established in Article 12,
subparagraph (d), of Decree Law No. 25.475, the Court notes that the Constitutional
Court found that “the incommunicado of a person detained for the crime of terrorism
does not affect the right to defense because, as established in the second paragraph of
Article 2 of Law No. 26.447, the participation of defense counsel in the police
investigations and the interview with his client is guaranteed and cannot be limited,
‘even when incommunicado has been ordered for the detainee.” However, to the extent
that the norm in question does not specify the authority responsible for ordering the
incommunicado, and since this “must necessarily be ordered by the criminal judge, since
it is a measure that restricts a fundamental right,” the Court observes that the
Constitutional Court finally considered this article unconstitutional. 16
18.
Lastly, as regards the problem relating to the presumption of innocence by
opening pre-trial investigations with an arrest warrant, regulated by subparagraph (a) of
article 13 of Decree Law No. 25.475, the Court refers to the words of the Constitutional
Court to the effect that the norm “is not, per se, unconstitutional; however, this does not
mean that, in its application, it is not possible to examine the validity of preventive
judicial detention that is incompatible with the Constitution and the international human
rights treaties”; thus, it would be necessary to refer to “the traditional criteria of legal
interpretation and, particularly, the scope of the so-called criterion of systematic
interpretation.” Hence, according to the Constitutional Court, this norm “must
necessarily be understood taking into account the implications of article 135 of the Code
of Criminal Procedure”; however, “in addition to the reasons established in [said] article
[…], the legislator can introduce additional reasons to order preventive judicial
detention; in particular, those relating to the risk of the perpetration of new crimes or,
exceptionally, in order to preserve the public order.” 17
iii)
Conclusions of the Court
19.
Taking the foregoing into account, the Court finds that measures have been
adopted by the Executive, the Legislature and the Constitutional Court to annul some
domestic norms that are contrary to the Convention in this case, through their
annulment, reform, or new interpretation. In this regard, some relevant legal norms
have been adopted, whose content is designed to comply with standards of international
human rights law. In some of the measures, particularly in the Constitutional Court’s
ruling, the justification for legal reform has been based on the decisions taken by the
Inter-American Court in this case.
20.
In this regard, the Court recalls that it is not only the elimination or enactment of
norms of domestic law that guarantees the rights contained in the American Convention,
pursuant to the obligation embodied in Article 2 thereof. State practices must also be
14
Cf. Judgment of the Constitutional Court of Peru, supra note 5, para. 113.
15
Cf. Judgment of the Constitutional Court of Peru, supra note 5, para. 125.
16
Cf. Judgment of the Constitutional Court of Peru, supra note 5, paras. 173 to 175.
17
Cf. Judgment of the Constitutional Court of Peru, supra note 5, paras. 137, 142, 143, and 146.
6