44
Article 1. To extend the state of emergency for sixty (60) days as of March 23, 1993, in the Department of Lima
and the Constitutional Province of Callao.
Article 2. To this end, to suspend the guarantees established in paragraphs 7), 9), 10) and 20-g) of article 2 of
the Peruvian Constitution.
Article 3. The Armed Forces shall assume control of internal order pursuant to the provisions of Law No. 24,150,
expanded and amended by Legislative Decree No. 749.
115. Decrees 25,475 and 25,744 issued by the Emergency and National Reconstruction
Government were also in force, establishing the norms applicable to the punishment, police
investigation, preliminary proceedings and trial for crimes of terrorism and treason. 182 As
relevant to this case, these norms established that the DINCOTE was the entity responsible for
preventing, investigating, proving, and combating the subversive activities of terrorism and
treason, and that, in the investigation of such crimes, the Peruvian National Police must observe
strictly the provisions of the relevant legal norms and, specifically, the following:
(i) Assume the police investigation of crimes at the national level, instructing its personnel to intervene without
any restriction that might be established in its institutional regulations. In places where the Peruvian National
Police does not have a post, the capture and detention of those implicated in these crimes shall correspond to
the Armed Forces, who shall bring them immediately before the nearest police station for the corresponding
investigations (Article 12.a of Decree 25,475).
(ii) In the case of crimes of terrorism, detain those presumably implicated for no more than 15 natural days,
giving written notice to the Public Prosecution Service and the corresponding criminal judge within 24 hours
(Article 12.c of Decree 25,475).
(iii) In the case of crimes of treason, the Peruvian National Police may execute the preventive detention of
those presumably implicated for no more than 15 days, informing the sitting judicial authority of the exclusive
military jurisdiction. To ensure the success of the investigation, this time frame may be extended for a similar
period at the duly justified request of the Peruvian National Police (Article 12.a of Decree 25,744).
(iv) When circumstances requires it, and when the complexity of the investigation demands it, in order to
ensure the clarification of the facts that are being investigated, the absolute incommunicado of the detainees
may be ordered for the maximum time allowed by law, with the full knowledge of the Public Prosecution Service
and the respective jurisdictional authority (Article 12.d of Decree 25,475).
Order, the transfer of the detainee or detainees when necessary in order to clarify the facts that are being
investigated. This procedure shall also be followed as a safety measure when the detainee is revealed to be
dangerous. In both cases with full knowledge of the Provincial Prosecutor and the respective criminal judge
(Article 12.e of Decree 25,475).
B.1.2. The suspension of guarantees and its limits
116. The Commission and the representatives argued that it was not sufficient to allege “the
generic existence of a state of emergency,” because the detention of Gladys Espinoza had not
been compatible with the legal, exceptional, necessary and temporal requirements of a
suspension of guarantees (supra para. 111).
117. Article 27(1) of the Convention refers to several situations. The measures adopted in any
of these emergencies should be adapted to “the exigencies of the situation,” and it is clear that
what is permissible in one of them, may not be permissible in the others. The lawfulness of the
measures adopted to deal with each of the special situations referred to in Article 27(1) will thus
depend on the nature, intensity, complexity and particular context of the emergency, as well as
on the proportionality and reasonableness of the measures adopted to deal with it.183 In this
regard, although the Court has indicated that the State has the right and the obligation to
ensure its security and to maintain public order, its powers are not unlimited, because it has the
duty, at all times, to apply measures that are in keeping with the law and respectful of the
182
Cf. Decree Law No. 25,475 of May 5, 1992, articles 13 and 20 (evidence file, folios 6012 to 6015), and Decree
Law No. 25,744 of September 21, 1992, articles 1 and 2 (evidence file, folios 6017 and 6018).
183
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human
Rights). Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 22, and Case of J. v. Peru, supra, para.
139.
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