9
to other effective remedies before the competent authority, including the possibility of
appealing to the Ministry of the Interior [“Ministerio Público”] to secure its approval of
the remedy to protect the fundamental rights enshrined in the American Convention
and the 1979 Political Constitution in force at the time. Under Article 250 of the
Constitution, the Ministry of the Interior is an autonomous State organ with official
responsibility to promote, in its own right or acting upon a petition of one of the
parties, the protective remedy to defend the legitimacy of civic rights and public
interests protected by the law.
b.
María Elena Loayza-Tamayo's right to due process of law was respected under
Article 25 of the Convention, inasmuch as she had the time and appropriate means to
prepare her defense, since she made her declaration before the military jurisdiction in
the presence of her defense attorney and the Special Military Prosecutor. Moreover,
the representative of the Ministry of the Interior was present at the police action that
led to her arrest.
c.
Although the Government did not indeed file the objection of non-exhaustion of
the domestic remedies until the presentation of its Report of November 23, 1994, it
had repeatedly declared before the Commission that the requirement of admissibility
had not been fulfilled and that, in any event, there was nothing to prevent Peru from
filing that objection with this Court, pursuant to Article 31 of the Rules of Procedure.
d.
Furthermore, it had sent to the Commission on three occasions the
documentation relating to Mrs. Loayza-Tamayo's arrest, trial on the charge of treason
in the military court and acquittal by the Supreme Court of Military Justice of August
11, 1993, and the transfer of the case to the regular courts, which had then tried Mrs.
Loayza-Tamayo for the crime of terrorism, a case that had not been concluded. The
Government had dispatched this documentation to the Commission with its briefs of
August 23 and September 30, 1993, as well as its brief of July 13, 1994.
38. The Inter-American Commission, in its brief of comments on the Government's
preliminary objections, maintains that:
a.
Peru expressly admits that it did not formally interpose the objection of nonexhaustion of domestic remedies in a timely manner and that this admission
constitutes in itself sufficient reason for the Court to declare the objection inadmissible.
b.
The Government's assertion that it repeatedly told the Commission that the
domestic remedies had not been exhausted is not accurate, since it only did so at the
time it presented its report prepared by the Government Task Force. Although at the
hearing held by the Commission on September 16, 1994, the Government's
representative did refer to the failure to exhaust domestic remedies because the
lawsuit against María Elena Loayza-Tamayo was still being tried in the regular courts,
he did so in a very general manner and did not supply any proof in support of his
statement, having at no time indicated the remedy to be exhausted or given proof of
its effectiveness.
c.
The Government's argument that, although the remedy of habeas corpus was
suspended in regard to the crimes of treason and terrorism under Article 6 of Decree
Law 25.659, María Elena Loayza-Tamayo had access to other effective remedies before
the competent authority for protection of her rights, including the Ministry of the
Interior, is unacceptable. The Commission maintains that no reference is made in any