47
hh)
The law has been interpreted differently in similar cases. The decision
adopted in the alleged victim’s case is not consistent with the decision of the
same judges who acquitted other defendants in similar conditions.
Arguments of the alleged victim’s representatives
75.
The alleged victim’s representatives endorsed the arguments of the InterAmerican Commission in relation to the alleged violation of Articles 9, 7, 8 and 24 of
the American Convention, and also stated that:
a)
Both the Court and the Commission have already ruled on the
incompatibility of Peru’s anti-terrorist legislation with the American
Convention;
b)
The breadth of the definition of the crime terrorism allows the medical
activity carried out by the alleged victim to be considered within this criminal
definition;
c)
When exercising his profession, the physician is obliged to apply the
fundamental ethical and moral principles that must regulate every medical
activity;
d)
The principles of medical ethics established in the Hippocratic Oath
also regulate the mission of physicians in time of armed conflict in relation,
for example, to the Geneva Conventions;
e)
The alleged victim continued to be deprived of her liberty, even though
Legislative Decree No. 926 of February 19, 2003, established that an order
should be issue for the judgment and the criminal trial held against her before
secret courts to be annulled within 60 days. The same decree excluded the
possibility of release from prison;
f)
A decision of June 20, 2003, of the National Terrorism Chamber
annulled the oral proceeding; however, at the date the brief with requests
and arguments was submitted, the new trial had not taken place and the
alleged victim continued to be deprived of her liberty “without having been
convicted, without having been charged by the prosecutor, and subject to a
proceeding opened for a crime that she ha[d] not committed”;
g)
When the brief with requests and arguments was submitted, a
reasonable length of time had elapsed for a new proceeding to have been
initiated. This had not happened, “making [the] detention [of the alleged
victim] arbitrary”;
h)
On July 8, 2004, when the release of María Teresa De La Cruz Flores
was ordered, by changing the detention order for one of conditional
appearance, the violation of the alleged victim’s right to personal liberty
ceased;
i)
Owing to the broad investigative powers granted to the police in cases
of crimes of terrorism, based on article 12 of Decree Law No. 25,475, the
police became the trial judge, conducting the whole preliminary investigation.
In this regard, the judgment convicting the alleged victim was based on the
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