59
Arguments of the Commission
98.
As to the alleged violation of Article 7 of the Convention, the Inter-American
Commission stated that:
a)
The State violated Articles 7(1), 7(2), 7(3), 7(4), 7(5), and 7(6) of the
Convention, regarding Article 1(1) thereof, to the detriment of Wilson García-Asto
and Urcesino Ramírez-Rojas;
b)
Urcesino Ramírez-Rojas and Wilson García-Asto were arrested without an
arrest warrant issued by a competent authority and without observance to the rules
of due process of law;
c)
The initial violation of Urcesino Ramírez-Rojas’ freedom did not cease in
September 2000, but continued as at that moment no “final judgment had been
rendered which definitely affect[ed] such right;”
d)
The detention of both alleged victims became illegal, violating Articles 7(1)
and 7(2) of the Convention, as it did not take place in flagrante delicto as
authorized by the Peruvian Constitution and the Peruvian law; instead, it was the
result of the whims of Police officers who sought to justify their intervention in
evidentiary circumstances they could not establish, as they are not judicial
authorities. Neither did they have a written warrant issued by a judge, as required
by the Political Constitution of Peru;
e)
The detention of Urcesino Ramírez-Rojas becomes arbitrary, and,
consequently, in violation of Article 7(3) of the Convention, in light of the new
jurisprudential and legal developments of anti-terrorist legislation of Peru, the
Judgment of January 3, 2003 rendered by the Constitutional Court, and Legislative
Decree No. 926 of February 2003;
f)
Article 4 of Legislative Decree No. 926 of February 19, 2003 violates “the
rights of the defendants to be tried within a reasonable time or be released pending
trial, as the new legislation -to the effects of provisional freedom- does not take
into account the number of years that those people for whom annulment of
judgment has been declared remained in custody;”
g)
The way in which the actual time of deprivation of freedom is computed to
create a fiction of a new preventive detention by virtue of new proceedings is
arbitrary and violates the guarantee of Article 7(3) of the American Convention in a
current and continuous manner. The term of almost fourteen years during which
Urcesino Ramírez-Rojas has been held in custody, without a final judicial decision,
is not relevant for the State of Peru, apart from being in itself “excessive,
unreasonable, and disproportionate;”
h)
The accused, whose innocence is presumed, must enjoy the exercise of
physical freedom, while their deprivation must be ordered only in those cases
where the success of the criminal proceedings is at stake, either because there is
an intent to hamper the evidentiary activity or to avoid the application of
punishment. This orientation is not reflected in the judicial decisions adopted along
the new proceedings brought against Urcesino Ramírez-Rojas, and as a result, the
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