46
120. Despite the foregoing, the Court has pointed out that the suspension of guarantees
should not exceed what is strictly necessary and that any action by the public authorities that
exceeds those limits, which must by precisely set out in the provisions that decree a state of
emergency, is unlawful. 191 Thus, the limitations imposed on the actions taken by the State
respond to the generic need that, in any state of emergency, appropriate measures subsist to
control the measures ordered, so as to ensure that they are reasonably adapted to the needs of
the situation and do not exceed the strict limits imposed by, or derived from, the Convention. 192
Indeed, the suspension of guarantees constitutes an exceptional situation, under which it is
lawful for the Government to apply certain measures that restrict rights and freedoms, which,
under normal conditions, are prohibited or subject to more rigorous requirements. This does not
mean, however, that the suspension of guarantees entails the temporary suspension of the rule
of law or that it authorizes the Government to act in a way that is contrary to the lawfulness that
it must always observe. When guarantees have been suspended, some of the legal limits to the
actions of the public authorities may differ from those in force under normal conditions, but
should not be considered inexistent, nor should it be understood, consequently, that the
Government is invested with absolute powers that exceed the conditions under which this
exceptional legality is authorized. 193
121. The case file reveals that, at the time of Gladys Espinoza’s arrest, the state of emergency
had been extended which suspended, among other matters, the right to be arrested only by
court order or in flagrante delicto (supra para. 119). Also, the procedural norms applicable to
the police investigation, the preliminary proceedings, and the trial of crimes of terrorism and
treason decreed on May 5 and September 21, 1992, were in force (supra para. 115). On this
point, the representatives and the Commission did not argue that, at the time of the facts of this
case, the situation in Peru did not require the suspension of the said rights. Nevertheless, the
Court observes that, although the right to be detained only by court order or in flagrante delicto
was suspended, the said procedural norms allowed a person presumably implicated in the crime
of terrorism to be kept in preventive detention for no more than 15 calendar days, which could
be extended for a similar period, without the person being brought before a judicial authority
(supra para. 112). Also, “the remedy of habeas corpus [was inadmissible] in the case of
detainees implicated in or being prosecuted for the crime of terrorism covered by Decree Law
No. 25,475.” The Court considers that the possible effects on Gladys Espinoza, owing to the
application of the said norms, must be analyzed in light of the guarantees established in Article
7(3), 7(5) and 7(6) of the Convention, and will therefore analyze them in the following subsections.
B.1.3. Absence of an appropriate record of the detention
122. The Commission and the representatives argued the absence of an appropriate record of
the detention of Gladys Espinoza (supra paras. 103.b and 104.a). The Court has considered that
any detention, regardless of the reason for it or its duration, must be duly recorded in the
pertinent document, clearly indicating, at least, the reasons for the arrest, who made it, the time
of the arrest, and the time of the release, as well as a record that the competent judge was
advised, in order to protect against any unlawful or arbitrary interference with physical liberty. 194
191
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human
Rights), supra, para. 38, and Case of J. v. Peru, supra, para. 139.
192
Cf. Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights).
Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 21, and Case of J. v. Peru, supra, para. 139.
193
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human
Rights), supra, para. 24, and Case of J. v. Peru, supra, para. 137.
194
Cf. Case of Torres Millacura et al. v. Argentina. Merits, reparations and costs. Judgment of August 26,2011.
Series C No. 229, para. 76, and Case of Expelled Dominicans and Haitians v. Dominican Republic, supra, para. 347.
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