24
newspaper article entitled "Confesión a Golpes" ("Beaten into Confession"), and
Report of the National Coordinator of Human Rights on the situation of torture in
Peru and other cruel, inhuman or degrading treatment, January 1993 to September
1994).
XI
47.
Before considering the arguments adduced by the parties, the Court must dispose of
Peru's objection of "inadmissibility of the application on the ground of non-exhaustion of
domestic remedies ...," in which it considered that the Court had "improperly arrogated
jurisdiction to itself."
48.
The Court deems that, with that argument, Peru is attempting to reopen, at the
current stage of consideration of the merits of the Case, a question of admissibility already
ruled on by the Court.
It therefore dismisses the argument on grounds of gross
impropriety, inasmuch as it deals with a matter already disposed of in the Judgment of
January 31, 1996 (supra, para. 12), which is final and nonappealable.
XII
49.
The Court now turns to the arguments and evidence submitted by the parties, and
deems that:
a.
The fact that Ms. María Elena Loayza-Tamayo was apprehended on February
6, 1993, by members of DINCOTE at a building located at Mitobamba Street, Block
D, Lot 18, Los Naranjos Estate, Los Olivos District, Lima, Peru, is not in dispute, nor
is the allegation that she was held incommunicado between February 6 and 15, 1993
(supra, para. 46(a) and (c).
b.
It is for this Court to determine whether that detention was carried out in
conformity with Article 7 of the Convention and, if so, whether the state of
emergency and suspension of guarantees imposed in the Department of Lima and
the Constitutional Province of Callao as of January 22, 1993, is germane to the
instant case.
50.
Article 27 of the American Convention governs the suspension of guarantees in time
of war, public danger, or other emergency that poses a threat to the independence or
security of a State Party, in which eventuality the latter must inform the other States
Parties, through the Secretary General of the OAS, "of the provisions the application of
which it has suspended, the reasons that gave rise to the suspension, and the date set for
the termination of such suspension." While it is true that personal liberty is not expressly
included in those rights, the suspension of which is, in any event, not authorized, it is
equally true that the Court has found that
writs of habeas corpus and of "amparo" are among those judicial remedies that are essential for
the protection of various rights whose derogation is prohibited by Article 27(2) and that serve,
moreover, to preserve legality in a democratic society [and that] the Constitution and legal
systems of the States Parties that authorize, expressly or by implication, the suspension of the
legal remedies of habeas corpus or of "amparo" in emergency situations cannot be deemed to be
compatible with the international obligations imposed o these States by the Convention (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, paras. 42 and 43).
...the judicial guarantees essential for the protection of the human rights not subject
to derogation, according to Article 27(2) of the Convention, are those to which the