25
Convention expressly refers in Articles 7(6) and 25(1), considered within the
framework and the principles of Article 8, and also those necessary to the preservation
of the rule of law, even during the state of exception that results from the suspension
of guarantees (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. 38.)
51.
Article 6 of Decree-Law Nº 25.659 (crime of treason) provides that
[a]t no stage of the police investigation and the criminal proceedings may detainees implicated or
prosecuted for the crime of terrorism, and covered by Decree-Law No. 25.474, file Guarantee
Remedies, or petitions against the provisions of the present Decree-Law.
The Court notes in its file on the case before it that the police notified Ms. María Elena
Loayza-Tamayo on February 6, 1993, that she was being apprehended in connection with
"the crime of terrorism."
The State has argued that while Ms. María Elena Loayza-Tamayo lacked access to the
remedy of habeas corpus, she could have sought other remedies, which, nonetheless, Peru
did not specify.
52.
The Court considers that, pursuant to Article 6 of Decree-Law Nº 25.659 (crime of
treason), Ms. María Elena Loayza-Tamayo did not have the right to file a petition for any
guarantee to safeguard her personal liberty or challenge the lawfulness of her detention
(supra, para. 46.c), irrespective of whether guarantees had or had not been suspended.
53.
While Ms. María Elena Loayza-Tamayo was held incommunicado and during her
subsequent trial, she was unable to avail herself of guarantee remedies, which, in the view
of this Court, may not be suspended.
54.
With all the more reason, this Court deems it unlawful that Ms. María Elena LoayzaTamayo was kept in detention after the final judgment handed down by the military court
on September 24, 1993, and until the order was issued for her to be bound over for trial
was issued in the civil courts on October 8 of that year. The trial proceedings show that
Article 6 of Decree-Law Nº 25.659 (crime of treason) was also applied during that period.
55.
The Court therefore finds that Peru violated Ms. María Elena Loayza-Tamayo's right
to personal liberty and the guarantee of judicial protection enshrined, respectively, in
Articles 7 and 25 of the American Convention.
XIII
56.
The Inter-American Commission claimed that Peru violated Ms. María Elena LoayzaTamayo's right to humane treatment, in breach of Article 5 of the Convention.
57.
The violation of the right to physical and psychological integrity of persons is a
category of violation that has several gradations and embraces treatment ranging from
torture to other types of humiliation or cruel, inhuman or degrading treatment with varying
degrees of physical and psychological effects caused by endogenous and exogenous factors
which must be proven in each specific situation. The European Court of Human Rights has
declared that, even in the absence of physical injuries, psychological and moral suffering,
accompanied by psychic disturbance during questioning, may be deemed inhuman
treatment. The degrading aspect is characterized by the fear, anxiety and inferiority induced
for the purpose of humiliating and degrading the victim and breaking his physical and moral