القاعدة ذات الصلة
Peru
Practice Relating to Rule 99. Deprivation of Liberty
Peru’s IHL and Human Rights Manual (2010) states:
[The] right to personal liberty and integrity is one of the most important civil rights and is included in any human rights legislation, whether international or domestic. The violation of this right is related to the following guarantee: “The prohibition of unlawful deprivation of liberty.”
Forms of unlawful deprivation of personal liberty:
(a) Arbitrary detention
Detention is considered arbitrary when it is based on accusations that are not of a criminal nature and it constitutes an offence in all its forms.
Indefinite detention of persons without formulating concrete charges, without due process, without a legal representative and without effective means of defence undoubtedly constitutes a violation of the right to liberty and to due legal process.
As regards arbitrary detention, there are three forms:
1. Detention without judicial order.
2. Detention for political reasons.
3. Detention by the security forces in order to obtain information.
(b) Administrative detention
Detention takes the form of administrative detention when it is not based on criminal acts but on reasons of national security. It is imposed by executive order and without the intervention of the judicial power or any tribunal and it constitutes one of the forms of deprivation of liberty that is most widely denounced.
In order for administrative detention not to be arbitrary, it must fulfil the following conditions: that the detainee represents a “clear and serious threat” to society and that it is impossible to fend off this threat without resorting to administrative detention. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(a)–(b), pp. 49–50; see also § 105(h), p. 146.
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:
f) be protected against … arbitrary detention … and [unlawful] confinement;
g) be protected against unlawful detention and unjustified arrest warrants. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(f)–(g).
Peru’s Code of Military and Police Justice (2006) states:
Any member of the military or police shall be imprisoned for a period of no less than five and no more than 15 years if he or she in the context of an international armed conflict:
1. Keeps a protected person in unlawful confinement … In less serious cases, the penalty shall be of no less than two and no more than five years. 
Peru, Code of Military and Police Justice, 2006, Article 93(1).
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Peru’s Military and Police Criminal Code (2010), in a chapter entitled “Crimes against persons protected by international humanitarian law”, states:
A member of the military or the police shall be punished with deprivation of liberty of not less than five years and not more than ten years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:
1. Subjects a person protected by International Humanitarian Law to unlawful confinement. 
Peru, Military and Police Criminal Code, 2010, Article 90(1).
In a chapter entitled “Proceedings in times of armed conflict”, the Code also states:
Article 416. - Proceedings
The procedure to be followed in proceedings during international armed conflicts shall be subject to the rules established for ordinary proceedings to the extent that they apply.
Article 417.- Rules
In these proceedings, the following rules shall be observed:
1. The accused shall remain in detention. 
Peru, Military and Police Criminal Code, 2010, Articles 416–417(1).
In a chapter entitled “Penal enforcement”, the Code states:
The enforcement of a punishment of deprivation of liberty shall be carried out in accordance with the guarantees and limits established by the Political Constitution of the State [of Peru], the present Law, military and police regulations as well as judicial decisions. 
Peru, Military and Police Criminal Code, 2010, Article 458.
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court stated:
Justifying … pre-trial detention solely with the reproachable nature and negative social consequences of the crime of terrorism would violate the principle of presumption of innocence because, as stated by the Inter-American Commission of Human Rights, justifying a person’s detention based on the degree of danger or nature of the crime “could be understood as being subjected to punishment in advance before the competent judge has had a chance to decide whether or not the person is guilty. This situation may lead to an arbitrary and twisted application of preventive detention for purposes different from those considered in the law itself.” (Report No. 02/97, para. 51).
Pre-trial detention, which restricts a person’s freedom of movement even though he or she is presumed innocent during the process, may only be imposed if for a certain reason it is considered indispensable. Consequently, its imposition can never be rendered compulsory by law. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 122.
The Court further stated:
[T]he right to not be held incommunicado is not absolute, but subject to limitations because, as stated by Article 2(24)(g) of the Constitution, such a detention condition can be imposed if it is indispensable to solve a crime and if it is imposed in a manner and for such time as established by law. In such cases, “the authority shall be obliged to state without delay and in writing where the person is being held in detention”.
Consequently, there is no absolute right to not be held incommunicado. Such a detention condition can be imposed exceptionally in cases where it is indispensable to clarify a serious offence. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 172.
The Court also stated that “sentencing a person to a sentence involving incommunicado detention for a year is an unreasonable and disproportionate measure, constituting cruel and inhuman treatment.” 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 223.
In 2004, in the Gabriel Orlando Vera Navarrete case, Peru’s Constitutional Court stated that “the determination of a reasonable duration of detention must take into account the state’s obligation to investigate and punish the reported acts ... in order to avoid impunity for serious crimes and human rights violations.” 
Peru, Constitutional Court, Gabriel Orlando Vera Navarrete case, Case No. 2798-04-HC/TC, Judgment of 9 December 2004, § 29.
Peru’s IHL and Human Rights Manual (2010), in a section on the human rights obligations of the security forces, states: “Each person has the right to liberty and security; he or she may not be subjected to arbitrary detention or imprisonment. Deprivation of liberty is only allowed … in accordance with the established procedures.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 105(h), pp. 146–147; see also § 102(h), p. 136.
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether the former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations. He was charged with various offences under domestic criminal law, including the abduction of two officials after his coup d’état in 1992. The Court summarized the facts as follows:
1. … [X] … was deprived of his liberty by heavily armed military personnel and SIE [Army Intelligence Service] personnel … Subsequently, and without being given any notification or information as to the [legal] process initiated against him and in a context that saw the democratic system being disrupted [as a result of the coup d’état], he was forcefully transferred to military units of the SIE where he was stealthily taken to the detention facilities in the basement. In the morning of the next day, … he eventually regained his liberty …
2. … [Y] was forcefully taken to the basements of the SIE without any judicial order, formal notification of the charges against him, or any other previous information, thus violating the regular procedural rules. … [H]e was investigated for [alleged] terrorism [offences] but, unusually, remained deprived of his liberty in SIE units. Although DINCOTE [the National Counterterrorism Directorate] declared his innocence on the third of August [1992], he remained in detention without any justification or explication until the fifth of August [1992] when he was able to flee with the help of unidentified individuals. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 678.
Drawing on the domestic criminal law in force at the time when the alleged events took place, the court held:
The destruction of the rule of law which resulted from the establishment of the so-called “National Emergency and Reconstruction Government”, which by its very nature undermined the constitutional order … , does not constitute a sufficient reason under criminal law to justify or, at any rate, excuse a rebellion and the abductions that took place to “consolidate” the new dictatorial regime. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 681(1).
[footnotes in original omitted]
The defence put forward the following justification for the deprivation of liberty:
The Defence argues that the physical liberty was suspended because a State of Emergency had been declared by Presidential Decree number 019-92-DE-CCFFAA of 28 March 1992 which suspended not only the right to liberty, but also the protection from detention and the protection of habeas corpus. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 686.
In response to this argument, the court found:
687. This reasoning is not acceptable either for the following reasons:
1. It is correct that Lima and El Callaro were in a State of Emergency in accordance with Presidential Decree number 019-92-DE-CCFFAA, which … suspended the constitutional guarantees set out in paragraphs 7), 9), 10) and 20-g) of Article 20 of the 1979 Constitution. At the same time, Law number 24150 and Legislative Decree number 7649 gave the armed forces control over the internal order. …
2. … [P]ersonal liberty, reflected in the fundamental right to be free from detention by a political authority except based on legal reasons and subject to remand [hearings], was specifically suspended, not derogated, after the State of Emergency had been declared (strictly speaking, the State of Emergency had been prorogated) (in any case, not the constitutional right of the individual is suspended, but its full and effective exercise). In such circumstances, the State of Emergency does not wipe out the legally protected good of personal liberty. It merely gives rise to a type of authorization to restrict the liberty of an individual under certain conditions. … Therefore, the legally protected good remains in force and must continue to be respected, except within the legally authorized limits.
Nevertheless, the legal guarantee of habeas corpus cannot be suspended …
3. By its very nature, the State of Emergency is declared in defence of the constitutional order and the value system protected and recognized by this order … A State of Emergency may not be invoked to justify the beginning or consolidation of a coup d’état which in and of itself negates the constitutional order, even less so when it concerns citizens who are not related to any terrorist subversion.
4. Not only was the victim [X] not linked to the terrorist subversion, but the authorities and officials who ordered and carried out his deprivation of liberty also acted outside the law. They also acted outside their powers under the State of Emergency as their acts were not in line with the principles and reasons that justify the State of Emergency as an indispensable institution in a democratic society. Such conduct … amounts to the crime of abduction and, as such, must be prosecuted and, in this case, punished. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 687.
[footnotes in original omitted]
The Court further held:
[In the present two cases of deprivation of liberty, it] is particularly relevant that public officials acted in a context of outright deviation from the law. They were not pursuing private goals, but used the means of the State in order to strengthen an unconstitutional regime or, in the second case, in order to arbitrarily persecute an individual, incorrectly alleging that the victim [X] had committed serious offences against public order or, in the second case [of Y], serious offences against national security. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 690.
Peru’s IHL Manual (2004) states: “Any person arrested, detained or interned for acts relating to the armed conflict must be informed, without delay, of the reason for such a measure and released as soon as possible, unless they are charged with a criminal offence.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.m.
Peru’s IHL and Human Rights Manual (2010) states:
Any person arrested, detained or interned for acts relating to the armed conflict must be informed, without delay, of the reason for such a measure and released as soon as possible, unless they are charged with a criminal offence. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(m), p. 251.
The manual further states:
Each person has the right to liberty … ; he or she may not be subjected to arbitrary detention or imprisonment. Deprivation of liberty is only allowed for reasons established by law and in accordance with the established procedures. Consequently, every detainee must be informed, at the moment of their detention, of the reasons of the detention and must be notified of the formal accusation against them. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 105(h), pp. 146–147.
Peru’s Code of Military and Police Justice (2006) states:
Any accused shall benefit from the judicial guarantees necessary for his or her defence; the police, prosecutor and judges shall have the duty to inform the accused of the following rights immediately and in a way he or she understands:
1. [The right] to learn the reasons for his or her detention and who ordered it in writing by means of a copy of his or her arrest warrant;
2. [The right] … to choose a person, association or entity to be informed of his or her capture, and [the right] that this notification be carried out immediately. Should the accused exercise this right, a copy of the notification and the result obtained shall be kept. 
Peru, Code of Military and Police Justice, 2006, Article 208(1)–(2).
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in a chapter entitled “The accused”:
The police, the prosecutor and the judges must inform the accused immediately and comprehensively of the following rights in order to ensure that he or she benefits from the safeguards essential for his or her defence:
1. To know the reason or motive for his or her detention and the public official who ordered the detention, by handing over the judicial order made with respect to the person in question. 
Peru, Military and Police Criminal Code, 2010, Article 199(1).
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court found that the “constitutionally protected right of defence guarantees that every person in police or judicial detention shall be comprehensively informed of the reasons for such detention”. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 141.
Peru’s IHL and Human Rights Manual (2010) states:
Habeas Corpus … is a legal remedy sought before a … [judge] where the person is arbitrarily detained in order to request the re-establishment of a constitutional and social guarantee that has been violated or when an individual’s liberty has been threatened by an official, authority or person.
Recourse to Habeas Corpus not only protects the right to life and integrity of the person of individuals who are deprived of their liberty because of a State of Emergency by preventing the detainee’s disappearance or the inability to identify his or her whereabouts, it also protects the detainee from torture and other cruel, inhuman or degrading treatment. Although a State of Emergency may legitimately result in the adoption of exceptional measures that affect personal liberty, this does not exclude the control of the lawfulness of such measures. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 76(a), pp. 113–114.
The manual also states:
a. Article 137 of the [Peruvian] Constitution sets out the modalities of [the two] States of Exception: State of Emergency and the State of Siege:
(2) State of Siege
(a) May be established in the following cases:
2. External war
3. Civil war
4. Imminent danger resulting from any of the aforementioned situations.  
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 77(a)(2)(a)(2)–(4), pp. 115–116.
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether the former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations. He was found guilty of several offences under domestic criminal law, including the abduction of two officials after his coup d’état in 1992. The Court held that “the legal guarantee of habeas corpus cannot be suspended”. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 687(2).