Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
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.
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.
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”.