Practice Relating to Rule 99. Deprivation of Liberty
Section B. Deprivation of liberty in accordance with legal procedures
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.”
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 , he remained in detention without any justification or explication until the fifth of August  when he was able to flee with the help of unidentified individuals.
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.
[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
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.
[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.