article 5, paragraph 2 (b), of the Optional Protocol,
the Committee observes that the author was arrested
on 16 February 1993 and subsequently tried and
sentenced under Decree-Law No. 25475 of 5 May
1992, and that she filed all the appeals permitted
under that legislation against her sentence, including
a petition for annulment to the Supreme Court. All
of this was prior to her submitting her
communication to the Committee. The fact that the
legislation applied to the author and on which her
communication was based was declared null and
void several years later cannot be considered to her
disadvantage. In the circumstances, it cannot be
claimed that the author should wait for the Peruvian
courts to take a new decision before the Committee
can consider the case under the Optional Protocol.
Further, the Committee observes that the application
of remedies before the Peruvian courts was initiated
in 1993 and has still not been concluded.
there has been a violation of article 7 of the
Covenant.
7.3 With regard to the author’s contentions
concerning the violation of her right to liberty and
security of person, the Committee considers that her
arrest and detention incommunicado for seven days
and the restrictions on the exercise of the right of
habeas corpus constitute violations of article 9 of the
Covenant as a whole.
7.4 The author contends that the regime of
deprivation of liberty applied to her under DecreeLaw No. 25475 constitutes a violation of article 10
of the Covenant. The Committee considers that the
conditions of detention in the Chorrillos Women’s
Maximum Security Prison described by the author,
particularly those applied during her first year of
detention, violated her right to be treated with
humanity and with respect for the inherent dignity of
her person and therefore breached the provisions of
article 10 as a whole.
6.4 The author contends that she received a
harsher sentence than was appropriate under the
legislation applicable at the time the alleged acts
were committed, thus constituting a violation of
article 15 of the Covenant. The Committee
considers, however, that the author has not furnished
sufficient evidence for it to take a decision with
regard to this contention, and therefore considers
that this part of the communication should be
considered inadmissible, under article 2 of the
Optional Protocol, for lack of substantiation.
7.5 With regard to the author’s complaints in
relation to article 14, the Committee takes note of
her allegations that the hearings at her trial were held
in private and that the court comprised faceless
judges who could not be challenged; that she was
unable to communicate with her lawyer during the
seven days she was held incommunicado; that the
police officers involved in the investigation were not
called as witnesses since this was not permitted
under Decree-Law No. 25475; and that her lawyer
was not able to challenge witnesses who had made
statements during the police investigation. In the
circumstances, the Committee concludes that article
14 of the Covenant, which refers to the right to a fair
trial, was breached as a whole.
6.5 The Committee accordingly declares the
communication admissible with regard to the alleged
violations of articles 7, 9, 10 and 14 of the Covenant
and proceeds to consider the merits of the complaint
under article 5, paragraph 1, of the Optional
Protocol, bearing in mind the information provided
by the parties.
8.
The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights,
is of the view that the facts before it disclose a
violation of articles 7, 9, 10 and 14, together with
article 2, paragraph 1, of the Covenant.
Consideration of the merits
7.1 The Committee regrets that the State party has
not submitted observations on the merits of the case
under consideration. It recalls that it may be inferred
from article 4, paragraph 2, of the Optional Protocol
that the State party must examine in good faith all
the complaints made against it and provide the
Committee with all the information at its disposal.
Since the State party has not cooperated with the
Committee in the matters raised, the author’s claims
must be given their due weight in so far as they are
substantiated.
9.
In accordance with article 2, paragraph 3 (a),
of the Covenant, the State party is required to furnish
the author with an effective remedy and appropriate
compensation. In the light of the long period she has
already spent in detention and the nature of the acts
of which she stands accused, the State party should
give serious consideration to terminating her
deprivation of liberty, pending the outcome of the
current proceedings. Such proceedings must comply
with all the guarantees required by the Covenant.
7.2 The author asserts that during the days she
was held by DINCOTE she was subjected to torture,
of which she provides details. As the State party
provides no information to contradict these
allegations, due weight must be given to them and it
must be taken that the events occurred as described
by the author. The Committee thus considers that
10. Bearing in mind that, as a party to the
Optional Protocol, the State party recognizes the
competence of the Committee to determine whether
there has been a violation of the Covenant, and that,
under article 2 of the Covenant, the State party has
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