responsible for recruiting doctors, organizing them
and providing support activities consonant with the
medical profession. The prosecutor requested a 30year prison sentence, a fine and an accessory penalty
of loss of civil rights.
5.5 In accordance with the estoppel principle
enshrined in international law, the State is precluded
from invoking its own acts. Consequently, it cannot
contend that the author did not exhaust domestic
remedies. In a recent judgement of 18 November
2004 handed down in the case of De la Cruz Flores,
the Inter-American Court of Human Rights stated
that a new trial was not sufficient to make reparation
for violations of due process.
4.4 The author’s case is pending in the National
Terrorism Division in the context of new criminal
proceedings instituted in accordance with the new
anti-terrorist legislation. The State party therefore
considers that domestic remedies have not been
exhausted and that the communication should be
declared inadmissible.
5.6 The author says that she has been detained for
approximately 12 years, accused but not sentenced,
in violation of article 9 of the Covenant. In July
2002, she applied to be granted semi-liberty, but this
was declared inadmissible, initially by the Twentyeighth Provincial Criminal Court of Lima and
subsequently by the High Court, on the grounds that
the period of detention under the Code of Criminal
Procedure had not been completed, in that it ran as
from the date of the order to commence
investigation, i.e., 21 March 2003. The State party
thus ignored the period spent by the author in prison
due to its failure to ensure her fair trial. In other
words, the State invokes its own acts in order to
deny the author her right to trial within a reasonable
time or to release, as article 9, paragraph 3, of the
Covenant requires.
The author’s comments
5.1 The author states that she is being tried for the
second time for the same acts, as a result of her quest
for justice. A new trial, however, is not adequate
reparation in cases of the violation of due process,
particularly when this is owing to an act on the part
of the State challenged.
5.2 This communication was submitted to the
Committee when the author was serving a sentence
resulting from a criminal trial against her in total
violation of due process; this situation has been
acknowledged by the Peruvian judiciary, which
pronounced admissible the remedy of habeas corpus
filed on her behalf in a decision in first instance on 2
December 2002 and in second instance on 15
January 2003. Furthermore, Legislative Decree
No. 926, which provides for the annulment of trials
by ordinary courts for the offence of terrorism, is
accompanied by express State acknowledgement of
the violation of due process and judicial guarantees,
and hence of the right to liberty of persons detained,
tried and sentenced for the offence of terrorism.
Issues and proceedings before the Committee
Consideration of admissibility
6.1 Before considering any claim contained in a
communication, the Human Rights Committee must,
in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is
admissible under the Optional Protocol to the
Covenant.
5.3 The lack of precision in the definition of the
offence of terrorism in article 2 of Decree-Law
No. 25475 is incompatible with the principle of
legality enshrined in the Covenant, since the acts
comprising the offence were described in the
abstract and imprecisely, so that it is impossible to
know exactly what specific behaviour constitutes
this criminal offence.
6.2 The Committee has ascertained that the same
matter is not being examined under another
procedure of international investigation or
settlement, in compliance with the provisions of
article 5, paragraph 2 (a), of the Optional Protocol.
6.3 With regard to the requirement of the
exhaustion of domestic remedies, the Committee
takes note of the State party’s assertion that the case
is pending in the National Terrorism Division in the
context of new criminal proceedings instituted in
accordance with the new anti-terrorist legislation,
and that, consequently, domestic remedies have not
been exhausted. The Committee is pleased to
observe the amendment of several procedural and
penal rules of anti-terrorist legislation, particularly
those that permit the annulment of proceedings for
the offence of terrorism conducted before judges and
prosecutors whose identity has been concealed and
establish that criminal proceedings for the offence of
terrorism will be conducted in accordance with the
ordinary procedures for which the Code of Criminal
Procedure provides. With reference, however, to
5.4 The author asserts that she was accused of
having treated and supplied medicines to “terrorists”
and their family members. Not only are these two
acts not illegal, they are lawful and ethically correct.
The acts of participation in a surgical operation,
treatment and provision of medicines do not form
part of the crime of terrorism. A state of anxiety or
terror is neither provoked, created nor maintained,
deliberately or involuntarily, by medical acts, nor
can they be assimilated to acts injurious to life,
physical integrity, health or individual freedom and
safety or to State or private property, nor do they
constitute an attack on public or private safety.
106
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