1. The petition of January 12, 1996 in which the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the Inter-American Commission") submitted to the Inter-American Court of Human Rights (hereinafter "the Court" or the "Inter-American Court") the case of Loayza-Tamayo against the Government of the Republic of Peru (hereinafter "the Government" or "Peru").
2. The communication of April 19, 1996 from the Inter-American Commission in which it dispatched to the Secretariat of the Court a note it had sent to the Government of Peru concerning the conditions in which María Elena Loayza-Tamayo was being detained.
3. The note received on May 15, 1996 from the Government of Peru in response to the Inter-American Commission concerning the conditions in which María Elena Loayza-Tamayo was being detained.
4. The Commission's request of May 30, 1996 for provisional measures pursuant to Article 63(2) of the American Convention on Human Rights (hereinafter "the Convention" or "the American Convention") and Article 24(1) of the Rules of Procedure of the Court (hereinafter "the Rules of Procedure"), requesting from the Inter-American Court "to bring to an end the solitary confinement and incommunicado detention imposed on María Elena Loayza-Tamayo on April 9, 1996 and that she be returned to Pavilion 'A' of the Chorrillos Women's Maximum Security Penitentiary in the same conditions in which she had been held prior to her transfer." The Commission adduced the following arguments in support of its request:
a. The Penitentiary in question has three pavilions designated 'A', 'B' and 'C' respectively. Pavilion 'A' houses inmates categorized as least dangerous, that is, the well-behaved and those who claim to be innocent and to have no connection with subversive or terrorist groups and have openly denounced such groups, as is the case of María Elena Loayza.
b. Pavilions 'B' and 'C' house inmates categorized as highly or moderately dangerous and those who have declared themselves in favor of the so-called "peace accord" ... Pavilion 'C' also houses inmates awaiting classification and those who express their desire to sever connections with their subversive or terrorist groups, as well as inmates who do not wish to participate in other daily activities ..[i]n short, inmates who are unwilling to comply with prison regulations.
c. On April 9 of this year [t]he Peruvian Government, through the Penitentiary's authorities, ordered María Elena Loayza to be transferred to the Penitentiary's maximum-danger pavilion, held in continuous solitary confinement -as explained below, a regime of total incommunicado detention- for one year, which constitutes an arbitrary and unlawful deterioration in detention conditions, thereby violating, among other instruments, the American Convention on Human Rights and the Standard Minimum Rules for the Treatment of Prisoners.
d. The criteria of good faith imply that when there is an international complaint against the State for violations of rights guaranteed by the American Convention, that State has the obligation to refrain from needlessly adopting any measure that may adversely affect the matter raised by the plaintiff until such time as the case is definitively resolved by the International Tribunal.
e. Decree Law 25475 and Supreme Order 114-92-JUS, issued by the Illustrious Government on April 5, 1992 as part of its anti-subversion strategy, establish procedures that are clearly incompatible with the international obligations which the Peruvian State has undertaken and is obliged to observe.
f. The Peruvian State's argument that 'deviation' from the agreement of the Penal Technical Council 'would put the security system and the principle of authority at risk' is also unfounded, since María Elena Loayza-Tamayo has been confined in Block 'A' of the Penitentiary for over three years and has never, and will never, constitute a risk to the so-called 'Security System'.
g. There is a dual sense of urgency about this case: firstly, the Commission's firm belief that the Peruvian Government, through the extreme gravity of the measure adopted, is causing irreparable damage to a person who has been arbitrarily tried and sentenced, in violation of the American Convention; secondly, the physical and mental suffering to which María Elena Loayza is being subjected as a consequence of her confinement in a tiny cell for twenty-three and a half (23.5) hours a day for one year.
h. Moreover, this gravity derives from the cruel and inhumane treatment involved in solitary and totally incommunicado confinement for one year, as well as the severe restrictions on visits to which the Government has subjected María Elena Loayza.
1. That Peru has been a State Party to the American Convention since July 28, 1978 and that it accepted the compulsory jurisdiction of the Court on January 21, 1981.
2. That Article 63(2) of the Convention provides that the Court shall take the provisional measures it deems pertinent in matters it has under consideration in cases "of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons."
3. That in this regard, Article 24(1) of the Rules of Procedure in force provides that "[a]t any stage of the proceedings involving cases of extreme gravity ad urgency and when necessary to avoid irreparable damage to persons, the Court, may, at the request of a party or on its own motion, order whatever provisional measures it deems appropriate, pursuant to Article 63(2) of the Convention."
4. That by the terms of Article 24(4) of the Rules of Procedure: "[i]f the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt the necessary urgent measures and to act so as to permit any provisional measures subsequently ordered by the Court, in its next session, to have the requisite effect."
5. That in the instant case, which has been submitted for the consideration of the Tribunal, the Inter-American Commission asks the Court to request Peru, as provisional measures, "to bring to an end the solitary confinement and incommunicado detention imposed on María Elena Loayza-Tamayo on April 9, 1996 and return her to Pavilion 'A' ...."
6. That the Government has maintained that on the basis of Decree Law 25475, María Elena Loayza-Tamayo, sentenced to 20 years' imprisonment "for the crime of terrorism against the State", must complete her sentence "at a maximum security prison in continuous solitary confinement during the first year of her detention, to be followed by compulsory labor for the remainder of her term until she is released."
7. That by the terms of Article 24(4) of the Rules of Procedure, the President is entitled to order urgent measures only; it is therefore for the Court at its next session to decide on the appropriateness of the provisional measures sought by the Commission, since it is proper that the government concerned be heard before such measures can be granted.
THE PRESIDENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS,
pursuant to Article 63(2) of the American Convention of Human Rights and in exercise of the authority conferred on him by Article 24(4) of the Rules of Procedure, in prior consultation with the other judges of the Court,
1. To request that the Government of the Republic of Peru adopt forthwith such measures as are necessary to effectively ensure the physical, psychological and moral integrity of Ms. María Elena Loayza-Tamayo, so that any provisional measures that the Inter-American Court may take can have the requisite effect.
2. To request that the Government of the Republic of Peru submit to the President of the Court, not later than June 25, 1996, a report on the measures taken so that they may be brought to the attention of the Court at its next session scheduled for June 26 to July 3, 1996.
3. To submit this Order for the Court's consideration and pertinent effects during its next session.
Manuel E. Ventura-Robles
Manuel E. Ventura-Robles
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