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PERU
I.
BACKGROUND
The Inter-American Commission on Human Rights (IACHR) has been
observing the human rights situation in Peru with particular
attention, given the terrible violence that country has been
experiencing for many years now, and in response to the many petitions
the Commission has received concerning human rights violations
attributed to agents of the Peruvian government and violations of
international humanitarian law attributed to members of armed
irregular groups.[1]
The Inter-American Commission on Human Rights devoted an entire
chapter of its 1992-1993 Annual Report to an evaluation of the human
rights situation in Peru between October 1992 and February 1993.
At the Peruvian Government's invitation, a Special Committee of
the IACHR made an on-site visit to Peru from May 17 to 21, 1993, to
observe the human rights situation in that country.
That Special Committee consisted of the Chairman of the
Commission, Dr. Oscar Luján Fappiano, its First Vice Chairman,
Professor W. Michael Reisman, and Dr. Leo Valladares Lanza, a member
of the Commission. Assisting
the Commission were its Executive Secretary, Ambassador Edith Márquez
Rodríguez, the Assistant Executive Secretary, Dr. David Padilla, the
Special Advisor to the Commission, Dr. Domingo E. Acevedo, and Dr.
Sergio Apter, Mrs. Daisy Carmelino, Mrs. Gabriela Hageman and Mr.
Marcelo Montesino, an interpreter.
During the visit, the IACHR Special Committee met with: the President of Peru, the Honorable Alberto Fujimori; the
President of the Democratic Constitutional Congress (CCD), Mr. Jaime
Yoshiyama; Supreme Court Chief Justice Luis Serpa; Attorney General
Blanca Nélida Colán; the Minister of Foreign Affairs and Chairman of
the Council of Ministers, Dr. Oscar de la Puente Raygada; Justice
Minister Fernando Vega Santa Gadea; Defense Minister General Juan
Briones Dávila; the Director of the National Police, General
Guillermo Bovil Cevallos; the President of the Supreme Court of
Military Justice, Vice Admiral Roberto Duboc, and the Chairman of the
Armed Forces Joint Command, General Nicolás de Bari Hermoza Ríos,
who was accompanied by the Joint Command's other members, the General
Commandant of the Navy, Admiral Alfredo Arnaiz Ambrossiani, and Air
Force General José Nadal Paiva.
The Special Committee also met with members of the Human Rights
Commission of the Democratic Constitutional Congress, with the
Chairman and General Secretary of the Episcopal Conference, Monsignors
Augusto Vargas and José Irizar, with the head of delegation of the
International Committee of the Red Cross, Mr. George Comninos, and
with members of the National Center for Human Rights.
The Andean Commission of Jurists, the Peruvian Council of
International Law, the Democratic Forum and the Council for Peace also
conferred with the Special Committee, as did other individuals and
institutions representative of Peruvian society, such as the
Association and National Federation of Journalists, the Peruvian
Medical Federation, bar associations and media executives.
The Special Committee received relatives of detained or
disappeared persons, representatives of persons who had filed
petitions in accordance with the provisions of the American Convention
on Human Rights and the Commission's Regulations, and other persons
and organizations interested in the human rights situation in Peru.
The Special Committee visited the tomb of María Elena Moyano
at the Villa El Salvador cemetery to pay tribute to her courage, her
devotion to the poor and her selfless efforts to assist children.
In Lima, the Special Committee visited the Miguel Castro
Castro, Santa Mónica, Lurigancho and Real Felipe prisons and the
Maranga Juvenile Detention Center.
One delegation travelled to Puno, to look into conditions at
the Yanamayo and San Sebastián prisons.
There, it met with the Office of the Representative of the
Archdiocese of Puno, the Human Rights Office of the Catholic Church in
Juli (Vicaría de la Solidaridad de la Prelatura de Juli) and
the Puno Human Rights Commission.
II. THE HUMAN RIGHTS
PROBLEMS OBSERVED BY THE COMMISSION
Chief among the problems observed by the Special Committee were
the following:
1.
The action of irregular armed groups
The Commission has repeatedly denounced - and will continue to
denounce - the activities of groups like the Peruvian Communist Party
(Sendero Luminoso) and the Tupac Amaru Revolutionary
Movement (Movimiento Revolucionario Tupac Amaru - MRTA) that
routinely use violence to terrorize the public.
While statistics show a substantial drop in the number of
assaults and other criminal activities by such groups[2], unfortunately the same
cannot be said of the brutality always associated with their
activities, particularly in the case of Sendero Luminoso.
For example, on July 11, 1993, a Sendero Luminoso column
of about 80 took the village of Matucana Alta in the province of La
Mar, department of Ayacucho. After
pillaging and burning all the homes in the village, they killed 12
people, among them six children, civil defense patrolmen and a
teacher, and stole the villagers' livestock and other possessions. During the attack, Marisa Coras Arancibia, age 9, had her
skull fractured by a member of the Sendero Luminoso column, who
also cut off two of her fingers using a machete.
Patrolman [rondero] Víctor Pomahuacre was gravely wounded when
he was shot in the chest.
The Special Committee's visit came precisely at a time when the
Sendero Luminoso had called for an "armed work
stoppage". This involved a series of attacks, some involving car-bombs,
to terrorize the citizenry. That
same week, Jairo Fernández Flores, a high-ranking official of the
Peruvian National Prison Institute (Instituto Nacional Penitenciario
del Perú - INPE), was assassinated by members of the Sendero
Luminoso who accused him of directly "collaborating"
with the Peruvian Government's present policy.
On July 26, one group attacked a local police station in the
San Borja district with rifle fire and a car-bomb.
One civilian was killed and several wounded.
Hours earlier, the Sendero Luminoso detonated a car-bomb
near Champagnat High School in the Miraflores section of Lima,
although the damage done was strictly material.
The most serious atrocity committed by Sendero Luminoso
forces in the first eight months of 1993 had to be the massacre of at
least 62 people - Women and children among them - from native Asháninka
communities and from colono settlements in the area.
The Asháninkas, better known as the "campas", live
in the Tambo, Perené, Oichis, Ene and Apurimac river basins in the
departments of Cuzco, Ayacucho, Junín, Huánuco and Pasco and,
numbering around 50,000, constitute the largest ethnic group in Peru.
The massacre of the outside settlers and Asháninkas took place
on August 19, 1993, in Satipo province in the department of Junín.
According to the petition that the Commission received from the
Center for Peace Studies and Action (Centro de Estudios y Acción para
la Paz - CEAPAZ), the Mazamari parish priest and nuns with the Sisters
of Mercy visited the area and spoke with survivors, who said that on
August 18, some 70 members of the Sendero Luminoso, pretending
to be members of the government-organized "civil defense"
forces, invaded 12 villages in Satipo province, carrying spears,
machetes and axes. According
to the information received by the Commission, in each of those 12
villages the assailants allegedly killed men, women and children, and
finally withdrew from the area on August 19.
According to a report prepared by CEAPAZ and the Amazon Center
of Anthropology and Practical Applications (Centro Amazónico de
Antropología y Aplicación Práctica - CAAAP), many of the victims
were horribly mutilated before they were killed.
In most of these cases, the purpose of the terrorist activities
was to "punish" the patrolmen and their communities.
The information supplied to the Commission indicates that
"in 1992 the Sendero Luminoso killed over 90 inhabitants
of the area, including native Asháninkas and mestizos."
The Inter-American Commission abhors this and any other murder
of innocent people and the mutilation of children.
These are heinous crimes for which there is no justification,
not now or ever.
In another attack, on September 24, 1993 members of the PCP-SL
toppled seven electric towers[3] in the country's mid
region and in Lima, leaving the capital without power for 45 minutes.
Cities along the coast and in the highlands were without power
for several hours.
A car-bomb left three dead and over fifty wounded when it
exploded in downtown Lima, just after 7:00 p.m. on October 21, 1993. The car was parked within meters of the Crillón Hotel, where
a delegation of ambassadors was staying while attending a meeting of
the humanitarian association Ayuda con Amor. Another car-bomb exploded in Miraflores on November 17,
seriously injuring four passers-by and causing damage to a business
located at Avenida Petit Thovars 5253.
2.
The anti-terrorist laws: introduction
This section was prepared largely from the data compiled by the
Special Committee during its on-site visit from May 17 through 21,
1993, and from reports received by the Commission subsequent thereto.
It builds upon the information supplied on Peru's
anti-terrorist laws in earlier reports, points up the principal
contradictions between the anti-terrorist laws and the American
Convention on Human Rights and examines the consequences that
enforcement of those laws has had.
In the special report on the situation of human rights in Peru
published in 1992, the Commission noted the changes that Decree Law
25418, called the Emergency and National Reconstruction Law, had
introduced in Peru's system of laws and institutions (paragraph 52).
Under that Decree Law, one of the objectives of the Government
that took over on April 5, 1992 was to create a "framework of
laws that will enforce the severest possible penalties for
terrorists" (Article 2 paragraph 4).
With that "framework of laws", the executive power
would govern through decree-laws issued by the president and approved
by a majority of the members of the Council of Ministers.
A considerable number of those decree-laws were intended to be
emergency counter-insurgency criminal laws.
The Government has managed to reduce the anti-subversive
activities of groups who employ violence and terror against the
population. The heightened sense of security and the relative decline in
terrorist violence are very real.
Nevertheless, the anti-subversive battle, waged through
decree-laws that infringe upon guarantees and universally recognized
rights, is an essentially repressive one that often carries over into
unwarranted abuses of authority by military and police charged with combating
terrorist activities.
The State must fulfill its obligation to combat terrorism and
subversion but must at the same time comply with its duty to respect
the fundamental rights to the fullest.
The new anti-terrorist laws do not even come close to
satisfying the minimum requirements set by international human rights
law to protect and guarantee those rights.
The injustices and excesses that these laws have engendered
bear out the Commission's observations in earlier reports on the
dangers that the anti-terrorist legislation poses.
Among the new Government's objectives spelled out in Decree Law
25418 was amendment of the Constitution and the reform of the
judiciary. Article 6 states that the Government shall ratify and respect
the treaties, agreements, pacts, covenants, contracts and other
international commitments signed by Peru and in effect for it.[4]
Nevertheless, the IACHR has confirmed that several decree-laws
published since April 5, 1992[5]
as key parts of an anti-subversive strategy, establish procedures that
are patently incompatible with many of those commitments. As will be shown later in this document, they violate
fundamental rights guaranteed by the American Convention and the
Universal Declaration.
The predicament of the defendant is particularly disturbing.
Under the anti-terrorist laws, the police are given tremendous
latitude at the cost of judicial oversight.
This, combined with new limitations on the right of
self-defense, has led to abuses of authority.
The Commission also believes that with the anti-terrorist laws
being enforced by a judiciary that has been completely overhauled,
with new judges and procedures unlike anything used in the past, there
have been some miscarriages of justice; in some cases the
anti-terrorist laws have been invoked to arrest people who have
nothing whatsoever to do with the activities of the armed groups that
sow terror and violence,
thus warranting the Commission's condemnation.
Alvaro Villavicencio Wittembury, a Ph.D. in pedagogy and
education sciences, is an example of arbitrary arrests of this type.
Professor Villavicencio was unjustly charged with the crime of
terrorism. His case began
when a DINCOTE official included his name, without any other
specifics, on a list of persons suspected of being linked with
terrorist activities. This
was the pretext used by the prosecuting attorney with Lima's Tenth
Criminal Court to order his arrest and to request that proceedings be
instituted against him, without giving Dr. Villavicencio any
forewarning. On December
11, 1992, Dr. Villavicencio was arrested at Jorge Chávez Airport and
taken directly to one of the jails at the Palace of Justice.
Within a matter of days, the Prosecutor issued Ruling 226-9
whereby Dr. Villavicencio was charged, even though there was not a
shred of evidence against him. One
of the principal charges was that he had been a colleague of the Senderista
leader Abimael Guzmán at the University of Huamanga between 1961 and
1965. After preparing several negative reports on Dr.
Villavicencio's conduct, on December 30, 1992 DINCOTE sent a new brief
(No. 4917-D5) to the effect that "While some of his activities
could have had some association with terrorist activities, thus far
there is insufficient presumptive evidence to indicate that this
person had some role in terrorist activities."
Despite this clarification, the provincial prosecutor persisted
in charging Dr. Villavicencio and on February 3, 1993, the
"faceless" superior prosecutor formally indicted him on
charges of terrorism and requested a sentence of 20 years
imprisonment. After being
held in prison for one year, he was declared innocent by a court of
three faceless judges on December 10, 1993.
Their ruling was that Professor Villavicencio was undoubtedly
not a terrorist and should never have been jailed.
The situation of Professor Darnilda Pardavé Trujillo de Daza
(case 11, 094), which the Commission has discussed in previous
reports, is another example of arbitrary detention.[6]
After being unjustly imprisoned for 392 days in the Chorrillos
A similar situation occurred in the case of the nine students
from the Law School at the University of San Marcos (Delia Dina Berrocal
Tito, Rosa Taboada, Lourdes Ocampo, Gerardo Juan Munárriz Ulloa, Carlos
Felipe Isla Litardo, Carlos Alfredo Delgado Altamirano, Angel Donet Pérez,
Oscar Salvatierra [a medical student], and Jorge Luis Evangelista Calderón
[a worker with the Costel Cooperative], Case 11,181).
Although a faceless tribunal found that the charges against them
were unfounded, these nine people were detained in prison for nine
months, falsely charged with the crime of terrorism.
During that time some of them were mistreated and tortured, and
they suffered public humiliation when, on December 1, 1992, the
anti-subversive police displayed them on television, wearing prison
stripes, claiming they were members of the Sendero Luminoso and
allegedly were found in possession of an arsenal of weapons and Sendero
propaganda.
Another case is that of Professor María Elena Loayza Tamayo
(Case 11,154), who was arrested by DINCOTE at her home, under
construction at that time, because a "repentant" subversive
whose thesis Professor Loayza was advising had told police authorities
that her mentor was a Sendero collaborator.
Professor Loayza's case raises another problem, because she was
raped by DINCOTE officers during her arrest[7].
She was also physically and morally coerced and forced to
incriminate herself for activities she did not commit and to admit to
false charges made against her during the period she was held incommunicado
on orders from the Military Judge.
She was denied her right to consult with an attorney of her
choosing, even though Professor Loayza declares that she has had nothing
to do with the activities of subversive groups.
Quite the contrary, like so many others unjustly accused, she has
publicly condemned the activities of the Sendero Luminoso.
The warden of the Chorrillos Maximum Security Prison for Women
told Commission staff that Professor Loayza has been a model prisoner.
There she continues to preach against terrorism and the violence
used by subversive groups. Originally
charged with terrorism as a treasonable offense and therefore under
military jurisdiction, she was acquitted of that crime.
Even though she has been cleared of the charges that the police
brought against her, she was ordered to stand trial in the regular
courts and is still imprisoned in the Chorrillos facility.
The Commission believes that an injustice is being done and that
it is a legal contradiction to assert that an individual who has been
tried for and cleared of the crime of treason could be forced to stand
trial again, this time for the crime of terrorism, using the same facts
and charges upon which the case heard by the military court was based
and of which she was exonerated.
The Commission is also disturbed by disproportionate and inhumane
sentences being meted out and by the fact that as of age 15, minors can
be tried as adults when charged with terrorism.
Since the time the anti-terrorist decree-laws that began on April
5, 1992, were first enforced, many people, minors among them, have been
sentenced to life imprisonment or to anywhere from 20 to 30 years in
prison. Others, though very
few, are eventually released after being held in custody for long
periods or have been tried in absentia.
The Commission believes that the Peruvian Government's drastic
suspension of the provisions of the Constitution in effect since 1979
cannot be justified. It
utterly ignores what the American Convention provides in its Article 27
(on states of emergency) concerning judicial guarantees that cannot be
suspended, such as habeas corpus, amparo, and other
fundamental rights and freedoms, such as the right to life, the right to
humane treatment, the right to participate
in government that, under the American Convention, cannot be suspended,
even in states of emergency. The
Inter-American Court of Human Rights has said that "amparo or any
other remedy filed with competent courts or judges that is effective in
guaranteeing respect for the rights and freedoms whose suspension is not
authorized by the Convention itself" should be regarded as
essential basic guarantees that cannot be suspended.[8]
As part of the anti-subversive campaign, a body of law has been
decreed that broadens the definitions of terrorist and treasonable
offenses, establishes the penalties for those crimes and dictates the
respective police and judicial procedures to be followed.
This new body of law is contrary to universally accepted
principles of legality, due process, judicial guarantees and the right
of self-defense; under these laws, merely being suspected of a terrorist
act or of in any way collaborating in terrorist acts is sufficient cause
to hold someone in prison for long periods, regardless of whether that
person actually committed an act classified as terrorism or treason.
In the opinion of the Commission, this is a grave threat to the
people's juridical security.[9]
Numerous human rights organizations have levelled harsh criticism
at the laws decreed. The Coordinadora
Nacional de Derechos Humanos del Perú has submitted to Congress a
number of bills that would amend the anti-terrorist laws, the amparo
law, the habeas corpus law, etc.
3. Specific aspects of the
anti-terrorist laws that are disturbing to the Commission
Decree-laws 25475, 25569 and 25880 establish a number of criminal
offenses. The language used
to define and describe what constitutes terrorist offenses is so vague
and so broad, that the criminal types being created are open-ended.
For example, Article 2 of Decree Law 25475 makes terrorism a
crime. Articles 3 to 8
describe what behavior qualifies as criminal terrorism, including the
following: voluntarily
obtaining, gathering, storing or supplying any type of goods or means,
or performing acts of collaboration - of whatever kind - that aid and
abet the commission of the crimes covered in Decree-Law 25475, or serve
the purposes of a terrorist group; inciting - by whatever means - the
commission of any of act classified as the crime of terrorism; publicly
defending - by whatever means - terrorism or someone who has committed
an act of terrorism; obstructing, impairing or impeding -by whatever
means - court proceedings or investigations underway in connection with
the crime of terrorism.
The language used to describe what constitutes criminal conduct
is very vague and is therefore contrary to one of the basic principles
of modern criminal justice, which is that the language used to describe
the prohibited conduct must be precise so as to leave as little
discretionary latitude as possible to those whose function it is to
enforce and interpret the law.
Decree Law 25659 defines what conduct constitutes criminal
treason, while decree laws 25708 and 25744 concern procedural matters in
treasonable offenses. Criminal
conduct classified as terrorism becomes a treasonable offense when other
means (use, storage and possession of explosives and arms) are used to
commit an act intended to cause damage to life and property or
"when, in any other way, the public is seriously imperiled."
The other treasonous behavior includes serving as the leader of a
terrorist group or being a member of its leadership, being a member of
an armed group charged with the physical elimination of persons, doing
intelligence work for terrorists or helping them gain entry to places to
accomplish the above objectives.
Decree law 25475 also sets forth the procedures that will be
followed to investigate and try individuals accused of crimes of
terrorism. Under the present system, military tribunals have
jurisdiction in cases involving treason.
The other conduct classified as terrorist offenses (membership,
collaboration, apologia, obstruction of justice, etc.) are the
jurisdiction of the regular courts.
a. The authorities of the
police
The police are responsible for preventing and investigating
crimes of terrorism. In the
Commission's view, the emergency situation in Peru is such that the
police are called upon to play a leading, active role, but, having
regard to their wide ranging powers, serious abuses can take place.
Under such powers, the police are allowed to hold people
incommunicado and interrogate them without a court order and to bring
charges and introduce evidence. This,
coupled with a restriction on the right of self-defense often leads to
serious abuses (including torture) and go well beyond the routine
functions of law enforcement agencies.
During preventive custody, the police have liberal discretionary
authority. They can order
that the individual detained be held incommunicado merely by notifying
the Office of the Public Prosecutor and the judge; they can order that
individuals be held longer than the 15 days allowed under the
Constitution and then extend that period still more; they can order that
the individual in custody be transferred to shed more light on the
facts, etc.
Judges cannot tamper with these authorities (Decree-Laws 25475
and 25744). The procedures
permitted by law in police investigations of crimes of terrorism
severely impair fundamental rights and restrict the civilian
authorities' powers to control police activity.
The Commission has received information on the kinds of abuses
and arbitrary excesses that this kind of latitude causes.
Relatives of persons detained have no way to ascertain the
latters' whereabouts.
In a letter sent to the Commission during its on-site visit,
attorneys with the Campesino Defense and Legal Counsel Team (Equipo
de Defensa y Asesoría Campesina - EDAC) stated that countless peasant
farmers have been transferred to Lima to stand trial for crimes they did
not commit; they have been incarcerated for 4, 5 and even 6 years, only
to be released for lack of evidence (cases sponsored by EDAC).
These abuses of authority occur when vague police innuendo and
assertions end up becoming the basis for holding people in custody and
then bringing them to trial.
Another problem reported to the Commission is the confusion
caused by the fact that many people have the same surname.
"Quispe" and "Mamani", for example, are very
common surnames that can sometimes lead to mix-ups.
The police detain the individuals whose names appear on their
lists, without considering that there may be other people with the same
name and that they (the police) are actually looking for someone else.
Juana Clara Quispe Rojas has been held in the Chorrillos Maximum
Security Prison for Women since March 1993, precisely because
authorities confused her with someone having a similar name.
The individual's legal guarantees are seriously threatened in the
face of the police authority. Under
Article 12.f of Decree Law 25475, for example, the defense attorney may
not intervene in proceedings until the individual detained makes his
statement in the presence of the representative from the Office of the
Public Prosecutor. Although
a representative from the Office of the Public Prosecutor is required to
be present during interrogation, there is a period during which the
individual detained is utterly without protection, at the mercy of the
police and subject to psychological pressure and, in many cases, torture
and other forms of harassment. The
Commission has received many complaints about this, and the case of
Professor María Elena Loayza, mentioned earlier, is a prime example of
this kind of abuse of authority.
b. Actions seeking relief
From the approval of decree law 25659 in August 1992 to November
24, 1993, no action for relief was permitted when the charge was
terrorism. Even when the
defendant's innocence had been proven, judges were not allowed to grant
any form of conditional release, writ of amparo or habeas
corpus at any time. Decree Law 25659 provided that actions seeking relief for
individuals detained for, charged with or tried for the crime of
terrorism (Decree Law 25475) were not permitted at any stage in the
police investigation or criminal proceedings.
This provision, which was a violation of Article 7 (paragraph 6)
of the American Convention which provides that anyone deprived of his or
her liberty shall be entitled to recourse to a competent court to
challenge the lawfulness of his or her detention and to demand his or
her release, was amended by Law 26248, although the amendments still
contain some significant procedural restrictions.[10]
Under Decree Law 25659, the writ of habeas corpus was not
permitted during a police or judicial inquiry, which in practice meant
that an individual detained was unable to ask a judge to examine whether
the measure whereby his or her detention was ordered was reasonable or
whether that individual had been ill-treated while in custody.
Peruvian law does not provide for the summary habeas corpus
proceeding to ensure that an individual lawfully detained or convicted
by a competent authority is held in the proper manner and conditions.
The purpose of this remedy is to protect lawfully detained
persons against abuses by State authorities.
c. Proceedings in cases
involving crimes of terrorism
Under Decree-Law 25744, the National Anti-Terrorism Bureau (Dirección
Nacional contra el Terrorismo - DINCOTE) is to prevent, investigate,
report and combat crimes of terrorism.
When the person is detained on suspicion of treason, the Police
merely have to report the detention to the military courts.
Because this decree-law does not specify how long an individual
can be held in custody, the police, in theory at least, can hold the
suspect in custody indefinitely and even incommunicado.
The proceedings in a case involving the crime of terrorism are in
three stages. The first
stage is conducted by the examining judge, the second by the superior
court and the third by the appeals court.
The maximum for each stage is 30 consecutive days, but that can
be extended by 20 days and then by another 15 days.
The trials generally take place after several months during which
time the defendant is held in prison until a ruling is handed down.
The identity of the prosecutors, judges and other officials who
take part in the hearings at each stage of the trial and in the appeal
are kept secret [the so-called "faceless judges" or
"faceless courts"] and the proceedings are conducted in
special rooms inside the prisons.
The criminal examining judge does not weigh the evidence provided
by the police and by the Public Prosecutor's Office or check for the
formalities needed to institute an investigation, as happened in the
cases of Segundo Torres Centurión and Lorenzo Izquierdo Regalado, both
agrarian leaders who were kept in prison unjustly on charges of
defending terrorism (apologia).
Patrol leader Jesús Ruiz Cubas was acquitted and released after
being detained on November 6, 1992, on charges of terrorism and after
being unjustly incarcerated in the Picsi prison for 10 months.
Like the Coordinadora Nacional de Derechos Humanos, the
Commission also finds other inconsistencies in the law, since it is
unclear whether the provisions of the Code of Criminal Procedure and the
Statute of the Public Prosecutor's Office are still in effect.
This creates confusion between judges and prosecutors.
Another subject of confusion is the close of the examining phase.
It has been said that the examining phase should end with the
final opinion of the provincial prosecutor and the Final Report of the
Criminal Judge. However,
the procedural laws lend themselves to several interpretations.
Since the freedom of those detained hangs in the balance, the
Commission believes that this matter should be straightened out
immediately.
Judges and prosecutors are locked into cases, since the law is
designed in such a way that every case will invariably go to trial and
in most cases, end in conviction. Mindful
of the limitations that the law imposes, judges apply the law almost
mechanically. A judge can
never dismiss a case, even when there is insufficient evidence to
prosecute. Every disputed
point must be referred to the Supreme Court for settlement.
The Commission also takes issue with the fact that no form of
freedom, even conditional release, is permitted at any stage of the
legal process. This is
patently arbitrary in the case of defendants who have been proven
innocent but who must remain in custody until their case has been
reviewed, at a higher level, by the Special Criminal Court to decide
that oral proceedings will not be instituted.
The journalist Magno Sosa Rojas (case 11,089), for example, was
acquitted but had to remain in custody until the Special Criminal Court
ruled that oral proceedings would not be instituted in that case.
Just as objectionable is the delay that cases experience in the
superior court.
The Commission visited the Miguel Castro Castro prison in Canto
Grande, where it witnessed a "faceless" trial and had an
opportunity to converse with a judge and hear the statements made by the
prosecution and the arguments made by the defense attorney.
The Commission was particularly struck by the fact that the
judges repeatedly insisted that the defense attorney be brief, alleging
that the proceedings had to move on to a swift conclusion.
A report presented by the Puno Committee for the Protection of
Human Rights (Comité de Defensa de los Derechos Humanos de Puno
- CODDEH-PUNO) during the
Commission's visit indicates that the Government's anti-terrorist
strategy in the Puno area is very different from its strategy elsewhere
in the country. In rural
areas, arrests are made primarily by the army, however, those arrested
are not immediately delivered into police custody.
Instead, they are taken to military bases, where they may remain
for 2 to 10 days. According
to the complaints, these people are routinely tortured and subjected to
other forms of inhuman treatment. During
the inquiry, statements are taken without the necessary guarantees; the
requirement that a prosecutor be present is ignored and those in custody
are often forced to confess to charges that the eventual police
investigation frequently disproves.
While it is true that known terrorists have sometimes been
arrested in that region, most of those being arrested are peasant
farmers who for years have been forced to coexist with the Sendero
Luminoso and the MRTA, only to be arrested for failing to report the
presence of terrorists in the region.
The CODDEH-PUNO has said how dangerous it is for peasant farmers
to report the presence of subversive groups because the latter have no
assurances that their safety will be protected and because no proper
channels have been established to report that kind of information.
The Lambayeque Bar Association (Chiclayo) told the Commission
during its visit that only one courtroom is operating in that region to
try alleged terrorists. It
asked that the necessary overtures be made to request at least one other
courtroom so that the many cases can be brought to trial.
d. Right of self-defense
During the on-site visit, the Commission received from the
Supreme Council of Military Justice a copy of Official Communique No.
005, the first paragraph of which reads as follows:
The Supreme Council of Military Justice is disturbed by the
disinterest shown by certain attorneys in the various courts of this
military jurisdiction, who do not actively defend their clients when the
latter are on trial for treason.
The Commission has received numerous reports about the serious
restrictions on the right of defense.
Every individual has a right to be assisted by counsel,
regardless of the crime with which he or she is charged.
While in theory those accused of terrorism have that right, in
practice the right to defend oneself is so seriously shackled, it is
virtually nonexistent. According
to Decree Laws 25475 and 25744, the attorney cannot take part in the
proceedings until the accused makes his or her statement in the presence
of the prosecutor. The police can hold persons suspected of terrorism in
preventive custody for 15 days but where the crimes of terrorism are
classified as treasonous, the period of preventive custody can be
extended even longer.
Article 18 of Decree Law 25475 provided that in proceedings
involving the crime of terrorism, the defense attorneys could represent
only one defendant at a time nationwide.
This was a very serious violation of one's right to be assisted
by an attorney of one's choosing, upheld in Article 8.2.d of the
American Convention. Law
26248, enacted on November 24, 1993, abrogated Article 18 of Decree Law
25475 effective that date.
The Commission has examined the problems that attorneys who
defend individuals accused of terrorism face.
These attorneys are demanding that they be given sufficient time
to acquaint themselves with the charges against their clients, to confer
with them and prepare their case and that they be notified of court
rulings, hearings and trials, etc., sufficiently in advance.
The case of Miguel Fernando Ruiz-Conejo Márquez points up the
kind of frequent procedural irregularities - such as late or incorrect
notifications - that are becoming commonplace and that are so
detrimental to the most elementary judicial guarantees and due process.
Attorneys often find that they have been prevented from being
present when the verdict is read.
The Lambayeque (Chiclayo) Bar Association asked the Commission to
intervene to ensure that attorneys be allowed to defend clients accused
of a crime of terrorism. The
Democratic Lawyers Association has complained that its members have been
persecuted by the government for defending terrorism cases involving
members of the Sendero Luminoso.
Since the threats and pressure that attorneys in general
experience have not been alleviated, the Commission reiterates to the
Government of Peru, the recommendation made in its report on Peru
(Chapter IV, paragraph 6 of the Commission's Annual Report for
1992-1993). During
the on-site visit, the Lambayeque Bar Association told the Commission
that four of the 536 persons in the Picsi Prison as of mid May 1993
either accused or convicted of a crime of terrorism were member
attorneys while the others had been taken to prison for security
reasons.
As the Commission already reported, Dr. Alfredo Crespo, attorney
for Abimael Guzmán, and Jorge Cartagena, attorney for Osmán Morote and
Marta Huatay, were arrested on January 11, 1993 and convicted in a
summary proceeding to 30 years in prison.
This is another example of a gross violation of the right to
defense and the right to due process, and was clearly meant to set an
example for any attorney who dared to defend those charged with
terrorism.
As for the communique released by the Supreme Council of Military
Justice transcribed above, it is not at all surprising to the Commission
that attorneys are more and more reluctant to defend those accused of
terrorism because of the risk they run of being accused of defending
terrorism [apologia] or of some other type of conduct
criminalized by the new anti-terrorist laws.
The Puno Human Rights Defense Committee (CODDEH-PUNO) has
expressed concern over the difficulties it is having in helping dozens
of peasant farmers being held in Puno's San Sebastián Prison without
access to an attorney. Human
rights organizations have few attorneys, just as there are few public
defenders. Private attorneys
charge very high fees that peasant farmers cannot afford.
e.
The punishments
Decree Law 25475 stipulates the minimum sentences permissible
when certain circumstances obtain.
However, for those whose guilt has been reliably established
(articles 2, 3.b, 3.c, 4, 5, 9), there is no upper limit on the
punishment that can be imposed. Article 10 of that decree law provides
that "In cases involving the crime of terrorism, magistrates may
not apply the provisions of Article 22 of the Penal Code approved by
Legislative Decree No. 635." Basically, what this means is that anyone who was between the
ages of 18 and 21 or over age 65 at the time the crime was committed
cannot have his or her sentence reduced.
Thus, the discretion routinely exercised by judges in sentencing
is being curtailed, even though they should be free to apply the
provisions of common criminal law.
As a rule, the sentences are disproportionate (for example,
Articles 4 and 5 of Decree Law 25475 require no less than 20 years'
imprisonment for "actions of collaboration of any kind" or for
merely belonging to a terrorist organization).
The Commission believes such excesses must be corrected so that
the punishment matches the degree of guilt.
The punishment for a wide range of crimes of terrorism that are
obviously less serious than treason is the same - life imprisonment.
The Commission also takes issue with Article 7 et seq of Decree
Law 25475, whereby citizens who defend terrorism [apologia] while abroad
are stripped of their citizenship.
This is an obvious violation of Article 20.3 of the American
Convention, which states that no one may be arbitrarily deprived of
one's citizenship.
f. Retroactive
application of criminal law
The Commission has been informed that some judges are applying
the law retroactively in terrorism cases.
According to a report presented by the Peasant Legal Defense and
Counsel Team (Equipo de Defensa y Asesoría Campesina - EDAC), part of
the Peruvian Peasant Farmers Association, judges in the ordinary courts
are applying Decree Law 25475 retroactively.
According to EDAC, this happened in the case of Nora Gálvez
Cavero and María Teresa Huidobro Bermúdez, whose release was requested
based on the provisions of Decree Law 25842, whereby a judge shall order
the immediate release of any individual held for over 30 months on
charges of terrorism ("when there are circumstances that pose some
special difficulty or prolong the investigation beyond the usual and
that mean the accused may never be brought before the courts") if
no court has ever handed down a ruling.
The Special Criminal Chamber of the Lima Superior Court (a
"faceless" court) denied the petition on the basis of Decree
Law 25916, which preserves the ban on any kind of procedural or prison
concession, including the one provided for in Article 37 of the Code of
Criminal Procedure abrogated by Decree Law 25824, even though Decree Law
25916 invoked by the Court was published 26 days later. |
