DRAFT FOLLOW-UP REPORT ON COMPLIANCE BY THE PERUVIAN STATE WITH THE RECOMMENDATIONS MADE BY THE IACHR IN ITS REPORT ON THE SITUATION OF HUMAN RIGHTS IN PERU (2000)

          I.        INTRODUCTION

          1.       On June 2, 2000, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) adopted the Second Report on the Situation of Human Rights in Peru (hereinafter “Peru Report”).  In that report the Commission analyzed the protection of human rights in the constitutional, statutory, and political system of the Republic of Peru (hereinafter “the State,” “Peru,” or “the Peruvian State”), the administration of justice and the rule of law, Peru’s international obligations in the inter-American system, political rights, freedom of expression, economic, social, and cultural rights, women’s rights, children’s rights, the prison situation, and the rights of indigenous communities.  In addition, it made a series of recommendations in light of the conclusions reached.

          2.       On December 15, 2001, the Commission requested that the State provide information on compliance with the recommendations made in the IACHR’s Peru Report.  On January 4, 2002, the State requested an extension of the time period for submitting information, which was granted on January 14, 2001, for 10 days.  On February 6, 2002, the Peruvian State submitted its “Report on Compliance with the Recommendations of the IACHR on the Situation of Human Rights in Peru” (hereinafter “the State’s Report”).

          3.       For its part, the Coordinadora Nacional de Derechos Humanos, on January 30, 2002, also presented a special report to the Commission in which it set forth its points of view regarding compliance with the IACHR’s recommendations in its Peru Report (hereinafter “Special Report by the Coordinadora Nacional”).

          4.       For the purposes of preparing this follow-up report, the Commission has taken into account the general monitoring of the human rights situation in Peru that it does regularly as part of its functions; the information provided to it periodically by the State, through the Permanent Mission of Peru to the OAS; the State’s Report mentioned supra; and the information provided to it by the non-governmental organizations and other members of civil society, especially the Special Report by the Coordinadora Nacional.

          5.       This follow-up report analyzes compliance with the recommendations made by the Commission in each chapter of its Peru Report.

          6.       In the final considerations of that report, the Commission considered that the weakening of the fundamental principles of the democratic rule of law in the Republic of Peru was incompatible with the State’s obligations under the American Convention on Human Rights.  The Commission indicated that the election of Alberto Fujimori, in May 2000, had not been carried out in a manner consistent with the guarantees of a fair election, which is required for the sovereign exercise of the will of the Peruvian people, in violation of Article 23 of the American Convention.  The Inter-American Commission indicated that those elections clearly constituted an irregular interruption of the democratic process, referred to in Resolution 1080, adopted in 1991 by the OAS General Assembly.  The IACHR called for a return to the rule of law in Peru, and for the convocation, in a reasonable time, of free, sovereign, fair, and genuine elections, in compliance with the respective international standards.

          7.       As is publicly known, the government of Alberto Fujimori ended in November 2000, when he fled abroad in the context of the political crisis aggravated by the dissemination of videotapes made by Vladimiro Montesinos, an adviser to Fujimori, which showed evidence of flagrant corruption in the country.  Mr. Fujimore senta letter of resignation and the Peruvian Congress, in accordance with the Constitution, declared the vacancy of the presidency of the Republic due to Mr. Fujimori being morally unfit to preside over the country, and Valentín Paniagua was chosen to head up a transition government.[1]  So began a stage of recovering democracy by installing a transition government that lasted eight months.  During that transition government several very important measures were adopted to recover democracy and the rule of law in Peru.

          8.       In April 2001, new elections were held, and in July 2001, Alejandro Toledo was inaugurated as president of Peru, after being elected by universal ballot in free, fair, and legitimate elections.

          9.       On several occasions the Commission has stated publicly its acknowledgment of Peruvians for the return to democracy; and it has also highlighted the work done by the transition government headed up by Valentín Paniagua and the work that the government headed up by President Alejandro Toledo is doing at this time.

          10.     The Commission will now move on to the specific analysis of compliance with the recommendations made to the Peruvian State in the IACHR’s Peru Report.

          II.       ADMINISTRATION OF JUSTICE AND RULE OF LAW

          11.     In Chapter II of its Peru Report, the Commission analyzed the composition and workings of the judicial branch in Peru, and called on the State to effectively ensure respect for the principle of separation of powers, and to refrain from taking measures that would tend to undermine the autonomy, independence, and impartiality of the judiciary.

          12.     In light of the conclusions analyzed in that report, the Commission made the following:

RECOMMENDATIONS

The IACHR calls on the Peruvian State to ensure effective respect for the principle of separation of powers, and to abstain from taking measures that constitute an attack on the autonomy, independence, and impartiality of the Judiciary.  

The Commission also calls on the State to:

(1)        Immediately re-establish the normal operation of the Constitutional Court, re-instating the three members who were removed from their posts.  In addition, appropriate measures should be adopted for the decision-making system within the Court to guarantee, transparently and effectively, the purpose that is the aim of its function of reviewing the constitutionality of laws. 

(2)        Ensure the institutional autonomy of the Judiciary by re-establishing the management and administrative functions of the President of the Supreme Court and of its Plenary Chamber, as well as the functions of the Public Prosecutor, thereby concluding the work of the Executive Commissions that govern the judiciary and the Public Ministry. 

(3)        Bring all of the anti-terrorist legislation and laws consistent with them into line with the American Convention. In this area, the State must fully implement Article 27 of the American Convention, which regulates emergency situations, including absolute respect for rights whose exercise may not be suspended, and of the guarantees essential for protecting those rights. 

(4)        Render without effect any law or measure that impedes the investigation, trial, and punishment of state agents who may have committed human rights violations, especially those violations that entail international crimes, because those laws or measures are incompatible with the American Convention. 

(5)        Render without effect the Legislative Decrees, especially Nos. 895, 897, and 904, which grant excessive powers to the National Police and to the Intelligence Service in the investigations.  Legislative Decree Nº 895 extends the jurisdiction of the military courts, allowing them to judge civilians implicated in common criminal activity, a function that is not properly assigned to such courts. 

(6)        Eradicate the practice of admitting evidence obtained under torture. 

(7)        End the trial of civilians by military courts. 

(8)        Make compensation to persons for prison sentences served unfairly. 

(9)        Adopt the measures needed to prevent reprisals against human rights defenders and to protect the witnesses and attorneys who advise the victims, for the purpose of guaranteeing their right to justice and to effective judicial protection. 

(10)      Render without effect Law Nº 26,898, which granted the "provisional" judges the same rights and functions as the permanent judges, and Law Nº 26,897, which granted the "provisional" prosecutors the same rights and functions as the permanent prosecutors. 

(11)      Render without effect Laws Nos. 26,933 and 26,973, and re-establish the constitutional powers of the National Council of the Judiciary that guaranteed the independence of the members of the judiciary. 

(12)      Adopt the measures necessary for the regular courts to review, with guarantees of independence and impartiality, the proceedings of those who have been convicted pursuant to the anti-terrorist legislation, in light of the parameters established by the Inter-American Court. 

          13.     With respect to compliance with those recommendations, it should be highlighted that, in general terms, the governments of Valentín Paniagua and Alejandro Toledo have ushered in an important process of reforms in the area of the administration of justice. As part of that process, several judges and prosecutors, including members of the Supreme Court, have been removed and are facing judicial investigations into corruption.  In addition, those presidents of superior courts of justice who were designated without complying with the legal requirements established for that purpose were dismissed, and the presidents of courts have been chosen in keeping with the regular procedures. Moreover, the “transitory” courts, chambers, and prosecutorial offices for tax and illicit drug trafficking offenses have been eliminated; and a special structure of anti-corruption judges, prosecutors, and procurators has been created whose purpose is to investigate and bring to trial those who committed criminal acts during the Fujimori regime. 

          A.      The Constitutional Court

          14.     In relation to compliance with the first recommendation of Chapter II, concerning the establishment of the normal operations of the Constitutional Court, the State noted that one of the first measures adopted by the transition government was to re-establish the full operation of the Constitutional Court, re-instating judges Delia Revoredo, Guillermo Rey Terry, and Manuel Aguirre Roca, under Legislative Resolution Nº 07-2000-CR, published on November 17, 2000.^[2]

          15.     At present, the Constitutional Court is fully operational.  In a protocolary visit by the IACHR to Peru in July 2001, the Commission had a chance to visit the Court where it is seated, and to speak with the judges on various issues related to its workings.

          B.       The Executive Commissions of the Judiciary and the Public Ministry

          16.     As regards the second recommendation of Chapter II, regarding measures to ensure the institutional autonomy of the judiciary, the State reported that by adopting law Nº 27,367, “Law that De-activates the Executive Commissions of the Judiciary and the Public Ministry, and that establishes the Transitory Council of the Judiciary and the Transitory Council of the Public Ministry,” published in the official gazette El Peruano on November 6, 2000, the State has complied with the Commission’s recommendation to conclude the work of those commissions, re-instating the Executive Council as the governing body of the judiciary, and the Board of Superior Prosecutors (Junta de Fiscales Supremos) as the governing body of the Public Ministry.  The State added that “through Law Nº 27,465, which amends various articles of the Single Ordered Text of the Organic Law on the Judiciary, the functions and powers of the President of the Supreme Court of Justice and those that correspond to the Executive Council of the Judiciary, which were assigned to a commission under the Fujimori regime, have been fully re-established.  Along the same lines, the powers corresponding to the Public Ministry and the Office of the Attorney General of the Nation have been fully re-established, in keeping with the respective Organic Law, thereby ending the functions of the commission that had been exercising government functions.”

17.     The State added that at present, sweeping changes of the Organic Law on the Public Ministry and the Organic Law on the Judiciary are being discussed in the Congress.

          18.     The Commission considers ending of the work of the Executive Commissions of the Judiciary and the Public Ministry a very important step.

          C.      The Anti-terrorist Legislation

          19.     With respect to the third recommendation of Chapter II, regarding bringing the anti-terrorist legislation into line with the American Convention, the State acknowledges that amending the anti-terrorist legislation is a step that still needs to be taken.

          20.     The State notes as progress in this area that in the judicial sphere, the National Chamber for Terrorism, Criminal Organizations, and Gangs, in applying the review powers conferred on it by the Peruvian Constitution, has been applying provisions of the Code of Criminal Procedure instead of the special rules of procedure of the anti-terrorist laws, in an effort to re-direct the system through the normal channels indicated in the general laws. It added that on June 22, 2001, Law Nº 27,486 was published; it regulates the situation of the requisitoriados, i.e. persons in respect of whom arrest warrants that do not expire have been issued, yet who have not been detained, authorizing the judge who hears the case to modify the arrest warrant by coming forward, and establishing that said resolution should be forwarded to the Superior Chamber of the Judicial District for consultation.

          21.     For its part, the Coordinadora Nacional de Derechos Humanos indicated that one of the irregularities that persists is the existence of the National Corporative Chamber (Sala Corporativa Nacional) to hear crimes of terrorism.  Based in Lima, its jurisdiction extends to all of Peru’s judicial districts. In its view, this is at odds with the principle of speedy procedure, which is especially grave with respect to such offenses, for one cannot file a motion for release due to excessive time in detention, nor do they receive benefits generally accorded prisoners in the penitentiary system.

          22.     The Commission reiterates the importance of the Peruvian State complying with the recommendation to bring the anti-terrorist legislation into line with the American Convention.

          D.      The Amnesty Laws

          23.     As regards the fourth recommendation of Chapter II, regarding suspension of the amnesty laws, it should be noted, initially, that on March 14, 2001, the Inter-American Court of Human Rights handed down its judgment in the “Barrios Altos” case, and declared that

As a result of the manifest incompatibility between the self-amnesty laws and the American Convention on Human Rights, those laws lack any legal effect and cannot continue to pose an obstacle to the investigation of the facts that constitute this case, or for identifying and punishing the persons responsible, nor can they have the same or similar impact with respect to other violations of the rights enshrined in the American Convention in Peru.^[3]

... amnesty laws Nº 26,479 and Nº 26,492 are incompatible with the American Convention on Human Rights, and, accordingly, lack legal effect.^[4]

          24.     Later, in an interpretive judgment^[5] issued by the Inter-American Court on November 3, 2001, in the same case, the Court indicated that:

The promulgation of a law manifestly contrary to the obligations assumed by a state party to the Convention is a per se violation of the Convention, giving rise to the international responsibility of the state. Accordingly, the Court considers that, given the nature of the violation constituted by amnesty laws nos. 26,479 and 26,492 what was resolved in the judgment on the merits in the Barrio Altos case has general effects, and it is in those terms that the issue raised in the request for interpretation submitted by the Commission.^[6]

          25.     With respect to compliance with the recommendation under analysis, the State indicated that the Supreme Council of Military Justice has undertaken to review the cases in which those rules have been applied. The Commission has also learned that in specific cases the Peruvian Judiciary has decided not to apply the amnesty laws. The Commission considers those actions positive, yet insists that the amnesty laws need to be repealed generally, rather than leaving it to the discretion of judicial organs in specific cases.

E.       Powers of the National Police and the Intelligence Service in Investigations

          26.     As regards recommendation Nº 4 of Chapter II, about annulling the legislative decrees that granted excessive powers to the National Police and the Intelligence Service in investigations, the State noted: “By Article 4 of Law Nº 27,569, promulgated December 1, 2001, Legislative Decrees 895 and 897 were derogated, along with all the provisions at odds with this law.  In addition, pursuant to Article 2 of Law Nº 27,472, published in the official gazette El Peruano of June 5, 2001, the aggravated offenses criminalized by Legislative Decree Nº 896, prosecuted by special procedures put in place in keeping with Legislative Decree Nº 897, will be tried according to the provisions of the Code of Criminal Procedure, by regular procedure, in the case of Articles ..., and by summary procedure, in the case of Articles ... of the Criminal Code.  In addition, Article 1 of Law Nº 27,569, published December 2, 2001, provides that all persons who are tried or convicted under the rules provided for in Legislative Decrees 895 and 896 will be given a new trial in the regular courts. Finally, Legislative Decree Nº 904 was derogated by the Third Final Provision of Law Nº 27,479, published in the official gazette El Peruano on December 12, 2001.”

          27.     In addition, and in keeping with the judgment published in the official gazette El Peruano on November 17, 2001, the Constitutional Court declared well-founded in part the constitutional action that the Human Rights Ombudsman filed with respect to legislative decrees 895 (regarding the Law against Aggravated Terrorism, later amended to Special Terrorism) and 897 (regarding the Law on Special Procedure for investigating and prosecuting the aggravated crimes defined in legislative decree 896, in its provisions that are still in force).

          28.     The State also reported that the Constitutional Court, through a judgment of December 2, 2001, held that the grant of powers that properly vest in the Public Ministry to the National Police was unconstitutional.

          F.       Obtaining Evidence under Torture

          29.     As regards the sixth recommendation in Chapter II, regarding eradication of the practice of admitting evidence obtained under torture, the State indicated that there has been a considerable reduction in the number of complaints of torture, but it did not provide any figures related to that assertion.

          30.     The State also indicated that by Law Nº 26,926, published in the official gazette El Peruano of February 21, 2001, Title XVI-A on Crimes against Humanity has been included in the Criminal Code; it regulates the crimes of genocide, forced disappearance, torture, and discrimination.  It added that “the provision that allowed the trial of civilians by military courts has been derogated by Law Nº 27,569.”

          G.      Trial of Civilians by Military Tribunals

          31.     As for the seventh recommendation of Chapter II, to end the trial of civilians by military tribunals, the State indicated that the trial of civilians by military tribunals is a situation that must be changed along with a thoroughgoing review of the anti-terrorist legislation, and that at present the military courts have jurisdiction only to hear the cases of crimes of treason and service-related offenses. It added that Article 2 of Law 27,235, which amended Article 3 of Legislative Decree 895, re-established the jurisdiction of the regular courts to investigate and prosecute special terrorism offenses.

          32.     The Coordinadora Nacional de Derechos Humanos reported to the Commission that in June 2001 the Supreme Council of Military Justice voided two resolutions issued by that same body in 1994 and 1995, which exonerate former presidential adviser Vladimiro Montesinos and top-level commanders of the Peruvian Army of their liability in the Barrios Altos killings.  As a result, in August 2001 the Criminal Chamber of the Supreme Court of Justice of Peru ruled on the jurisdictional clash that was raised by the military courts in 1995 in favor of the regular jurisdiction.  It also noted that the prosecution of civilians for the crime of aggravated terrorism was done away with by the Constitutional Court judgment of November 17, 2001, which declared legislative decrees 895 and 897 to be unconstitutional.  As a result of that declaration, the judicial proceedings before the military courts are void; accordingly, the judicial files have been forwarded to the Superior Court of Justice of Lima, for it to act accordingly.

          33.     The Commission values the advances by the Peruvian State to date, and reiterates the importance of adopting the legislative measures needed to end the trial of civilians by military tribunals.

          H.      Compensation for Judicial Error

          34.     The eighth recommendation of Chapter II was that Peru compensate innocent persons who have been pardoned, for sentences served unjustly; the State indicated that by Supreme Decree Nº 002-2002-JUS, published in the official gazette El Peruano on January 15, 2002, the Special Commission to Assist Innocent Persons who were Pardoned (CAII: Comisión Especial de Asistencia a los Indultados Inocentes) was created; it will design and implement a comprehensive program of non-monetary reparations for persons pardoned through the commission created by law 27,234, and their family members.  That program will promote comprehensive health insurance, employment, admission to university programs, and housing support.  The Special Commission includes the participation of the Association of Innocent Persons Released (Asociación de Inocentes Liberados) and the Office of the Human Rights Ombudsman, in addition to the representatives of the Ministry of Justice, the Presidency of the Council of Ministers, the Ministry of Health, the Ministry of Economy and Finance, and the Ministry of Labor and Social Promotion.

          35.     The State also reports that by emergency decree 122-2001, the Special Fund for the Administration of Money Obtained Illicitly to the Detriment of the State (FEDADOI) was created as an entity made up of representatives of the Ministries of Justice, Interior, and Economy and Finance, entrusted with receiving the money from illicit activities injurious to the State.  On January 9, 2002, the Regulations of that Fund were adopted, by Supreme Decree Nº 001-2002-JUS). Those funds will be used, among other things, to pay those reparations.

          36.     The Commission considers it important that legislative provisions be implemented and that they provide for effective reparation to innocent persons who have been convicted unjustly.

          I.        Protecting Human Rights Defenders

          37.     As regards the ninth recommendation of Chapter II, concerning the adoption of measures needed to prevent reprisals against human rights defenders and to protect the witnesses and attorneys who advise the victims, the State indicated that the new political and democratic situation in Peru allows persons dedicated to the defense and protection of human rights to do their work without difficulties when it comes to lodging complaints; accordingly, it states that no reports have been received of harassment of human rights defenders.

          38.     In this respect, the Commission considers it important to note that as of the conclusion of the Fujimori regime, no information or complaint has been received of interference in the important work of human rights defenders in Peru.

          J.       Rights and Functions of the Provisional Judges and Prosecutors

          39.     The tenth recommendation of Chapter II is to void the laws that granted provisional judges and prosecutors the same rights and functions as permanent judges.  The State mentioned in this respect that through Law Nº 27,362, published in the official gazette El Peruano, on October 31, 2000, Law Nº 26,898 was repealed.  This rendered without effect the placing of permanent and provisional judges of the Judiciary and the Public Ministry on equal footing, and the original Article 29 of the Single Ordered Text of the Organic Law on the Judiciary was re-instated.

          40.     In addition, Article 37 of Legislative Decree Nº 052 of the Organic Law on the Public Ministry was replaced, such that the Attorney General of the Nation and the permanent superior prosecutors constituted the Board of Superior Prosecutors.

          41.     In addition, the scope of functions of the provisional magistrates is limited in that they can only exercise their judicial work so long as their interim status continues.  In addition, they are disqualified from assuming any administrative function or representation whatsoever.

          42.     Accordingly, the practice of granting the same rights and powers to provisional judges as those enjoyed by permanent judges has been ended.

          K.       The National Council of the Judiciary

          43.     As regards recommendation 11 of Chapter II, related to the National Council of the Judiciary, the State reported that on November 7, 2000, Law Nº 27,368 was published in the official gazette El Peruano, modifying or re-instating articles of the Organic Law on the National Council of the Judiciary, and also ordering the call for the nationwide competitive hiring process for judges of the Judiciary and the Public Ministry. This law repealed Laws Nos. 26,696 and 26,933, Article 1 of Law 26,973, and the sixth final and transitory provision of Law 26,623.

          44.     The Coordinadora Nacional de Derechos Humanos, for its part, mentioned that those legal provisions whereby the powers to investigate and sanction were assigned to judges of the Supreme Court by the National Council of the Judiciary were given force once again.  It added that the members of this body have assumed their positions anew, and the process of ratifying judges and prosecutors before the National Council of the Judiciary has begun; and that the Judicial Academy (Academia de la Magistratura) has been re-established.

L.       Review of the Trials of Persons Convicted under the Anti-Terrorist Legislation

          45.     With respect to recommendation Nº 12 of Chapter II, related to review by the regular courts of the trials of those who have been convicted under the anti-terrorist legislation, the State indicated that the judgments have not been reviewed in the regular courts, as this requires new evidence; accordingly, the quickest mechanism for solving the cases of persons unjustly convicted of terrorism or treason has been the benefit of pardon granted by the President of the Republic to persons tried or convicted based on insufficient evidence.  The State added in this regard that “as of July 2001, the Commission of Law 27,234 had resolved 166 cases, which, together with the cases resolved with the conclusion of the Ad Hoc Commission constituted to review the proceedings of those who have been convicted under the anti-terrorist legislation, 1,015 persons in all, with a total of 2,160 pending....  To date, the cases pending continue to be reviewed.  To this end, technical cooperation has been sought to strengthen the Specialized Secretariat for Presidential Pardons, which is entrusted with studying the cases so as to grant pardons or commute sentences.  A favorable response has been received from the Swiss government, which will make it possible to hire a pool of attorneys, in addition to those already working, as well as logistical equipment.”

          46.     In relation to this point, the Commission should note that compliance with the recommendation under study is pending.  The Commission has also received information according to which no new pardons have been given to innocent persons of late.  The Commission has also been informed that the Ministry of Justice has substantially reduced the number of lawyers who reviewed requests for pardon, to just one or two persons, to handle a large number of pending cases.

III.      INTERNATIONAL OBLIGATIONS: PERU AND THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

          47.     In Chapter III of its Peru Report the Commission made the following recommendations:

1.         That the Peruvian State desist in its position of not complying with its freely-contracted international commitments, challenging the jurisdiction of the Inter-American Court of Human Rights.  

2.         That the Peruvian State fully comply with the decisions of the Inter-American Court of Human Rights.

A.      The Claimed “Withdrawal” from the Court’s Contentious Jurisdiction

          48.     As regards recommendation Nº 1 of Chapter III, on Peru’s claimed withdrawal from the contentious jurisdiction of the Inter-American Court, the Peruvian Congress issued Legislative Resolution Nº 27,401, published January 19, 2001 in the official gazette El Peruano, which repealed Legislative Resolution 27,152, and had ordered, with immediate effect, the withdrawal of Peru’s recognition of the contentious jurisdiction of the Inter-American Court of Human Rights.

          49.     On January 31, 2001, the Permanent Representative of Peru to the OAS delivered to the Secretary General of the Organization a document in which he verified that Peru had regularized its situation with respect to the Inter-American Court, and that it was abiding by the judgments of that Court according to which said unilateral action was inadmissible.  In that document, the State declared: “The recognition of the contentious jurisdiction of the Inter-American Court of Human Rights, made by Peru on October 20, 1980, is fully effective and commits the Peruvian State in all its legal effects; it should be understood that said Declaration has been in force continuously since it was deposited with the General Secretariat of the Organization of American States (OAS) on January 21, 1981.  The Government of the Republic of Peru proceeds to withdraw the Declaration deposited on July 9, 1999, by way of which an effort was made to withdraw the Declaration recognizing the optional clause of submitting to the contentious jurisdiction of the Inter-American Court of Human Rights.”

          B.       Compliance with the Decisions of the Inter-American Court

          50.     As regards compliance with recommendation 2 of Chapter III, according to which Peru should fully comply with the decisions of that Court, the Peruvian State has been complying with the decisions of the Inter-American Court of Human Rights.  In this respect, in the Barrios Altos, Durand and Ugarte, Castillo Páez, Constitutional Court, and Loayza Tamayo cases, the State has made partial payments of the compensation ordered by the Inter-American Court.  Peru also highlighted that comprehensive reparations agreements have been signed in the Durand and Ugarte and Barrios Altos cases, between the State and the victims, the victims’ next-of-kin, and their representatives.

          51.     The State also added that in keeping with strict respect for the rulings handed down by international courts, the resolutions that had found the judgments of the Inter-American Court of Human Rights in the Loayza Tamayo and Castillo Petruzzi cases to be unenforceable were declared null and void.

          52.     The State indicated, finally, that it has been taking the necessary steps to comply with the non-monetary forms of compensation.

          IV.      POLITICAL RIGHTS

          53.     In its Peru Report, based on the analysis of the situation of political rights in Peru, the Commission issued its conclusions as follows:

The Inter-American Commission on Human Rights calls for a return to the rule of law in Peru, and to the convocation, in a reasonable time, of free, sovereign, fair, and genuine elections that are up to the respective international standards.  In those new elections, the rights of Peruvians "to vote ... in genuine ... elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters," set forth at Article 23 of the American Convention, should be guaranteed. The IACHR offers to cooperate with Peru in achieving this aim.

          54.     In April 2001, under the transition government led by Valentín Paniagua, an election was held in Peru whereby Alejandro Toledo was elected president of Peru democratically, in free, fair, and legitimate elections.

          55.     In this respect, the Commission considers that the State has complied fully with the recommendation made in Chapter III of its Peru Report.

          V.      FREEDOM OF EXPRESSION IN PERU

56.     In Chapter V of its Report, the Commission requested that the Office of the Special Rapporteur for Freedom of Expression prepare the chapter on freedom of expression. Based on the conclusions reached by the Office of the Special Rapporteur in that chapter, the Commission called upon the State of Peru to implement the following measures:

1.         To adopt specific urgent measures to bring a halt to the attacks on investigative journalists and opposition politicians, and any citizen or person who exercises his or her right to call into question the authorities and to express their political ideas, or other ideas.

2.         To take the steps needed to prevent the exercise of freedom of the press from being limited through indirect mechanisms prohibited by Article 13 of the American Convention.

3.         To strengthen the institutional mechanisms of control over the national intelligence services so that they not be used to intimidate those who criticize acts of government.

4.         To take the steps needed to bring the domestic legislation into line with the American Convention by derogating article 374 of the Criminal Code, on desacato.

5.         To take the steps needed to ensure autonomy, independence, and impartiality in the judiciary, so that it can perform its role of protecting the freedom of expression, consistent with the standards of international law.

6.         To ensure that the institutions and agents of the state respect the international and domestic provisions regarding freedom of expression, in particular, Article 13 of the American Convention and the Principles of the Declaration of Chapultepec.

7.         To carry out promotion activities aimed at state agents and at Peruvian citizens in general to create awareness of the importance of respecting and protecting freedom of expression. 

57.     In this chapter, the Commission, with the assistance of the Office of the Special Rapporteur, will analyze the efforts of the Peruvian government to comply with each of the recommendations set forth in the Second Report.

58.     The Commission notes that the situation of press freedom has generally improved in Peru since the Fujimori government left power in November 2000. Challenges remain, however, such as continued aggressions committed against journalists and the existence of legal norms that are not conducive to the protection of freedom of expression.

Measures to Prevent Attacks Against Journalists

59.     With regard to recommendation No. 1 of Chapter V, relating to the adoption of measures to bring a halt to the attacks on investigative journalists and others who exercise the right to freedom of expression, the Peruvian state has not provided information. Moreover, since the Second Report on Peru was issued in June of 2000, the Office of the Special Rapporteur for Freedom of Expression has continued to receive information from non-governmental organizations about attacks and threats against journalists and communications media in Peru. For example, on December 17, 2001, Elizabeth Huamán Perales, a correspondent for America Television, Canal 4, en Huancayo, was attacked while covering President Alejandro Toledo's visit to the city. The aggressors were supposedly supporters of the departmental secretary of "Peru Posible," the president's political party. The attackers assaulted the journalist, taking her camera and pushing her to ground. She received bruises on various parts of her body and injured her ankle.[7] Ms. Huamán filed a complaint with the local police headquarters. Of the several individuals accused of committing the aggression, only one was investigated and charged.[8]

60.     According to the information received, the majority of the reports of incidents against journalists came from areas outside of Lima and were in retaliation for reporting that was critical of local authorities and politicians.[9]

61.     The Commission reminds the government of Peru that threats and aggression against journalists, as well as the material destruction of communications media, constitute violations of the right of all members of society to receive information freely. These types of acts have as their objective the silencing of journalists and have a chilling effect on all of society, preventing the investigation of irregularities in governmental functioning and other issues of public interest.  The State has the responsibility to prevent and investigate such acts and to punish their perpetrators.

Measures to Prevent Indirect Governmental Restrictions

62.     With respect to compliance with recommendation Nº 2 of Chapter V, calling for the adoption of measures necessary to prevent limitations on the exercise of freedom of expression through indirect means, the Commission notes that the Peruvian State has taken steps to redress violations of freedom of expression. The Commission's concern regarding indirect restrictions on freedom of expression arose primarily from the case of Baruch Ivcher Bronstein.  In 1997, the government of Peru revoked the citizenship of Mr. Ivcher, a naturalized Peruvian citizen, after his television station had broadcast reports of abuses committed by the Peruvian Army Intelligence Service. The revocation of Mr. Ivcher's citizenship allowed the State to suspend his ownership rights in the television station under a law requiring those who own shares in companies holding concessions for television channels to have Peruvian citizenship. In 1998, the Commission issued a report on this case, in which it found that the revocation of Mr. Ivcher's citizenship was not the result of a routine procedure to review the legal status of naturalized Peruvians, but rather an act intended to silence the critical reports broadcast on Mr. Ivcher's television station. Thus, the Commission held that the Peruvian state had violated Mr. Ivcher's right to freedom of expression through indirect means.[10] The Commission also referred this case to the Inter-American Court of Human Rights, which affirmed in its February 6, 2001 decision that Mr. Ivcher's right to freedom of expression had been violated by the government of Peru.[11] In December 2000, Baruch Ivcher Bronstein returned to Peru from exile, when his ownership rights in the television station Frequencia Latina-Canal 2 were restored and all legal actions against him were dismissed.[12] The Commission commends the Peruvian government's actions to remedy the violation of freedom of expression in this case.

Measures to Prevent Intimidation by National Intelligence Services

63.     Regarding recommendation Nº 3 of Chapter V, relating to the strengthening of institutional control mechanisms over the National Intelligence Services (SIN), the Commission notes that SIN was officially dismantled in October 2000. Non-governmental organizations have observed an improvement in the situation of journalists and respect for freedom of expression since the dismantling of the SIN. The Paniagua administration also took steps to address some of the allegations of corruption against former SIN members.

Derogation of Norm of Disrespect, or "Desacato"

64.     With regard to recommendation Nº 4 of Chapter V, referring to the repeal of Article 374 of the Criminal Code on disrespect of public officials, the Commission observes that this norm is still in force. On February 8, 2001, the Human Rights Ombudsman (Defensor del Pueblo), Walter Albán Peralta, introduced a bill in Congress to repeal Article 374, which establishes the crime of "desacato," or disrespect against authority. This bill had not been passed as of this writing, but may be reconsidered in an upcoming legislative session. The Office of the Special Rapporteur has received no reports of Article 374 being applied, however, the Commission considers that the law's mere existence as part of the Criminal Code can produce a chilling effect on speech, since journalists may fear its application against them.

Increasing the Autonomy, Independence and Impartiality of the Judiciary

65.     Concerning recommendation Nº 5 of Chapter V, which relates to the adoption of necessary measures to ensure autonomy, independence, and impartiality in the judiciary, the Commission recognizes that, since the end of the Fujimori regime, the government has taken a number of steps aimed at increasing the autonomy, independence and impartiality of the judiciary so that it can apply standards relating to freedom of expression fairly.[13] The Commission notes that this is essential in order to prevent impunity for crimes committed against journalists in retaliation for their work and to prevent public officials from using the judicial system to harass journalists.

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