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 Maximum Security Prison for Women, Professor Pardavé Trujillo was released.  The only reason for the arrest and the charges against her was the fact that she was the sister of Yovanka Pardavé, a former member of the Association of Democratic Attorneys.  

            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.

            Decree Law 25475 provides that the same procedures apply to all terrorism cases, including those not yet solved and in which the accused were arrested prior to May 7, 1992.

               4. The climate of insecurity and danger that enforcement of the anti-terrorist laws has engendered

               a.     Repentance Law

            The anti-terrorist laws allow group trials, which may involve a number of persons whose cases are unrelated.  As a result, individuals accused of lesser crimes are incarcerated for long periods with individuals accused of much more serious crimes; some are even innocent.  Many believe their only avenue of escape is to invoke the Repentance Law[11].  Persons who have no valuable information to barter for either their freedom or a reduced sentence can benefit little, if at all, from such a law.

            Because of the Repentance Law, over the last 18 months hundreds of persons involved in terrorist activities have turned themselves over to Peruvian authorities.  This is unquestionably a positive development, particularly when one considers that the Sendero Luminoso and, on a lesser scale, the Movimiento Revolucionario Tupac Amaru (MRTA) continue to terrorize the population with their brutality and violence.

            On the other hand, the Commission has received several petitions to the effect that the Repentance Law is being used (particularly by members of the Sendero Luminoso and by people whom the security forces have threatened, coerced and made false promises to) to accuse innocent people who are frequently declared guilty by the Peruvian police and court authorities solely on the basis of a statement made by someone who has invoked the Repentance Law.  Mr. Santos Gilberto Robles Paredes, a young farmer kidnapped and latter impressed by the Sendero Luminoso, managed to escape from that subversive group and moved to Lima.  After spending a year in Lima, he returned to visit his mother in Cajabamba and was arrested.  Using torture and false promises, the police, under the command of Colonel José Miguel Borja, got him to accuse 118 people.  Some 56 of those he accused were arrested and, after spending a long period in the Picsi Prison, 27 were released and 29 were convicted.  Mr. Santos said later that some of those convicted were in fact innocent and that police forced him to accuse most of those 118 people by using the Repentance Law, by making false promises to him (that he would be allowed to leave the country, for example) or by getting him drunk so that he would sign the papers wherein he made charges against people he did not even know.[12]

            Professor Francisco José Maria Barletti Pascuale, an historian who also researches the social and economic life of the jungle tribes, was living in Iquitos when he was arrested on August 17, 1993, while on his way to the Plaza 28 de julio to meet with Professor Cayo Mori.  The latter had been detained some days earlier because of alleged ties with the MRTA.  According to information received at the Commission's Secretariat, Professor Mori had been pressured to implicate Professor Barletti in an alleged collaboration with the MRTA, based on a telephone call that Mori made to him from the place where he was being held, to ask whether they might meet as he needed Professor Barletti's help.  The latter was eventually released several days later, after being held in custody unjustly.

            José Gustavo Rebolledo, confined in Piura prison since May of 1993, is serving 30 years for terrorism, even though the "repentant" and the judge that was in charge of Rebolledo's case acknowledged that a mistake was made.  The "repentant" admitted to making a mistake by having confused Mr. Rebolledo (age 38) "with another subject by the name of Juan Manuel Hernández Chiroque (alias `Lalo' or `Lolo') who was arrested soon thereafter and confessed to being a member of the group called Socorro Popular de Sendero Luminoso."  In Document 0650-93, the provisional criminal judge acknowledged "the presence of an error in the police investigation."

            The examples mentioned here, like so many others that the Commission does not believe need be mentioned, illustrate that in practice, innocent people are being arrested and held in custody for long periods because of the Repentance Law.  Some of these innocent people are even being convicted.

               b.         Sweep operations

            High-ranking government officials with whom the Commission spoke described intelligence work as an integral part of the anti-terrorist campaign and of the Government's plan to end human rights abuses and the slaughter of innocents.  The strategy also involves something known as rondas (round-ups) and sweep operations.  A typical sweep conducted by the Armed Forces is as follows:  troops surround a neighborhood or shanty town, generally after midnight; they then conduct a house-to-house search looking for terrorists.  At the end of the sweep, food is distributed and primary medical care provided.  In other words, police operations are combined with civic operations in the form of primary care to Lima's neighborhoods and shanty towns and in those areas that the Armed Forces classifies as "red zones."

            This gave the State some presence, albeit short-lived, in the outlying shanty towns.

            In recent months, however, the Government has tried to make it a more lasting presence, through projects that the Compensation and Development Fund (Fondo de Compensación y Desarrollo - FONCODES) has been financing since late 1992.  But during its on-site visit, the Commission was told that when searching people during these sweeps, the Armed Forces use violence ranging anywhere from verbal aggression to unwarranted physical mistreatment.

            The Commission was also told that the Government ignores leaders of what few social organizations still exist in these shanty towns.  It also disregards local government, political parties and even members of religious organizations, particularly if they are suspected of opposing government policy.

            Representatives of social organizations who met with the Commission expressed concern over what some perceive to be an attempt to militarize the anti-terrorist campaign in the city.  As an example, they pointed out that the urban patrol in Huaycán, one of the shanty towns just outside Lima, has been militarized to the point that its members now wear uniforms.  In mid May of 1993, a former chairman of that patrol, Pascuala Rosado, had to flee to Chile after receiving repeated death threats from the Sendero Luminoso sent through El Diario (the Sendero's mouthpiece) because she had cooperated with the Armed Forces in creating the patrol.  Despite her militant anti-Sendero stance, Mrs. Pascual Rosado was left to fend for herself when the Army took away her protection because she refused to be a lackey of the Government and the Armed Forces.

               5. Other issues concerning the anti-terrorist laws

            Another negative aspect of the anti-terrorist laws is that they can be invoked to arrest anyone who criticizes the political system, the Government, the security forces and other authorities.  During the Commission's on-site visit, associations of journalists, physicians, human rights advocates, attorneys, political activists and others told the Commission that they were victims of abuse.

            In 1992, the Government began to hold press conferences, putting so-called terrorists on public display, wearing prison stripes, all amid a barrage of publicity.  In the Commission's view, this is a violation of an individual's personal dignity.  Often, as happened in the case of the students from the Law School of the University of San Marcos, these people are later released because the charges against them are false.

               a.               Freedom of expression

            In that section of the Commission's Annual Report for 1992-1993 that was devoted to the situation of human rights in Peru, the Commission said that it was deeply concerned that the anti-terrorist laws might be enforced against the press.

            During the Commission's visit, the National Association of Journalists of Peru and the National Federation of Media Workers reported numerous human rights violations committed by agents of the Peruvian State against journalists.  Apart from the complaint itself, in their statement the petitioners alluded to the general situation, to the risks posed by the anti-terrorist laws.  As examples they pointed to the arrests of José Ramírez García (Cuzco), Danilo Quijano Silva (Lima) and Magno Sosa Rojas (Ayacucho), Gisel Gutarra Sedano (Lima), human rights activists, intellectuals and journalists.  Ramírez, released when the charges against him were proven false, had by that time spent four months in prison.  Danilo Quijano and Magno Sosa Rojas were also released, largely thanks to international pressure.  Unjustly imprisoned on January 29, 1993, journalist Gisela Gutarro Sedano was finally released on June 19, 1993, when a `faceless' judge with the Lima Superior Court acquitted her.

            Ideéle, a publication put out by the Legal Defense Institute (Instituto de Defensa Legal) and that won the 1992 International Human Rights Prize awarded by Canada's International Center for Human Rights and Democratic Development (created by the Canadian Parliament), was convicted of "contempt of the President of the Republic". In August 1993 the IDL received the American Bar Association's International Human Rights Award, in recognition of its extraordinary contributions to the human rights cause and to the rule of law and of its efforts to make justice available to all.

            The Commission is disturbed by the case of Cecilia Valenzuela, who was originally cleared in a defamation of character suit filed against her by General Clemente Noel.  The suit was a result of a televised special she had done in which an Ayacucho policeman told of the human rights violations committed in that emergency zone when General Noel was Chief of that Political-Military Command.  The judge of the Third Criminal Court of the Lima Court District had cleared her of any wrongdoing, ruling that what she had done was legitimate journalism and hence was in no way contrary to the law, but the Higher Criminal Court however, overturned the lower court's decision, stating that the judge "had improperly weighed the evidence" and ordered that another judge hand down a new ruling which, as might have been expected, went against her.  The Higher Criminal Court then upheld the conviction.  Mrs. Cecilia Valenzuela filed an appeal to have the new ruling vacated and asked to present oral arguments before the Criminal Chamber of the Supreme Court.  Though several months have passed, the file is still in the hands of the Office of the Prosecutor for the Criminal Chamber of the Supreme Court.[13]

            Peruvian journalists have repeatedly said that freedom of the press has been in constant jeopardy since April 5, 1992, because there are no basic mechanisms to provide the legal guarantee that journalists need to practice their profession freely, and because the Government uses subtle tactics to curb freedom of the press.  Among the tactics most often cited are the economic pressure that some firms experience and the fact that many journalists feel insecure about practicing their profession because they have been intimidated and threatened.[14]

            Apart from the cases mentioned above, the Commission is also disturbed by the trial of the directors of CARETAS and Sí, by the assault and arrest of Francisco Reyes Foyano, a journalist with LA REPUBLICA in the province of Yurimaguas, and the suppression of the peaceful demonstration headed by the Peruvian Journalists Association because of the inclusion of the remedy known as habeas data in the new constitution.

               b. Anti-terrorist laws and regulation of the medical profession in Peruvian law

            The medical profession in Peru is regulated by the following:

            - The Medical Labor Law (Legislative Decree No. 559)

            - The Code of Ethics and Deontology of the Peruvian Medical Association

            - The Statutes of the Medical Association

            - The Regulations of the Medical Association.

            The Code of Ethics and Deontology "... is a set of moral principles to ensure that all members of the medical profession  practice their profession honestly and conduct themselves honorably..."

            The "Code of Ethics and Deontology is an organized body of the enduring rules that govern the practice of medicine according to its inherent principles."

            In this Code, medicine is defined as "a service profession; anyone entering the profession is obligated to conduct himself according to its ideals (...).  Respect for life and human dignity are the essence of those ideals and must be honored in our daily practice.  They are the real contribution that our art and science make to culture and civilization."

            As for the relationship between the physician and the patient, the Code states that:  "As the human being's legitimate guardian against pain, suffering and death, the physician must not make distinctions among the patients he treats, whom he must always care for with respect, love, discretion and without discrimination."

            The Code defines the fundamental objective of the medical profession as "assisting and protecting the human being against anything that is or could be detrimental to his health and endanger his life."

            The following are the guidelines that every physician must consider when treating a patient:

            The physician is not required to provide professional services if doing so would be contrary to morality and the law or could be detrimental to the patient's physical and mental health.

            In emergency cases, when the physician is required to treat a patient whose medical problem is the consequence of or directly or indirectly associated with a criminal act, the health professional's obligations presuppose the physician's obligation to report this to the proper authorities, stating that he or she has delivered this medical treatment because it was his or her professional duty and shall be exempt from any form of harassment or harm that the police investigation implies.

            Medical treatment is protected under Article 5 of the Medical Labor Law, as follows:

            Medical treatment shall be governed strictly according to the Code of Ethics and Deontology of the Peruvian Medical Association and international provisions ratified by the Peruvian Government.  A surgeon cannot be deprived of his freedom for having exercised his profession, whatever his circumstance, except by a court order or if caught in the commission of a crime.

               (i) International protection for the practice of medicine

            - Principles of medical ethics that apply to health personnel, especially physicians, for protecting prisoners and detainees from torture and other cruel, inhuman or degrading treatment or punishment (approved by the United Nations General Assembly in resolution 37-194, December 18, 1982).

            - Article 3 common to all the Geneva Conventions and their Protocols.

               (ii) The status of certain physicians who have been deprived of their freedom with enforcement of the anti-terrorist laws.

            During the on-site visit, the Peruvian Medical Federation told the Commission that with the anti-terrorist repression, DINCOTE has detained several members of the medical profession, who have been unjustly accused of unlawful association or unlawful collaboration with terrorism.

             Most of the arrests were made either in Lima or areas in which a state of emergency has been declared.

            According to information the Commission has received, when arresting these physicians, DINCOTE has made no distinction between situations in which a physician was legitimately practicing his profession and those cases in which the physician may have been a member or collaborator of the Sendero Luminoso or MRTA.

            When making these arrests, the police do not take into account that under Peruvian criminal law, there is no criminal responsibility when physicians are forced by these terrorist groups to treat their members lest they or their families be killed.

            The degree of criminal participation is not properly established to determine  the physician with ties to a terrorist group and the physician with no ties - for example, one who may have treated a wounded man not knowing that he was a member of a subversive organization, or one who provided treatment because of threats or coercion - were all charged with the same degree of involvement.  The Anti-Terrorist Police have prepared reports (Atestados) that have been copied verbatim by the Public Prosecutor's Office and the Judiciary.  With this, distinguished medical professionals who were practicing their profession legally or who were forced to provide treatment or be killed, have been arrested and arbitrarily deprived of their liberty, often for more than 10 months, not to speak of the irreparable moral damages they have suffered.  In a number of cases, physicians are still in custody awaiting trial.

            1. Dr. Ricardo Bautista Palomino (age 54)

            - Departmental General Secretary of the Popular Action Party, headquartered in Chachapoyas, department of Amazonas, for two terms:  1979 to 1982 and from September 1990 to the present.

            - Chairman of the Amazonas Development Corporation (Corporación de Desarrollo de Amazonas - CORDE) from August 1980 to March 1983.

            - Director of the Chachapoyas Hospital in 1984.

            - Chairman of the Chachapoyas Medical Corps at the time of his arrest.

            On May 22, 1992, an MRTA column attacked Luya and Lamud, which are a distance of an hour and a half by car from Chachapoyas.

            Among those wounded in the clash was Edison Mori, a member of the MRTA.  His brother Joseph Mori and other subversives who took him to Chachapoyas, where they arrived at around 9:00 a.m.

            One of the subversives went to the office of Rómulo Mori, an employee of SENAPA (Empresa de Agua Potable) and the Mori brothers' uncle.  He was told that one of his nephews was wounded and ordered to get a doctor.

            Romulo Mori said that he had not seen his nephew since 1991 and that at first he refused to help him.  When the subversive threatened to kill him, he decided to call Dr. Ricardo Bautista Palomino, whom he asked to treat his wounded nephew.

            Dr. Bautista went to the appointment at around midday.  After examining the patient, he realized what the situation was and refused to treat him.

            The subversives held him at gunpoint and ordered him to take the wounded man to his private clinic.

            Faced with the threat of being killed if he refused to treat the wounded man, Dr. Bautista took the man to his clinic.  Once there he decided to delay the operation because there was no electric power and went home. The subversives allowed him to go home, but warned him that they would be watching his every move and that if he reported them, his life and the lives of those in his family would be in danger.

            The surgery was conducted between 4:30 and 7:00 p.m.  The wounded man remained at the clinic while Dr. Bautista went home, where he was arrested by the authorities at approximately 9:00 p.m.  Romulo Mori and the wounded subversive were also arrested.

            Dr. Bautista told police that he had not reported the facts because of the threats made against him and his family.

            It should be noted that this was not the first time this physician had been threatened.  On several occasions, members of the same terrorist group had asked him for "spoils of war", indicating the degree of involuntary contact that the civilian population had with members of these groups because of the internal violence.

            As soon as the Police sent the report against Dr. Bautista to the Provincial Prosecutor, the latter filed charges against him, initially for the crime of obstructing justice.  This led to the preliminary investigation and the summons was issued.

            The Superior Prosecutor, however, ordered the Provincial Prosecutor to add other charges, "dictated by law".  The Examining Judge had the indictment changed to add another charge against Dr. Bautista: violating domestic tranquility-terrorism as voluntary terrorist collaboration.

            When the examining phase ended, both the Provincial Prosecutor and the Examining Judge declared that Dr. Bautista was criminally liable.

            The Examining Judge argued that both Romulo Mori and Dr. Bautista bore the same degree of criminal responsibility:  "Their participation was not confined to mere knowledge of the crime; they actually helped save the life of the subversive.  It did not matter to either of them how and under what circumstances the man was wounded..." (sic)

            The `faceless' Superior Court also found that Dr. Bautista was guilty of a criminal act and sentenced him to 20 years in prison.

            Finally, after Dr. Bautista had spent over eleven months in the Picsi Prison in Chiclayo, the faceless Tribunal of that court district acquitted him.

            This case demonstrates how the Police, the Public Prosecutor's Office and the Judiciary -at least in the examining phase- all failed to draw any distinction between a purely medical act, where the medical professional was threatened with his own death and the death of his loved ones should he refuse treatment, from a criminal act wherein the guilty party participates in terrorist acts.

               2.               Dr. Nixon Heredia Carreasa (age 36)

            - Provincial Mayor of Utcubamba, Department of Amazonas; the APRA candidate, he was elected to two consecutive terms as that province's mayor.

            - Director of the Bagua Territorial Health Unit

            - Director of the Support-IPSS Hospital of Bagua Grande in Amazonas.

            - Ran in the last elections as a candidate for the Bagua Grande District Mayor's Office.

            A subversive by the name of Segundo López Saboya, alias `Wenceslao', was struck by a bullet during a clash between the Peruvian Army and the MRTA in May 1992, in Cerro Azul in Amazonas.  Two other members of his organization went to his aid immediately and took him to the village of El Ron, where he was treated on three occasions - according to what he told Police - by Dr. Nixon Heredia.

            In that same statement to the police, López Saboya said that although Dr. Heredia had his face covered with a ski mask, López Saboya identified him because as his comrades were leaving, "they called him by name, i.e., Dr. Nixon." He added that he knew that Dr. Heredia had treated other MRTA members at his office and that he collaborated with the subversive group by giving it medicines.

            On January 17, 1993, Dr. Heredia was arrested by Army soldiers as he was treating patients at his private office.  The Army turned him over to the Police.  According to the Police, Dr. Heredia's arrest was solely based on the confession of the subversive López Saboya.

            In this case both the Provincial Prosecutor and the Examining Judge felt that the evidence of Dr. Heredia's collaboration with the subversive group was insufficient.

            Dr. Heredia denied that he had consciously and voluntarily collaborated with the MRTA or with any other subversive organization.  He said that he was innocent of the charges against him and that he had been in Lima between April 7 and May 19, 1992.

            The Superior Prosecutor, however, did see criminal conduct on Dr. Heredia's part and decided to indict him, seeking a sentence of 20 years in prison.  After being held in the Picsi prison awaiting trial by a special tribunal of faceless judges, Dr. Heredia was finally released.

               3. Dr. Luis Polo Rivera

            - Surgeon

            - Specialist in trauma, Hospital Dos de Mayo, Lima

            Dr. Polo Rivera was arrested because of a confession made by terrorist Blas Ccori Bustamante, to the effect that the doctor had operated on him --a leg amputation-- when Ccori Bustamante was wounded after a terrorist attack.

            Although DINCOTE investigated Dr. Polo Rivera, he was tried by a special military tribunal on charges of treason.

            Apparently, the only evidence of his guilt was the confession made by Ccori Bustamante, who, in the pretrial phase, stated that he had said Dr. Polo operated on him because he was trying to profit by the Repentance Law.  He retracted his statement about Dr. Polo Rivera having operated on him.  Ccori never profited by the Repentance law and was also tried and convicted; he, like Dr. Polo Rivera, is in the Yanamayo prison in Puno.

            Dr. Polo Rivera was sentenced to life imprisonment by a Special Military Tribunal (Superior Court Martial).  His attorney, however, filed a petition to have the ruling overturned by a higher court and Dr. Rivera is hoping his conviction will be overturned by the Supreme Council of Military Justice.

               4. Dr. Alberto Figueroa Gutarra

            - Surgeon specializing in hand surgery (trauma specialist)

            - Dr. Figueroa Gutarra did graduate work in Belgium and at the time of his arrest was working in the Tessa Clinic.  He had a private practice and worked for a State hospital as well.

            Dr. Figueroa was arrested by DINCOTE in February 1993.  The Police said that Dr. Figueroa was part of a network providing medical treatment to the Sendero Luminoso.  Among the evidence against him was a list of physicians (all named by pseudonyms, except for Dr. Figueroa, who appears with his own name).  Most of those on the list are listed as part of an organized medical support team for the Sendero Luminoso (but Dr. Figueroa's name is listed as part of an "unorganized" medical support team).  The Police obtained this document when it captured a group of Senderistas.

            When Dr. Figueroa was arrested, he argued that he had been threatened that if he refused to cooperate with the Sendero Luminoso, he and his family (his wife and two daughters, who are now in Europe) would be killed.  He therefore confessed to Police that between 1985 and 1987,  he had secretly performed three operations on members of the Sendero Luminoso.  To make contact with Dr. Figueroa, the Senderistas  kidnapped him and took him blindfolded to the places where these operations were performed.

            When the police investigation was completed, Dr. Figueroa was the only one of those arrested (at least five more physicians, nurses and operating room aides had been arrested) who was not displayed publicly in prison garb.  The Prosecutor of the 14th Special Provincial Prosecutor's Office for Terrorism in the Lima Court District charged Dr. Figueroa with the crime of terrorism, in the form of unlawful collaboration with terrorists.  At the end of the inquiry, the Prosecutor who charged Dr. Figueroa concluded that he had collaborated under duress and was therefore not criminally liable.

            III. THE JUDICIARY AND THE ENFORCEMENT OF THE ANTI-TERRORIST LAWS

            One issue closely related to the anti-terrorist laws is that of the reorganization of the judiciary.  In the Commission's opinion, the lack of an independent judiciary is one of the main reasons for the decline in the enjoyment and exercise of human rights in Peru.  In past reports, the Commission has underscored the fact that judges, prosecutors and other officials of the judiciary were dismissed and new officials appointed.  In the Commission's opinion, this has exacerbated the dangers created by the anti-terrorist laws.  Because the definitions of the offenses those laws create are so vaguely worded and open to interpretation, judges can manipulate them with a free hand, which is always dangerous in criminal law.

            The Commission has received information indicating that many officials in the judicial branch of government abuse their authority.

            Officials with the executive branch of government sometimes interfere in cases by making public statements about the guilt or innocence of individuals arrested on charges of terrorism, as happened in the case of journalist Danilo Quijano.

              Up until April 5, 1992, there were special, public courts and tribunals to investigate and try the crimes of terrorism. Those courts and tribunals were part of the regular structure of the judiciary.  In May 1992, Decree Law 25474 changed penalties and the structure of the court system. Punishments of at least 20 to 30 years' imprisonment were established.  The  sentence of life imprisonment was added to the Penal Code for those convicted of leading or being members of the "death squads."  The proceedings are in two stages: the public inquiry conduced by the criminal judge and the trial conducted by the so-called faceless judges.   The identity of the members of the Correctional Court and of the Superior Prosecutor is kept secret.  Under Decree Law 25659, being a leader of a terrorist organization or a member of death squads or participating in planting car bombs and similar acts would be treason and therefore falls under military jurisdiction. All judges at every stage of the process - the examining judge, the judges on the Court Martial and those on the Supreme Military Council - are faceless.

            IV. THE CRIME OF TREASON AND THE MILITARY COURTS

            The Treason Law, Decree Law 25659, provides that individuals accused of treason are to be tried by military judges.  By placing civilians under the jurisdiction of the military courts, this law is patently contrary to the rights and guarantees protected under articles 8 and 25 of the American Convention, specifically the right to a hearing by a competent, independent and impartial tribunal.  The military court is a special and purely functional court designed to maintain discipline in the military and police and ought therefore to apply exclusively to those forces.

            The Commission believes that civilians tried in military courts are being denied their right to be heard by an independent and impartial judge, a right required under Article 8.1 of the Convention.  It is the job of the Armed Forces to combat the terrorists by engaging the irregular armed groups militarily, as is their primary role in the campaign against subversion.  The armed forces, however, overstep their natural role when they prosecute civilians accused of belonging to subversive groups, as this function is the proper purview of the judiciary.  Furthermore, there are some serious and legitimate doubts about the impartiality of a military court in such cases, as the court would be both judge and prosecutor.  As for the claim that the summary proceedings conducted by military tribunals supposedly guarantee a swift, more reliable and effective trial, the Commission believes that the solution is not to have military courts try civilians, but rather, to increase the efficiency, qualifications, probity and independence of civilian judges.  Being tried by a military court can sometimes mean spending months in prison awaiting trial.  In other cases, the trials are conducted within so short a space of time (some in just one day) that the defense attorney becomes a mere spectator to the proceedings.  The procedural irregularities reported to the Commission in connection with trials by military courts are many:  proceedings instituted on the basis of evidence obtained under unlawful duress, obstruction of the attorneys' access to their clients on trial and to the cases files, obviously late notifications, etc.

            The procedural deadlines are extremely short in the military courts.  Because of the tight time frame, there may be virtually no investigation, meaning that convictions will be based on the findings of police reports.

            In cases where the charge is treason, military judges use the same procedures as civilian judges use.  However, the pretrial and trial phases may be as much as two thirds shorter in military courts and are heard by the same court, which means that these two phases of the process can be completed in as little as ten days, and the appeal to the Superior Military Court in five.

            Decree Law 25708 further abbreviated the time frame for proceedings in cases involving treason, since the military courts must reach a verdict within ten consecutive days.  An appeal to the Supreme Court of Military Justice to have a verdict overturned is allowed only when the individual has been sentenced to 30 years of more; convictions cannot be overturned by the Supreme Court.

            As with trials in the regular courts, the identity of the judges, prosecutors and other court officials who take part in the proceedings is kept secret.

            In the Commission's opinion, the Peruvian Government, out of a legitimate desire to punish terrorist activities severely, has altered the judicial structure of the State and in so doing has created a system that can not be justified even in emergency situations.  It does not protect the innocent from possible abuses by agents of the State, with the result that many people have been imprisoned unjustly for long periods of time.

            V.               THE PRISON SITUATION

            During the on-site visit, the Commission visited the Castro Castro, Santa Monica, Lurigancho and Real Felipe prisons and Maranga Juvenile Detention Center in Lima.  One delegation went to Puno to examine conditions at the Yanamayo and San Sebastián prisons.

            High-ranking Peruvian government officials told the Commission that  prior to June 5, 1992, prisons were training camps for subversives and `sieves' from which terrorists could easily escape.

            In press communique 12/93, the Commission, recalling its observations from at some of the prisons visited and after studying information obtained from a variety of sources, declared the Government of Peru's prison policy to be a positive one, which it ought to pursue in order to overcome problems found at some of the prison facilities.

            The Commission would like to point out that the reorganization of the prison system is one of the most important Government measures to improve the situation of individuals being held for terrorist activities.  As journalist Cecilia Valenzuela observes:  "at present the prisons are in order and each subversive has his assigned place and is strictly guarded." 

            Notwithstanding the press communique mentioned above, the Commission has also established that the prisons are housing not just the guilty but dozens of innocent people as well.

            During the on-site visit, the Commission spoke with President Fujimori and expressed concern over what it regards as the different (and discriminatory) treatment that prisoners in some Peruvian prison facilities receive vis-a-vis prisoners in other facilities. For example, in the Chorrillos Maximum Security Prison for Women, newspapers, magazines, radios, etc., were not allowed.  On the other hand, at the Lurigancho prison for men inmates have access to newspapers, magazines and other publications and are allowed to listen to the radio.

            The Commission told the President that it was disturbed by the terrible hardships that the vast majority of the prisoners in Puno's Yanamayo Prison have to endure, even though many have never been convicted.

            In its conversation with the Chief Executive and the President of the Democratic Constitutional Congress concerning the observance of the American Convention and the obligations that the State undertook, and on the possibility of reviewing the verdicts and sentences in trials that were patently unjust, the Commission told President Fujimori that a presidential pardon is one way to correct the mistakes and miscarriages of justice committed.

            Article 20 of Decree-Law 25745 provides that in the first year of imprisonment the convict is to be kept in total isolation; the first year is followed by forced labor.  It also creates the maximum security prisons.

            The Commission is of the view that the practice of keeping prisoners in continual isolation for the first year of imprisonment and the restrictions on visiting privileges imposed by the anti-terrorist laws (particularly Supreme Resolution 114-92-JUS) constitute cruel and degrading punishment in violation of Article 5 paragraphs 1 and 2 of the American Convention.  Enforcement of Decree Law 25475 and of Supreme Resolution 114-92-JUS violates Article 5 paragraph 4 of the Convention in that inmates accused but not yet convicted of terrorism are given the same treatment given those already convicted of treason or terrorism.

            Authorities of the National Penitentiary Institute (Instituto Nacional Penitenciario - INPE) told the Commission that in May 1993, the three rations that each received each day cost a total of one sol and ten cents.  While the Commission is fully aware that the Peruvian State is experiencing financial difficulties, it nevertheless believes that the per capita amount expended for the rations of inmates in prison facilities is insufficient.  It urges the Peruvian Government to allocate more funds so as to improve the inmates' diet.

            VI. THE RIGHT TO LIFE AND THE DEATH PENALTY

               1.               The right to life

            The Commission has received reports to the effect that during the first eight months of 1993 and by comparison with the same periods in the two previous years, there has been a decline in complaints on violations of the right to life -particularly forced disappearances- and of the right to humane treatment.  A recent report by the Pro Human Rights Association (Asociación Pro Derechos Humanos  - APRODEH) states that from July 1992 to July 1993 there were 53 cases reported of persons detained and disappeared that were alleged to be the work of agents of the Peruvian State.  While this is significantly less than the 222 cases denounced between July 1991 and July 1992, the Commission considers that the present figure of 53 disappeared is still high.

            2. The death penalty

            The Democratic Constitutional Congress of Peru decided to add to the new Constitution in force since December 31, 1993, a provision that amends the 1979 Constitution to add crimes of terrorism to those that carry the death penalty:

            Article 140 of the new Constitution provides that:

            The death penalty may only be applied for the crime of treason in case of foreign war and for the crime of terrorism, in accordance with the laws and treaties to which Peru is party and by which it is bound.

            The Commission is deeply disturbed by this addition to the Peruvian Constitution.  It believes the new provision is directly contrary to Article 4 of the American Convention on Human Rights, which states, inter alia, the following:

            - The death penalty shall not be re-established in states that have abolished it.

            - In no case shall capital punishment be inflicted for political offenses or related common crimes.

            - Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

            The final clause of the new article states that the death penalty shall be applied in accordance with "treaties to which Peru is party and by which it is bound."  For the Commission, that clause cannot possibly be reconciled with the terms of Article 4 of the American Convention on Human Rights.

            Under Article 1 of the American Convention on Human Rights, Peru, as a State Party, is obliged to respect the rights and freedoms recognized therein and "to ensure to all persons subject to [its] jurisdiction the free and full exercise of those rights and freedoms."   Under Article 27 of the Convention, the right to life cannot be suspended under any circumstances.

            Under Article 29, no provision of the American Convention on Human Rights can be interpreted as:

            a.       permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein.

            In Advisory Opinion OC-4/84, of January 19, 1984, the Inter-American Court of Human Rights stated that the interpretation must be done in such a way that it does not in any way weaken the system, and must always take into account that the object and purpose of the Convention is to protect the person's fundamental rights (paragraph 24).

            In Advisory Opinion OC-3/83, of September 3, 1983, the Inter-American Court of Human Rights found that the Convention does forbid extending the death penalty "to crimes for which it was not provided previously under domestic law."

            Obviously, now that terrorism is being criminalized, the purpose of this amendment is to extend the death penalty to a crime for which it was not provided in the 1979 Constitution.  This is a violation of Article 4 paragraphs 2 and 3 of the American Convention.

            Article 140 of Peru's new Constitution is also in violation of Article 2 of the American Convention because it does not comply with the obligation to adopt the measures necessary to give effect to the rights and guarantees recognized in the Convention.  In Advisory Opinion OC-13/93, of July 16, 1993, the Inter-American Court of Human Rights found that "There are many ways a State can violate an international treaty.  In the specific case of the Convention, for example, the State can violate it by failing to enact the laws that it is obliged to enact under Article 2.  Of course it can also violate the Convention by enacting provisions that are contrary to what its obligations under the Convention require of it." (Paragraph 26)  

            The situation takes on even more serious implications when one considers that in many cases involving crimes of terrorism and treason, the court proceedings are conducted in such haste that there is room for error that could lead to a gross miscarriage of justice in which an innocent person is sentenced to death.  

            For the Inter-American Commission on Human Rights, there is no premium that can be placed upon human life.  The death penalty is a grievous affront to human dignity and its application constitutes cruel, inhuman and degrading treatment of the individual sentenced to death.  

            It is understandable that in an emotional reaction to the violence and terror now gripping the nation, the majority of the members of the Democratic Constitutional Congress should find it reasonable to enforce the death penalty in cases involving terrorism. However, the Inter-American Commission would submit that its effect as a deterrent to terrorism is highly debatable.  

            When the Democratic Constitutional Congress passed and the President promulgated the new Constitution that extended the death penalty to cases of terrorism, the Inter-American Commission on Human Rights requested an advisory opinion of the Inter-American Court of Human Rights.

            VII. THE RIGHT TO HUMANE TREATMENT AND THE RIGHT TO PERSONAL LIBERTY

            As stated in Section II of this report, the liberal authorities that the anti-terrorist laws give to the Police, to the detriment of the control exercised by the judiciary, coupled with the restrictions on the right to defend oneself and the absence of such relief measures as habeas corpus and amparo, not only violate fundamental rights recognized in the American Convention on Human Rights, but have also been the cause of numerous arbitrary arrests of individuals falsely accused of being terrorists.

            According to the Commission's information, as of the end of 1993, over 5,000 people were being held in custody for crimes of terrorism.  More than 2,400 of these have been arrested since April 1992. Most are still awaiting trial, although many have already been convicted in summary proceedings.

            As for the right to personal liberty, the Commission is of the view that the case of the officers still being held in Real Felipe prison should be reviewed and, if necessary, a new trial ordered.  The summary proceeding conducted against them for having mounted a military movement in November 1992 did not respect the fundamental guarantees of due process; moreover, according to information the Commission has obtained, some of the convictions were based on confessions made under torture.  Where this specific case is concerned, the Commission is particularly troubled by the uneven treatment accorded to the officers allegedly involved and convicted:  some have been pardoned, others released, while General Jaime Salinas Sedo and eight other officers remain in prison.

            VII. IMPUNITY

            The disappearance of nine students and one professor from the Universidad La Cantuta on July 18, 1992 (Case 11045) and the proof that the remains found at Cieneguilla in early July 1993 are those of the individuals who disappeared from that university, have  again raised the issue of impunity vis-a-vis human rights violations committed by the forces of law and order and armed forces in Peru.  Tanks and armed military personnel took to the streets of Lima, frightening the citizenry, when a committee of the Democratic Constitutional Congress tried to further the investigation into the military allegedly involved in the kidnapping and disappearance of Professor Hugo Muñóz and the nine students.[15]  The Commander General of the Army stated that he "was not going tolerate" that kind of insolence from Congressmen "working in collusion with the enemy within."

            The question of which jurisdiction is competent to try and punish those responsible has often come up in the cases involving human rights violations allegedly committed by members of the National Police and the Armed Forces.  The military courts have always claimed the authority to try military and police personnel arguing that the actions in question were committed in the performance of their duties.  As a result, it is rare for the identity of those responsible to be established and rarer still for military and police personnel whom the military courts have identified as the guilty parties to actually be punished.

            An example is the case of Captain Telmo Hurtado, chief of the military patrol responsible for slaughtering 69 peasant farmers in Accomarca, Ayacucho, on August 14, 1985, who was sentenced by the Supreme Council of Military Justice to six years in prison for the crime of "abuse of authority".  There are two objectionable points here:  first, that he was charged with and convicted of "abuse of authority" rather than homicide, based on the argument that the crime of "homicide" per se was not contemplated in the Code of Military Justice; second, that the sentence Captain Hurtado received was in no way proportional to the crime.

            Another example is that of Peruvian Army Lieutenant Javier Bendezú Vargas, who stood trial for killing 15 peasants (among them 6 children) in Santa Barbara, Huancavelica, on June 4, 1991.  The Military Court acknowledged the seriousness of the crime and determined that the sentence should be calculated to set "an example."  And so, the Military Tribunal sentenced Lieutenant Bendezú Vargas to ten years in prison.

            Nevertheless, the majority of human rights violations attributed to police and military personnel go unpunished.  For example, the case of the 28 peasants killed in the community of Cayara on May 14, 1988, was dismissed on the grounds that they had died in an engagement.  Nine eye-witnesses to the massacre were subsequently killed and the prosecutor in charge of the case, Carlos Escobar, was repeatedly threatened and eventually had to leave Peru.

            The Commission is greatly disturbed by the fact that a provision has been included in Article 173 of the new Constitution approved by the Democratic Constitutional Congress to the effect that "When members of the Armed Forces and National Police commit crimes while on duty they shall be tried by their own courts and according to the Military Code of Justice.  The provisions of the latter shall not apply to civilians unless the crimes with which they are charged are crimes of treason or terrorism, as defined by the law ..."  The fact that a provision of this nature has made its way into the Constitution is, in the Commission's opinion, indicative of an interest in continuing to cover for members of the armed forces and police who commit abuses and human rights violations and to allow them to go unpunished.

               RECOMMENDATIONS

            Apart from the recommendations made in the body of this report, the Commission recommends to the Government of Peru:

            That it adapt the anti-terrorist legislation to conform to the principles and norms of the American Convention on Human Rights.

            That, more specifically, crimes of treason and of terrorism and other cases of human rights violations be tried by judges in the judicial branch of government - even in those cases where the alleged authors are members of the armed forces.

            That it restores to the courts the authority to order prisoners held incommunicado and their transfer, and that it guarantee all prisoners their right to be assisted by an attorney from the time of their arrest.

            That defendants be permitted to question witnesses in order to refute and take issue with the statements they make.

            That laws be amended so as to permit judges to act with greater independence, without having to abide strictly by police recommendations on incriminating evidence, and that the utter lack of court control over the police during the pretrial phase be thereby corrected.

            That the law on loss of citizenship be repealed.

            That the ban prohibiting attorneys from defending more than one case at a time be lifted and that they be given sufficient time to apprise themselves of the charges against their clients and to prepare and present arguments in their clients' defense.

            That given the number of people held in custody for long periods without trial, conditional release be granted in at least some cases where the crime alleged is terrorism.

            That the crime of defending terrorism [apologia] should be amended and more clearly defined.

            As for the general prison conditions and treatment of those being held, that cellular incarceration be eliminated and a less rigorous visiting system adopted.