CHAPTER II

ADMINISTRATION OF JUSTICE AND RULE OF LAW

            A.            INTRODUCTION  

          1.          The observance of rights and freedoms in a democracy requires a legal and institutional order in which the laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law.  

          2.          The Judiciary has been established to ensure compliance with the laws, and is no doubt the fundamental organ for protecting human rights.  In the inter-American human rights system, designed for a hemisphere of democratic countries, the adequate operation of the judiciary is essential for preventing the abuse of power by another State organ, and, therefore, for protecting human rights.  In effect, the fundamental corollary of human rights is the possibility of going before the judicial organs to see to it that rights are upheld.  

          3.          In order for the judicial branch to be able to serve effectively as an organ for the oversight, guarantee, and protection of human rights, not only must it exist formally, but in addition, it must be independent and impartial.  In the inter-American human rights system, this stems not only from the very concept that States must be organized pursuant to the principles of representative democracy as a requirement for belonging to the OAS.[1] In addition, the American Convention establishes, at Article 8:  

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligation of a civil, labor, fiscal, or any other nature.  

          4.          In order to define the meaning and scope of the concepts of independence and impartiality, a series of "basic principles" have been established in the framework of the United Nations (UN), among which the Commission makes special mention of the following:  

1. The judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats, or interferences, direct or indirect, from any quarter or for any reason.

2. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law.  Any method of judicial selection shall safeguard against judicial appointments for improper motives.  In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

3. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

4. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.[2]  

          5.          The existence of an independent judiciary is essential for the practical observance of human rights and democracy, and constitute a right that the member States of the OAS are under an obligation to respect and ensure to all persons under their jurisdiction.  

          6.          As mentioned supra, the Peruvian Constitution notes at Article 43 that the Republic of Peru is democratic, and is organized pursuant to the principle of the separation of powers, and that one of the essential duties of the State is to "ensure the full observance of human rights."

          B.            THE CIVILIAN JURISDICTION:  JUDICIAL REFORM  

          7.          The current executive authorities of the Peruvian State, with whom the Commission met during its on-site visit, have for many years emphasized the need for in-depth reform of the judicial branch, with the stated objective of improving it substantially and overcoming long-standing shortcomings.  

          8.          Prior to the on-site visit (November 1998), during the course of this visit, and after it, the IACHR, in the performance of its functions, has closely followed judicial reform in Peru.  This monitoring has been done mainly by looking at laws promulgated related to judicial reform; reports prepared by national and international agencies and institutions, both governmental and non-governmental; news reports in the national and international press; and the interviews that the Commission had with the various Peruvian authorities, including, among them, Peruvian judges and prosecutors at all levels.  

          9.          The information collected by the Commission indicates repeatedly and convincingly that the reform process undertaken, instead of leading to the stated objective of substantially improving the judiciary, has made it possible to subordinate it to the political authorities. This warping of the reform process has severely diminished the independence, autonomy, and impartiality of the judiciary, to the detriment of the balance of powers and checks on abuses of power that should be characteristic of a democratic State.  The information provided in the Peruvian State's response to the Report merely indicates an increase in the number of cases being processed by the courts, with no reference to the autonomy and independence of the courts with respect to the political authorities.  

          10.          Distinguished professors of law and leaders of the Lima Bar Association, during the on-site visit, repeatedly set forth very severe criticism of the rule of law in Peru.  In addition, Congressman Jorge Avendaño, former professor at the Universidad Católica and former dean of the Bar Association, argues:  "There is no rule of law in the country ... because there is no separation of powers.  There is no independent justice, and the right of the people to express themselves through the referendum has been impeded.  In Peru, it is not the law that prevails, but the will of the ruler, and this is the opposite of the rule of law."[3] In addition, Avendaño notes that the Executive uses the Legislature and the Judiciary:  "The first was useful for decapitating the Constitutional Court, and for adopting unconstitutional laws that have enabled it to capture and dominate the institutions (National Elections Board, Public Ministry, National Council of the Judiciary, etc.).  The second, the judiciary, is used to persecute political enemies, such as Ivcher, Mur--because of his wife--, etc. and to rule favorably in cases with political implications, such as the amparo filed on behalf of Martha Chávez."[4] According to these statements, it has implied, in practice, that all Peruvians, and all other persons subject to the jurisdiction of the Peruvian State, lack adequate legal and institutional order for the defense and protection of their human rights.  

          11.          It should be noted that the special measures of April 5, 1992, to reorganize the State, were adopted for "the institutional reform of the country, aimed at achieving an authentic democracy, substantially increasing the standard of living of the population, creating the conditions for better realization of the human person."[5] In this historical context, the judiciary and the Public Ministry began to undergo reform.  Thirteen of the 25 members of the Supreme Court, all the members of the Constitutional Court, the members of the National Council of the Judiciary, the Public Prosecutor, and 134 judges were removed on April 9, 1992.  Their replacements were appointed by the Executive, with the legislative majority.  

          12.          In 1995 and 1998, the Congressional majority approved, and the Executive promulgated, Laws Nos. 26,546 and 26,933, which give the Executive branch functions that should properly vest in the judiciary and the National Council of the Judiciary.[6]  

          13.          These transitory provisions, which have now become permanent, eliminate the institutional autonomy of the judiciary, which is no longer entrusted with its own management, administration, or financing, attributes which are essential and indispensable for maintaining the necessary balance of power in a democratic society.  The main characteristic of the reform process is the high level of concentration of power and decision-making powers that has been granted to the Executive Commission of the Judiciary, and especially its Executive Secretary.  The Peruvian State, in its response, underscored that the Executive Commission is made up of the President of the Supreme Court, who presides over it, the President of the Supreme Criminal Chamber, the President of the Supreme Constitutional Chamber, and an Executive Secretary.  The first Executive Secretary, José Dellepiane, was widely criticized for not being an attorney (but rather a retired career military officer) and for his cozy relationship with the Executive branch.  David Pezúa, who replaced him, worked as a clerk to Francisco Acosta, President of the Constitutional Court, after the removal of three judges by the Congress, and as an adviser to Gen. Guido Guevara, President of the Supreme Council of Military Justice.  It has been considered that the Executive Commission constituted unconstitutional and intolerable interference in the judicial system by the Executive.  The Peruvian State, in its response, indicated that "the make-up of the organs of Government and administration of the Judiciary ... is fully constitutional" because the Executive Commission has been created by Law No. 26,546.  The Commission would like to note that the government cannot alter the functions that the Constitution has set forth for the various State organs by the mere adoption of supposedly "transitory" laws.

          1.            The "Provisional" judges  

          14.          As of this writing, more than 80% of the judges in Peru are "provisional" [7]and have been elected by the Congress, without public competition, through the Judicial Coordination Council and the Executive Commission of the Judiciary, and they are allowed to administer justice in positions higher in rank than those for which they have been evaluated and designated by the National Council of the Judiciary.  Since 80% of the judges in Peru are provisional, i.e., they do not enjoy the guarantee of stability and may be removed without cause, added to all the other actions limiting rights and freedoms adopted by the Executive and the legislature, the judiciary has seen its autonomy and independence severely limited.  Article 151 of the 1993 Peruvian Constitution provides that the Judicial Academy is entrusted with the education and training of judges and prosecutors at all levels, so that they may then be selected.  In this regard, the Organic Law on the Academy (Law No. 26,335) determines that one of its programs has the purpose of academic training of the magistrates of the judiciary and the Public Ministry, and that their access to posts is by an admissions examination.  Since 1992, the Judicial Academy has not graduated a single student, and the National Council of the Judiciary has not carried out its constitutional obligation to appoint permanent judges (jueces titulares).[8] For the same reason, no judge has been promoted.  Consequently, due to the lack of new permanent judges, the organs created by the Congress, made up of persons selected by the Congress, have chosen judges of lower rank for positions of higher rank.  Those judges are called "provisional" and may be removed from their posts without cause.  The Peruvian State, in its response, also emphasized the need to address the problem of backlogs in the justice system with the creation of transitory chambers and transitory courts.  It states: "To address that problem, the Executive Commission of the Judiciary was entrusted with carrying out an aggressive policy of reducing the caseload, for which transitory chambers and transitory courts were created with judges who, being permanent judges of the immediate preceding instance, meet all the requirements for occupying the next highest post, pursuant to the provisions of the Peruvian Constitution and of the Organic Law of the Judiciary."  It should be noted that the Inter-American Commission has received  repeated reports of the appointment of certain judges in higher posts due more to their political connections than their merits.  In addition, what the State says does not refute the fact that the judges have not been evaluated and designated by the National Council of the Judiciary, which is assigned that power by the Peruvian Constitution.  It is surprising that the State affirms that all provisional judges have stability in their posts, especially in view of the evidence submitted to the Commission of the frequent removal of judges whose rulings run contrary to the interests of the Government, including members of the Constitutional Court.  

          15.          The "provisional" judges are provided for in the Peruvian Constitution as an exceptional measure and only for filling vacancies, but this exception has become the rule.  This high percentage of "provisional" judges has a serious detrimental impact on citizens' right to adequate administration of justice.  It is not just that "provisional" judges are selected by an organ other than that stipulated in the Constitution, but that in addition those judges are allowed to perform functions for which they have been neither prepared or evaluated, as mandated by the Constitution.  In addition, the pertinent organ, the National Council of the Judiciary, is not in a position to evaluate the ethical conduct of a "provisional" judge throughout his or her judicial career.   The State points out in its response that the functional control of the magistrates in the Judiciary is performed by the Judicial Oversight Organ (OCMA), and by the District Judicial Oversight Offices (ODICMAS), made up of one of the 25 judicial districts in the country.  This is precisely the point.  The Peruvian Constitution assigns this power to the National Council of the Judiciary, but it is exercised by organs that have been created by the State to replace the constitutional organs. The National Council of the Judiciary cannot confirm these judges in their posts, since it is only empowered to confirm tenured judges.  Accordingly, it is a judicial system permanently in the hands of "provisional" judges who, in general, do not have the qualifications required for carrying out the tasks assigned to them.  The independence of the judicial system is also undermined by the fact that the "provisional" judges do not enjoy the right to stability in their posts when they are placed on a level approximately equal to permanent judges, which means the decision as to whether they keep their jobs is made unilaterally by the Executive.  The Peruvian State notes in its response that the situation will change with the first graduating class of the Judicial Academy in June 2000.  

          16.          The Organic Law on the Judiciary provides that the Plenary Chamber of the Supreme Court of Justice is made up of 16 members.  The Plenary Chamber elects, by majority vote, the representative of the judiciary to the National Elections Board, which is the highest level state authority on electoral matters.  Two of the 16 posts on the Plenary Chamber were vacant; consequently, two "provisional" judges had to be appointed to fill them.  The Executive Commission of the Judiciary, however, decided to create 16 new posts and selected 16 lower-level judges, appointing them as "provisional" judges of the Supreme Court.  Consequently, of the 32 judges of the Supreme Court today, 18 have been elected indirectly by the Congress, without any technical or ethical evaluation of their qualifications for those posts.  In late 1997, members considered sympathetic to the interests of the Executive were a majority of the Plenary Chamber of the Supreme Court.  

          17.          Given that the "provisional" judges of the Supreme Court of Justice were elected indirectly by the Congress, they lack the status of permanent judges, and in principle they do not possess the same rights, prerogatives, or powers as the permanent judges (who have been evaluated and appointed by the National Council of the Judiciary).  As the "provisional" judges had no right to vote to elect a representative of the Judiciary to the National Elections Board, Congress approved Law No. 26,898, and the Executive promulgated it on December 12, 1997, giving the "provisional" judges the same rights, powers, and privileges as the permanent judges.[9] The Peruvian State notes in its response that recognizing the provisional judges to have the same rights, attributes, and privileges as the permanent judges represents an application of the right to equality before the law, and the principle of non-discrimination, since the provisional judges "meet the same requirements and do the same work."  Yet on the previous page of its response, the State observes that "they are permanent judges of a lower instance, "who have been called on to fill higher-level posts.  It is clear that a permanent judge fills the requirements of his or her post, but when becoming "provisional" and transferred "transitorily" to fill a higher-level post, he or she may not meet the requirements for that post.  

          18.          According to repeated allegations received by the Commission, the reasons inspiring this law, like the earlier ones, were apparently to allow the judges of the Plenary Chamber of the Supreme Court to vote to elect, by majority vote, the representative of the judiciary to the National Elections Panel. The composition of the National Elections Panel  is important considering that it must decide, in the year 2000, on Alberto Fujimori's possible third presidential candidacy.  It is clear that persons sympathetic to the Executive will be more favorable to their candidacy.  Although the Constitutional Court is the highest-level authority regarding interpretation of the Constitution, and already interpreted Article 112 of the Constitution so as to deny the President the possibility of aspiring to a third term, public opinion has the impression that it is the JNE that should settle the matter.  The response of the Peruvian State notes that the assessment of the IACHR, that Law No. 26,808 was issued for political purposes, is completely subjective.  The Commission refers the reader to Chapter IV, on political rights, in this connection.  

          19.          On September 30, 1999, the Judicial Academy adopted Administrative Resolution No. 027-99-CRG-AMAG, which allows for promotions of provisional judges. A group of at least 58 permanent magistrates of the Court of Lima submitted a motion for reconsideration to the Executive Commission of the Judiciary calling for derogation of this resolution.  The permanent magistrates hold that the call of the Academy tends to undermine the judicial career as provided for in the Organic Law on the Judiciary, on allowing for provisional judges to be promoted, even beyond the next-higher level.  The tenured magistrates stated:  "We do not call into question the rights, powers, and prerogatives that Law No. 26,898 establishes for the tenured magistrates, for whom, moreover, we express the utmost respect, recognizing their personal and professional qualities." They added: "Yet until Article 225 of the Organic Law on the Judiciary is amended, promotion is possible to the extent that the magistrate was permanent in the previous post; accordingly, the first course of promotion aimed at specialized or mixed judges, provisional prosecutors, and senior adjuncts (adjuntos superiores) should be exclusively for magistrates of that instance who are permanent."  They added that the provisional magistrates who act as specialized judges or provincial prosecutors have not won any competition to hold those posts, and in the best of cases are permanent judges of peace, clerks, or permanent court reporters.  They underscored that in the case of the clerks or court reporters who serve as provisional specialized judges, the situation is even more serious, for according to the Organic Law, they could aspire only to being justices of the peace, while the current call of the Academy would make it possible to perpetuate in their posts many provisional magistrates who have been called into question for the anti-juridical nature of their rulings, such as public law judges Percy Escobar Lino and Víctor Raúl Martínez Candela, who in normal circumstances would be mere judicial auxiliaries.[10] The Peruvian State notes in its response that this Administrative Resolution does not alter the current regulation of the judicial career, "since the requirements for promotion are not strictly academic, and that are to be found in the Organic Law on the Judiciary and other provisions cited, should be met by those who seek promotion in the judicial career or accede to it."   The Commission notes that the policy has been formulated by 58 permanent judges who evidently were not in agreement with the position expressed by the State.  

          20.          In February 1998, the Dean of the Lima Bar Association denounced six judges of the Supreme Court of Justice, four of whom are "provisional," to the National Council of the Judiciary for improper conduct.  The National Council of the Judiciary set in motion an investigation that was later dismissed (infra).  

          21.          On March 12, 1998, the congressional majority adopted another law, Law No. 26,933, according to which the power to remove the judges of the Supreme Court who belonged to the National Council of the Judiciary was vested in the Organ for Internal Oversight of the Judiciary, which will decide, in each case, whether the case should be archived or whether the judge should be removed.[11] Only in those cases in which the Internal Oversight Organ resolves that the judge should be removed will the matter be passed on to the National Council of the Judiciary.  In addition, the law provides for the transfer of all proceedings pending against magistrates to that new organ.  Law No. 26,933 deprives citizens of the right to present allegations against the judicial authorities to the National Council of the Judiciary, as provided by the Constitution.  The Peruvian State, in its response, notes that the power to apply the sanction of removal to the members of the Supreme Court was restored to the National Council of the Judiciary by Law No. 26,973, of September 10, 1998.  

          22.          By application of this provision, the Congress and the Executive avoided removal from the Supreme Court of the four "provisional" judges who had been called into question for improper conduct, and whose votes were essential for them, and they controlled all the proceedings against judges and prosecutors from that moment on.  In addition, it has impeded investigations of judicial authorities called into question by the citizens, making it possible for them to continue administering justice.[12]  

          23.          In April and May 1998, the judicial organs appointed the new members of the National Council of the Judiciary.  In addition, in April four members of the National Council of the Judiciary resigned (infra), in solidarity with the members of the National Council of the Judiciary and because their autonomy in respect of their policies and procedures had not been recognized.[13] The new members of the Judicial Academy prolonged the program for training of judges and prosecutors, and kept them in their positions of "provisional" officials subject to manipulation by the Executive.  

          24.          To exercise control over those organs, the Coordinating Council (Consejo de Coordinación) and the Executive Commission have increased the number of judges and supreme prosecutors, thereby obtaining a majority of votes favorable to the Government in the highest-level state organs, such as the Plenary Chamber of the Supreme Court and the Board of Supreme Prosecutors.[14] Also, in this case it should be noted that the reforms are not purely administrative, since the decision of a collegial body depends on the opinion of each of its members.  As a result of the creation of 16 new posts on the Supreme Court, and three new supreme prosecutor positions, the selection of persons whose interests are closer to those in power could be favored, in addition to making it possible to manipulate the decisions of the highest-level collegial bodies of the Judiciary and the Public Ministry, and, consequently, of the National Elections Board.  

          25.          The provisional nature of the judges' term also influences the review of laws adopted by the Congress.  In Peru, the judges are constitutionally required to give precedence to the Constitution on reviewing the laws at odds with it.  It is easy to understand that the judges appointed to provisional posts by the Congress (through the Executive Commissions), in general, might refrain from exercising that power of according priority to the Constitution, as they may be removed without cause.  This diminishes the effectiveness of the constitutional power of "diffuse control" of the laws, assigned to judges in Peru.

          2.            Public Ministry  

          26.          The Public Ministry is autonomous and, according to law, is headed up by the Public Prosecutor, who is elected by the Board of Supreme Prosecutors. The Public Prosecutor takes an oath before the President of the Republic on taking office.  The supreme prosecutors are designated by the President only after a recommendation is made by the National Council of the Judiciary.  

          27.          The Public Ministry initiates judicial actions to defend legality, supervises the adequate administration of justice, represents society in judicial procedures, investigates crimes, institutes criminal proceedings, on its own initiative and upon the initiative of parties, issues opinions prior to making judicial decisions, and may introduce proposed legislation.  Its budget is approved by the Board of the Public Ministry (Junta del Ministerio Público) and it is defended, before the Congress and the Executive, by the Public Prosecutor.   

          28.          The duration of the term of the current Public Prosecutor, Miguel Aljovín, is three years, which may be prolonged by re-election for two more years.  The Public Prosecutor is empowered to challenge laws, on grounds of unconstitutionality, before the Constitutional Court.  According to the Constitution, the public prosecutor makes criminal accusations against judges and prosecutors of the lower courts and appellate courts, and generally against public officials.  It monitors the activities of prosecutors and supervises compliance with the independence of the judicial organs and the proper administration of justice.  It oversees respect for fundamental human rights in the sphere of the public administration, including the Armed Forces and National Police.  The members of the Public Ministry enjoy the same rights and prerogatives and are subject to the same obligations and proceedings as judges.  

          29.          The process of re-organizing the Public Ministry began when the Government shut it down, along with other branches of government and institutions in the wake of the events of April 5, 1992.  By Decree-Law No. 25,505, of May 20, 1992, Blanca Nélida Colán Maguiño was provisionally appointed Public Prosecutor.[15] Later, the provisional supreme prosecutors were also appointed, by decree-laws.  A large percentage of prosecutors were removed by decree-law with no type of administrative process, depriving them of the right to defense.  Later, some were restored to their posts by judicial orders.   

          30.          Later, in June 1992, by Decree-Law No. 25,530, the Evaluation Committee was created, made up of two provisional supreme prosecutors designated by the Board of Supreme Prosecutors upon the proposal of the Public Prosecutor, who was entrusted with investigating the professional conduct of the prosecutors (fiscales), attorneys (abogados), auxiliaries, and administrative staff of the Public Ministry.  By Decree-Law No. 25,735, of November 21, 1992, the functions of the Evaluation Committee were considered concluded, and it was declared that the process of organic restructuring and re-organization of the Public Ministry was under way, under the responsibility of the Public Prosecutor, for a period of 90 days, which was later extended by Decree-Law No. 25,991.[16]  

          31.          On June 19, 1996 (Law No. 26,623), the Judicial Coordination Council was created, and the Public Ministry was once again declared to be "in the process of re-organizing," for an indefinite period.  All the powers and functions of administration entrusted to the Public Ministry, as a constitutional body, were transferred to an "Executive Commission of the Public Ministry" made up of three supreme prosecutors.  The Executive Commission is entrusted with re-structuring and reforming the Public Ministry, drafting its Regulation, issuing opinions on behalf of the Public Ministry, pressing criminal charges against judges for misconduct, and determining areas of specialization at all levels.  This Executive Commission is currently made up of the former Public Prosecutor, Blanca Nélida Colán, and two supreme prosecutors, appointed by the Government.  The Executive Commission is in charge of the government and management of the institution, even though by constitutional mandate this is a power of the Public Prosecutor.  The Public Prosecutor was not only removed from the reform process, but his powers were cut back and limited to the following:  (1) to press charges, before the judiciary, when it is presumed that there has been illicit enrichment of public officials and public servants; and (2) to exercise legislative initiative, in keeping with the Constitution.  The Public Prosecutor is not able to exercise his or her power of bringing actions on grounds of unconstitutionality before the Constitutional Court, since this Court does not have a sufficient numbers of members, infra.  Nor may it bring civil or criminal actions against high-level officials before the Supreme Court, as this is only possible if the Congress first adopts an accusatory resolution.[17] In summary, the process of re-organizing the Public Ministry has curtailed the powers and representation of the Public Prosecutor, creating a climate of uncertainty, not only among the members of the Public Ministry, but among the citizenry in general.  

          32.          Based on Law No. 25,735, Miguel Aljovín Swayne, who was Permanent Deputy Supreme Prosecutor, was removed from his post, by the then-provisional Public Prosecutor, for not agreeing to undergo an evaluation not provided for by the Constitution or by any law.  Aljovín returned to the Public Ministry by public competitive examination before the Board of Honor of the Judiciary, which appointed him Permanent Supreme Prosecutor on December 29, 1993.[18] Aljovín was elected Public Prosecutor in January 1997.  As the post has a three-year term, the elections to choose the next Public Prosecutor, or to re-elect Miguel Aljovín for two years, will be held in January 2000.  Mr. Aljovín indicated that he will not be re-elected as he does not enjoy majority support in the Board of Supreme Prosecutors, thereby leaving open the possibility that the President of the Executive Commission of the Public Ministry, Blanca Nélida Colán, will be elected for the third time.[19]  

          33.          As of the approval of this Report, Mr. Aljovín, despite holding the post of Public Prosecutor, does not preside over the Executive Commission of the Public Ministry.  Law No. 26,623 vested in the same person the positions of Public Prosecutor and President of the Executive Commission.  Nonetheless, when the new Supreme Prosecutor was elected to the post, and despite being the highest-level authority and representative of the Public Ministry, the presidency of the Executive Commission continues to be held by the previous Public Prosecutor, and consequently the Public Prosecutor does not preside over the reform process.  That Nélida Colán was Public Prosecutor at the time she was appointed does not necessarily have a decisive impact on her ability to preside over the Executive Commission.  Under the law, Ms. Colán and the two supreme prosecutors should continue to serve on the Executive Commission, whatever posts they may hold in the subsequent years.  One can conclude that, as in the case of the Judiciary, the Public Ministry has been entrusted--ignoring the Constitution--to four persons selected by the Congress.[20]  

          34.          It should be noted that in May 1997, then-President of the Supreme Council of Military Justice (CSJM), Gen. Guido Guevara, announced his intent to bring criminal charges against Public Prosecutor Miguel Aljovín, for having accused him of failing to abide by rulings of civilian courts in respect of two writs of habeas  corpus on which he had ruled favorably in the cases of Demetrio Chávez Peñaherrera, known as "Vaticano," and Gustavo Cesti Hurtado.[21] The CSJM then filed an accusation against the judges of the Lima Court of Appeals (Cámara de Apelaciones), who had ruled favorably on the writs of habeas  corpus. In June, a chamber of the Supreme Court removed the three judges from their posts in the Court of Appeals.  One of the cases pending before the Court of Appeals at the time was the amparo action brought by Baruch Ivcher against the resolution stripping him of Peruvian nationality.  The Supreme Court also dismissed charges filed by Aljovín against Gen. Guevara, arguing that the military courts could reject any habeas  corpus proceedings considered "illegal" and ordered that the three judges be tried for breach of public duty (prevaricato).  This panel of the Supreme Court was made up of "provisional" judges subject to political pressures.  On September 4, 1997, the Executive Commission of the Public Ministry decided not to order the trial of the three members of the Court of Appeals.

          3.            The "Provisional" prosecutors  

          35.          Law No. 26,738, of January 6, 1997, amended Law No. 26,623, and granted the Executive Commission the power to designate "provisional" superior and provincial supreme prosecutors.  It suspended application of criteria such as seniority, the specialization of prosecutors, and the power of the Public Prosecutor to designate supreme prosecutors.  This law declared that the Public Ministry would be in a state of "reorganization" until December 1998; this term has now been extended to the year 2000 (supra).  The law provides that the Public Prosecutor, on assuming the post, should take the oath of office before the Executive Commission of the Public Ministry.  

          36.          Accordingly, the Judicial Academy has not been able to graduate a single lawyer as candidate to prosecutor or prepare a single prosecutor for promotion.  The National Council of the Judiciary cannot perform its functions of evaluating the candidates to appoint permanent prosecutors.  Due to the lack of permanent prosecutors, the Executive Commission of the Public Ministry has continued to appoint "provisional" prosecutors, selecting persons to hold higher-ranking posts for which they have been neither evaluated nor appointed by the National Council of the Judiciary, as called for by the Constitution. At present, more than 80% of the prosecutors in Peru are "provisional."  Ms. Blanca Nélida Colán informed the Commission, in a meeting held during the on-site visit on November 10, 1998, that 1,067 prosecutors, of a national total of 1,259, are provisional.  In addition, the exception becomes the rule and the functions of the Public Ministry are exercised mostly by persons who are not qualified for those posts, nor have they undergone periodic evaluations of their technical or ethical aptitude.  

          37.          The most important organ of the Public Ministry, pursuant to the Organic Law, is the Board of Supreme Prosecutors.  This Board, made up of six supreme prosecutors, has the function of electing the Public Ministry representative to the National Elections Board.  The Executive Commission decided to create three additional supreme prosecutors, and, given the lack of permanent prosecutors, selected three of lower rank, and appointed them "provisionally" to the post of Supreme Prosecutor.  Law No. 26,897 granted identical rights, powers, and prerogatives to the "provisional" prosecutors as those enjoyed by the permanent prosecutors, in their respective categories, which enabled these "provisional" supreme prosecutors to vote and elect a representative to the National Elections Board.  

          38.          The Public Prosecutor, Miguel Aljovín, presented a complaint against Blanca Nélida Colán, President of the Executive Commission of the Public Ministry, alleging she had violated the Constitution by appointing these three "provisional" supreme prosecutors,[22] based on the provisions of the Peruvian Criminal Code regarding illegal appointments.  One month later, Adelaida Bolívar was removed from her position in the Office of the Prosecutor for Internal Oversight (Fiscalía de Control Interno) by Blanca Nélida Colán, for having supported the criticisms made by Mr. Aljovín with respect to those appointments.[23] These three "provisional" prosecutors became members of the Board of Supreme Prosecutors that elected the representative of the Public Ministry to the National Elections Board.  

          39.          In order to avoid the removal of any of the supreme prosecutors, by the National Council of the Judiciary, the Congress also did away with the Council's power to remove supreme prosecutors and vested it in the Office of the Prosecutor for Internal Oversight of the Public Ministry, as it did with the Judiciary, through the same law (supra).  The Constitutional Court was not empowered to derogate the laws that reorganized the Public Ministry or the judiciary because two of the seven judges of that Court made it impossible to secure the six votes required by Congress (infra).  

          40.          The political party Cambio 90-Nueva Mayoría, which holds a majority in Congress, has taken advantage of the "re-organization" of the judicial branch to justify its control, together with the Executive, over the management, administration, and finances of the various judicial organs, and of the appointment and oversight of its members, and the disciplinary regime that applies to them.  

          41.          As appears from this analysis, the activities of the Executive Commission of the Judiciary and the Executive Commission of the Public Ministry have not been exclusively administrative.  In several cases those two committees and the Coordinating Council have replaced judges and prosecutors reputed to be independent by officials more favorable to the State when they were involved in judicial proceedings of interest to the Government.  

          42.          By definition, all "provisional" appointments must be related to an emergency situation.  Those emergency situations are provided for in the Constitution and in no case should crisis situations be allowed to be used to indefinitely suspend the supremacy of the Constitution.  

          43.          Law No. 26,546, of November 21, 1995, created the "Executive Commission of the Judiciary," which "temporarily" assumed the functions of the National Council of the Judiciary, and which was entrusted with "reforming" the judiciary.  That law should have been in force for a period of 360 days of the calendar year, and should have expired on December 1, 1996. This law, and Law No. 26,623 (infra), suspended the jurisdiction and powers of the judicial organs and transferred them to the Executive Commission of the Judiciary.  This Committee is made up of the Presidents of the various chambers of the Supreme Court (constitutional, civil, and criminal chambers), and performs the functions that the 1993 Constitution assigns to the judiciary:  it evaluates and removes judges, decides as to their promotions, and may propose legislation.  Its president is Víctor Castillo Castillo, President of the Supreme Court.  The Executive Secretary was Peruvian Navy Commander José Dellepiane Massa, an officer of the Armed Forces who was not a lawyer; in 1998 he was replaced by David Pezúa Vivanco.[24]  

          44.          The life of the Committee has been extended several times by the Congress, most recently in late 1998, despite its express statement by the Inter-American Commission on Human Rights upon the conclusion of its on-site visit in November 1998 that it "hopes that the reorganization of the judicial sector will not take longer than the period set by law, which is due to expire in December of this year, and that the powers of the National Prosecutor will be reinstated."[25] On December 5, 1998, the legislative majority, through Law No. 27,009, despite strong opposition from public opinion, extended the existence of the two Executive Commissions for an additional two years, until December 31, 2000.[26] The Peruvian State, in its response, indicated that it could not accommodate the Commission's recommendation "at the risk of losing all of the gains to date..., for obvious reasons."  The Commission would like to emphasize that the system extended by Law No. 27,009 undermines the constitutional principles of independence of the judiciary and is holding one of the branches of government hostage to the other two.

          4.            The Judicial Coordination Council (Consejo de Coordinación Judicial)  

          45.           Law No. 26,623, of June 19, 1996, created the Judicial Coordination Council, financed by resources from the Judicial branch, with the mandate to establish the policy guidelines of the organs for the administration of justice, and their restructuring and reorganization; to evaluate its own goals and their attainment; and with the power to extend its own existence.  The Council was to be made up of the President of the Supreme Court, as President of the Constitutional Court, the Minister of Justice, the president of the National Council of the Judiciary, and several other notable members.[27] According to the regulations of this entity, its members may adopt resolutions by simple majority.  Nonetheless, in accordance with the transitory provisions of Law No. 26,623, the Judicial Coordination Council is made up of four persons--the president of the Supreme Court, one representative from the Public Ministry, one representative from the National Council of the Judiciary, and one executive secretary--three of whom do not belong to the judiciary and have been designated by the Congress.  

          46.          As this Council makes decisions by simple majority, these three members are in a position, numerically, to ensure that their vote prevails over that of the sole representative of the judiciary, further undermining judicial autonomy. This law suspends the functions that the Organic Law of the Judiciary entrusts to the president of the Supreme Court and its Plenary Chamber for administration of the judicial branch.  Specifically, the permanent judges of the Supreme Court's Plenary Chamber have been impeded from electing its president; their functions of supervising the presence and punctuality of judges, signing internal regulations, decisions, and official correspondence, and imposing administrative sanctions for flagrant irregular acts, among others, have been limited.  The Supreme Court has been deprived of its power to introduce legislation, and the full judges of the Plenary Chamber have been deprived of their prerogative of attending meetings of Congress to support proposed legislation, even when it relates to the budget of the judiciary.  The Supreme Court no longer has the powers to initiate actions of unconstitutionality against the laws of Congress, or to elect from among its members those who sit on the Office of Judicial Oversight and the National Elections Board.  Renowned jurists have expressed serious doubts about the constitutionality of this Council, given that its purpose is to take the place of the regular judicial organs established in the Constitution.

          5.            The National Council of the Judiciary  

          47.           According to Article 154 of the 1993 Constitution of Peru, the National Council of the Judiciary (CNM: Consejo Nacional de la Magistratura) is an independent and autonomous organ in charge of appointing, ratifying, and sanctioning judges and prosecutors, except for those chosen by popular election (supra).[28] Its seven members are elected by the following organs: one by the Plenary Chamber of the Supreme Court, one by the Board of Supreme Prosecutors,[29] two by Peru's other organization of legal professionals, the public universities, and one by the rectors of the private universities.[30]  

          48.          By constitutional provision, the appointment of judges and prosecutors is a power of the CNM, based on a merit-based public competition and personal evaluation; the academic training of persons aspiring to the posts of magistrate of the judiciary or of the Public Ministry is entrusted to the Judicial Academy (Academia de la Magistratura), pursuant to the provision of Article 2(a) of the Organic Law on the Judicial Academy (Law No. 26,335).  

          49.          As regards the designation of permanent judges and prosecutors, Law No. 26,696 of December 2, 1996, provided that persons applying to the positions of judge or prosecutor must show that they have satisfactorily completed the training course for persons aspiring to serve as judge in the judicial branch or prosecutor in the Public Ministry, which are two-year appointments, as recently provided by Resolution No. 333-98-SE-TP-CME-PJ of August 14, 1998; this continues the trend of working with provisional judges and prosecutors, even though as of 1997 only 27.12% of the positions were covered by permanent judge, and 72.88% by provisional and alternate judges; there were only 392 permanent judges, and 1,053 provisional and alternate judges; this situation worsened in 1998.  

          50.          In February 1998, five judges from the Supreme Court surprised the country by denouncing that a sixth "provisional" judge, César Humberto Tineo, had falsified the text of a judgment, and had induced them to sign in error, without reading it. The dean of the Bar Association lodged a complaint against the six judges, alleging misconduct on their part, with the National Council of the Judiciary.  The five judges leveling the accusation said that they believed that Mr. Tineo had drafted the judgment in the manner agreed upon, ruling in favor of the Central Reserve Bank, but that instead he drafted the judgment so as to favor the company Novotec, S.A.  They stated that they had signed the judgment, which was a ruling in the final instance and had become res judicata.  The five judges in question declared the judgment handed down eight months earlier null and void, although it was being carried out, and issued a new judgment in its place.  The judgment that was rendered null and void had required that the state pay the private firm Novotec S.A. approximately US$ 43 million.[31]  

          51.          By Law No. 26,933 of March 12, 1998, the National Council of the Judiciary saw its power to directly impose the sanction of removal on members of the Supreme Court and supreme prosecutors curtailed, as this power was vested in the executive commissions of the judiciary and the Public Ministry, respectively, which are to hear such proceedings in the first instance; the CNM will only hear the cases that come to it on appeal from the respective committees.  In addition, it was required that the disciplinary measure of suspension be applied prior to removal.  The curtailing of the powers of the CNM sparked the resignation of the Council's seven members, and led the World Bank to suspend a loan in the amount of approximately US$ 22.5 million earmarked to judicial reform.  

          52.          The immediate passage of Law No. 26,933 prevented the National Council of the Judiciary from removing the members of the Supreme Court who had signed the fraudulent judgment.  These same judges elected the future representative of the judiciary to the National Elections Board, which was entrusted, among other tasks, with deciding whether President Fujimori was constitutionally qualified to run for a third presidential term.  

          53.          On March 13, 1998, the president of the CNM, Róger Rodríguez Iturry, resigned along with his six colleagues, and declared to public opinion:  

According to many analysts, the impression exists that we find ourselves before a clearly authoritarian government, which, moreover, is said to have a concrete and specific plan to keep itself in power.  Perhaps an independent CNM is not needed in this context and for that project.[32]  

          54.          Later, Law No. 26,973 of September 11, 1998, ratified the procedure for applying the sanction of removal to magistrates and supreme prosecutors, without requiring prior suspension.  This law, contrary to what was announced, did not restore the powers of the CNM.  

          55.          In summary, the National Council of the Judiciary, in practice, does not carry out its function of appointing permanent judges and prosecutors.  Law No. 25,726 and other provisions that organized the Judicial Academy provided that the students must graduate from the Academy in order to be appointed by the National Council of the Judiciary.  Nonetheless,   since 1992, the Judicial Academy has not appointed any judges or prosecutors, and continues to be in the process of "reorganizing."  The Peruvian State, in its response, notes that the approval of the training program given by the Judicial Academy is a requirement to be considered candidates for appoint as judge or prosecutor.  Therefore, the State argues, "the fact that at present no judges or prosecutors are being appointed is not attributable to the National Council of the Judiciary."  The Commission shares this assessment that the Council is not the one responsible for the failure to appoint judges and prosecutors, but rather the Executive.  

          56.          Neither can the National Council of the Judiciary confirm "provisional" judges and prosecutors.  This allows the Executive Commission and the Judicial Coordination Council to continue appointing "provisional" judges and prosecutors.  

          57.          Mr. Rodríguez Iturry was replaced by Mr. Faustino Luna Farfán.  Mr. Luna Farfán also resigned, on April 6, 1999; in his resignation speech, he characterized the judicial reform process as "indefensible" because "the reform is not governed by its natural representatives, because it is a reform imposed."[33]

          6.            The Constitutional Court  

          58.          In 1996, after four years of inactivity, the Constitutional Court was constituted by the following judges: Ricardo Nugent (president), Guillermo Rey Terry, Manuel Aguirre Roca, Luis Guillermo Díaz Valverde, Delia Revoredo Marsano de Mur, Francisco Javier Acosta Sánchez, and José García Marcelo.  It should be noted that the last two have held positions in the government, or have been candidates for the governing party.[34] The Congress established in the Organic Law of the Constitutional Court the requirement, unreasonable in comparative law, of a supermajority of six out of seven votes for the Court to find any statute or law unconstitutional.[35]  This voting system resulted in the majority opinion of the Court being subject to the vote of just two of its members.  In effect, repeatedly and suggestively, several motions of unconstitutionality, of political-institutional interest, were dismissed even when they had five votes.  Moreover, laws considered unconstitutional by five members of the Court had their constitutionality affirmed and were strengthened, thereby depriving the judges in the lower courts of the option of limiting their application in other cases.  In its 1996 and 1997 annual reports, the Commission stated its concern over the need to have a supermajority of six out of seven votes to declare a law unconstitutional, rendering practically null this Court's power of review.  The Peruvian State notes in its response three examples in which a supermajority,  greater than half plus one, is required.  The State cited the example of other countries, yet in none of them is the supermajority as high as in Peru.  

          59.          The action brought against Law No. 26,657, or the Law on "Authentic Interpretation" of Article 112 of the Constitution, was a telling example.  That law states that re-election "refers to and is conditioned on the presidential terms that begin after the date of promulgation of the constitutional text in question."[36] Alberto Fujimori was elected president in 1990, under the 1979 Peruvian Constitution.  The Constituent Congress included the possibility of re-election of the president in the 1993 Constitution, and Fujimori was elected once again in 1995.  The congressional statute referred only to the specific case of President Fujimori, the only Peruvian who was president before and after the entry into force of the 1993 Constitution.  Five judges considered that the Law on Authentic Interpretation did not apply to the specific case of Alberto Fujimori, according priority to the constitutional principle established in Article 112 and "diffuse control" over the interpretive statute (Articles 51 and 138 of the Constitution).  

          60.          The draft judgment containing the ruling regarding the inapplicability of this interpretive law, prepared by Judge Guillermo Rey Terry, was unlawfully taken from his file by Judge José García Marcelo, who confessed he had taken it and delivered it to the police and the press.  Judge Delia Revoredo publicly denounced this theft.  As a result, an official campaign was launched to pressure the five judges.  The daily newspaper Expreso, of Lima, accused them of being "golpistas," i.e. coup supporters, and compared them with the terrorists of Shining Path; 40 members of Congress from the majority party threatened in writing to remove them if they ruled that the law was deemed inapplicable; they were pressured, blackmailed, and received all sorts of offers; the "contraband" case came up against Judge Delia Revoredo and her husband, Jaime Mur.  Two of the five judges called for a new vote, withdrew their signatures, and abstained from voting "for having expressed an opinion ex ante."  The two judges from the official party also abstained.  The three judges who did cast a vote--Aguirre Roca, Rey Terry, and Revoredo--voted for the inapplicability of the law to Alberto Fujimori.  Since it was not a ruling of unconstitutionality, the judgment of the Constitutional Court did not require six votes, but rather a "simple majority of votes cast" (Article 4 of the Organic Law on the Constitutional Court).  The Lima Bar Association called for a "clarification" of the judgment.  The Court decided--against the opinions of judges Acosta Sánchez and García Marcelo--that only those who had voted should clarify the vote, not those who had abstained.  The "clarification" by the three judges was that "as there is nothing to clarify, the request is denied."  

          61.          The Congress decided to investigate the allegations by Judge Delia Revoredo regarding the theft of the draft judgment and the threats to which she was subjected.  To this end, it appointed two investigative commissions with a clear pro-government majority, and, in response to a well-founded request by the opposition, expressly prohibited its members from ruling on judicial matters properly within the jurisdiction of the Constitutional Court.  Nonetheless, those investigative commissions concluded by accusing the three magistrates who ruled against the second presidential election, and on that basis, the Congress removed them May 29, 1997, for "violation of the Constitution."  Mr. Ricardo Nugent, President of the Court, resigned in solidarity with his colleagues.  A law, however, requires him to remain in the post until Congress appoints his replacement, subject to a penalty of two years imprisonment.  Once domestic remedies were exhausted, the matter was brought before the Inter-American Commission.  The Commission analyzed the issue and prepared a report pursuant to Article 50 of the American Convention, in which it set forth a series of recommendations, which were not adopted by the State.  In July 1999, the Commission sent the case to the Inter-American Court.  

          62.          Law No. 26,801 of May 29, 1997, established that until the vacant posts on the Constitutional Court are filled, the quorum for hearing resolutions denying motions of habeas  corpus, amparo, habeas data, and action for enforcement as well as motions alleging jurisdictional disputes will require four members.  As it does not have the sufficient number of members required by the law, to this day the Constitutional Court cannot take cognizance of the actions of unconstitutionality against laws and decree-laws issued by the national government.  This creates a grave vacuum of control and is an assault on the very essence of the rule of law.  The Peruvian State notes that "it is not true that there is a grave vacuum in the review of constitutionality, since a dual system exists in Peru that allows for the diffuse control by the judges who exercise jurisdiction, with which judicial review of unconstitutional norms, and at the same time, the acción popular is available (Article 202 of the Constitution) to challenge regulations, administrative rules, and resolutions and decrees of general application, whatever the authority from which they emanate."  Despite what the Peruvian State points out, the inoperability of the Constitutional Court, which is the organ created by the Constitution to hear actions of unconstitutionality, creates a serious vacuum, especially if one takes into account that diffuse control refers only to the case in question.  

          63.          The judges who were removed denounced attacks by state agents.  Ms. Revoredo and her husband sought temporary asylum in the embassy of Costa Rica.[37] Mr. Nugent was shot by unknown persons in an official car; three persons accompanying him were killed.  The Minister of Interior, who visited him in the hospital just 30 minutes after the attack, shut down the investigation into the matter alleging that it had been caused by confusion among the kidnappers, who allegedly were trying to kidnap a Swiss businessman, and who had mistaken a police vehicle with his car.  It should be noted that even though the Constitutional Court, as the highest-level authority as regards interpretation of the Constitution, had already ruled on the third candidacy of Alberto Fujimori, the official party has sought to have the issue re-examined by the National Elections Court.

          C.            THE CIVILIAN JURISDICTION:  THE ANTI-TERRORIST LEGISLATION  

          1.            Context of the anti-terrorist legislation  

          64.          April 5, 1992, as indicated supra, President Alberto Fujimori promulgated Decree Law No. 25,418, with which he instituted a Government of Emergency and National Reconstruction.  The justifications for of that decree included "to upgrade the moral standards of the administration of justice and the institutions linked to it; and the National Oversight System, decreeing the complete re-organization of the Judiciary, the Court of Constitutional Guarantees, the National Council of the Judiciary, the Public Ministry, and the Office of the Comptroller General of the Republic" and "to pacify the country within a legal framework that guarantees the application of drastic sanctions to terrorists, so that our society may develop adequately, in a climate of peace and internal order."  The Emergency Government dissolved the Congress and summarily removed numerous judges and prosecutors at all levels.  After a violent wave of attacks carried out in Lima, President Fujimori addressed the country on July 24, 1992, and announced the adoption of drastic legal measures to address the situation.  In that context, Decree-Law No. 25,475 was promulgated; it was aimed at pursuing, prosecuting, and punishing the persons responsible for the crime of terrorism, using civilian "faceless" judge courts, and Decree No. 25,659, aimed at pursuing, prosecuting, and punishing the persons responsible for the crime of traición a la patria, or treason, before "faceless" military courts.  

          65.          The Commission has repeatedly recognized that the State is under a national and international obligation to adopt the measures necessary to investigate, prosecute, and punish persons or groups of persons who use violence.  Article 8 of the American Convention establishes the due process standards to which persons being investigated and prosecuted have a right.  These include the right of all persons to be heard with the due guarantees and within a reasonable time by an independent and impartial judge or court, with jurisdiction, that is previously established by law, to hear any criminal accusation, or to determine their civil, labor, tax-related, or other rights.  

          66.          Despite the situation of extreme violence in Peru, the State was not and is not relieved of the obligations it assumed on ratifying the American Convention.  In this regard, the Convention sets forth special standards for emergency situations such as those being faced there.  Article 27 of the American Convention makes it possible, under certain conditions of war, public danger, or other emergency that threatens the independence or security of a State Party, for it to derogate from some of its international obligations.  Article 27 of the Convention provides as follows:  

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following Articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.  

          67.          Pursuant to Article 27 and the guidelines indicated by the Inter-American Court, there is a fundamental presupposition with respect to the regime of representative democracy, and certain requirements for a State to validly declare a state of emergency.  

          68.          With respect to the presupposition of respect for representative democracy, pursuant to Article 3(d) of the Charter of the OAS, one of the fundamental principles that governs the Organization of American States is the requirement that the States that constitute it should organize themselves politically pursuant to the postulates of representative democracy.  At the same time, the American Convention, in its preamble, reaffirms " their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man."In the same spirit, Article 29 prohibits the interpretation of any of its provisions so as to preclude "other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government," while Articles 15, 16, 22, and 32 also make reference to the presupposition that the political organization of the States parties is democratic.  

          69.          As regards the requirements for declaring a state of emergency, the Inter-American Court has indicated that a legal analysis of Article 27 of the Convention:  

The starting point for any legally sound analysis of Article 27 and the function it performs is the fact that it is a provision for exceptional situations only. It applies solely "in time of war, public danger, or other emergency that threatens the independence or security of a State Party." And even then, it permits the suspension of certain rights and freedoms only "to the extent and for the period of time strictly required by the exigencies of the situation." Such measures must also not violate the State Party's other international legal obligations, nor may they involve "discrimination on the ground of race, color, sex, language, religion or social origin."[38]  

          70.          The requirements for declaring a state of emergency are as follows:  

·              Need:  Pursuant to Article 27 of the Convention, in order to consider that there is a real emergency, there must be an extremely grave situation, such as war, public danger, or other emergency that threatens the independence or security of the State party.  The Commission has established that measures related to a state of emergency "can only find a justification in the face of real threats to public order or state security."[39]  

·              Time:  This requirement refers to the duration of the suspension, which, as established in Article 27(1) of the Convention, should be only for the time strictly limited to the exigencies of the situation. The Commission has warned that it is even more serious to decree states of emergency for indefinite or prolonged periods, especially when they allow broad powers to be concentrated in the head of state, including the judicial branch abstaining with respect to the measures decreed by the Executive, which in certain cases may lead to the exact opposite of the rule of law.[40]  

·             Proportionality:  Article 27(1) of the Convention provides that the suspension may only be effectuated to the extent strictly limited to the exigencies of the situation.  This requirement refers to the prohibition on the unnecessary suspension of certain rights, imposing restrictions more severe than necessary, and unnecessarily extending the suspension to areas not affected by the emergency.  

·              Non-discrimination:  As established in Article 27(1) of the Convention, consistent with Articles 1 and 24, the suspension of rights must not entail any kind of discrimination against any individual or group.  

·              Compatibility with other international obligations:  The suspension of certain rights must be compatible with all other obligations established in other international instruments ratified by Peru.  

·             Reporting:  Pursuant to Article 27(3) of the Convention, the declaration of a state of emergency should be reported immediately to all other States parties to the Convention, through the Secretary General of the OAS.[41]  

          Even where the aforementioned requirements are met, there are certain rights and guarantees enshrined in the Convention that the States cannot suspend.    

          a.            Rights that cannot be suspended  

          71.          With respect to the rights that can be suspended during the imposition of a state of emergency, the Inter-American Court has indicated that:  

It is clear that no right guaranteed in the Convention may be suspended unless very strict conditions --those laid down in Article 27(1)-- are met.... [R]ather than adopting a philosophy that favors the suspension of rights, the Convention establishes the contrary principle, namely, that all rights are to be guaranteed and enforced unless very special circumstances justify the suspension of some, and that some rights may never be suspended, however serious the emergency.[42]  

          72.          Most of the rights that the State cannot suspend, however grave the emergency, are mentioned in Article 27(2) of the Convention, and are those set forth at the following Articles of the American Convention:  3 (right to juridical personality); 4 (right to life); 5 (right to humane treatment); 6 (prohibition on slavery and servitude); 9 (principle of non-retroactivity of laws); 12 (freedom of conscience and religion); 17 (protection of the family); 18 (right to a name); 19 (rights of the child); 20 (right to nationality); and 23 (political rights) of the Convention.  Under Article 27(1) of the Convention, the suspension of rights has to be compatible with all other obligations established in other international instruments ratified by the country.  The Inter-American Court has indicated that the suspension of guarantees cannot include suspension of the rule of law or of the principle of legality:  

The suspension of guarantees also constitutes an emergency situation in which it is lawful for a government to subject rights and freedoms to certain restrictive measures that, under normal circumstances, would be prohibited or more strictly controlled. This does not mean, however, that the suspension of guarantees implies a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times. When guarantees are suspended, some legal restraints applicable to the acts of public authorities may differ from those in effect under normal conditions. These restraints may not be considered to be non-existent, however, nor can the government be deemed thereby to have acquired absolute powers that go beyond the circumstances justifying the grant of such exceptional legal measures. The Court has already noted, in this connection, that there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law (The Word "Laws" in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, para. 32 ).[43]  

          73.          Along these lines, "in serious emergency situations it is lawful to temporarily suspend certain rights and freedoms whose free exercise must, under normal circumstances, be respected and guaranteed by the State. However, since not all of these rights and freedoms may be suspended even temporarily, it is imperative that 'the judicial guarantees essential for (their) protection'  remain in force."[44] In addition, it is essential that the judiciary be independent, given that such independence is a fundamental pillar of the rule of law and of human rights protection.  In this regard, the Court has indicated that habeas  corpus and amparo remedies are judicial guarantees that protect rights that cannot be suspended, and that those procedures are "essential to ensure the protection of those rights."[45] The purpose of the judiciary is to protect legality and the rule of law during a state of emergency.  

continued...