SECOND REPORT ON THE SITUATION OF HUMAN RIGHTS
IN PERU

INTRODUCTION

           A.            BACKGROUND  

          1.          The Charter of the Organization of American States ("Organization" or "OAS") provides that the Inter-American Commission on Human Rights ("IACHR" or "Commission") is a principal organ of the OAS whose purpose is to promote the observance and protection of human rights and to serve as a consultative organ of the Organization.  Accordingly, the IACHR has used several mechanisms and practices in the performance of its functions and in carrying out its mandates, including on-site visits, preparing general and special reports, processing individual cases, and organizing promotion activities. 

          2.          It is in this context that the Commission has continued to study the human rights situation in Peru after its visits to Peru in 1992 and 1993.  The Peruvian Government invited the Commission to visit Peru by letter of then-Minister of Foreign Affairs Eduardo Ferrero Costa to then-Chairman of the Commission, Ambassador John Donaldson, dated October 24, 1997; this invitation was accepted by the IACHR for an on-site observation of the human rights situation.  That visit took place November 9 to 13, 1998, in the legal framework of the American Convention on Human Rights ("American Convention"), to which Peru is a party, and the Commission's Statute and Regulations governing such matters.[1] 

          3.          This report seeks to assess the overall human rights situation in Peru, with special emphasis on the rule of law. The report is based on information and documentation collected and examined in keeping with the Commission's usual procedures, and on the opinions and abundant information collected prior to, during, and after the visit.  The Commission received some 600 complaints on alleged human rights violations during its stay in Peru.  Those complaints are being processed as per the appropriate procedures.

          B.            FRAME OF REFERENCE 

          4.          Peru is the third largest country of South America in area, after Brazil and Argentina.  It has three main regions:  the coast, which encompasses 9% of the national territory; the highlands, which account for 63% of total area; and the jungle, covering the remaining 28% of the country.  More than 70% of its 25 million people live in urban areas.  According to the United Nations Committee on Economic, Social and Cultural Rights, Peru is a country made up of "three distinct societies" that live almost independent of one another, "divided along ethnic, economic, social, cultural and linguistic lines."[2] At the base of the pyramid is the largest share of the population, the indigenous peoples, who constitute the most dispossessed sector.  The poorest 40% of the population receives 18.3% of national income, the same share received by the wealthiest 5%.[3] In 1980, Peru returned to democratic government after 12 years of military government.  Nonetheless, the country faced serious economic problems, as well as the violence unleashed by Sendero Luminoso (Shining Path) and the Movimiento Revolucionario Túpac Amaru (Túpac Amaru Revolutionary Movement). 

          5.          During the last decade, the Commission has followed the consequences of the situation of violence in Peru closely and with concern.[4] From 1980 to 1992, a period that saw a sharp rise in the violence, 24,250 people died due to political violence in Peru; of these, 2,044 were members of the security forces, 10,171 were civilians, 11,773 were persons alleged to be members of armed dissident groups and 262 were allegedly linked to drug-trafficking.[5] According to the Special Commission on Violence and Pacification of the Peruvian Senate, as of December 1991 political violence had cost Peru approximately US$ 20 billion.[6] 

          6.          In its 1993 Report, the Commission expressed concern over the suffering caused by the methods used in the actions of the armed groups: 

The tactics employed in the activities attributed to the PCP-SL or for which it has claimed responsibility, have caused enormous suffering and damage, even among the civilian population uninvolved in the conflict. Very destructive explosive devices have been detonated. Union leaders, politicians and leaders of grassroots organizations, most of them associated with the most disadvantaged sectors of Peruvian society, have been targeted for assassination. Young people and even children have been recruited by force and persons whose activities are considered to be contrary to the party's plans have been tried, summarily executed or mutilated. Catholic priests engaged in religious and social work have also been victimized. According to studies conducted, the methods used are calculated to hurt not only the individuals against whom they are targeted, but also to create within the people the kind of terror that will discourage any active opposition to the PCP-SL's political ends....  The MRTA is said to be responsible for a number of armed actions and selective assassinations, especially of members of the security forces involved in violent actions against it. It has also been reported that the MRTA uses powerful explosives....[7] 

          7.          The IACHR is aware that the acts of violence sponsored by the armed dissident groups presented a grave and imminent danger to the institutional life of Peru, and along with the international community it witnessed in horror the violence that led to the loss of life and property of Peruvians, in addition to the pain and suffering caused by the permanent state of anxiety to which Peruvian society, in general, was subjected. 

          8.          The IACHR has stated on several occasions that the States have the right and the duty to defend the physical integrity of their citizens and the operation of their democratic institutions.  To this end, they may avail themselves of the law, the judicial branch, the power of coercion, and the moral and legal superiority conferred by the rule of law in light of respect for human rights.  Nonetheless, the States do not have a free hand to use any method they please to combat violence and terrorism.  The States must act within the limits imposed by the rule of law, precisely because one of the vital purposes of the State is to defend democratic institutions.  Accordingly, any emergency measures adopted must be proportional to the threat they are trying to address, and should be loosened and then done away with once the situation returns to normal. 

          9.          The situation of violence that unfolded in Peru from 1980 on led to the suspension of some of the rights provided for under Peruvian law in a large part of the national territory.  As indicated infra, the Commission has concluded that in this context, several disproportionate measures were adopted to repress the persons responsible for the violence that are at odds with the standards of the American Convention on Human Rights.[8] In addition, the Armed Forces and Police Forces, entrusted with repressing the actions of the irregular armed groups undertook actions--extrajudicial executions, torture, forced disappearances--that violated human rights, and those violations remained in impunity, due to the adoption of the Amnesty Law (see infra). 

          10.          In the mid-1990s, the State succeeded in dismantling the armed dissident groups and bringing a halt to the violence, except for isolated incidents such as the December 1997 takeover of the Japanese embassy in Lima.  According to the Government of Peru, by 1999 only 5.97% of the national territory was under a state of emergency.  Nonetheless, the information collected indicates that the legislative emergency measures adopted by the State have not been dropped as the violence has been brought under control; rather, with a few exceptions, they have been crystallized as part of the domestic legal order, with a serious detrimental impact on the fundamental rights of the population. 

          11.          From 1988 to 1991, the Commission approved a total of 67 reports on individual cases in which it concluded that the State was responsible for grave violations of human rights.  In 1990 and 1991, the Commission decided to submit its first two cases against Peru to the Inter-American Court of Human Rights ("Inter-American Court").  The first case, Neira Alegría et al., referred to the disproportionate repression of prisoners held at the "El Frontón" prison in 1986.  The second case, known as the Cayara case, referred to a massacre of approximately 40 persons in Ayacucho in 1988. 

          12.          In light of its concern over the violence and the growing number of allegations of human rights violations by state agents, the Commission decided to accept an invitation from the Government of Peru to visit Peru May 8 to 12, 1989.  In the course of that visit, the IACHR delegation visited Ayacucho, the hot spot of the violence.  After that visit, the Commission made recommendations to the Government in a letter of September 29, 1989, which was published in the annexes to the 1993 Report.[9]  

          13.          In 1990, Alberto Fujimori was elected President and took office.  The Commission returned to Peru in 1991, also invited by the State.  The visit took place October 28 to 31, 1991.  Although no report was prepared on that occasion, the IACHR issued a press communique in October 1991, which was published in the annexes to the 1993 Report.[10] 

          14.          After the disruption of Peru's institutional democracy on April 5, 1992, the Commission again received a rising number of communications from Peru.[11] The Executive Secretary traveled to Peru on April 23 and 24, 1992; her report was submitted to the members of the Commission who, in turn, forwarded it to the Chairman of the Permanent Council of the OAS on April 28, 1992.  The report was also published in the annexes to the Commission's 1993 Report.[12] 

          15.          In May 1992, the Chairman of the Commission was invited to visit Peru.  He and one other Commission member visited Peru on May 11 and 12, 1992.  The Chairman submitted his report to the ad hoc meeting of Ministers of Foreign Affairs held at that time in Bahamas, also in May 1992.  This report was also published in the annexes to the Commission's 1993 Report.[13]  

          16.          The IACHR must also highlight the role played by the various organs of the OAS in response to the measures adopted by President Fujimori on April 5, 1992.  Accordingly, pursuant to resolution AG/RES. 1080, and in light of the Santiago Commitment to Democracy, the Permanent Council of the OAS convoked an ad hoc meeting of Ministers of Foreign Affairs, which was held on April 13, 1992, in Washington, D.C.  In addition, on May 18, 1992, another meeting of  Ministers of Foreign Affairs was held in Nassau, Bahamas, at which President Fujimori undertook to convoke the Democratic Constituent Assembly that was entrusted with framing the current Constitution of Peru, adopted in 1993.  Also in 1993, the IACHR made another on-site visit to Peru, and prepared a report on the human rights situation, which it published in 1994, in which it made recommendations. 

          17.          In 1995, President Fujimori was elected for a second term.  Also in 1995, the Commission published two reports on Peru in its Annual Report.  The first involved the extrajudicial execution of 13 peasants and the forced disappearance of eight more, in the department of Cuzco; and the second addressed violations of the rights to humane treatment, honor, and dignity of Raquel Martín de Mejía by members of the Army, the failure to investigate the horrific sexual assaults to which she was subjected, and the failure to investigate the kidnapping, torture, and later homicide of her husband.[14] In 1995, the Commission sent the Inter-American Court two additional cases regarding Peru: Case 11.154, on the violations of the right to humane treatment and due process suffered by María Elena Loayza Tamayo in her trial on charges of terrorism, and Case 10.773, on the forced disappearance of Ernesto Rafael Castillo Páez. 

          18.          In its 1996 and 1997 annual reports to the OAS General Assembly, the Commission included special reports on Peru in chapter IV.  In 1996, the Commission established four criteria "for purposes of identifying those OAS member states whose human rights practices merit special attention and, hence, inclusion in this chapter."  The second such criterion concerns states that have imposed exceptional measures, such as a state of emergency.[15] In the 1996 report, the Commission, as one of its concerns, examined the perpetuation of the state of emergency in Peru despite the diminished activity of the armed insurgent groups after their leaders were taken prisoner.  In addition, in this report the Commission also studied the 1995 Amnesty Law, and the law prohibiting the courts from interpreting the Amnesty Law.  In addition, it examined the creation of the Office of the Human Rights Ombudsman (Defensor del Pueblo) and of the Ad Hoc Commission, whose operations will be examined in detail below.  The Ad Hoc Commission was established by law to evaluate the cases of persons unfairly convicted and sentenced to prison terms; its role is to recommend to the President that he pardon those found to be innocent.  The Commission also noted in its 1996 report that Peru had not carried out the judgment of the Inter-American Court in the Neira Alegría case, which concerned the 1986 killings at El Frontón prison.  In 1996, the Commission submitted two new cases to the Court relating to Peru, Case 11.337, Cantoral Benavides, and Case 10. 009, Durán and Ugarte.  

          19.          In its 1996 Annual Report, the Commission reiterated several of its prior recommendations regarding changes in the anti-terrorist legislation to bring it into line with the American Convention, and to derogate the amnesty laws.  In addition, the Commission recommended, among other things, that the "faceless" justice courts be replaced by regular criminal courts, that legislation be adopted to make torture a crime and to prohibit the use of evidence obtained under torture; to put an end to the solitary confinement of prisoners convicted of terrorism, and to examine the prison conditions in which they live; to protect human rights defenders from reprisals; and to eliminate the criminal records of persons pardoned by the Ad Hoc Commission. 

          20.          In its 1997 report, the Commission published four reports involving cases from Peru.  These cases referred to forced disappearances and extrajudicial executions.  The 1997 report also included a section on Peru, as the state of emergency was in force in several parts of the country.  Bearing in mind that the Government of Peru had invited the Commission to make an on-site visit in 1998, the report made reference only to the information submitted to the Commission that it set out to investigative in the course of its visit.  Accordingly, the report contained no conclusion or recommendation. The Commission examined the followed aspects in that section: the conditions of detention, torture, freedom of expression, due process, the rule of law, the Constitutional Court, impunity, the Office of the Human Rights Ombudsman, and the issue of enforcement of the decisions of the Commission and the Court. 

          21.          In 1997, the Commission also submitted a case to the Inter-American Court regarding violations of due process to the detriment of Chilean citizens Jaime Castillo Petruzzi, María Concepción Pincheira Saez, Lautaro Enrique Mellado Saavedra, and Alejandro Astorga Valdés.   These four persons were accused of the crime of treason (traición a la patria), convicted, and sentenced to life imprisonment by a "faceless" military court.  The Court, in its judgment on the merits, handed down on May 30, 1999, declared the military proceedings of the four Chilean citizens "invalid, as they were incompatible with the American Convention," and ordered the State to carry out, "within a reasonable time period..., a new trial that ab initio satisfies the requirements of due process of law, is heard by a tribunal previously established by law (the regular courts), with full guarantees of a hearing and defense for the accused."  The Peruvian State informed the Court that the Supreme Council of Military Justice, the highest-level organ, nationally, in the military jurisdiction, had on June 11, 1999, declared that the judgment of the Inter-American Court was "unenforceable" ("inejecutable").  The-Inter-American Court declared on November 17, 1999, that the State had the duty to enforce the judgment.  

          22.          In its 1998 Annual Report, the Commission published 16 reports on cases related to Peru.  These cases included seven admissibility decisions and nine merits decisions.  In 1998, the Commission submitted Case 11.319 to the Inter-American Court; at issue is the violation of the right to judicial protection to the detriment of Gustavo Cesti Hurtado, a retired Army officer.  Cesti was tried, convicted, and sentenced to a prison term by a military court that has no jurisdiction over civilians, and was kept in prison even though a civilian court, ruling on a writ of habeas corpus on his behalf, ordered his immediate release.  On September 29, 1999, the Inter-American Court handed down its decision on the merits, ordering, inter alia, Mr. Cesti's release.  The Government of Peru proceeded to release Mr. Cesti on November 10, 1999. 

          23.          In 1999, the Commission submitted two new cases to the Court, Case 11.762, on the violation of the rights to freedom of expression, private property, nationality, and due process of Baruch Ivcher Bronstein, and Case 11.760, The Constitutional Court, regarding judicial independence and due process.  These cases, which will be analyzed infra, are not related to the problem of terrorism.  On July 9, 1999, Peru gave notice of what it claims to be the "withdrawal" of its acceptance of the contentious jurisdiction of the Inter-American Court.  As will be analyzed below, in the respective chapter, on September 24, 1999, the Inter-American Court ruled unanimously that the claimed effort to withdraw was not valid. 

          C.            THE ON-SITE VISIT 

          24.          As noted earlier, the Peruvian Government invited the Commission to visit Peru by letter of then-Minister of Foreign Affairs, Eduardo Ferrero Costa, to then-Chairman of the IACHR, Ambassador John Donaldson, dated October 24, 1997.  The Commission delegation that visited Peru from November 9 to 13, 1998, was made up of the following members:  Carlos Ayala Corao (then-Chairman); Robert Kogod Goldman (then-First Vice-chairman), Jean Joseph Exumé (then-Second Vice-chairman); Hélio Bicudo (rapporteur for Peru), Dean Claudio Grossman, and Ambassador Alvaro Tirado Mejía.  The members of the IACHR were assisted by the Executive Secretary, Ambassador Jorge E. Taiana; the Assistant Executive Secretary, David Padilla; Christina Cerna, senior specialist (then-in charge of Peru for the Secretariat); and Ignacio Alvarez, staff attorney.  Mr. Santiago Cantón, Rapporteur for the Freedom of Expression, participated in that capacity.  The Commission was also assisted by Nora Anderson, Olga de Franco, and Ana Cecilia Adriazola, and two interpreters, Paola Vásquez and France Fontaine de Lucioparedes. 

          25.          During the visit, the IACHR met with President Alberto Fujimori Fujimori, and with other Government officials.  The Commission also met with Foreign Minister Fernando de Trazegnies Granda; Minister of Justice Alfredo Quispe Correa; Chief of the National Prison Institute Javier Nakandakari; Education Minister Domingo Palermo Cabrejos; Minister for Women's Promotion and Human Development Miriam Schenone; and Vice-Minister of Health Alejandro Aguinaga Recuenco.  In addition, the IACHR spoke with other high-level authorities of the Peruvian State, including the Human Rights Ombudsman, Jorge Santistevan de Noriega, as well as members of his staff. 

          26.          In addition, the Commission met with the President of the Executive Commission of the Public Ministry, Blanca Nélida Colán Maquiño; the Public Prosecutor, Miguel Aljovín Swayne; the President of the Supreme Court, Víctor Raúl Castillo Castillo; the President of the Superior Court of Lima, Marcos Ibazeta Marino; Francisco Acosta Sánchez, and other members of the Constitutional Court; Fausto Luna Farfán, who presides over the National Council of the Judiciary; the Executive Commission of the Judiciary; Manuel Macedo Dianderas, of the Judicial Academy (Academia de la Magistratura); and, from the judiciary, Edgar Romeo Vargas Romero, Supreme Prosecutor in charge of the Office of the Supreme Prosecutor for Internal Oversight (Fiscalía Suprema de Control Interno) of the Public Ministry, and Nelson Reyes Ríos, member of the Supreme Court and chief of the Judicial Oversight Office (Oficina de Control de la Magistratura), which is part of the Judiciary. 

          27.          The IACHR was also received by Luis Serpa Segura, President of the National Elections Board.  In addition, the Commission met with the President of the Congress, Víctor Joy Way; the First Vice-President, Ricardo Marcenaro Frers; and with the chairpersons of the various congressional committees:  Dennis Vargas Marín, of the Committee on Human Rights and Pacification; Oscar Medelius Rodríguez, of the Committee on Judicial Affairs; Marta Chávez, of the Committee for the Defense of Order and Intelligence; and Oswaldo Sandoval Aguirre, of the Foreign Relations Committee.  The IACHR also met with officers of the military high command, including Gen. Víctor Villanueva Ruesta, Minister of Interior, and Lt. Gen. Armed Forces of Peru Oscar Granthon, President of the Supreme Court of Military Justice. 

          28.          In the course of its visit, the IACHR had a work program in Lima, Ayacucho, Puno, Tacna, and Arequipa, where it went to meet with the state authorities, and with representatives of civil society.  In the course of these visits, the IACHR met with the authorities of the Ayacucho, Yanamayo and Challapalca, Castro Castro, and Socabaya prisons, and of the Cuartel General "Simón Bolívar", and with inmates at these prisons.  A delegation from the Commission went to Ayacucho on Monday, November 9, at the invitation of Peruvian President Alberto Fujimori, whereupon it visited the Superior Court of Justice of Ayacucho and the Yanamilla prison.  On a second visit to Ayacucho, on Wednesday, November 11, the IACHR went with the director of the PAR program, Guillermo Wong, to the Tambo district, to visit the area of action focused in the peasant community of Chachuamayo; and in the departmental capital, the Commission met with Vladimiro Huaro, representative of the Human Rights Ombudsman in Ayacucho, and representatives of civil society and non-governmental organizations working in the region, including the relatives of the disappeared and the working group of the displaced, and with political sectors. 

          29.          The Commission also had an opportunity to meet in Lima with several non-governmental human rights organizations, and received the invaluable support of the Coordinadora Nacional de Derechos Humanos in organizing several meetings with sectors of Peruvian civil society.  The Commission met, among others, with representatives of the following non-governmental organizations:  the Andean Commission of Jurists, the Lima Bar Association (Colegio de Abogados de Lima), Transparencia, Foro Democrático, the Paz Perú Project, the National Working Group on Displacement [Mesa Nacional sobre Desplazamiento], the Working Group on Economic, Social and Cultural Rights, the Central General de Trabajadores del Perú, the Asociación de Periodistas, the Consejo de la Prensa Peruana, the Instituto Prensa y Sociedad, Grupo de Iniciativa por los Derechos del Niño, the Latin American Committee for the Defense and Rights of Women (CLADEM-Peru), and the Conferencia Permanente de Pueblos Indígenas.  The Commission also met with several groups of relatives of the disappeared, retirees, pensioners, and workers who have been laid off.  The Commission also had an opportunity to speak with His Eminence Cardinal Vargas Alzamora and the Catholic Bishop, Monsignor Juan Luis Marín, President of the Catholic Bishops Conference.  The Commission spoke with representatives of the Peace Council, an autonomous institution created by the Congress in 1990, with modifications to the original law made by President Fujimori in the use of the legislative powers delegated by the Congress. 

          30.          As is customary in such visits, the IACHR received complaints from persons who alleged, directly or through their representatives, that they had been the victims of human rights violations; in addition, interviews were conducted with those who wished to provide additional information on cases already before the Commission.  The Commission received approximately 600 complaints during the week of its visit.

          D.            ACKNOWLEDGMENTS 

          31.          During its visit, the IACHR enjoyed full freedom and the necessary guarantees to travel and meet with all sectors, individuals, and groups with whom it wanted to meet.  The IACHR reiterates its gratitude to the Government of the Republic of Peru, in the person of its President, Alberto Fujimori Fujimori, the Ministry of Foreign Affairs, the Human Rights Ombudsman, and all other state authorities, for the hospitality, facilities, and collaboration they extended to the IACHR to successfully complete its visit, and to the various sectors of civil society, the non-governmental organizations, and private individuals for the open and transparent way in which they contributed, with their invaluable testimony and documentation, to the effective realization of the IACHR's mission during the visit.  The Commission also reiterates its gratitude for the interest of the journalists and media in covering the visit.

          E.            APPROVAL OF THIS REPORT 

          32.          This report was forwarded to the State on March 13, 2000, by the Executive Secretary of the Commission, for the purpose of the State making any observations it considers relevant, within two months.  On May 13, the Commission extended this period by 15 days. On May 26, 2000, by Note No. 7-5-M/243 from the Permanent Representative of Peru to the OAS, the Peruvian State submitted its observations.  The Commission, pursuant to Article 62 of its Regulations, heard those observations and included them as it deemed pertinent.  The Commission approved the final version of its report on Friday, June 2, 2000.