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REPORT Nº 49/00
I.
SUMMARY
1.
In a petition submitted to the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) by the nongovernmental
organization APRODEH on June 23, 1993, it was denounced that the Republic of
Peru (hereinafter “Peru,” “the State,” or “the Peruvian State”)
violated the human rights of Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo
Dynnik Asencios Lindo, Marco Antonio Ambrosio Concha, and Carlos Florentino
Molero Coca (hereinafter “the victims”) by detaining and torturing them and,
subsequently, by sentencing the first three to 10 years and the fourth to 12
years in prison on terrorism charges at trials that were totally lacking in due
judicial guarantees and that concluded with sentences handed down by
“faceless” courts. The petitioner alleges that in doing so, the State
violated the victims’ right to personal freedom, right to humane treatment,
and right to a fair trial as set forth in Articles 7, 5, and 8 of the American
Convention on Human Rights (hereinafter “the Convention” or “the American
Convention”). The State denies having violated the victims’ rights. The
Commission concludes that Peru violated, in respect of these named persons, the
rights enshrined in Articles 7, 5, and 8 of the Convention, in connection with
the terms of its Article 1(1), and extends the relevant recommendations to the
Peruvian State. II.
PROCESSING BY THE COMMISSION A.
Processing prior to admissibility
2.
On July 30, 1993, the Commission opened this case, transmitted the
relevant parts of the complaint to the Peruvian State, and requested it to
provide information within 90 days. The State responded on December 2, 1993, and
the petitioner submitted comments on that response on January 17, 1994. Both
parties submitted additional information on different occasions. On May 10,
1998, Mr. Carlos Florentino Molero Coca appointed Dr. Luis Alberto Molero
Miranda and Dr. Luis Alberto Molero Coca to act as his representatives. B.
Admissibility — Friendly settlement
3.
On September 28, 1998, the Commission adopted Report on Admissibility Nº
53/98 with regard to this case. In that report, the Commission agreed to make
itself available to the parties in order to reach a friendly settlement based on
respect for the rights set forth in the Convention and it invited the parties to
respond regarding that possibility with a period of two months. The report was
sent to the parties on October 20, 1998. On January 13, 1999, the State replied
that it did not believe it was appropriate for it to submit to the friendly
settlement procedure. III.
POSITIONS OF THE PARTIES A.
The petitioners 4.
The petitioners allege that on April 30, 1992, during a security
operation conducted on the streets of Lima, a group of police officers stopped a
public transport vehicle and proceeded to search the passengers’ belongings.
As a result, they arrested one of the passengers—named Gladys Helen Ramos
Vargas—who was found to be carrying four homemade explosive devices of the
type known as quesos rusos and an ID
card identifying her as a sociology student at San Marcos University.
5.
They state that the detainee was handed over to police officers from the
anti-terrorist division, DINCOTE, who arrived at the scene; these
officers immediately went to her home, where they found her mother, Mrs. Dolores
Vargas Vergaray, with her grandson. The officers entered the home and searched
it. They then drew up a report stating they had found subversive printed
materials; the report did not speak of any arrests being made. 6.
They state that as a result of Gladys Helen Ramos Vargas’s arrest, the
police immediately launched an operation in the neighborhood (La
Curva del Diablo, in Villa El Salvador
district). They asked several people who were in the area for their IDs and
arrested several of them, simply because they identified themselves as students.
The victims were among the people arrested on the street: Rodolfo Gerbert
Asencios Lindo, a biology student at San Marcos National University, and his
twin brother Rodolfo Dynnik Asencios Lindo, an anthropology student at the same
university; Marco Antonio Ambrosio Concha, a sociology student at San Martín de
Porres University (a private school); and Carlos Florentino Molero Coca, an
anthropology student from San Marcos National University.
7.
Mr. Rodolfo Gerbert Asencios Lindo and Mr. Rodolfo Dynnik Asencios Lindo
report that they were in the vicinity of the Curva del Diablo neighborhood on
their way to the home of Fortunato Bajonero Trujillo, a relative of theirs, when
a group of police officers asked them for their ID. They identified themselves
as students at San Marcos University, whereupon the officers began to accuse
them of being terrorists. One of the officers asked them if they were related to
the lawyer Rodolfo Ascencios Martel, to which they replied that he was their
father. The officers then arrested them and took them to DINCOTE headquarters;
there they told the two students that since they could do nothing against their
father, who as a lawyer belonging to the Association of Democratic Lawyers had
defended individuals accused of terrorism, they were going to do it to them.
8.
They claim that once with the police, they were both tortured in order to
force them into stating that they had been arrested at the home of the student
Gladys Helen Ramos; they never made any such admission, since they did not know
that person and had not been arrested at her home. Regarding the torture they
suffered, Mr. Rodolfo Gerbert Asencios Lindo made the following statement before
the 45th Criminal Judge of Lima: They
punched me in the pit of the stomach and, when I bent over with the pain, they
punched me in the head and kicked me in the shin; they then took us out to
anther room, turned the volume up on the television, and on a table with a
mattress they laid my face against the inclined desk and twisted my arms. They
then punched me in the kidneys and threatened me with rape, blows with the knee
to the thigh. Then they put me in a dark room, I was blindfold all the time, and
they continued with my brother. On May 1st, they also mistreated me when they
were taking my fingerprints, with blows to the lungs and slapping my face. We
are constantly being threatened that they are going to take us to the beach and
that we won’t get out alive. 9.
They state that this torture was even recorded by a forensic physician,
who, during a habeas corpus action
that was brought, went to DINCOTE headquarters with the judge, examined the two
brothers, and declared that they had been mistreated and were displaying recent
wounds caused by a blunt object. This habeas
corpus action was admitted by the 3rd Criminal Chamber, which ordered the
46th Prosecutor in Lima to file the corresponding criminal complaint against
Capt. Manuel Arriola Cueva of the Peruvian National Police (PNP). However, no
such complaint was filed by the prosecutor. 10.
They also report that Mr. Marco Antonio Ambrosio Concha was in the Curva del Diablo neighborhood on April 30, 1992, waiting for a bus
to take him to the home of his friend Víctor Oré Ucharina. When he identified
himself as a student of San Martín de Porres University, he was arrested by
several police officers and, along with a number of other individuals, taken to
the DINCOTE’s facilities. 11.
Mr. Carlos Florentino Molero Coca, in turn, states that he was preparing
to return to his home in the Surco district when he was suddenly intercepted by
several police officers who were conducting an operation in the Curva del Diablo neighborhood. The officers asked Mr. Molero Coca to
identify himself, which he did by showing them an ID that accredited his status
as an anthropology student at San Marcos National University. Upon discovering
he was a student, the police officers covered his face and rushed him into a van
along with several other persons unknown to him. They were then all taken to a
DINCOTE police facility. 12.
They allege that upon arriving at that police facility, Mr. Molero Coca
received brutal and inhumane treatment and was brought before all the other
persons arrested during the operation, in an attempt to get them to admit they
knew each other and had ties with Ms. Gladys Helen Ramos Vargas, who had been
arrested while carrying explosives and subversive material. 13.
They claim that Mr. Molero Coca was tortured in an attempt to get him to
confess and identify the other detainees as members of the Shining Path (SL).
However, he repeatedly refused, since he did not know any of the individuals
placed alongside him.
14.
They state that during the interrogation, Mr. Molero Coca said that his
father, Dr. Luis Alberto Molero Miranda, had been a magistrate and that the
officers must know him, because as an investigating judge in Lima he had handled
a number of well-known cases, including many involving terrorism. The
officers’ reaction was surprising and violent: they proceeded to insult him,
beat him savagely, and make threats along the lines that “they were going to
destroy me, because my father had done the same to some police officers when he
was a judge, by admitting habeas corpus
remedies brought against them.” 15.
They state that the police officers, who never prepared an arrest report
specifying the circumstances under which they arrested the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca, decided to describe the
incident differently, making out that they had discovered and arrested a group
of terrorists instead of simply arresting a single person with alleged terrorist
ties. 16.
They claim that two days after the victims were arrested—that is, May
2, 1992—the police officers went to Gladys Helen Ramos Vargas’s house and
conducted a “home interview” of her mother, Mrs. Dolores Vargas Vergaray.
After threatening that her daughter would be hurt, as she later claimed in
court, they made her sign a statement that the four victims were arrested at her
home while allegedly waiting for her daughter to arrive.
17.
They claim that the police also searched Mr. Molero Coca’s home and, in
order to create doubts, took a notebook containing notes for a research project
titled “The Influence of Linguistics on Anthropology,” carried out during
the 1992 academic year for a class at university, in which he had copied out the
text of a poster on display on the university campus. This text would later be
used as evidence of Mr. Molero Coca’s alleged status as a terrorist. 18.
They state that based on these false assumptions and biased actions, with
no evidence whatsoever, without a deed of arrest or a report covering the
victims’ detention, and without an identification parade being conducted so
that the owner of the house where the police claimed the victims were arrested
could identify them, the police drew up the corresponding police affidavit (Nº
095‑D3‑DINCOTE) in which they maliciously concluded that the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were members
of Shining Path and should be brought to justice. 19.
They claim that on May 14, 1992, when the victims had been under arrest
for two weeks, the police affidavit was received by Lima’s 43rd Provincial
Criminal Prosecutor, responsible for terrorism cases, which drew up criminal
charges against the detainees for the crimes described in Articles 319 and 320
of the Criminal Code in force on the date of their arrest, covering actions
intended to cause terror, unrest, and alarm in urban areas. 20.
They state that on May 15, 1992, the Judge of the 43rd Criminal Court in
Lima drew up judicial file Nº 082‑92, began preliminary proceedings, and
issued arrest warrants for all the defendants; she also specified that regarding
the substance of the allegations, the terms of Articles 319 and 320 of the
Criminal Code would apply, but that adjective or procedural matters would be
handled in accordance with the procedure set forth in Decree Law Nº 25475 of
May 5, 1992. 21.
They claim that in their statements to the investigating judge, the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca repeated
that they were innocent and kept to the story they had told the police: that
they did not know each other prior to their arrest, that they had no personal
relationships of any kind, that they were not arrested at the address given in
the police report, that they were not members of any subversive organization,
and that they were not involved in any sort of political activity. They also
stated that they had been falsely accused by the police to justify their
arbitrary arrest and the abuses committed during their time in the DINCOTE’s
cells. 22.
They claim that during this preparatory phase, the accused Gladys Helen
Ramos Vargas specifically stated that she did not know Rodolfo Gerbert Asencios
Lindo, Rodolfo Dynnik Asencios Lindo, Marco Antonio Ambrosio Concha, or Carlos
Florentino Molero Coca, and that it was untrue that they were arrested at her
home. Similarly, on June 12, 1992, her mother made a statement under oath in
these preparatory proceedings to the effect that she did not know the Asencios
Lindo brother or Messrs. Ambrosio Concha and Molero Coca and that they were not
arrested at her home. In this statement she recanted her earlier statement to
the police, claiming that: If
I said what appears there in that statement it was because that same Thursday
afternoon, when they brought my daughter to my house, they told me that was what
I had to say. I was threatened as well, with them telling me they were going to
take my daughter to the beach to do away with her, and that was why I made that
declaration in the statement before me. 23.
They state that the representative of the Attorney General’s office
then drew up her decision, concluding that the responsibility of the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca had not been proven
and stating that the investigation had revealed no ties between them and any
subversive group or any evidence of their involvement in terrorist acts. The
43rd Criminal Judge stated in her final conclusions that “no deed was drawn up
in connection with the arrest of these four accused showing the date, place, and
circumstances of their arrest” and concluded that they were not criminally
liable since no ties between them and subversive organizations were established
and no evidence was provided of their involvement in any terrorist acts. She
did, however, identify criminal responsibility on the part of the accused Gladys
Helen Ramos Vargas. 24.
They state that on August 19, 1992, the 43rd Criminal Judge ordered the
release of the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero
Coca, and decided to consult the Superior Court regarding her decision prior to
carrying it out. She thus ordered an extra document to be added to the case file
for this consultation to take place, including with it the relevant parts of the
proceedings. Both files--the main one and the one dealing with the release of
Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik Asencios Lindo, Marco Antonio
Ambrosio Concha, and Carlos Florentino Molero Coca-- were sent to the higher
court. 25.
They claim that Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik
Asencios Lindo, and Marco Antonio Ambrosio Concha filed a habeas corpus motion to secure compliance with the decision of the
43rd Criminal Judge ordering their release. On August 25, 1992, this motion was
dismissed by Lima’s 15th Criminal Judge in accordance with the terms of Decree
Law 25475, under which no releases of any kind would be granted at that time,
and with the terms of Decree Law 25859, which stipulated that guarantee actions
were not admissible at any stage of police or criminal investigations into the
crimes covered by Decree Law 25475. An appeal against this ruling was heard by
the Supreme Court of Justice, which upheld it in a decision dated October 5,
1992. 26.
They state that the main case file was sent to the Special Chamber of the
Superior Court, composed of “faceless” judges, which in turn sent it to the
“faceless” superior prosecutor. This superior prosecutor, instead of only
filing charges against the accused Gladys Helen Ramos Vargas in accordance with
the conclusions reached by the provincial prosecutor and the investigating
judge, included the Asencios Lindo brothers and Messrs. Ambrosio Concha and
Molero Coca in his accusation, based on the terms of Articles 319 and 320 of the
Criminal Code, and asked for their conviction and expressed his opinion that
they should appear at trial. 27.
They report that this trial was held on October 22-24, 1992, in
accordance with the terms of Decree Law Nº 25475, before the Special Chamber of
the Superior Court, composed of “faceless” judges, in a room furnished for
the purpose in Miguel Castro Castro prison in Lima.
28.
They claim that the trial at which they appeared was plagued by
limitations of the right of defense and that it came to end with a sentence
handed down on October 24, 1992, condemning Rodolfo Gerbert Asencios Lindo,
Rodolfo Dynnik Asencios Lindo, and Marco Antonio Ambrosio Concha to ten years in
prison and Carlos Florentino Molero Coca to twelve years.
29.
They maintain that although the investigation carried out in their case
and the charges drawn up by the superior prosecutor of the office of the
Attorney General had been prepared in accordance with Articles 319 and 320 of
the Criminal Code, which typified as crimes actions intended to cause terror,
unrest, and alarm in urban areas, the sentence convicted them under entirely
different provisions: Articles 321 and 322 of the Criminal Code, for actions
related to “criminal association” which were covered in neither the
“investigation, judgment, or accusation.” 30.
They say that this sentence from the Special Chamber of the Superior
Court did not resolve objections and challenges that were filed at the
appropriate time, nor did it rule on questions of substance posed during the
judicial proceedings. The three basic pieces of evidence upon which the sentence
was based were the following: the police report of April 30, 1992, dealing with
the search conducted at Gladys Helen Ramos Vargas’s home, which does not state
that the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero were
arrested there; the record of the interview with Gladys Helen Ramos Vargas’s
mother, who later recanted her statement in court, claiming that the police had
forced her to say that the four of them were arrested at her home; and the
police affidavit drawn up by the DINCOTE, in which the police offered a series
of subjective, malicious, and utterly unfounded conclusions.
31.
They report that an appeal for annulment against this sentence was filed
with the Supreme Court which, in a ruling dated September 30, 1994, decided
there were no grounds for its annulment and upheld it. This ruling was reached
in secret by “faceless” judges of the Supreme Court’s Special Chamber, who
were solely identified by the numbers 10913297, 11329027, 11709197, 11004297,
10829137, and 29202405.
32.
They note that the terrorism convictions handed down to Messrs. Rodolfo
Gerbert Asencios Lindo, Rodolfo Dynnik Asencios Lindo, Marco Antonio Ambrosio
Concha, and Carlos Florentino Molero Coca were widely reported in the media and
received special coverage and emphasis because they were among the first
sentences given under the procedure set by Decree Law Nº 25475. They add that
the convictions, and the accompanying publicity, caused both the defendants and
their families moral injuries and other damages.
33.
They report that national and international campaigns were subsequently
waged to get the Peruvian State to accept the innocence of the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca and to release them. Mr.
Molero Coca and Mr. Ambrosio Concha were declared prisoners of conscience by
Amnesty International.
34.
The petitioners claim that as a result of these incidents, the State
violated the victims’ right to personal liberty, right to humane treatment,
and right to a fair trial, as set forth in Articles 7, 5, and 8 of the American
Convention. B.
The State
35.
On December 2, 1993, Peru gave the Commission a report on this case,
drawn up by the Ministry of Defense, according to which the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca were arrested by officers
of the San Juan de Miraflores national police and taken to the DINCOTE, the
agency responsible for investigating and later drawing up police affidavits for
terrorist crimes.
36.
This report added that the criminal proceedings against the individuals
in question were lodged with the Special Chamber of the Supreme Court, by virtue
of an appeal for annulment filed against a sentence of the Special Chamber of
the Superior Court that sentenced the Asencios Lindo brothers and Mr. Ambrosio
Concha to 10 years in prison and Mr. Molero Coca to 12 years. This report
specified that these individuals were being held at the Yanamayo and Castro
Castro prisons in Lima.
37.
On April 21, 1994, Peru gave the Commission a report on this case, drawn
up by the Ministry of the Interior, according to which the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca “were brought before the
DINCOTE under deed Nº 1833-D3-DINCOTE of April 30, 1992, after being arrested
by national police personnel from this specialized unit inside the home of the
suspected terrorist criminal Gladys Helen Ramos Vargas (21), in whose possession
national police personnel from the San Juan de Miraflores detachment found four
explosive devices (homemade bombs known as quesos
rusos) and subversive documents. After investigations were conducted,
affidavit Nº 095-D3-DINCOTE of May 12, 1992, was drawn up, it having been
established that they were suspected perpetrators of terrorist crimes after it
was shown that they belonged to or worked within the subversive organization
PCP-SL.”
38.
On April 22, 1994, Peru gave the Commission another report on this case,
drawn up by the Ministry of the Interior, according to which “on September 30,
1993, a supreme writ of execution declared there were no grounds for the
annulment of the ruling of October 24, 1992, that sentenced Gladys Helen Ramos
Vargas and others as perpetrators of crimes against public order and terrorism
to the detriment of the State. The case file has been returned to the Special
Chamber of the Lima Superior Court for applicable legal purposes, and that is
its current status.” 39.
On July 8, 1994, Peru gave the Commission a report on this case, drawn up
by the Ministry of the Interior, according to which “report Nº 20-93 by the
Health Division of the PNP in Puno shows that citizens (. . .)
Asencios Lindo and (. . .) Ambrosio Concha are clinically healthy.
Attached documents also show that the aforesaid inmates receive the
correspondence, foodstuffs, and personal items sent by their relatives.”
40.
On August 5, 1994, Peru sent the Commission a report on this case, drawn
up by the Ministry of Justice for the Executive Secretariat of the National
Human Rights Council. This report states that: With
the issuing of the supreme writ of execution on September 30, 1993, which stated
that there were no grounds for annulling the sentence of October 24, 1992,
against which the appeal was made and which convicted Gladys Helen Ramos Vargas
and others for crimes against public order and terrorism to the detriment of the
State, it would be impertinent to base dismissals on facts and police actions
that have been seen by the competent judicial bodies in accordance with the
rules of due process. Thus, I suggest the following: Reply to the IACHR that the
university students GERBERT ASENCIOS LINDO and others were not arbitrarily
detained but arrested by the police and submitted to a judicial process in
accordance with the normal procedures of our domestic law, which concluded with
the issuing of the supreme writ of execution on September 30, 1993.
41.
In a communication dated August 11, 1994, the content of which was
ratified on February 1, 1996, the State said that the sentence of October 24,
1992, convicting the Asencios Lindo brothers and Messrs. Ambrosio Concha and
Molero Coca, was definitively upheld on September 30, 1993, when the Supreme
Court ruled there were no grounds for annulling the sentence of October 24,
1992. 42.
On January 13, 1999, the State indicated that it was unable to begin
friendly settlement proceedings, because that would imply its acceptance of
responsibility in these incidents, which would have been contradicted by the
documents submitted to the Commission.
IV.
ANALYSIS A. Introduction 43.
Based on an analysis of the petitioners’ allegations and the reply
given by the Peruvian State, the Commission notes that Peru has not disputed the
incidents on which the petitioners’ claim is based. The Peruvian State
expressly stated that, “it would be impertinent to base dismissals on facts
and police actions that have been seen by the competent judicial bodies in
accordance with the rules of due process,” and went on to say that the
students in question “were not arbitrarily detained but arrested by the police
and submitted to a judicial process in accordance with the normal procedures of
our domestic law, which concluded with the issuing of the supreme writ of
execution on September 30, 1993.” 44.
In accordance with the above, the Commission accepts the facts not
disputed by the parties, which are basically all those set forth by the
petitioners: to summarize, that the Asencios Lindo brothers and Messrs. Ambrosio
Concha and Molero Coca were arrested on July 30, 1992, by police officers and
taken to the DINCOTE, where they were tortured to get them to admit that they
were members of Shining Path and that they had been arrested at the home of the
student Gladys Helen Ramos Vargas. Their torture was even corroborated by a
forensic physician, as a result of which the 3rd Criminal Chamber ordered
Lima’s 46th Prosecutor to prepare criminal charges against Capt. Manuel
Arriola Cueva of the national police; charges which were not made. In their
statements to the police and in spite of the torture they suffered, the students
declared that they did not know each other prior to their arrest, that there was
no personal relationship of any kind between them, that they were not arrested
at the address given in the police report, that they were not members of any
subversive organization, and that they were not involved in any kind of
political activity. The police later drew up the corresponding police affidavit
(Nº 095‑D3‑DINCOTE), in which they concluded that the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were members of
Shining Path and should be brought to justice. 45.
The parties agree that on May 14, 1992, after the victims had been in
detention for two weeks, the police affidavit was received by the 43rd
Provincial Criminal Prosecutor in Lima, responsible for terrorism cases, who
drew up criminal charges against all the detainees for the crimes referred to in
Articles 319 and 320 of the Criminal Code in force on the day of their arrest:
actions intended to cause terror, unrest, and alarm in urban zones. On May 15,
1992, the judge of Lima’s 43rd Criminal Court drew up case file Nº
082‑92, began preliminary investigations, and issued arrest warrants for
all the defendants; she also specified that regarding the substance of the
allegations, the terms of Articles 319 and 320 of the Criminal Code would apply,
but that adjective or procedural matters would be handled in accordance with the
procedure set forth in Decree Law Nº 25475 of May 5, 1992. In their statements
to the judge, the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero
Coca repeated their innocence and kept to the version of events they had told
the police. 46.
Neither do the parties dispute the fact that, during this phase of the
investigations, the accused Gladys Helen Ramos Vargas stated explicitly that she
did not know the students and that it was untrue that they were arrested at her
home. Ramos Vargas’s mother made a statement under oath in these preparatory
proceedings on June 12, 1992, stating that she did not know the Asencios Lindo
brothers or Messrs. Ambrosio Concha and Molero Coca and that they had not been
arrested at her home. In this statement she recanted her earlier testimony to
the police and claimed that her previous declarations had been made under duress
in the form of police threats that her daughter would come to harm. The
representative of the Attorney General’s office then drew up her ruling,
concluding that the responsibility of the Asencios Lindo brothers and Messrs.
Ambrosio Concha and Molero Coca had not been proven and stating that the
investigation had revealed no ties between them and any subversive group and had
revealed no evidence of their involvement in any terrorist act. The 43rd
Criminal Judge, in a decision dated August 19, 1992, found that the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were not responsible
of the crimes with which they were charged, ordered their release, and decided
to consult the Superior Court regarding her decision prior to carrying it out. 47.
The parties also agree that the Asencios Lindo brothers and Mr. Ambrosio
Concha filed a habeas corpus motion to
ensure enforcement of the 43rd Criminal Judge’s decision ordering their
release. This motion was dismissed by Lima’s 15th Criminal Judge on August 25,
1992. The basis for this decision was Decree Law 25475, under which no releases
of any kind would be granted at that time, and Decree Law 25859, which
stipulated that guarantee actions were not admissible at any stage of police or
criminal investigations into the crimes covered by Decree Law 25475. The appeal
against this ruling was heard by the Supreme Court of Justice, which upheld it
in a decision handed down on October 5, 1992.
48.
Neither do the parties dispute the fact that the main case file was sent
to the Special Chamber of the Superior Court, composed of “faceless” judges,
which in turn sent it to the “faceless” superior prosecutor. This superior
prosecutor filed charges against the Asencios Lindo brothers and Messrs.
Ambrosio Concha and Molero Coca, based on Articles 319 and 320 of the Criminal
Code, asked for them to be convicted, and expressed his opinion that they should
appear at trial. This trial was held on October 22-24, 1992, in accordance with
the terms of Decree Law Nº 25475, before the Special Chamber of the Superior
Court, composed of “faceless” judges,” in a room furnished for the purpose
in Miguel Castro Castro prison in Lima. This trial ended with a sentence issued
on October 24, 1992, the relevant part of which condemned Rodolfo Gerbert
Asencios Lindo, Rodolfo Dynnik Asencios Lindo, and Marco Antonio Ambrosio Concha
to ten years in prison, and Carlos Florentino Molero Coca to a twelve-year
prison term. 49.
The parties do not dispute the fact that that although the investigation
carried out in this case and the charges drawn up by the superior prosecutor of
the office of the Attorney General had been prepared in accordance with Articles
319 and 320 of the Criminal Code, dealing with actions intended to cause terror,
unrest, and alarm in urban areas, the sentence convicted the victims under
different provisions: Articles 321 and 322 of the Criminal Code, on charges
related to “criminal association” that were not an issue in either the
investigation, the judgment, or the accusations. Neither do the parties deny
that the three basic pieces of evidence upon which the sentence was based were
the police report of April 30, 1992, regarding the search conducted at Gladys
Helen Ramos Vargas’s home, the record of the interview with Gladys Helen Ramos
Vargas’s mother, and the police affidavit drawn up by the DINCOTE.
50.
Both parties concur that a motion for annulment was filed against this
sentence with the Supreme Court of Justice, which, in a ruling dated September
30, 1994, and arrived at in secret by a bench of “faceless” judges, decided
there were no grounds for its annulment and upheld the sentence.
51.
Where the parties do not agree is regarding the place where the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were arrested. The
petitioners maintain they were detained in public, on the street; the State, in
contrast, holds that the arrests took place at the home of Ms. Gladys Helen
Ramos Vargas. The Commission notes, however, that the parties do not dispute the
fact that the sentence convicting the students failed to take into account the
judicial statement made by Mrs. Gladys Vargas Vergaray on June 12, 1992, in
which she recanted her earlier testimony to the police in which she had said
that the students were arrested at her home and claimed that the police
statement had been obtained under police duress. 52.
Hence, the Peruvian State does not dispute the facts, and its defense
centers on the fact that the Asencios Lindo brothers and Messrs. Ambrosio Concha
and Molero Coca were tried and convicted pursuant to normal procedures under
Peruvian domestic law: specifically, Decree Law Nº 25475, of May 6, 1992,
dealing with terrorist crimes. 53.
Consequently, the issue before the Commission is whether the aforesaid
Decree Law Nº 25475 and its ancillary provisions are compliant with the
obligations Peru assumed by ratifying the American Convention on Human Rights,
in light of the undisputed facts of the present case. In this regard, it should
be noted that the Commission is competent to determine whether the effects of
enforcing a domestic law constitute violations of the obligations of a State
that is a party to the American Convention. In this regard, the Inter-American
Court has said that: There
should be no doubt that the Commission has in that regard the same powers it
would have if confronted with any other type of violation and could express
itself in the same way as in other cases. Said in another way, that it is a
question of “domestic legislation“ which has been “ adopted pursuant to
the provisions of the Constitution“ is meaningless if, by means of that
legislation, any of the rights or freedoms protected have been violated. The
powers of the Commission in this sense are not restricted in any way by the
means by which the Convention is violated. (. . .) At
the international level, what is important to determine is whether a law
violates the international obligations assumed by the State by virtue of a
treaty. This the Commission can and should do upon examining the communications
and petitions submitted to it concerning violations of human rights and freedoms
protected by the Convention.[1] 54.
In accordance with this, the Commission will now undertake an analysis of
Decree Law Nº 25475 and its ancillary provisions, in light of the undisputed
facts of the present case, in order to determine whether they comply with the
obligations Peru acquired by ratifying the American Convention on Human Rights.
The Commission will then be able to determine whether those procedures
constituted in and of themselves a legal structure contrary to the rights and
guarantees enshrined in the American Convention (a violation per se), the application of which to persons brought to trial under
such legal parameters would have meant a violation of the human rights set forth
in the Convention. The starting point for this analysis is the present case, in
which those procedures were applied to the Asencios Lindo brothers and Messrs.
Ambrosio Concha and Molero Coca, who were among the first people to be tried and
convicted under those provisions.
B.
Context of the anti-terrorist legislation
55.
Between 1980 y 1992, Peru underwent a period of armed internal conflict
that led to the death and disappearance of thousands of people and caused
massive material losses. The main participants in this conflict were, on the one
hand, individuals associated with the “Shining Path” (SL) and “Tupac Amaru
Revolutionary Movement” (MRTA) dissident groups, and, on the other, the
State’s police and military forces.
56.
On April 5, 1992, President Alberto Fujimori promulgated Decree Law Nº
25418, establishing an Emergency Government for National Reconstruction. Among
his reasons for this, he stated, was the desire to reorganize the judiciary to
purge it of corruption and prevent terrorism-related crimes from going
unpunished. The Emergency Government dissolved Congress and summarily dismissed
judges and public prosecutors at all echelons of the system. 57.
Against this backdrop, in 1992 Lima suffered its most violent wave of
terrorist attacks. Consequently, on July 24, 1992, President Fujimori addressed
the nation and announced drastic new legal measures to counter the situation.
Among these were two Decree Laws (Nos. 25475 and 25659) for prosecuting, trying,
and punishing persons guilty of the crimes of terrorism and treason against the
fatherland. 58.
The State’s national and international obligation to confront
individuals or groups who use violent methods to create terror among the
populace, and to investigate, try, and punish those who commit such acts means
that it must punish all the guilty, but only the guilty. The State must function
within the rule of law, punishing only the guilty and refraining from punishing
the innocent. The administration of justice according to the law and with due
judicial guarantees acts as a safeguard of the fundamental right of freedom
inherent to all human beings who have committed no punishable crimes. The only
way in which the State can perform that jurisdictional function with true
justice is by ensuring that the accused are guaranteed a fair trial. 59.
For this reason the American Convention on Human Rights expressly sets
forth the right to freedom and the right to due process. A trial with due
guarantees is the best way to avoid the injustice of convicting the innocent. In
this regard, the aforesaid Decree Law Nº 25.475--which was intended, along with
other related provisions, to prosecute, try, and punish the perpetrators of
terrorism--led to human rights violations, as shall be seen in this report, by
establishing procedures that undermined the guarantees of due process of the
individuals tried under them and sentenced innocent people to lengthy prison
terms, as occurred in the case at hand with the convictions of the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca. 60.
The Commission notes that the Peruvian State has made efforts to resolve
some cases of individuals convicted without ties of any sort to terrorist
activities or organizations. Thus, on 15 August 1996, the Peruvian State enacted
Law Nº 26655, creating an Ad Hoc Commission charged with evaluating cases and
suggesting to the President of the Republic that pardons be granted to
individuals accused or convicted of terrorist crimes when it could be reasonably
assumed that they had no connections to terrorist organizations or activities.[2]
This Commission, which continues to operate, is composed of three members:
People’s Defender (ombudsman) Dr. Jorge Santistevan de Noriega, who serves as
its chairman; Father Hubert Lanssiers, representing the President of the
Republic; and the Justice Minister. To date the Commission has received some
3,000 petitions and, as of November 8, 1998, had presented President Alberto
Fujimori with proposals for 494 pardons, of which 457 have been granted.[3]
61.
With regard to this Ad Hoc Commission, the Special Rapporteur of the UN
Commission on Human Rights responsible for the independence of the judiciary and
lawyers said that he: . . .
welcome[d] the establishment of the Ad Hoc Commission by the Government as an
attempt to correct the wrong done to the innocent people who were tried and
sentenced by “faceless” civil and military tribunals; however, the Special
Rapporteur would like to point out that the establishment of the Commission is
itself an acknowledgement by the Government of the serious irregularities that
surrounded the procedures for trying cases of terrorism and treason, which
amounted to a miscarriage of justice.[4] 62. The Commission
believes it should clarify that Article 27 of the American Convention stipulates
that during times of war, public danger, or other emergencies that threaten its
independence or security, a state party may suspend some of the international
obligations to which it is subject. Thus, Article 27 of the Convention reads 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. 63.
In accordance with Article 27 of the Convention and the guidelines set
down by the Court, a fundamental principle of respect toward the representative
democratic regime is needed and certain requirements must be met for a country
to validly declare a state of emergency. 64.
Regarding the principle that the representative democratic regime is to
be respected, it should be noted that under Article 3.d of the Charter of Bogotá
(1948), one of the basic principles governing the Organization of American
States is the requirement that its members must be organized politically on the
basis of the effective exercise of representative democracy. Consequently, the
preamble to the Convention reiterates its “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.” Similarly, Article 29 of the Convention
prohibits the interpretation of any of its provisions as “precluding 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 refer to the democratic principle within the political organization
of the member states. 65.
Regarding the requirements for declaring a state of emergency, the
Inter-American Court has said that the starting point for a legally sound
analysis of Article 27 of the Convention: . . .
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.”[5] 66.
Thus, the prerequisites for declaring a state of emergency are the
following: 67.
Need: Under Article 27 of the Convention, for a true emergency to be
deemed to exist, the country must be facing a situation of extreme gravity, such
as a state of war, public danger, or other emergencies that threaten the
independence or security of the member state. The Commission has ruled that
measures relating to states of emergency “can only be justified when there is
a real threat to law and order or the security of the state.”[6] 68.
Nonpermanence: This requirement refers to the duration of the suspension
which, as stipulated by Article 27(1) of the Convention, must last only for the
period of time strictly required by the exigencies of the situation. In this
regard the Commission has said that it is a matter of great gravity to declare
states of emergency for lengthy or indefinite periods of time, particularly when
they grant heads of state broad powers, including the submission of the
judiciary to measures decreed by the executive, which in certain cases can lead
to the suspension of the rule of law itself.[7] 69.
Proportion: Article 27(1) of the Convention states that the suspension
can only take place to the extent strictly required by the exigencies of the
situation. This requirement prevents the unnecessary suspension of certain
rights, the imposition of greater restrictions than are necessary, and the
extension of the suspension into areas not affected by the emergency. 70.
Nondiscrimination: As stipulated by Article 27(1) of the Convention, in
conjunction with Articles 1 and 24, the suspension of rights cannot entail
discrimination of any kind against any person or group. 71.
Consistency with other international obligations: The suspension of given
rights must be consistent with all other obligations imposed by other
international instruments ratified by the country. 72.
Notice: In compliance with Article 27(3) of the Convention, notice of the
declaration of the state of emergency must immediately be given to the
Convention’s other states parties, through the Secretary General of the OAS.
73.
Even when these conditions are met, the Convention contains certain
rights and guarantees that states cannot suspend. 74.
Non-derogable rights: With
regard to the rights that can be suspended when a state of emergency is imposed,
the Inter-American Court has said 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. . . .
Hence, rather 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.[8] 75. The rights that
the State cannot suspend, regardless of the gravity of the emergency, are for
the most part listed in Article 27(2) of the Convention and are those contained
in the following Articles: 3 (right to juridical personality), 4 (right to
life), 5 (right to humane treatment), 6 (freedom from slavery), 9 (freedom from ex
post facto laws), 12 (freedom of conscience and religion), 17 (rights of the
family), 18 (right to a name), 19 (rights of the child), 20 (right to
nationality), and 23 (right to participate in government). As stipulated by
Article 27(1) of the Convention, the suspension of rights must be consistent
with all other obligations imposed by other international instruments ratified
by the country. 76.
The Inter-American Court has stated that the suspension of guarantees
must not entail the suspension of the rule or law or 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 ).[9] 77.
Thus, “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.”[10]
Similarly, the independence of the judiciary is vital, since that independence
is the keystone of the rule of law and of human rights protection. The Court has
therefore ruled that habeas corpus and
amparo remedies are judicial
guarantees that protect non-derogable rights and those “judicial remedies
[are] essential to ensure the protection of those rights. “[11]
The judiciary serves to protect legality and the rule of law during a state of
emergency. 78. Non-derogable
guarantees: The Inter-American Court of Human Rights has stated that,
“guarantees are designed to protect, to ensure or to assert the entitlement to
a right or the exercise thereof. The States Parties not only have the obligation
to recognize and to respect the rights and freedoms of all persons, they also
have the obligation to protect and ensure the exercise of such rights and
freedoms by means of the respective guarantees (Art. 1.1), that is, through
suitable measures that will in all circumstances ensure the effectiveness of
these rights and freedoms.”[12] 79. In addition to
the rights mentioned above, according to the final part of Article 27(2) of the
Convention, the judicial guarantees that are essential for protecting
non-derogable rights cannot be suspended either; as the Court has said: It
must also be understood that the declaration of a state of emergency--whatever
its breadth or denomination in internal law--cannot entail the suppression or
ineffectiveness of the judicial guarantees that the Convention requires the
States Parties to establish for the protection of the rights not subject to
derogation or suspension by the state of emergency.[13]
80.
The Inter-American Court of Human Rights has concluded that: The
judicial guarantees essential for the protection of the human rights not subject
to derogation, according to Article 27(2) of the Convention, are those to which
the Convention expressly refers in Articles 7(6) and 25(1), considered within
the framework and the principles of Article 8, and also those necessary to the
preservation of the rule of law, even during the state of exception that results
from the suspension of guarantees.[14] 81.
In conclusion, as indicated by the jurisprudence of the Inter-American
Court quoted above, the judicial guarantees that cannot be suspended during
states of emergency are essentially habeas
corpus, amparo, remedies intended
to preserve the rule of law, and, in general, all other judicial procedures
ordinarily used to guarantee full enjoyment of the non-derogable rights referred
to in Article 27(2) of the Convention, which, even during states of emergency,
must be followed. 82. If it had fully
complied with the principles and prerequisites described above, Peru could have,
under certain conditions, suspended either in whole or part the enjoyment of
some of the rights and guarantees enshrined in the American Convention, provided
that said rights and guarantees were not non-derogable. However, since it failed
to comply in full with the requirements set forth in Article 27 of the
Convention, the obligations acquired by Peru through its free and sovereign
ratification of the American Convention remain in full force and effect. 83. The Commission
is not unaware of the situation prevailing in Peru when the anti-terrorist
legislation was enacted, with constant incursions by armed groups having caused
a state of permanent alarm among the populace. For that reason, a state of
emergency had been declared in several of the country’s departments, which
would appear, prima facie, to be justified by the crisis faced by the Peruvian
State in combating terrorism. Under this state of emergency, Article 2.20.g[15]
of the 1979 Peruvian Constitution had been suspended in many departments, and
the police and armed forces had been given the power to legally arrest
individuals without an order from a competent judge and without their being
caught in flagrante delicto. 84.
It must nevertheless be noted that, in spite of the prima facie legitimacy of
this measure, the authority to conduct arrests does not grant the security
forces unlimited power for arresting citizens arbitrarily. Suspending the need
for a court-provided arrest warrant does not mean that public officials have
been freed from the legal prerequisites needed to legally decree such a measure,
nor that the jurisdictional controls over how arrests are conducted have been
cancelled. 85.
The suspension of some of the components of the right to personal
liberty, authorized in certain cases by Article 27 of the American Convention,
can never be total. In any democratic society there are underlying principles
that the security forces must observe in making an arrest, even during a state
of emergency. The legal grounds for an arrest are obligations that state
authorities must respect, in compliance with the international commitment to
protecting and respecting human rights that was acquired under the Convention. 86. Similarly,
based on the above principles, police or military arrest as a precautionary
measure must solely be intended to prevent the flight of an individual suspected
of a criminal act, thereby ensuring his appearance before a competent judge to
be tried within a reasonable delay or, if appropriate, released. No state can
impose punishments without the guarantee of a prior trial.[16]
In a constitutional and democratic state based on the rule of law, in which the
separation of powers is respected, all punishments set forth in law must be
imposed by the judiciary after the person’s guilt has been established with
all due guarantees at a fair trial. The existence of a state of emergency does
not authorize the state to ignore the presumption of innocence, nor does it
empower the security forces to exert an arbitrary and uncontrolled ius puniendi.
87.
The Commission will next analyze Decree Law Nº 25475 and its ancillary
provisions in light of the undisputed facts of this case, in order to determine
whether by enacting and enforcing them--specifically, to the cases of the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca--the
Peruvian State violated the obligations it acquired by ratifying the American
Convention on Human Rights.
C.
Decree law Nº 25475 on the crime of terrorism 88.
Article 2 of Decree Law Nº 25475 of May 6, 1992, defines terrorism as an
act aimed at “provoking, creating, or maintaining anxiety, alarm, and fear in
the public, or a sector thereof; making attempts to harm the life, body, health,
freedom, and safety of the individual, or property, the security of public
buildings, modes and means of communication and transportation of any kind,
electric towers and power lines, power plants, or any other facility or service,
through the use of weapons or explosive devices or substances, or any other
means capable of inflicting damage or seriously disrupting the peace or
adversely affecting international relations or the security of society and the
State.” This decree expressly repealed the provisions of the Criminal Code
that, since April 1991, had applied to terrorism-related offenses, and it also
established prison terms ranging from a minimum of 20 years up to a maximum of
life imprisonment for those found guilty. 89.
The definition of terrorism contained in this decree is totally abstract
and inaccurate and, as such, the decree violates the principle of legality, an
inherent part of criminal law that is ultimately intended to secure the
juridical certainty an individual needs in order to know exactly what actions or
omissions will give rise to criminal responsibility.
90.
The Commission stands by the comments it offered in its 1993 report on
the general human rights situation in Peru regarding the inadequate definition
of terrorist crimes: the criminal actions that constitute terrorism are defined
and described in Article 2 of Decree Law Nº 25475 with a patent lack of
clarity, using very broad terminology and thus creating open definitions of
crimes that use very inexact terms and are therefore “contrary to one of the
basic principles of modern criminal justice, which is that the language used to
describe the prohibited conduct must be precise so as to leave as little
discretionary latitude as possible to those whose function it is to enforce and
interpret the law.”[17]
On that occasion the Commission reached the following conclusion, which it now
reiterates: “This new body of law is contrary to universally accepted
principles of legality, due process, judicial guarantees and the right of
self-defense; under these laws, merely being suspected of a terrorist act or of
in any way collaborating in terrorist acts is sufficient cause to hold someone
in prison for long periods, regardless of whether that person actually committed
an act classified as terrorism or treason. In the opinion of the Commission,
this is a grave threat to the people’s juridical security.”[18] 91. In connection
with this, the Inter-American Court of Human Rights has pointed
out that the right enshrined in Article 7(2) of the American Convention--that no
one shall be deprived of his physical liberty except for reasons established
beforehand by law--involves a principle under which “no one may be subjected
to arrest or imprisonment for reasons and by methods which, although classified
as legal, could be deemed to be incompatible with the respect for the
fundamental rights of the individual because, among other things, they are
unreasonable, unforeseeable or lacking in proportionality.”[19]
92.
Continuing with the analysis of Decree Law Nº 25475, Article 12
stipulates that Peru’s National Police is charged with investigating terrorist
crimes through the DINCOTE, its National Anti-Terrorist Directorate. The DINCOTE
is empowered to decide whether the evidence it gathers is enough to bring
charges. In addition, it also decides what charges are to be brought and whether
the defendant is to appear before a civilian or a military court. 93.
The UN’s Special Rapporteur on the independence of the judiciary and
lawyers stated, in the report quoted above, that Decree Nº 25475 gave the
police excessive powers, . . .
enabling them to impose incommunicado detention unilaterally, without consulting
with a judge, and the restrictions of the right of defence at both civil and
military “faceless” tribunals are inconsistent with provisions of
international human rights treaties to which Peru is a party, in particular
those that provide for the right to due process and its components. Article 8 of
the American Convention on Human Rights is of particular relevance because it
provides for the right to due process and is regarded as a non-derogable right
even during a state of emergency.[20] 94.
Thus, under Article 12(c) of the Decree, the national police is empowered
to detain suspects for fifteen days and is merely required to notify the judge
and the office of the Attorney General within 24 hours of their arrest. Article
12(d) further states that during this time, the police can keep detainees
completely incommunicado, while Article 12(f) stipulates that defendants’
appointed lawyers can only act in their defense after the detainees have given a
statement to the office of the Attorney General.[21]
Article 18 of the Decree stated that in terrorism trials, defense lawyers could
not simultaneously represent more than one defendant, and excepted
court-appointed attorneys from the terms of that provision.[22],[23]
95.
In the case at hand, the ban preventing defense lawyers from representing
more than one defendant at once was applicable to the defense of the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca, since they were
arrested on April 30, 1992, and appeared at trial on October 22-24, 1992, when
the provision was in force. 96. The UN’s
Human Rights Committee, set up under the Covenant on Civil and Political Rights,
has also recorded its concern regarding the provisions of Decree Law Nº 25475
that authorize extension of preventive detention in certain cases for up to 15
days, and it has stated that those provisions raise serious issues with regard
to Article 9 of the Covenant, which deals with personal liberty and is similar
in content to Article 7 of the American Convention.[24]
97.
The Commission believes that the aforesaid provisions of Decree Nº 25475
constitute a violation per se of
Articles 7 and 8 of the American Convention, in that the power given to the
police under which they can arrest a person and keep him incommunicado for 15
days clearly contravenes the terms of Article 7(5) of the American Convention,
according to which “any person detained
shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power”, as well as those of Article 8(2)(d), which
establishes as a minimum procedural guarantee the right of the accused “to communicate freely and privately with his counsel.” In addition,
the restriction limiting each lawyer to the representation of a single defendant
affected the defendants’ right to freely choose their own legal counsel
enshrined in Article 8(1)(d) of the American Convention. 98.
In this case it can be seen that, pursuant to these provisions, the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were
detained for 15 days (April 30 through May 14, 1992), during which time they
were kept incommunicado. Thus, as explained above, the Peruvian State violated
the rights enshrined in Articles 7 and 8 of the American Convention with respect
to the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca.
99. It is important
to stress the numerous statements regarding the fact that while they were
detained and kept incommunicado, the defendants were subjected to serious
torture, frequently with the aim of securing a self-incriminating
“confession” from them. In 1992, the Commission of International Jurists
noted that: During
this critical period, the detainee is completely controlled by the police and is
not subject to any effective judicial supervision. We have been told that a
suspect when questioned normally is kept bound and blindfolded and never sees
his interrogators. The entire police squad that made the arrest frequently takes
part in the interrogations, which means that generally there are eight to ten
police officers exerting tremendous pressure on the detainee. For the most part,
the suspect is questioned during his first days in custody. These sessions can
take place at any time, day or night, although, as a rule, they are conducted at
night. A representative of the Public Prosecutor’s Office is required to be
present during the police interrogations. However, we have been told that this
is not always the case, and that when a prosecutor is present his attendance is
merely a formality since he exercises no control over the interrogators. We
believe that this period of prolonged incommunicado detention is, prima
facie, incompatible with the guarantees stipulated in Articles 7 and 9 of
the American Convention and the International Covenant, respectively[25]
100.
Similarly, the Inter-American Court of Human Rights has established that,
“during the period when Ms. María Elena Loayza-Tamayo was detained [1993]
there was a widespread practice in Peru of cruel, inhuman and degrading
treatment during criminal investigations into the crimes of treason and
terrorism.”[26]
The UN’s Human Rights Committee also made the following statement in this
regard: The
Committee is deeply concerned by persistent reports of torture or cruel, inhuman
or degrading treatment of persons detained under suspicion of involvement in
terrorist activities or other criminal activities. It regrets the failure of the
State party to provide the Committee with detailed information on the measures
adopted to prevent torture and cruel, degrading or inhuman treatment, and to
punish those responsible. It draws attention to the legislation which permits
incommunicado detention in certain cases. In this connection, the Committee
reiterates its view, as expressed in its General Comment 20 on article 7, that
incommunicado detention is conducive to torture and that, consequently, this
practice should be avoided.[27]
101.
The Commission also stresses that under Article 5 of the Inter-American
Convention to Prevent and Punish Torture, ratified by Peru on March 28, 1991,
“the existence of circumstances such as a state of war, threat of war, state
of siege or of emergency, domestic disturbance or strife, suspension of
constitutional guarantees, domestic political instability, or other public
emergencies or disasters shall not be invoked or admitted as justification for
the crime of torture.”
102.
Article 10 of the Convention to Prevent and Punish Torture also states
that: “No statement that is verified as having been obtained through torture
shall be admissible as evidence in a legal proceeding, except in a legal action
taken against a person or persons accused of having elicited it through acts of
torture, and only as evidence that the accused obtained such statement by such
means.” 103.
In accordance with the foregoing, the Commission also concludes that the
provisions of Decree Law 25475, granting the police power to conduct arrests and
to keep detainees incommunicado for fifteen days, created conditions that
allowed individuals under investigation for terrorist crimes to be
systematically tortured during this period of police arrest in order to secure
criminal confessions from them. This is a violation of Article 5 of the American
Convention, which states that “every person has the right to have his
physical, mental, and moral integrity respected,” and that “no one shall be
subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
All persons deprived of their liberty shall be treated with respect for the
inherent dignity of the human person.” In this case, the “confessions”
obtained by torture were the main evidence used to convict the detainees. 104.
In the case at hand and in accordance with the facts that the Commission
has established, the Asencios Lindo brothers and Messrs. Ambrosio Concha and
Molero Coca were tortured[28]
at the DINCOTE facility, a fact that was even certified by a forensic physician.[29]
By doing this, as explained above, the Peruvian State violated, to the detriment
of the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca, the
right to humane treatment enshrined in Article 5 of the American Convention. 105.
Aggravating the defenselessness and isolation of individuals being
investigated and tried for terrorist crimes, Article 6 of Decree Law 25669
stipulated that at no time during police investigations or criminal proceedings
would relief injunctions be admitted, including the habeas
corpus action provided for in Articles 295 and 200 of the Peruvian
Constitutions of 1979 and 1983, respectively.[30]
A suspect arrested and held incommunicado was thus denied the only legal remedy
available for challenging the reasonableness of his arrest and for enabling a
judge to verify that the arrest was properly made. 106.
In order to analyze the consequences of this denial of the right to habeas
corpus relief vis-à-vis the terms of the American Convention, it must first
be noted that Article 25 of the Convention stipulates that: “Everyone has the
right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state concerned
or by this Convention.” In turn, Article 7(6) of the Convention, which deals
with the right of personal liberty, states that anyone who is deprived of his
liberty shall be entitled to recourse to a competent court, in order that the
court may decide without delay on the lawfulness of his arrest or detention and
order his release if the arrest or detention is unlawful. Similarly, as analyzed
in detail above, Article 27 of the Convention states that there are certain
rights that cannot be suspended even during a state of emergency and, further,
that the judicial guarantees needed to protect those rights can never be
suspended. 107. In this regard,
the Inter-American Court of Human Rights has stated that: “Guarantees are
designed to protect, to ensure or to assert the entitlement to a right or the
exercise thereof. The States Parties not only have the obligation to recognize
and to respect the rights and freedoms of all persons, they also have the
obligation to protect and ensure the exercise of such rights and freedoms by
means of the respective guarantees (Art. 1.1), that is, through suitable
measures that will in all circumstances ensure the effectiveness of these rights
and freedoms.”[31]
108.
The Court has maintained that habeas
corpus constitutes a fundamental guarantee that States Parties may not
suspend even during a state of emergency, ruling that: The judicial guarantees essential for the protection of the human rights not subject to derogation, according to Article 27(2) of the Convention, are those to which the Convention expressly refers in Articles 7(6) and 25(1), considered within |