OF JUSTICE AND RULE OF LAW
The observance of rights and freedoms in a democracy requires a legal and
institutional order in which the laws prevail over the will of the rulers, and
in which there is judicial review of the constitutionality and legality of the
acts of public power, i.e., it presupposes respect for the rule of law.
The Judiciary has been established to ensure compliance with the laws,
and is no doubt the fundamental organ for protecting human rights.
In the inter-American human rights system, designed for a hemisphere of
democratic countries, the adequate operation of the judiciary is essential for
preventing the abuse of power by another State organ, and, therefore, for
protecting human rights. In effect, the fundamental corollary of human rights is the
possibility of going before the judicial organs to see to it that rights are
In order for the judicial branch to be able to serve effectively as an
organ for the oversight, guarantee, and protection of human rights, not only
must it exist formally, but in addition, it must be independent and impartial.
In the inter-American human rights system, this stems not only from the
very concept that States must be organized pursuant to the principles of
representative democracy as a requirement for belonging to the OAS.
In addition, the American Convention establishes, at Article 8:
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature
made against him or for the determination of his rights and obligation of a
civil, labor, fiscal, or any other nature.
In order to define the meaning and scope of the concepts of independence
and impartiality, a series of "basic principles" have been established
in the framework of the United Nations (UN), among which the Commission makes
special mention of the following:
The judiciary shall decide matters before it impartially, on the basis of
facts and in accordance with the law, without any restrictions, improper
influences, inducements, pressures, threats, or interferences, direct or
indirect, from any quarter or for any reason.
Persons selected for judicial office shall be individuals of integrity
and ability with appropriate training or qualifications in law.
Any method of judicial selection shall safeguard against judicial
appointments for improper motives. In
the selection of judges, there shall be no discrimination against a person on
the grounds of race, colour, sex, religion, political or other opinion, national
or social origin, property, birth or status, except that a requirement, that a
candidate for judicial office must be a national of the country concerned, shall
not be considered discriminatory.
The term of office of judges, their independence, security, adequate
remuneration, conditions of service, pensions and the age of retirement shall be
adequately secured by law.
Judges, whether appointed or elected, shall have guaranteed tenure until
a mandatory retirement age or the expiry of their term of office, where such
The existence of an independent judiciary is essential for the practical
observance of human rights and democracy, and constitute a right that the member
States of the OAS are under an obligation to respect and ensure to all persons
under their jurisdiction.
As mentioned supra, the
Peruvian Constitution notes at Article 43 that the Republic of Peru is
democratic, and is organized pursuant to the principle of the separation of
powers, and that one of the essential duties of the State is to "ensure the
full observance of human rights."
The current executive authorities of the Peruvian State, with whom the
Commission met during its on-site visit, have for many years emphasized the need
for in-depth reform of the judicial branch, with the stated objective of
improving it substantially and overcoming long-standing shortcomings.
Prior to the on-site visit (November 1998), during the course of this
visit, and after it, the IACHR, in the performance of its functions, has closely
followed judicial reform in Peru. This
monitoring has been done mainly by looking at laws promulgated related to
judicial reform; reports prepared by national and international agencies and
institutions, both governmental and non-governmental; news reports in the
national and international press; and the interviews that the Commission had
with the various Peruvian authorities, including, among them, Peruvian judges
and prosecutors at all levels.
The information collected by the Commission indicates repeatedly and
convincingly that the reform process undertaken, instead of leading to the
stated objective of substantially improving the judiciary, has made it possible
to subordinate it to the political authorities. This warping of the reform
process has severely diminished the independence, autonomy, and impartiality of
the judiciary, to the detriment of the balance of powers and checks on abuses of
power that should be characteristic of a democratic State.
The information provided in the Peruvian State's response to the Report
merely indicates an increase in the number of cases being processed by the
courts, with no reference to the autonomy and independence of the courts with
respect to the political authorities.
Distinguished professors of law and leaders of the Lima Bar Association,
during the on-site visit, repeatedly set forth very severe criticism of the rule
of law in Peru. In addition,
Congressman Jorge Avendaño, former professor at the Universidad Católica and
former dean of the Bar Association, argues:
"There is no rule of law in the country ... because there is no
separation of powers. There is no
independent justice, and the right of the people to express themselves through
the referendum has been impeded. In
Peru, it is not the law that prevails, but the will of the ruler, and this is
the opposite of the rule of law."
In addition, Avendaño notes that the Executive uses the Legislature and the
Judiciary: "The first was
useful for decapitating the Constitutional Court, and for adopting
unconstitutional laws that have enabled it to capture and dominate the
institutions (National Elections Board, Public Ministry, National Council of the
Judiciary, etc.). The second, the
judiciary, is used to persecute political enemies, such as Ivcher, Mur--because
of his wife--, etc. and to rule favorably in cases with political implications,
such as the amparo filed on behalf of
According to these statements, it has implied, in practice, that all Peruvians,
and all other persons subject to the jurisdiction of the Peruvian State, lack
adequate legal and institutional order for the defense and protection of their
It should be noted that the special measures of April 5, 1992, to
reorganize the State, were adopted for "the institutional reform of the
country, aimed at achieving an authentic democracy, substantially increasing the
standard of living of the population, creating the conditions for better
realization of the human person." In this historical
context, the judiciary and the Public Ministry began to undergo reform.
Thirteen of the 25 members of the Supreme Court, all the members of the
Constitutional Court, the members of the National Council of the Judiciary, the
Public Prosecutor, and 134 judges were removed on April 9, 1992.
Their replacements were appointed by the Executive, with the legislative
In 1995 and 1998, the Congressional majority approved, and the Executive
promulgated, Laws Nos. 26,546 and 26,933, which give the Executive branch
functions that should properly vest in the judiciary and the National Council of
These transitory provisions, which have now become permanent, eliminate
the institutional autonomy of the judiciary, which is no longer entrusted with
its own management, administration, or financing, attributes which are essential
and indispensable for maintaining the necessary balance of power in a democratic
society. The main characteristic of
the reform process is the high level of concentration of power and
decision-making powers that has been granted to the Executive Commission of the
Judiciary, and especially its Executive Secretary.
The Peruvian State, in its response, underscored that the Executive
Commission is made up of the President of the Supreme Court, who presides over
it, the President of the Supreme Criminal Chamber, the President of the Supreme
Constitutional Chamber, and an Executive Secretary.
The first Executive Secretary, José Dellepiane, was widely criticized
for not being an attorney (but rather a retired career military officer) and for
his cozy relationship with the Executive branch.
David Pezúa, who replaced him, worked as a clerk to Francisco Acosta,
President of the Constitutional Court, after the removal of three judges by the
Congress, and as an adviser to Gen. Guido Guevara, President of the Supreme
Council of Military Justice. It has
been considered that the Executive Commission constituted unconstitutional and
intolerable interference in the judicial system by the Executive. The Peruvian State, in its response, indicated that "the
make-up of the organs of Government and administration of the Judiciary ... is
fully constitutional" because the Executive Commission has been created by
Law No. 26,546. The Commission
would like to note that the government cannot alter the functions that the
Constitution has set forth for the various State organs by the mere adoption of
supposedly "transitory" laws.
As of this writing, more than 80% of the judges in Peru are
have been elected by the Congress, without public competition, through the
Judicial Coordination Council and the Executive Commission of the Judiciary, and
they are allowed to administer justice in positions higher in rank than those
for which they have been evaluated and designated by the National Council of the
Judiciary. Since 80% of the judges
in Peru are provisional, i.e., they do not enjoy the guarantee of stability and
may be removed without cause, added to all the other actions limiting rights and
freedoms adopted by the Executive and the legislature, the judiciary has seen
its autonomy and independence severely limited.
Article 151 of the 1993 Peruvian Constitution provides that the Judicial
Academy is entrusted with the education and training of judges and prosecutors
at all levels, so that they may then be selected.
In this regard, the Organic Law on the Academy (Law No. 26,335)
determines that one of its programs has the purpose of academic training of the
magistrates of the judiciary and the Public Ministry, and that their access to
posts is by an admissions examination. Since
1992, the Judicial Academy has not graduated a single student, and the National
Council of the Judiciary has not carried out its constitutional obligation to
appoint permanent judges (jueces titulares).
For the same reason, no judge has been promoted. Consequently, due to the lack of new permanent judges, the
organs created by the Congress, made up of persons selected by the Congress,
have chosen judges of lower rank for positions of higher rank.
Those judges are called "provisional" and may be removed from
their posts without cause. The
Peruvian State, in its response, also emphasized the need to address the problem
of backlogs in the justice system with the creation of transitory chambers and
transitory courts. It states:
"To address that problem, the Executive Commission of the Judiciary was
entrusted with carrying out an aggressive policy of reducing the caseload, for
which transitory chambers and transitory courts were created with judges who,
being permanent judges of the immediate preceding instance, meet all the
requirements for occupying the next highest post, pursuant to the provisions of
the Peruvian Constitution and of the Organic Law of the Judiciary."
It should be noted that the Inter-American Commission has received
repeated reports of the appointment of certain judges in higher posts due
more to their political connections than their merits.
In addition, what the State says does not refute the fact that the judges
have not been evaluated and designated by the National Council of the Judiciary,
which is assigned that power by the Peruvian Constitution.
It is surprising that the State affirms that all provisional judges have
stability in their posts, especially in view of the evidence submitted to the
Commission of the frequent removal of judges whose rulings run contrary to the
interests of the Government, including members of the Constitutional Court.
The "provisional" judges are provided for in the Peruvian
Constitution as an exceptional measure and only for filling vacancies, but this
exception has become the rule. This
high percentage of "provisional" judges has a serious detrimental
impact on citizens' right to adequate administration of justice.
It is not just that "provisional" judges are selected by an
organ other than that stipulated in the Constitution, but that in addition those
judges are allowed to perform functions for which they have been neither
prepared or evaluated, as mandated by the Constitution.
In addition, the pertinent organ, the National Council of the Judiciary,
is not in a position to evaluate the ethical conduct of a
"provisional" judge throughout his or her judicial career.
The State points out in its response that the functional control of the
magistrates in the Judiciary is performed by the Judicial Oversight Organ
(OCMA), and by the District Judicial Oversight Offices (ODICMAS), made up of one
of the 25 judicial districts in the country.
This is precisely the point. The
Peruvian Constitution assigns this power to the National Council of the
Judiciary, but it is exercised by organs that have been created by the State to
replace the constitutional organs. The National Council of the Judiciary cannot
confirm these judges in their posts, since it is only empowered to confirm
tenured judges. Accordingly, it is a judicial system permanently in the hands
of "provisional" judges who, in general, do not have the
qualifications required for carrying out the tasks assigned to them. The independence of the judicial system is also undermined by
the fact that the "provisional" judges do not enjoy the right to
stability in their posts when they are placed on a level approximately equal to
permanent judges, which means the decision as to whether they keep their jobs is
made unilaterally by the Executive. The
Peruvian State notes in its response that the situation will change with the
first graduating class of the Judicial Academy in June 2000.
The Organic Law on the Judiciary provides that the Plenary Chamber of the
Supreme Court of Justice is made up of 16 members.
The Plenary Chamber elects, by majority vote, the representative of the
judiciary to the National Elections Board, which is the highest level state
authority on electoral matters. Two
of the 16 posts on the Plenary Chamber were vacant; consequently, two
"provisional" judges had to be appointed to fill them.
The Executive Commission of the Judiciary, however, decided to create 16
new posts and selected 16 lower-level judges, appointing them as
"provisional" judges of the Supreme Court.
Consequently, of the 32 judges of the Supreme Court today, 18 have been
elected indirectly by the Congress, without any technical or ethical evaluation
of their qualifications for those posts. In
late 1997, members considered sympathetic to the interests of the Executive were
a majority of the Plenary Chamber of the Supreme Court.
Given that the "provisional" judges of the Supreme Court of
Justice were elected indirectly by the Congress, they lack the status of
permanent judges, and in principle they do not possess the same rights,
prerogatives, or powers as the permanent judges (who have been evaluated and
appointed by the National Council of the Judiciary).
As the "provisional" judges had no right to vote to elect a
representative of the Judiciary to the National Elections Board, Congress
approved Law No. 26,898, and the Executive promulgated it on December 12, 1997,
giving the "provisional" judges the same rights, powers, and
privileges as the permanent judges. The Peruvian State notes
in its response that recognizing the provisional judges to have the same rights,
attributes, and privileges as the permanent judges represents an application of
the right to equality before the law, and the principle of non-discrimination,
since the provisional judges "meet the same requirements and do the same
work." Yet on the previous
page of its response, the State observes that "they are permanent judges of
a lower instance, "who have been called on to fill higher-level posts.
It is clear that a permanent judge fills the requirements of his or her
post, but when becoming "provisional" and transferred
"transitorily" to fill a higher-level post, he or she may not meet the
requirements for that post.
According to repeated allegations received by the Commission, the reasons
inspiring this law, like the earlier ones, were apparently to allow the judges
of the Plenary Chamber of the Supreme Court to vote to elect, by majority vote,
the representative of the judiciary to the National Elections Panel. The
composition of the National Elections Panel
is important considering that it must decide, in the year 2000, on
Alberto Fujimori's possible third presidential candidacy.
It is clear that persons sympathetic to the Executive will be more
favorable to their candidacy. Although the Constitutional Court is the highest-level
authority regarding interpretation of the Constitution, and already interpreted
Article 112 of the Constitution so as to deny the President the possibility of
aspiring to a third term, public opinion has the impression that it is the JNE
that should settle the matter. The
response of the Peruvian State notes that the assessment of the IACHR, that Law
No. 26,808 was issued for political purposes, is completely subjective.
The Commission refers the reader to Chapter IV, on political rights, in
On September 30, 1999, the Judicial Academy adopted Administrative
Resolution No. 027-99-CRG-AMAG, which allows for promotions of provisional
judges. A group of at least 58 permanent magistrates of the Court of Lima
submitted a motion for reconsideration to the Executive Commission of the
Judiciary calling for derogation of this resolution.
The permanent magistrates hold that the call of the Academy tends to
undermine the judicial career as provided for in the Organic Law on the
Judiciary, on allowing for provisional judges to be promoted, even beyond the
next-higher level. The tenured
magistrates stated: "We do not
call into question the rights, powers, and prerogatives that Law No. 26,898
establishes for the tenured magistrates, for whom, moreover, we express the
utmost respect, recognizing their personal and professional qualities."
They added: "Yet until Article 225 of the Organic Law on the Judiciary is
amended, promotion is possible to the extent that the magistrate was permanent
in the previous post; accordingly, the first course of promotion aimed at
specialized or mixed judges, provisional prosecutors, and senior adjuncts (adjuntos superiores) should be exclusively for magistrates of that
instance who are permanent." They
added that the provisional magistrates who act as specialized judges or
provincial prosecutors have not won any competition to hold those posts, and in
the best of cases are permanent judges of peace, clerks, or permanent court
reporters. They underscored that in
the case of the clerks or court reporters who serve as provisional specialized
judges, the situation is even more serious, for according to the Organic Law,
they could aspire only to being justices of the peace, while the current call of
the Academy would make it possible to perpetuate in their posts many provisional
magistrates who have been called into question for the anti-juridical nature of
their rulings, such as public law judges Percy Escobar Lino and Víctor Raúl
Martínez Candela, who in normal circumstances would be mere judicial
auxiliaries. The Peruvian State notes
in its response that this Administrative Resolution does not alter the current
regulation of the judicial career, "since the requirements for promotion
are not strictly academic, and that are to be found in the Organic Law on the
Judiciary and other provisions cited, should be met by those who seek promotion
in the judicial career or accede to it."
The Commission notes that the policy has been formulated by 58 permanent
judges who evidently were not in agreement with the position expressed by the
In February 1998, the Dean of the Lima Bar Association denounced six
judges of the Supreme Court of Justice, four of whom are
"provisional," to the National Council of the Judiciary for improper
conduct. The National Council of
the Judiciary set in motion an investigation that was later dismissed (infra).
On March 12, 1998, the congressional majority adopted another law, Law
No. 26,933, according to which the power to remove the judges of the Supreme
Court who belonged to the National Council of the Judiciary was vested in the
Organ for Internal Oversight of the Judiciary, which will decide, in each case,
whether the case should be archived or whether the judge should be removed.
Only in those cases in which the Internal Oversight Organ resolves that the
judge should be removed will the matter be passed on to the National Council of
the Judiciary. In addition, the law
provides for the transfer of all proceedings pending against magistrates to that
new organ. Law No. 26,933 deprives
citizens of the right to present allegations against the judicial authorities to
the National Council of the Judiciary, as provided by the Constitution.
The Peruvian State, in its response, notes that the power to apply the
sanction of removal to the members of the Supreme Court was restored to the
National Council of the Judiciary by Law No. 26,973, of September 10, 1998.
By application of this provision, the Congress and the Executive avoided
removal from the Supreme Court of the four "provisional" judges who
had been called into question for improper conduct, and whose votes were
essential for them, and they controlled all the proceedings against judges and
prosecutors from that moment on. In
addition, it has impeded investigations of judicial authorities called into
question by the citizens, making it possible for them to continue administering
In April and May 1998, the judicial organs appointed the new members of
the National Council of the Judiciary. In
addition, in April four members of the National Council of the Judiciary
resigned (infra), in solidarity with
the members of the National Council of the Judiciary and because their autonomy
in respect of their policies and procedures had not been recognized.
The new members of the Judicial Academy prolonged the program for training of
judges and prosecutors, and kept them in their positions of
"provisional" officials subject to manipulation by the Executive.
To exercise control over those organs, the Coordinating Council (Consejo
de Coordinación) and the Executive Commission have increased the number of
judges and supreme prosecutors, thereby obtaining a majority of votes favorable
to the Government in the highest-level state organs, such as the Plenary Chamber
of the Supreme Court and the Board of Supreme Prosecutors.
Also, in this case it should be noted that the reforms are not purely
administrative, since the decision of a collegial body depends on the opinion of
each of its members. As a result of
the creation of 16 new posts on the Supreme Court, and three new supreme
prosecutor positions, the selection of persons whose interests are closer to
those in power could be favored, in addition to making it possible to manipulate
the decisions of the highest-level collegial bodies of the Judiciary and the
Public Ministry, and, consequently, of the National Elections Board.
The provisional nature of the judges' term also influences the review of
laws adopted by the Congress. In
Peru, the judges are constitutionally required to give precedence to the
Constitution on reviewing the laws at odds with it.
It is easy to understand that the judges appointed to provisional posts
by the Congress (through the Executive Commissions), in general, might refrain
from exercising that power of according priority to the Constitution, as they
may be removed without cause. This
diminishes the effectiveness of the constitutional power of "diffuse
control" of the laws, assigned to judges in Peru.
The Public Ministry is autonomous and, according to law, is headed up by
the Public Prosecutor, who is elected by the Board of Supreme Prosecutors. The
Public Prosecutor takes an oath before the President of the Republic on taking
office. The supreme prosecutors are
designated by the President only after a recommendation is made by the National
Council of the Judiciary.
The Public Ministry initiates judicial actions to defend legality,
supervises the adequate administration of justice, represents society in
judicial procedures, investigates crimes, institutes criminal proceedings, on
its own initiative and upon the initiative of parties, issues opinions prior to
making judicial decisions, and may introduce proposed legislation. Its budget is approved by the Board of the Public Ministry (Junta
del Ministerio Público) and it is defended, before the Congress and the
Executive, by the Public Prosecutor.
The duration of the term of the current Public Prosecutor, Miguel Aljovín,
is three years, which may be prolonged by re-election for two more years.
The Public Prosecutor is empowered to challenge laws, on grounds of
unconstitutionality, before the Constitutional Court.
According to the Constitution, the public prosecutor makes criminal
accusations against judges and prosecutors of the lower courts and appellate
courts, and generally against public officials.
It monitors the activities of prosecutors and supervises compliance with
the independence of the judicial organs and the proper administration of
justice. It oversees respect for fundamental human rights in the
sphere of the public administration, including the Armed Forces and National
Police. The members of the Public
Ministry enjoy the same rights and prerogatives and are subject to the same
obligations and proceedings as judges.
The process of re-organizing the Public Ministry began when the
Government shut it down, along with other branches of government and
institutions in the wake of the events of April 5, 1992.
By Decree-Law No. 25,505, of May 20, 1992, Blanca Nélida Colán Maguiño
was provisionally appointed Public Prosecutor.
Later, the provisional supreme prosecutors were also appointed, by decree-laws.
A large percentage of prosecutors were removed by decree-law with no type
of administrative process, depriving them of the right to defense.
Later, some were restored to their posts by judicial orders.
Later, in June 1992, by Decree-Law No. 25,530, the Evaluation Committee
was created, made up of two provisional supreme prosecutors designated by the
Board of Supreme Prosecutors upon the proposal of the Public Prosecutor, who was
entrusted with investigating the professional conduct of the prosecutors (fiscales),
attorneys (abogados), auxiliaries, and
administrative staff of the Public Ministry.
By Decree-Law No. 25,735, of November 21, 1992, the functions of the
Evaluation Committee were considered concluded, and it was declared that the
process of organic restructuring and re-organization of the Public Ministry was
under way, under the responsibility of the Public Prosecutor, for a period of 90
days, which was later extended by Decree-Law No. 25,991.
On June 19, 1996 (Law No. 26,623), the Judicial Coordination Council was
created, and the Public Ministry was once again declared to be "in the
process of re-organizing," for an indefinite period.
All the powers and functions of administration entrusted to the Public
Ministry, as a constitutional body, were transferred to an "Executive
Commission of the Public Ministry" made up of three supreme prosecutors.
The Executive Commission is entrusted with re-structuring and reforming
the Public Ministry, drafting its Regulation, issuing opinions on behalf of the
Public Ministry, pressing criminal charges against judges for misconduct, and
determining areas of specialization at all levels.
This Executive Commission is currently made up of the former Public
Prosecutor, Blanca Nélida Colán, and two supreme prosecutors, appointed by the
Government. The Executive Commission is in charge of the government and
management of the institution, even though by constitutional mandate this is a
power of the Public Prosecutor. The
Public Prosecutor was not only removed from the reform process, but his powers
were cut back and limited to the following:
(1) to press charges, before the judiciary, when it is presumed that
there has been illicit enrichment of public officials and public servants; and
(2) to exercise legislative initiative, in keeping with the Constitution.
The Public Prosecutor is not able to exercise his or her power of
bringing actions on grounds of unconstitutionality before the Constitutional
Court, since this Court does not have a sufficient numbers of members, infra.
Nor may it bring civil or criminal actions against high-level officials
before the Supreme Court, as this is only possible if the Congress first adopts
an accusatory resolution.
In summary, the process of re-organizing the Public Ministry has curtailed the
powers and representation of the Public Prosecutor, creating a climate of
uncertainty, not only among the members of the Public Ministry, but among the
citizenry in general.
Based on Law No. 25,735, Miguel Aljovín Swayne, who was Permanent Deputy
Supreme Prosecutor, was removed from his post, by the then-provisional Public
Prosecutor, for not agreeing to undergo an evaluation not provided for by the
Constitution or by any law. Aljovín
returned to the Public Ministry by public competitive examination before the
Board of Honor of the Judiciary, which appointed him Permanent Supreme
Prosecutor on December 29, 1993.
Aljovín was elected Public Prosecutor in January 1997.
As the post has a three-year term, the elections to choose the next
Public Prosecutor, or to re-elect Miguel Aljovín for two years, will be held in
January 2000. Mr. Aljovín
indicated that he will not be re-elected as he does not enjoy majority support
in the Board of Supreme Prosecutors, thereby leaving open the possibility that
the President of the Executive Commission of the Public Ministry, Blanca Nélida
Colán, will be elected for the third time.
As of the approval of this Report, Mr. Aljovín, despite holding the post
of Public Prosecutor, does not preside over the Executive Commission of the
Public Ministry. Law No. 26,623
vested in the same person the positions of Public Prosecutor and President of
the Executive Commission. Nonetheless,
when the new Supreme Prosecutor was elected to the post, and despite being the
highest-level authority and representative of the Public Ministry, the
presidency of the Executive Commission continues to be held by the previous
Public Prosecutor, and consequently the Public Prosecutor does not preside over
the reform process. That Nélida
Colán was Public Prosecutor at the time she was appointed does not necessarily
have a decisive impact on her ability to preside over the Executive Commission.
Under the law, Ms. Colán and the two supreme prosecutors should continue
to serve on the Executive Commission, whatever posts they may hold in the
subsequent years. One can conclude
that, as in the case of the Judiciary, the Public Ministry has been
entrusted--ignoring the Constitution--to four persons selected by the Congress.
It should be noted that in May 1997, then-President of the Supreme
Council of Military Justice (CSJM), Gen. Guido Guevara, announced his intent to
bring criminal charges against Public Prosecutor Miguel Aljovín, for having
accused him of failing to abide by rulings of civilian courts in respect of two
writs of habeas corpus on which he had ruled favorably in the cases of
Demetrio Chávez Peñaherrera, known as "Vaticano," and Gustavo Cesti
Hurtado. The CSJM then filed an
accusation against the judges of the Lima Court of Appeals (Cámara
de Apelaciones), who had ruled favorably on the writs of habeas
corpus. In June, a chamber of the Supreme Court removed the three
judges from their posts in the Court of Appeals.
One of the cases pending before the Court of Appeals at the time was the amparo action brought by Baruch Ivcher against the resolution
stripping him of Peruvian nationality. The
Supreme Court also dismissed charges filed by Aljovín against Gen. Guevara,
arguing that the military courts could reject any habeas corpus
proceedings considered "illegal" and ordered that the three judges be
tried for breach of public duty (prevaricato).
This panel of the Supreme Court was made up of "provisional"
judges subject to political pressures. On
September 4, 1997, the Executive Commission of the Public Ministry decided not
to order the trial of the three members of the Court of Appeals.
Law No. 26,738, of January 6, 1997, amended Law No. 26,623, and granted
the Executive Commission the power to designate "provisional" superior
and provincial supreme prosecutors. It
suspended application of criteria such as seniority, the specialization of
prosecutors, and the power of the Public Prosecutor to designate supreme
prosecutors. This law declared that
the Public Ministry would be in a state of "reorganization" until
December 1998; this term has now been extended to the year 2000 (supra).
The law provides that the Public Prosecutor, on assuming the post, should
take the oath of office before the Executive Commission of the Public Ministry.
Accordingly, the Judicial Academy has not been able to graduate a single
lawyer as candidate to prosecutor or prepare a single prosecutor for promotion.
The National Council of the Judiciary cannot perform its functions of
evaluating the candidates to appoint permanent prosecutors.
Due to the lack of permanent prosecutors, the Executive Commission of the
Public Ministry has continued to appoint "provisional" prosecutors,
selecting persons to hold higher-ranking posts for which they have been neither
evaluated nor appointed by the National Council of the Judiciary, as called for
by the Constitution. At present, more than 80% of the prosecutors in Peru are
"provisional." Ms. Blanca
Nélida Colán informed the Commission, in a meeting held during the on-site
visit on November 10, 1998, that 1,067 prosecutors, of a national total of
1,259, are provisional. In
addition, the exception becomes the rule and the functions of the Public
Ministry are exercised mostly by persons who are not qualified for those posts,
nor have they undergone periodic evaluations of their technical or ethical
The most important organ of the Public Ministry, pursuant to the Organic
Law, is the Board of Supreme Prosecutors. This
Board, made up of six supreme prosecutors, has the function of electing the
Public Ministry representative to the National Elections Board.
The Executive Commission decided to create three additional supreme
prosecutors, and, given the lack of permanent prosecutors, selected three of
lower rank, and appointed them "provisionally" to the post of Supreme
Prosecutor. Law No. 26,897 granted
identical rights, powers, and prerogatives to the "provisional"
prosecutors as those enjoyed by the permanent prosecutors, in their respective
categories, which enabled these "provisional" supreme prosecutors to
vote and elect a representative to the National Elections Board.
The Public Prosecutor, Miguel Aljovín, presented a complaint against
Blanca Nélida Colán, President of the Executive Commission of the Public
Ministry, alleging she had violated the Constitution by appointing these three
"provisional" supreme prosecutors,
based on the provisions of the Peruvian Criminal Code regarding illegal
appointments. One month later,
Adelaida Bolívar was removed from her position in the Office of the Prosecutor
for Internal Oversight (Fiscalía de
Control Interno) by Blanca Nélida Colán, for having supported the
criticisms made by Mr. Aljovín with respect to those appointments.
These three "provisional" prosecutors became members of the Board of
Supreme Prosecutors that elected the representative of the Public Ministry to
the National Elections Board.
In order to avoid the removal of any of the supreme prosecutors, by the
National Council of the Judiciary, the Congress also did away with the Council's
power to remove supreme prosecutors and vested it in the Office of the
Prosecutor for Internal Oversight of the Public Ministry, as it did with the
Judiciary, through the same law (supra).
The Constitutional Court was not empowered to derogate the laws that
reorganized the Public Ministry or the judiciary because two of the seven judges
of that Court made it impossible to secure the six votes required by Congress (infra).
The political party Cambio 90-Nueva
Mayoría, which holds a majority in Congress, has taken advantage of the
"re-organization" of the judicial branch to justify its control,
together with the Executive, over the management, administration, and finances
of the various judicial organs, and of the appointment and oversight of its
members, and the disciplinary regime that applies to them.
As appears from this analysis, the activities of the Executive Commission
of the Judiciary and the Executive Commission of the Public Ministry have not
been exclusively administrative. In
several cases those two committees and the Coordinating Council have replaced
judges and prosecutors reputed to be independent by officials more favorable to
the State when they were involved in judicial proceedings of interest to the
By definition, all "provisional" appointments must be related
to an emergency situation. Those
emergency situations are provided for in the Constitution and in no case should
crisis situations be allowed to be used to indefinitely suspend the supremacy of
Law No. 26,546, of November 21, 1995, created the "Executive
Commission of the Judiciary," which "temporarily" assumed the
functions of the National Council of the Judiciary, and which was entrusted with
"reforming" the judiciary. That
law should have been in force for a period of 360 days of the calendar year, and
should have expired on December 1, 1996. This law, and Law No. 26,623 (infra),
suspended the jurisdiction and powers of the judicial organs and transferred
them to the Executive Commission of the Judiciary.
This Committee is made up of the Presidents of the various chambers of
the Supreme Court (constitutional, civil, and criminal chambers), and performs
the functions that the 1993 Constitution assigns to the judiciary:
it evaluates and removes judges, decides as to their promotions, and may
propose legislation. Its president is Víctor Castillo Castillo, President of the
Supreme Court. The Executive
Secretary was Peruvian Navy Commander José Dellepiane Massa, an officer of the
Armed Forces who was not a lawyer; in 1998 he was replaced by David Pezúa
The life of the Committee has been extended several times by the
Congress, most recently in late 1998, despite its express statement by the
Inter-American Commission on Human Rights upon the conclusion of its on-site
visit in November 1998 that it "hopes that the reorganization of the
judicial sector will not take longer than the period set by law, which is due to
expire in December of this year, and that the powers of the National Prosecutor
will be reinstated."
On December 5, 1998, the legislative majority, through Law No. 27,009, despite
strong opposition from public opinion, extended the existence of the two
Executive Commissions for an additional two years, until December 31, 2000.
The Peruvian State, in its response, indicated that it could not accommodate the
Commission's recommendation "at the risk of losing all of the gains to
date..., for obvious reasons." The
Commission would like to emphasize that the system extended by Law No. 27,009
undermines the constitutional principles of independence of the judiciary and is
holding one of the branches of government hostage to the other two.
Law No. 26,623, of June 19, 1996, created the Judicial Coordination
Council, financed by resources from the Judicial branch, with the mandate to
establish the policy guidelines of the organs for the administration of justice,
and their restructuring and reorganization; to evaluate its own goals and their
attainment; and with the power to extend its own existence.
The Council was to be made up of the President of the Supreme Court, as
President of the Constitutional Court, the Minister of Justice, the president of
the National Council of the Judiciary, and several other notable members.
According to the regulations of this entity, its members may adopt resolutions
by simple majority. Nonetheless, in
accordance with the transitory provisions of Law No. 26,623, the Judicial
Coordination Council is made up of four persons--the president of the Supreme
Court, one representative from the Public Ministry, one representative from the
National Council of the Judiciary, and one executive secretary--three of whom do
not belong to the judiciary and have been designated by the Congress.
As this Council makes decisions by simple majority, these three members
are in a position, numerically, to ensure that their vote prevails over that of
the sole representative of the judiciary, further undermining judicial autonomy.
This law suspends the functions that the Organic Law of the Judiciary entrusts
to the president of the Supreme Court and its Plenary Chamber for administration
of the judicial branch. Specifically,
the permanent judges of the Supreme Court's Plenary Chamber have been impeded
from electing its president; their functions of supervising the presence and
punctuality of judges, signing internal regulations, decisions, and official
correspondence, and imposing administrative sanctions for flagrant irregular
acts, among others, have been limited. The
Supreme Court has been deprived of its power to introduce legislation, and the
full judges of the Plenary Chamber have been deprived of their prerogative of
attending meetings of Congress to support proposed legislation, even when it
relates to the budget of the judiciary. The
Supreme Court no longer has the powers to initiate actions of
unconstitutionality against the laws of Congress, or to elect from among its
members those who sit on the Office of Judicial Oversight and the National
Elections Board. Renowned jurists
have expressed serious doubts about the constitutionality of this Council, given
that its purpose is to take the place of the regular judicial organs established
in the Constitution.
According to Article 154 of the 1993 Constitution of Peru, the National
Council of the Judiciary (CNM: Consejo Nacional de la Magistratura) is an
independent and autonomous organ in charge of appointing, ratifying, and
sanctioning judges and prosecutors, except for those chosen by popular election
Its seven members are elected by the following organs: one by the Plenary
Chamber of the Supreme Court, one by the Board of Supreme Prosecutors,
two by Peru's other organization of legal professionals, the public
universities, and one by the rectors of the private universities.
By constitutional provision, the appointment of judges and prosecutors is
a power of the CNM, based on a merit-based public competition and personal
evaluation; the academic training of persons aspiring to the posts of magistrate
of the judiciary or of the Public Ministry is entrusted to the Judicial Academy
(Academia de la Magistratura),
pursuant to the provision of Article 2(a) of the Organic Law on the Judicial
Academy (Law No. 26,335).
As regards the designation of permanent judges and prosecutors, Law No.
26,696 of December 2, 1996, provided that persons applying to the positions of
judge or prosecutor must show that they have satisfactorily completed the
training course for persons aspiring to serve as judge in the judicial branch or
prosecutor in the Public Ministry, which are two-year appointments, as recently
provided by Resolution No. 333-98-SE-TP-CME-PJ of August 14, 1998; this
continues the trend of working with provisional judges and prosecutors, even
though as of 1997 only 27.12% of the positions were covered by permanent judge,
and 72.88% by provisional and alternate judges; there were only 392 permanent
judges, and 1,053 provisional and alternate judges; this situation worsened in
In February 1998, five judges from the Supreme Court surprised the
country by denouncing that a sixth "provisional" judge, César
Humberto Tineo, had falsified the text of a judgment, and had induced them to
sign in error, without reading it. The dean of the Bar Association lodged a
complaint against the six judges, alleging misconduct on their part, with the
National Council of the Judiciary. The
five judges leveling the accusation said that they believed that Mr. Tineo had
drafted the judgment in the manner agreed upon, ruling in favor of the Central
Reserve Bank, but that instead he drafted the judgment so as to favor the
company Novotec, S.A. They stated
that they had signed the judgment, which was a ruling in the final instance and
had become res judicata. The five judges in question declared the judgment handed down
eight months earlier null and void, although it was being carried out, and
issued a new judgment in its place. The
judgment that was rendered null and void had required that the state pay the
private firm Novotec S.A. approximately US$ 43 million.
By Law No. 26,933 of March 12, 1998, the National Council of the
Judiciary saw its power to directly impose the sanction of removal on members of
the Supreme Court and supreme prosecutors curtailed, as this power was vested in
the executive commissions of the judiciary and the Public Ministry,
respectively, which are to hear such proceedings in the first instance; the CNM
will only hear the cases that come to it on appeal from the respective
committees. In addition, it was
required that the disciplinary measure of suspension be applied prior to
removal. The curtailing of the
powers of the CNM sparked the resignation of the Council's seven members, and
led the World Bank to suspend a loan in the amount of approximately US$ 22.5
million earmarked to judicial reform.
The immediate passage of Law No. 26,933 prevented the National Council of
the Judiciary from removing the members of the Supreme Court who had signed the
fraudulent judgment. These same
judges elected the future representative of the judiciary to the National
Elections Board, which was entrusted, among other tasks, with deciding whether
President Fujimori was constitutionally qualified to run for a third
On March 13, 1998, the president of the CNM, Róger Rodríguez Iturry,
resigned along with his six colleagues, and declared to public opinion:
to many analysts, the impression exists that we find ourselves before a clearly
authoritarian government, which, moreover, is said to have a concrete and
specific plan to keep itself in power. Perhaps
an independent CNM is not needed in this context and for that project.
Later, Law No. 26,973 of September 11, 1998, ratified the procedure for
applying the sanction of removal to magistrates and supreme prosecutors, without
requiring prior suspension. This
law, contrary to what was announced, did not restore the powers of the CNM.
In summary, the National Council of the Judiciary, in practice, does not
carry out its function of appointing permanent judges and prosecutors.
Law No. 25,726 and other provisions that organized the Judicial Academy
provided that the students must graduate from the Academy in order to be
appointed by the National Council of the Judiciary.
1992, the Judicial Academy has not appointed any judges or prosecutors, and
continues to be in the process of "reorganizing."
The Peruvian State, in its response, notes that the approval of the
training program given by the Judicial Academy is a requirement to be considered
candidates for appoint as judge or prosecutor.
Therefore, the State argues, "the fact that at present no judges or
prosecutors are being appointed is not attributable to the National Council of
the Judiciary." The Commission
shares this assessment that the Council is not the one responsible for the
failure to appoint judges and prosecutors, but rather the Executive.
Neither can the National Council of the Judiciary confirm
"provisional" judges and prosecutors.
This allows the Executive Commission and the Judicial Coordination
Council to continue appointing "provisional" judges and prosecutors.
Mr. Rodríguez Iturry was replaced by Mr. Faustino Luna Farfán.
Mr. Luna Farfán also resigned, on April 6, 1999; in his resignation
speech, he characterized the judicial reform process as "indefensible"
because "the reform is not governed by its natural representatives, because
it is a reform imposed."
In 1996, after four years of inactivity, the Constitutional Court was
constituted by the following judges: Ricardo Nugent (president), Guillermo Rey
Terry, Manuel Aguirre Roca, Luis Guillermo Díaz Valverde, Delia Revoredo
Marsano de Mur, Francisco Javier Acosta Sánchez, and José García Marcelo.
It should be noted that the last two have held positions in the
government, or have been candidates for the governing party.
The Congress established in the Organic Law of the Constitutional Court the
requirement, unreasonable in comparative law, of a supermajority of six out of
seven votes for the Court to find any statute or law unconstitutional.
This voting system resulted in the majority opinion of the Court being
subject to the vote of just two of its members.
In effect, repeatedly and suggestively, several motions of
unconstitutionality, of political-institutional interest, were dismissed even
when they had five votes. Moreover,
laws considered unconstitutional by five members of the Court had their
constitutionality affirmed and were strengthened, thereby depriving the judges
in the lower courts of the option of limiting their application in other cases.
In its 1996 and 1997 annual reports, the Commission stated its concern
over the need to have a supermajority of six out of seven votes to declare a law
unconstitutional, rendering practically null this Court's power of review.
The Peruvian State notes in its response three examples in which a
supermajority, greater than half
plus one, is required. The State cited the example of other countries, yet in none
of them is the supermajority as high as in Peru.
The action brought against Law No. 26,657, or the Law on "Authentic
Interpretation" of Article 112 of the Constitution, was a telling example.
That law states that re-election "refers to and is conditioned on
the presidential terms that begin after the date of promulgation of the
constitutional text in question."
Alberto Fujimori was elected president in 1990, under the 1979 Peruvian
Constitution. The Constituent
Congress included the possibility of re-election of the president in the 1993
Constitution, and Fujimori was elected once again in 1995.
The congressional statute referred only to the specific case of President
Fujimori, the only Peruvian who was president before and after the entry into
force of the 1993 Constitution. Five
judges considered that the Law on Authentic Interpretation did not apply to the
specific case of Alberto Fujimori, according priority to the constitutional
principle established in Article 112 and "diffuse control" over the
interpretive statute (Articles 51 and 138 of the Constitution).
The draft judgment containing the ruling regarding the inapplicability of
this interpretive law, prepared by Judge Guillermo Rey Terry, was unlawfully
taken from his file by Judge José García Marcelo, who confessed he had taken
it and delivered it to the police and the press.
Judge Delia Revoredo publicly denounced this theft.
As a result, an official campaign was launched to pressure the five
judges. The daily newspaper
Expreso, of Lima, accused them of being "golpistas," i.e. coup
supporters, and compared them with the terrorists of Shining Path; 40 members of
Congress from the majority party threatened in writing to remove them if they
ruled that the law was deemed inapplicable; they were pressured, blackmailed,
and received all sorts of offers; the "contraband" case came up
against Judge Delia Revoredo and her husband, Jaime Mur.
Two of the five judges called for a new vote, withdrew their signatures,
and abstained from voting "for having expressed an opinion ex
ante." The two judges from
the official party also abstained. The
three judges who did cast a vote--Aguirre Roca, Rey Terry, and Revoredo--voted
for the inapplicability of the law to Alberto Fujimori. Since it was not a ruling of unconstitutionality, the
judgment of the Constitutional Court did not require six votes, but rather a
"simple majority of votes cast" (Article 4 of the Organic Law on the
Constitutional Court). The Lima Bar
Association called for a "clarification" of the judgment.
The Court decided--against the opinions of judges Acosta Sánchez and
García Marcelo--that only those who had voted should clarify the vote, not
those who had abstained. The
"clarification" by the three judges was that "as there is nothing
to clarify, the request is denied."
The Congress decided to investigate the allegations by Judge Delia
Revoredo regarding the theft of the draft judgment and the threats to which she
was subjected. To this end, it
appointed two investigative commissions with a clear pro-government majority,
and, in response to a well-founded request by the opposition, expressly
prohibited its members from ruling on judicial matters properly within the
jurisdiction of the Constitutional Court. Nonetheless,
those investigative commissions concluded by accusing the three magistrates who
ruled against the second presidential election, and on that basis, the Congress
removed them May 29, 1997, for "violation of the Constitution."
Mr. Ricardo Nugent, President of the Court, resigned in solidarity with
his colleagues. A law, however,
requires him to remain in the post until Congress appoints his replacement,
subject to a penalty of two years imprisonment.
Once domestic remedies were exhausted, the matter was brought before the
Inter-American Commission. The
Commission analyzed the issue and prepared a report pursuant to Article 50 of
the American Convention, in which it set forth a series of recommendations,
which were not adopted by the State. In
July 1999, the Commission sent the case to the Inter-American Court.
Law No. 26,801 of May 29, 1997, established that until the vacant posts
on the Constitutional Court are filled, the quorum for hearing resolutions
denying motions of habeas
corpus, amparo, habeas data, and action for enforcement as well as
motions alleging jurisdictional disputes will require four members. As
it does not have the sufficient number of members required by the law, to this
day the Constitutional Court cannot take cognizance of the actions of
unconstitutionality against laws and decree-laws issued by the national
government. This creates a grave
vacuum of control and is an assault on the very essence of the rule of law.
The Peruvian State notes that "it is not true that there is a grave
vacuum in the review of constitutionality, since a dual system exists in Peru
that allows for the diffuse control by the judges who exercise jurisdiction,
with which judicial review of unconstitutional norms, and at the same time, the acción
popular is available (Article 202 of the Constitution) to challenge
regulations, administrative rules, and resolutions and decrees of general
application, whatever the authority from which they emanate."
Despite what the Peruvian State points out, the inoperability of the
Constitutional Court, which is the organ created by the Constitution to hear
actions of unconstitutionality, creates a serious vacuum, especially if one
takes into account that diffuse control refers only to the case in question.
The judges who were removed denounced attacks by state agents.
Ms. Revoredo and her husband sought temporary asylum in the embassy of
Mr. Nugent was shot by unknown persons in an official car; three persons
accompanying him were killed. The
Minister of Interior, who visited him in the hospital just 30 minutes after the
attack, shut down the investigation into the matter alleging that it had been
caused by confusion among the kidnappers, who allegedly were trying to kidnap a
Swiss businessman, and who had mistaken a police vehicle with his car.
It should be noted that even though the Constitutional Court, as the
highest-level authority as regards interpretation of the Constitution, had
already ruled on the third candidacy of Alberto Fujimori, the official party has
sought to have the issue re-examined by the National Elections Court.
April 5, 1992, as indicated supra,
President Alberto Fujimori promulgated Decree Law No. 25,418, with which he
instituted a Government of Emergency and National Reconstruction.
The justifications for of that decree included "to upgrade the moral
standards of the administration of justice and the institutions linked to it;
and the National Oversight System, decreeing the complete re-organization of the
Judiciary, the Court of Constitutional Guarantees, the National Council of the
Judiciary, the Public Ministry, and the Office of the Comptroller General of the
Republic" and "to pacify the country within a legal framework that
guarantees the application of drastic sanctions to terrorists, so that our
society may develop adequately, in a climate of peace and internal order."
The Emergency Government dissolved the Congress and summarily removed
numerous judges and prosecutors at all levels.
After a violent wave of attacks carried out in Lima, President Fujimori
addressed the country on July 24, 1992, and announced the adoption of drastic
legal measures to address the situation. In
that context, Decree-Law No. 25,475 was promulgated; it was aimed at pursuing,
prosecuting, and punishing the persons responsible for the crime of terrorism,
using civilian "faceless" judge courts, and Decree No. 25,659, aimed
at pursuing, prosecuting, and punishing the persons responsible for the crime of
traición a la patria, or treason,
before "faceless" military courts.
The Commission has repeatedly recognized that the State is under a
national and international obligation to adopt the measures necessary to
investigate, prosecute, and punish persons or groups of persons who use
violence. Article 8 of the American
Convention establishes the due process standards to which persons being
investigated and prosecuted have a right. These
include the right of all persons to be heard with the due guarantees and within
a reasonable time by an independent and impartial judge or court, with
jurisdiction, that is previously established by law, to hear any criminal
accusation, or to determine their civil, labor, tax-related, or other rights.
Despite the situation of extreme violence in Peru, the State was not and
is not relieved of the obligations it assumed on ratifying the American
Convention. In this regard, the
Convention sets forth special standards for emergency situations such as those
being faced there. Article 27 of
the American Convention makes it possible, under certain conditions of war,
public danger, or other emergency that threatens the independence or security of
a State Party, for it to derogate from some of its international obligations.
Article 27 of the Convention provides as follows:
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.
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.
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.
Pursuant to Article 27 and the guidelines indicated by the Inter-American
Court, there is a fundamental presupposition with respect to the regime of
representative democracy, and certain requirements for a State to validly
declare a state of emergency.
With respect to the presupposition of respect for representative
democracy, pursuant to Article 3(d) of the Charter of the OAS, one of the
fundamental principles that governs the Organization of American States is the
requirement that the States that constitute it should organize themselves
politically pursuant to the postulates of representative democracy.
At the same time, the American Convention, in its preamble, reaffirms
" their intention to consolidate in this hemisphere, within the framework
of democratic institutions, a system of personal liberty and social justice
based on respect for the essential rights of man."In the same spirit,
Article 29 prohibits the interpretation of any of its provisions so as to
preclude "other rights or guarantees that are inherent in the human
personality or derived from representative democracy as a form of
government," while Articles 15, 16, 22, and 32 also make reference to the
presupposition that the political organization of the States parties is
As regards the requirements for declaring a state of emergency, the
Inter-American Court has indicated that a legal analysis of Article 27 of the
starting point for any legally sound analysis of Article 27 and the function it
performs is the fact that it is a provision for exceptional situations only. It
applies solely "in time of war, public danger, or other emergency that
threatens the independence or security of a State Party." And even then, it
permits the suspension of certain rights and freedoms only "to the extent
and for the period of time strictly required by the exigencies of the
situation." Such measures must also not violate the State Party's other
international legal obligations, nor may they involve "discrimination on
the ground of race, color, sex, language, religion or social origin."
The requirements for declaring a state of emergency are as follows:
Pursuant to Article 27 of the Convention, in order to consider that there
is a real emergency, there must be an extremely grave situation, such as war,
public danger, or other emergency that threatens the independence or security of
the State party. The Commission has established that measures related to a
state of emergency "can only find a justification in the face of real
threats to public order or state security."
This requirement refers to the duration of the suspension, which, as
established in Article 27(1) of the Convention, should be only for the time
strictly limited to the exigencies of the situation. The Commission has warned
that it is even more serious to decree states of emergency for indefinite or
prolonged periods, especially when they allow broad powers to be concentrated in
the head of state, including the judicial branch abstaining with respect to the
measures decreed by the Executive, which in certain cases may lead to the exact
opposite of the rule of law.
Article 27(1) of the Convention provides that the suspension may only be
effectuated to the extent strictly limited to the exigencies of the situation.
This requirement refers to the prohibition on the unnecessary suspension
of certain rights, imposing restrictions more severe than necessary, and
unnecessarily extending the suspension to areas not affected by the emergency.
As established in Article 27(1) of the Convention, consistent with
Articles 1 and 24, the suspension of rights must not entail any kind of
discrimination against any individual or group.
· Compatibility with other
international obligations: The
suspension of certain rights must be compatible with all other obligations
established in other international instruments ratified by Peru.
Pursuant to Article 27(3) of the Convention, the declaration of a state
of emergency should be reported immediately to all other States parties to the
Convention, through the Secretary General of the OAS.
Even where the aforementioned requirements are met, there are certain
rights and guarantees enshrined in the Convention that the States cannot
With respect to the rights that can be suspended during the imposition of
a state of emergency, the Inter-American Court has indicated that:
is clear that no right guaranteed in the Convention may be suspended unless very
strict conditions --those laid down in Article 27(1)-- are met.... [R]ather than
adopting a philosophy that favors the suspension of rights, the Convention
establishes the contrary principle, namely, that all rights are to be guaranteed
and enforced unless very special circumstances justify the suspension of some,
and that some rights may never be suspended, however serious the emergency.
Most of the rights that the State cannot suspend, however grave the
emergency, are mentioned in Article 27(2) of the Convention, and are those set
forth at the following Articles of the American Convention:
3 (right to juridical personality); 4 (right to life); 5 (right to humane
treatment); 6 (prohibition on slavery and servitude); 9 (principle of
non-retroactivity of laws); 12 (freedom of conscience and religion); 17
(protection of the family); 18 (right to a name); 19 (rights of the child); 20
(right to nationality); and 23 (political rights) of the Convention.
Under Article 27(1) of the Convention, the suspension of rights has to be
compatible with all other obligations established in other international
instruments ratified by the country. The
Inter-American Court has indicated that the suspension of guarantees cannot
include suspension of the rule of law or of the principle of legality:
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 ).
Along these lines, "in serious emergency situations it is lawful to
temporarily suspend certain rights and freedoms whose free exercise must, under
normal circumstances, be respected and guaranteed by the State. However, since
not all of these rights and freedoms may be suspended even temporarily, it is
imperative that 'the judicial guarantees essential for (their) protection'
remain in force."
In addition, it is essential that the judiciary be independent, given that such
independence is a fundamental pillar of the rule of law and of human rights
protection. In this regard, the
Court has indicated that habeas
corpus and amparo remedies are judicial guarantees that protect rights that
cannot be suspended, and that those procedures are "essential to ensure the
protection of those rights."
The purpose of the judiciary is to protect legality and the rule of law during a
state of emergency.
The American Convention reaffirms in its preamble the "intention to
consolidate in this hemisphere, within the framework of democratic
institutions, a system of personal liberty and social justice based on
respect for the essential rights of man."
In the same spirit, at Article 29, the Convention prohibits the
interpretation of any of its provisions so as to preclude "other rights
or guarantees that are inherent in the human personality or derived from
representative democracy as a form of government," while it also makes
reference to democracy as the presumed form of political organization of the
States parties at Articles 15, 16, 22, and 32.
UN, Basic Principles on the Independence of the Judiciary, Seventh United
Nations Conference on the Prevention of Crime and the Treatment of Offenders
held at Milan from 26 August to 6 September 1985, Doc. A/CONF.121/22/Rev.1,
p. 59 (1985).
See "Requiem por el Estado de
Derecho, Jorge Avendaño, Enrique
Bernales y Marcial Tubio tres juristas auscultan el Poder Judicial que
padecemos en los tiempos de Fujimori," by Mario Campos, in Somos.
Constitutional law expert and professor Enrique Bernales noted "that
this government has adhered closely to the script of all authoritarian
governments, and it is important to recall that this script is based on one
essential task: to do away with the institutions, for which the steamroller
has been very useful. There are
no institutions in Peru on the eve of the new millennium.
The only institutions that work are chaos, uncertainty, poverty,
corruption, fear of the future..., re-election?" Id.
Article 2 of Decree-Law No. 25,418 (supra).
Law No. 26,546 was adopted on November 21, 1995, and Law No. 26,933 on March
12, 1998. In its response, the
State indicated that Law No. 27,009 provides that the Executive Commission
of the Judiciary is to sit until December 31, 2000.
It should be noted that the life of this Commission has been extended
each year, so that by now it can be considered permanent.
Not taking into account Justices of the Peace (Juzgados de Paz).
The Government, in its response, notes that the National Council of the
Judiciary cannot appoint judges and prosecutors if the candidates have not
passed the training course at the Judicial Academy (which was expanded from
six months to two years). Precisely
the fact that the Congress, whose majority is pro-Government, has changed
the duration of the course, has made it possible for the State to continue
appointing a very large number of judges, going around the constitutional
Article 2 of Law No. 26,898, "Law that spells out the duties and rights
of magistrates of the Judiciary and the Public Ministry," provides:
"The Provisional Magistrates that occupy a post in any of the judicial
organs of the Judiciary provided for in Article 26 of the Single Ordered
Text of the Organic Law on the Judiciary, have the same duties, rights,
powers, prerogatives, prohibitions, and incompatibilities as the Permanent
Magistrates in their respective categories so long as they remain in those
posts. The Provisional Magistrates of the Supreme Court sit in the
Plenary Chamber, with right to voice and vote, and they participate in
running the institutional, administrative, and judicial affairs of the
Judiciary, so long as their provisional status endures."
"Jueces titulares en contra de
ascenso de los provisionales," La República, November 5, 1999.
The Commission met with Mr. Nelson Reyes Ríos, President of the Organ for
Internal Control of the Judiciary (the Judiciary's internal oversight body).
The four judges confessed that they had signed a judgment drafted by another
judge--without reading it--who had nothing to do with their court, and who
should not have had access to the case file.
Those judges, ignoring the principle of res
judicata, voided the judgment that "they hadn't read," but had
issued eight months earlier, and issued a new ruling.
That law provoked the resignation, on April 9, 1998, of the seven
members of the National Council of the Judiciary, who explained that they
had been deprived of their functions considering that the new laws issued by
Congress prohibited them from appointing, confirming, or removing judges.
In addition, the World Bank, which had announced a US$ 22.5 million
loan for Peru, for judicial reform, suspended disbursement of the loan until
the Council's powers are restored.
The four jurists are Guillermo Figallo, Javier Neves, Marcial Rubio, and
Francisco Eguiguren. See
editorial, "Renuncia Comisión. Academia de la Magistratura en peligro," La República,
April 10, 1998.
The decision of the Plenary Chamber of the Supreme Court of Justice of Peru,
of June 14, 1999, for example, declared it was impossible to comply with the
Judgment on Reparations in the Loayza Tamayo case, issued by the
Inter-American Court on November 27, 1998.
By Decree-Law No. 25, 472, of April 30, 1992, Blanca Nélida Colán was
appointed as Supreme Prosecutor for Criminal Matters.
Interview with the Public Ministry, Miguel Aljovín, November 10, 1998, in
Interview with Aljovín (supra).
See, "En el 2000 Colán no
descarta ser de nuevo Fiscal de la Nación," Expreso, November 8,
The Chávez Peñaherrera and Cesti Hurtado cases were submitted to the
inter-American human rights system. The
Cesti Hurtado case is discussed infra.
The legislative sub-committee took nine days to conclude that the
appointments were in line with the Constitution and laws of Peru.
See "Subcomisión Trelles
exculpa a Blanca Nélida Colán," Gestión, April 25, 1998.
See "Cambian a Adelaida Bolívar
de la Fiscalía de Control Interno," Gestión, May 9, 1998.
The new Executive Secretary (Pezúa) sought the resignation of 197 officials
in positions of trust during the administration of José Dellepiane who
maintained links with the Navy, and who owed their appointment to the
previous Executive Secretary. See
La República, May 15, 1998. Dellepiane
resigned suddenly on May 5, 1998, "for personal reasons," as was
reported in the press, after two years and four months in the post.
David Pezúa, who took his place, served as an adviser to Francisco
Acosta, the president of the Constitutional Court after the removal of three
judges by the Congress, and as an adviser to General Guido Guevara,
President of the Supreme Council of Military Justice.
See Press Communique 20/98, Lima, Peru, November 13, 1998.
The second is the Executive Commission of the Public Ministry (infra).
The President of the Council also presides over the Executive Commission of
The justices of the peace are appointed through a popular election organized
in accordance with the law.
The representative selected by the Public Ministry to sit on the National
Council of the Judiciary is Peruvian attorney Jorge Eugenio Castañeda
Maldonado, known for his ties to Cambio 90.
He was selected by the Executive Commission of the Public Ministry,
which is presided over by Blanca Nélida Colán.
The public universities also appoint one representative to the National
Elections Board. The Congress, through a procedure similar to that used with
the Judiciary and the Public Ministry, declared that the public universities
are undergoing a reorganization, and from that date will appoint their own
authorities. A fourth member fo
the National Elections Board is chosen by the private universities.
In 1998, the Congress approved the creation of new private
universities nationwide. The
fifth and final member is chosen by the Bar Association, and proposals have
been made in Congress to abolish compulsory membership of lawyers in a bar
association. The Congress
submitted 121 reports against 58 judges and supreme prosecutors from 1995 to
September 1998, most dismissed or declared to be unfounded, with the
favorable vote by the legislators sympathetic to the government. "Parlamento
archivó 121 denuncias contra 58 jueces y fiscales supremos," La República,
September 12, 1998.
See "El Origen del Proceso,"
El Comercio, May 20, 1998.
Interview with Róger Rodríguez Iturry, "Cuestión
de Principios," in IDEELE, No. 106 (1998).
"Reforma judicial es indefendible
e impuesta," Gestión, April 7, 1999.
Mr. Dr. Acosta Sánchez was Vice-Minister of Labor in this administration,
and Mr. García Marcelo ran for Congress with the slate for the governing
See Mexico, "The Supreme Court of Justice may declare to be invalid
laws which have been subject to challenge only if its decision is approved
by a majority of at least eight out of its eleven members." IACHR,
Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100, Doc.
7 rev.1, September 24, 1998, para. 107.
Article 112 of the Constitution provides: "The presidential term is for
five years. The President may
be re-elected immediately for one additional term.
After one constitutional term, at least, a former president may be a
candidate again, subject to the same conditions."
After a time she returned to Lima.
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations..., op. cit., para. 19.
IACHR, Annual Report 1980-1981, p. 115.
See, in this regard, e.g., Grossman, Claudio: "Algunas
consideraciones sobre el régimen de situaciones de excepción bajo la
Convención Americana sobre Derechos Humanos," in IACHR, Derechos Humanos en las Américas, Homenaje a la Memoria de Carlos A.
Dunshee de Abranches, Washington, 1984.
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations..., op. cit., para. 21.
Id., para. 24.
Id., para. 27.