OF JUSTICE AND RULE OF LAW
The Inter-American Court of Human Rights has stated: "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
In this regard, in addition to the rights mentioned in the previous
paragraph, according to the provision in the final part of Article 27(2) of the
Convention, neither can there be suspension of the judicial guarantees essential
for protecting those rights that cannot be suspended, for, as the Inter-American
Court has said:
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.
The Inter-American Court of Human Rights has held that:
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.
In conclusion, the writ of habeas
corpus, the writ of amparo, the remedies aimed at preserving the rule of law, and all
other remedies suitable for guaranteeing the exercise of rights not subject to
suspension referred to in Article 27(2) of the Convention constitute judicial
guarantees that may not be suspended during states of emergency.
In its response, the Peruvian State makes reference to the progressive
diminution of the percentage of the national territory under a state of
emergency from 1991 to date. The
Commission congratulates the State for the fact that so far in the year 2000 it
has not declared a state of emergency in any part of the country.
The Commission is also pleased to receive notification from the State of
the full entry into force of Article 200 of the Peruvian Constitution, which
corpus and amparo actions.
In light of these considerations, the Commission moves on to analyze the
compatibility of Decree-Law No. 25,475 on the crime of terrorism, Decree-Law No.
25,659 on the crime of treason, and related provisions, with the rights and
guarantees enshrined in the American Convention on Human Rights.
Decree Law No. 25,475, of May 6, 1992, defines terrorism at its Article 2
as an act that "provokes, creates, or maintains a state of anxiety, alarm,
or fear in the population or in a sector thereof, performs acts against life,
the body, health, personal liberty and security, or against property, against
the security of public buildings, roads, or means of communication or of
transport of any type, energy or transmission towers, motorized facilities or
any other good or service, using arms, explosive materials or artefacts, or any
other means capable of causing damage or grave disturbance of the public peace,
or affect the international relations or the security of society and the
State." This Decree expressly
derogated the provisions of the
Criminal Code that had been applied to crimes related to terrorism since April
1991, and established, for those responsible, a minimum sentence of 20 years
imprisonment and a maximum of life imprisonment.
The definition of the crime of terrorism set forth in the above-mentioned
decree is abstract and vague, and thereby violates the basic principle of
legality, which is a basic tenet of the criminal law, whose ultimate objective
is the juridical security the individual needs to know precisely what acts and
omissions may trigger his or her criminal liability.
The International Commission of Jurists stated, in this respect, that:
2 of this law also uses descriptive elements without semantic precision.
Indeed, the criminal conduct proscribed by this provision need not be
associated at all with terrorism. For
example, an assault against an individual's life, health or freedom may be the
work of a terrorist, but, if also could be perpetrated by a common criminal.
Similarly, damage caused by explosives capable of seriously disturbing
public tranquility could be the work of a dissident group, but it could also be
perpetrated by drug traffickers. In
both cases the activities are identical, and in both cases the end result might
create anxiety, alarm or fear ni the public.
However, in the former case, the perpetrator's ultimate intention is to
undermine the state, while in the latter, his purpose may be to take revenge
against or intimidate a private enemy. In
fact, except for certain confederate offenses (conspiracy, subversive
association, etc.), almost any crime may or may not be committed for terrorist
purposes, such as the killing of a police officer or a magistrate, robbery,
kidnapping, etc. By not linking the
proscribed conduct to the subjective element of terrorist intent, this decree
law can be interpreted to permit law enforcement officials to regard almost any
act of violence as a crime of terrorism (or treason).
A criminal statute susceptible to such interpretations invites grave
errors that can result in serious miscarriages of justice.
The Commission ratifies the considerations it set forth in its 1993
Report on the general human rights situation in Peru with respect to the lack of
a clear definition of the conduct that constitutes terrorism, as the acts that
constitute the crime of terrorism are defined and described in Article 2 of
Decree Law No. 25,475 with notable imprecision, in very broad language, creating
open-ended criminal definitions that rely on very vague terms, "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."
On that occasion the Commission reached the following conclusion, which it now
ratifies: "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."
The Inter-American Court of Human Rights has specified, in this respect,
that the right to personal liberty, set forth at Article 7(2) of the American
Convention, implies not being deprived of physical liberty other than for causes
established beforehand by law, indicating that "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."
With respect to detention without prior judicial order and without
flagrancy, the Commission is not unaware of the context in Peru when the
counter-terrorism legislation was adopted, in which the continuous incursions of
armed groups had provoked a state of permanent alarm in the population.
For this reason, a state of exception had been declared in several
departments, which found prima facie justification for fighting these armed groups in the
crisis faced by the Peruvian State. In
consideration of that state of emergency, in several departments Article
2(20)(g) of the 1979 Peruvian Constitution had been suspended,
and the police and military forces were authorized to detain persons without the
order of a judge with jurisdiction and without flagrancy.
It should be noted, however, that despite the prima
facie legitimacy of this measure, the power to detain is not an unlimited
power of the security forces, by which they can proceed to detain citizens
arbitrarily. Suspending the
requirement that a judicial order be obtained as a condition to detain a person
does not imply that public officials are not bound by the legal conditions
necessary for legally decreeing such a measure, nor that judicial checks over
the way in which arrests are carried out are voided.
The suspension of some of the attributes of the right to personal
liberty, authorized by Article 27 of the American Convention for certain cases,
is not absolute. There are
principles underlying every democratic society that the security forces must
observe in order to make a lawful arrest, even under a state of emergency.
The legal conditions for an arrest are obligations that the state
authorities must respect, pursuant to the international commitment to protect
and respect human rights, acquired under the Convention.
In addition, based on the foregoing principles, the police or military
detention, as a precautionary measure, should have as its sole purpose
preventing the flight of a person suspected of a criminal act, and thereby
ensuring his or her appearance before a competent judge, to be judged within a
reasonable term or, as the case may be, released.
No state may impose penalties without the guarantee of a previous trial.
In a state under the rule of law, in which the separation of powers is
respected, every penalty established by law must be judicially imposed, after
having established the guilt of an individual in a fair trial with full
guarantees. The existence of an
emergency situation does not authorize the state to disregard the principle of
the presumption of innocence, nor does it confer on the security forces the
right to exercise arbitrarily the criminal law.
Article 12 of Decree Law No. 25,475 provides that the National Police of
Peru is in charge of investigating the crimes of terrorism, through the National
Counterterrorism Division (DINCOTE: Dirección
Nacional contra el Terrorismo), and DINCOTE is authorized to decide whether
the evidence it collects is sufficient for an indictment.
In addition, DINCOTE makes the determination as to the charges to be
filed, and whether the detainee will go before a civilian or a military court.
The UN Special Rapporteur on the independence of judges and lawyers notes
in his Report that Decree No. 25,475 gave the police excessive powers:
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.
Accordingly, pursuant to Article 12(c) of that Decree, the Police are
authorized to detain persons allegedly implicated for 15 days, and are required
only to notify the judge and Public Ministry within 24 hours following the
arrest. Article 12(d) provides that
during that period, the police may hold the detainees completely incommunicado,
while Article 12(f) establishes that the attorney they designate may only
intervene in their defense after the accused have made a statement in the
presence of the Public Ministry. Article 18 of that Decree
established that defense counsel may not represent more than one accused in
proceedings for the crime of terrorism; it makes an exception for attorneys
appointed as public defenders.
Similarly, the Human Rights Committee of the United Nations, established
pursuant to the provisions of the International Covenant on Civil and Political
Rights, has expressed its concern over the provisions of Decree Law No. 25,475
that authorize the extension of preventive detention for a period of up to 15
days, and has stated that this raises serious problems with respect to Article 9
of the Covenant, concerning the right to personal liberty, whose content is
similar to Article 7 of the American Convention.
The Commission is of the view that the above-mentioned provisions of
Decree No. 25,475 are incompatible with Articles 7 and 8 of the American
Convention, as the power given the police to detain and hold a person
incommunicado for up to 15 days is a breach of the provisions 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 the provision in Article 8(2)(d), which
establishes as a minimal guarantee of process the right of the accused "to
communicate freely and privately with his counsel."
In addition, the imposition by which defense counsel could represent only
one person accused of terrorism at a time had a detrimental effect on the
enjoyment of the right to choose freely one's defense counsel, set forth at
Article 8(1)(d) of the American Convention.
The Commission has received several complaints indicating that during
police detention and while held incommunicado, persons accused of terrorism have
frequently been subjected to torture, for the purpose of obtaining a
"confession." In 1993,
the International Commission of Jurists stated 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
also 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.
In addition, the Inter-American Court has established that since 1993
"there was a widespread practice in Peru of cruel, inhuman and degrading
treatment during criminal investigations into the crimes of treason and
The Human Rights Committee of the UN has noted that it:
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 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 No. 20 (44), on Article 7 of the Covenant, that incommunicado detention
is conducive to torture and that, consequently, the practice should be avoided.
The Commission should emphasize that as established in 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."
The aforementioned Inter-American Convention to Prevent and Punish
Torture also provides at its Article 10: "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."
The Commission considers that the authority given the Police by Decree
Law No. 25,475, to hold a detainee incommunicado for up to 15 days, creates
conditions that lend themselves to violations of physical integrity.
The Commission has received numerous complaints consistently alleging
acts of torture committed during this phase.
Concretely, the complaints indicate that torture is used to obtain the
signing of "confessions" that have later become the main evidentiary
basis of the conviction. Such acts
constitute violations of Article 5 of the American Convention, which sets forth
the right of all persons not to be subjected to torture or to cruel, inhuman, or
degrading treatment, and of all detainees to be treated with respect for the
inherent dignity of the human person.
Aggravating the situation of defenselessness and incommunicado detention
of the persons investigated for and accused of crimes of terrorism, Article 6 of
Decree Law No. 25,659 established that at no stage in the police investigation
and in the criminal proceedings could actions to guarantee rights be brought,
not even the writ of habeas corpus, found at Articles 295 and 200 of the Peruvian
constitutions of 1979 and 1993, respectively.
In this way, persons who were detained and held incommunicado were deprived of
the only legal remedy available to them to challenge, before a judge, the
legality and reasonableness of their arrest.
For the purposes of analyzing the consequences of said deprivation of the
writ of habeas
corpus in relation to the provisions of the American Convention, it
should first be noted that Article 25 of the American Convention provides:
"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...."
Article 7(6) of the Convention, on personal liberty, provides that any
person deprived of liberty has the right to go before a judge or court with
jurisdiction for it to decide, without delay, on the legality of his or her
arrest or detention, and to order his or her release if the arrest or detention
are illegal. In addition, as
analyzed in detail in the foregoing paragraphs, Article 27 of the Convention
provides that there are certain rights that cannot be suspended, even in a state
of emergency, and that the judicial rights essential for the protection of those
rights may not be suspended.
In this regard, the Inter-American Court of Human Rights has stated:
" 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."
The Court has established that habeas
corpus is a fundamental guarantee that the States may not suspend,
not even during a state of emergency, indicating in this regard 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.
Decree-Law No. 25,475 provides that DINCOTE must draw up a police report
upon the conclusion of its investigation, and send it to the Public Ministry
prosecutor, who, in theory, makes an independent evaluation and decides what
charges he will set forth in his indictment to the respective criminal judge.
Nonetheless, the ICJ has indicated that it has "been repeatedly told
by knowledgeable persons both within and outside the government that, in actual
practice, DINCOTE formalizes the charges which then are invariably endorsed by
the prosecutor." Entonces
la DINCOTE finalmente decide si el prisionero será juzgado por una corte civil
por terrorismo o por un tribunal militar por traición a la patria”.
That situation is certainly an anomaly, as it implies that the police--not a
judicial organ, and therefore neither independent or impartial--would de
facto be exercising judicial functions.
The Public Ministry then presents and formalizes the complaint before a
criminal judge, who must issue an order initiating the investigation (Auto
Apertorio de Instrucción) within 24 hours, and issue an arrest warrant.
Article 13(a) of Decree Law No. 25,475 provides that the criminal judge
cannot rule on any prior issue, objection, or defense, nor can he decide to
release the accused. Consequently,
even if the judge is convinced of the accused's innocence, he could not order
his release. This no doubt
represented another violation, in this procedure, of the right to the
presumption of innocence set forth at Article 8(2) of the Convention, according
to which: "Every person accused of a criminal offense has the right to be
presumed innocent so long as his guilt has not been proven according to
law." By Law No. 26,348 of November 25, 1993, the aforementioned provision
was modified and it was established that the investigative judge, sua sponte or upon motion by a party, may order the accused released
on bond, but that this decision must be forwarded to the superior court for its
legal opinion, and cannot be carried out until the superior court affirms it.
According to Decree-Law No. 25,475, once the initial phase is concluded,
the investigative judge must send the case file to the Office of the President
of the corresponding Superior Court of Justice, which in turn must forward the
proceedings to the Dean of Superior Prosecutors (Fiscal Superior Decano), to
have a Superior Prosecutor designated, to make a formal accusation within three
days. Once the indictment is handed
down, the members of the Specialized Chamber in charge of trying the accused are
designated, from among the judges of the judicial district.
According to Article 15 of Decree-Law No. 25,475:
identity of the judges and members of the Public Ministry, and of the justice
auxiliaries who intervene in the trial of crimes of terrorism, shall be secret,
to which end measures will be adopted to guarantee that measure.
The judicial rulings shall not bear signatures or seals of the judges
participating, nor of the justice auxiliaries.
For this purpose, codes and keys will be used, which shall also be kept
The characteristics of this system of secret justice, already modified in
part by Law No. 26,671, as analyzed infra,
constitute a flagrant violation of the guarantee essential to due process, to be
judged by an independent and impartial judge or court, enshrined in Article 8(1)
of the American Convention, as well as the guarantee regarding publicity for
criminal trials, enshrined in Article 8(2)(5). In this regard, the Commission
stated in its 1993 Report on the Situation of Human Rights in Peru: "It has
been said that if no one knows the identity of the presiding judges, then
nothing can be said about their impartiality and independence. This in itself is
questionable, given the measures adopted by the Executive Power in relation to
the Judiciary since April 5."
In addition, pursuant to Article 13(h) of Decree Law No. 25,475, it is not legal
in terrorism proceedings for judges or justice auxiliaries to recuse themselves.
Certainly, this latest provision is somehow redundant, as the secret
identity of these officials impeded the accused and their defense counsel from
learning of the existence of any grounds for recusal in the first place.
The Human Rights Committee has criticized the fact that the accused do
not have access to information on the identity of those they judged, and find
that their right to a public trial is denied.
Certainly, the right to know who is sitting in judgment, to determine his
or her subjective competence, i.e. to determine whether a judge is covered by
one of the grounds of disqualification or recusal, is a basic guarantee.
The anonymity of the judges strips the accused of that basic guarantee,
and also violates his right to be judged by an impartial court, as it impedes
him from recusing a judge to whom one of the grounds for recusal applies.
The establishment of this system of secret justice has been based on the
need to protect judges, prosecutors, and other officials involved in the judging
of alleged members or collaborators of dissident armed groups, in the face of
possible reprisals. Nonetheless,
the UN Special Rapporteur on the independence of judges and lawyers, has noted
main argument presented by the Government for providing "faceless"
judges was to protect the physical integrity of the judges, given the terrorist
threat. Based upon the testimony received from the judges themselves, the
general impression of the Special Rapporteur was that the judges and prosecutors
who are supposed to benefit from the fact that they operate anonymously do not
feel protected by the system. In their opinion, it is quite easy to discover who
the judges and prosecutors are, in particular in the provinces or small towns;
therefore, they consider that the system does not serve the purpose for which it
was established (i.e. the protection of the judges and prosecutors), and the
majority of those interviewed acknowledged that under this system there is a
lack of guarantees for due process. In this respect, international standards
provide that derogatory measures shall be implemented only if they are strictly
necessary. According to the information received by the Special Rapporteur, from
1992 to 1997, judges were not targets of the terrorist-related violence.
Therefore, the use of "faceless" tribunals does not meet the principle
of strict necessity. Moreover, even if a real need existed to implement measures
to protect the physical integrity of the judges and of judicial auxiliaries,
these measures should be consistent with other international obligations of the
Government and they should not impair the right of the accused to due process.
As to the place of these trials, Article 16 of Decree No. 25,475 and its
related provisions establish that trials for terrorism should be carried out in
the respective prisons, in surroundings endowed with the necessary conditions so
that judges, prosecutors, and justice auxiliaries could not be plainly seen or
heard by the persons on trial or their defense counsel.
The UN Special Rapporteur on the independence of judges and lawyers
indicated, with respect to those trials, that:
main characteristic of the proceedings before "faceless" courts, both
civilian and military, is secrecy. Judges and prosecutors are identified by
codes. When handling treason cases, Supreme Court judges also identify
themselves by secret codes. The judges are at all times invisible to the
defendants and their counsel, and trial proceedings are conducted in private.
Hearings take place in specially equipped courtrooms inside high-security
prisons or, in treason cases, at military bases. The courtrooms are small, with
a single door and a large one-way mirror along one wall. In an adjoining room on
the other side of the mirror, the judges, prosecutor and court secretaries have
their seats. They communicate with the accused persons and their counsel through
voice-distorting microphones. Since the sound system does not always function
properly, it is sometimes impossible for the defendant or his or her counsel to
understand what is being said, which has in many cases seriously obstructed the
proceedings or affected the defence.
For their part, Articles 13(c) and 2(b) of Decree Laws No. 25,475 and
25,744, respectively, prohibit the staff involved in the preparation of the
police report or the members of the Armed Forces from arresting or detaining
persons implicated in these crimes from being offered as witnesses in trials for
terrorism or treason.
The Commission considers that this legal deprivation of the right of
persons on trial to question those who detained them, and who, moreover, played
a preponderant role in the gathering and even manipulation of the evidence used
to convict them, is another violation of the due process guarantee set forth at
Article 8(2)(f) of the American Convention, according to which the defense has
the right to "examine witnesses present in the court and to obtain the
appearance, as witnesses, of experts or other persons who may throw light on the
In addition to the restrictions on the right to defense derived from the
impossibility of questioning the police in charge of collecting and producing
the evidence in the accusation and the initial limitation according to which
each lawyer may represent only one person accused of terrorism, the UN Special
Rapporteur on the independence of judges and lawyers, among other sources, noted
the civil "faceless" tribunals, defence attorneys claim that they have
restricted access to evidence. Further, they are not allowed to cross-examine
police or military witnesses whose identities are not revealed prior to, during
or after the trial. In the military "faceless" tribunals, defence
lawyers claim that they have serious difficulties in accessing trial documents.
As a result of the various restrictions imposed during the proceedings,
the defense of the persons accused of terrorism implies a virtual inversion of
the burden of proof, to the extreme that, in practice, and independent of the
evidence available, the guilt of the accused is presumed, not his or her
innocence, in flagrant violation of Article 8(2) of the American Convention.
Such circumstances render the defense counsel "a mere spectator to
The role of the defense used to be even less effective, when the defense counsel
was provided by the Ministry of Justice and designated administratively, by the
police, pursuant to Article 12(f) of Decree Law No. 25,475.
During its 1998 on-site visit, the Commission collected testimony in the
Ayacucho prison that suggests that the accused lacked the resources needed to
hire attorneys, and, consequently, have been represented by State-appointed
defense counsel, they have only been contacted with little lead time to prepare
the defense, resulting in convictions in circumstances in which they are
In addition, under the provisions of Decree Law No. 25,475, the prisoners
may present a challenge to the judgment or a motion for nullity before the
Supreme Court of Justice, whose decision was also assigned to a specialized
chamber of "faceless" judges. It
has been noted that the defense attorneys faced practically the same
difficulties in the Supreme Court of Justice as when before the superior courts.
In addition is the provisional nature of these judges, which, as analyzed
supra, has called into question their
independence, and with this the possibility of such a motion prevailing, however
The testimony received, the direct contact with the detainees during the
on-site visits, the numerous complaints presented and the general reports on the
human rights situation in Peru from several sources, indicate that the actions
of the police, prosecutors, judges, and justice auxiliaries have been geared
mainly to convicting the accused, more than to ascertaining their guilt with
certainty. This tendency would
appear to result from the pressures to shorten the trial and therefore the
struggle against alleged members of armed groups, to the detriment of the rules
of due process, and, in particular, the principle of the presumption of
innocence, in combination with the highly-questioned independence of judges and
prosecutors who hold their positions on a provisional basis.
The Commission considers that this type of proceeding violates the
fundamental right to due process of law, i.e., the right of every person to be
heard, with proper guarantees, in any criminal accusation against him or her; to
be presumed innocent until their guilt has been proven; to receive prior and
detailed communication of the charges and to receive adequate time and resources
for preparing the defense, all of which are guarantees expressly set forth at
Article 8 of the American Convention. In
this regard, during its on-site visit, mainly, the Commission received a large
number of complaints concerning persons who were convicted of terrorism (either
for "terrorism" itself or for "treason," analyzed infra),
under the procedural norms studied above.
The reduction of the violence led to the modification of the
anti-terrorist legislation. Law No.
26,248 derogated the provision of Decree Law No. 25,475, which made it
impossible to seek release without bail while under investigation for the crime
of terrorism. Accordingly, the
criminal judge, whether sua sponte or
on motion by the accused, has been authorized to order the release, without
bail, pursuant to Article 201 of the Code of Criminal Procedure.
In addition, Article 2 of Law 26,447 established that persons accused of
crimes of terrorism have the right to designate a defense counsel of their
choosing, and to be advised by counsel from the outset of the police
investigation; the defense counsel and the prosecutor must be present at the
time the accused makes a statement. If no defense counsel is designated by the
party, a public defender must be appointed.
Article 4 of the same law went back to the original language of the
Criminal Code, which provides that persons under 18 years of age are exempt from
sentencing, thereby reversing what had been established by the emergency
legislation, which had brought the age for being subject to criminal accusation
down to 15 years. Finally, Law No.
26,671 has put a halt to proceedings before what have been called the
"faceless" judge courts.
Notwithstanding the above-mentioned reforms, all other aspects of
Decree-Laws Nos. 25,475 and 25,659 continue in full force, and the persons
convicted under the reformed system continue suffering the deficiencies of the
procedure. Despite the entry into
force of the reforms, judgments handed down while the Decrees--now amended--were
in force, have not been reviewed.
The Commission considers it important to highlight that the Peruvian
state itself has recognized that innocent persons, who had no links whatsoever
with terrorist organizations or activities, were convicted under the
anti-terrorism legislation. In
effect, on August 15, 1996, Law No. 26,655 was promulgated in Peru.
It provided for the establishment of an "Ad Hoc Commission entrusted with evaluating, characterizing, and
proposing to the President of the Republic the granting of pardon ... for those
who have been convicted of the crimes of terrorism or treason on the basis of insufficient evidence, enabling the
Commission to presume reasonably that they did not have any links with terrorist
elements, activities, or organizations."
According to the language of the law, the Ad Hoc Commission's mandate arises
from the existence of cases decided "on the basis of insufficient
evidentiary elements" and confirms clearly that many innocent people were
convicted without due process.
That Commission, whose mandate culminated on December 31, 1999, was made
up of three members: the Human
Rights Ombudsman, Mr. Jorge Santistevan de Noriega, its chairperson; the
representative of the President of the Republic, Fr. Hubert Lanssiers; and the
Minister of Justice.
The Commission has received approximately three thousand two hundred twenty-five
(3,225) requests, and as of December 30, 1999, President Alberto Fujimori had
granted 481 pardons.
The Special Rapporteur of the UN Human Rights Commission on the
independence of judges and lawyers has stated that the existence of the Ad Hoc Commission is recognition of the lack of due process in cases
of terrorism and treason:
Special Rapporteur welcomes 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.
Since May 1992, when the current anti-terrorist legislation came into
force, until June 1998, the non-governmental human rights organizations have
assumed the legal defense of 1,568 people accused of terrorism or treason, 1,019
of whom have been released by judicial means or through the Ad hoc Commission; the remaining 527 persons (318 being tried and
209 convicted) are in detention.
Another problem related to the state's fight against organized violence
is the situation of the persons referred to as the requisitoriados.
Thousands of people in Peru, for several years now, have been accused of
having participated in the activities related to the armed dissident groups;
arrest warrants have issued for these persons, and they have been reported to
the police authorities.
Many such arrest warrants were issued against persons who were forced to
collaborate with armed dissident groups or who were accused by others, seeking a
reduction in their sentences. In
many of these cases, the arrest warrants have never been executed, and, given
that these orders are not subject to any limitation, the police authorities are
authorized to detain the requisitoriados
at any time. Accordingly, these
individuals are in a highly precarious legal situation that keeps them from
developing their human and family potential normally. This being the case, the "requisitoriados" are
constantly on the run.
The Human Rights Ombudsman has estimated that the situation affected
non-governmental organizations estimate that the number was much higher.
For the most part, they are Andean peasants and inhabitants of the jungle.
In view of this situation, the courts issued many arrest warrants, which
has been alleged to have been done indiscriminately, often with a massive impact
on entire communities. The IACHR
has received information that the rules of procedure enabled judges to issue
arrest warrants despite generally insufficient indicia pointing to the liability
of the persons affected. The Office
of the Human Rights Ombudsman has indicated in this respect that the requisitorias,
or criminal summonses come from areas declared to be under a state of emergency,
that 72% of the alleged offenses took place from 1980 to 1991, and that 55% of
the criminal summonses were also issued during this period.
The Commission considers that the situation of the requisitoriados affects several human rights set forth in the
American Convention. In this respect, the Commission is aware of the existence
of three bills, prepared by the Office of the Human Rights Ombudsman, the
Working Group on Displacement (Mesa de
Desplazamiento) in Peru, and congresspersons Henry Pease and Graciela Fernández
Baca, respectively, who sought to correct that situation.
Given the imperative need to solve this problem, the Commission urges the
Peruvian State to evaluate those bills, or others, aimed at regularizing the
situation of the requisitoriados.
Article 1(1) of the American Convention establishes the duty of States to
ensure the free and full exercise of the human rights set forth in the American
Convention. That obligation means
that the States must prevent, investigate, and punish all violations of rights
recognized in the Convention, and make reparation for the harm caused by such
violations. In cases in which the
violation concerns rights that can be restored, such as the right to physical
liberty, the State must proceed to restore them.
In this regard, the information received by the Commission indicates that
the Peruvian State has carried out its obligation to make reparation to the
victims or their families only in exceptional cases, considering the numerous
violations of various human rights committed by the State through its agents in
The investigation into the violations and trial of the persons
responsible have been impeded by
the passage of amnesty laws, making it impossible to restore the right violated
and to make reparation to the victims and their families.
In terms of compensation for the harm suffered, the Commission observes
that the 1993 Peruvian Constitution established, at its Article 139(7), the
institution of compensation for arbitrary detention and for judicial error in
criminal proceedings, which was regulated by Law No. 24,973, promulgated in 1988
and still in force. Nonetheless,
the National Compensation Fund, an institution created pursuant to the standards
noted, is not operating and does not receive the corresponding budget, thus the
persons affected by judicial errors are not compensated, and this failure to
compensate constitutes a violation of their human rights.
Article 10 of the American Convention provides:
"Every person has the right to be compensated in accordance with the
law in the event he has been sentenced by a final judgment through a miscarriage
of justice." The administration of justice is both a prerogative and an
obligation of the State. The
actions of the judges, as public servants in their capacity as state agents, may
give rise to the domestic and international liability of the state.
This is without prejudice to the domestic provisions on personal
liability of judges vis-à-vis the victims for their judicial errors and vis-à-vis
the state itself, arising from their judicial actions.
A related aspect of the matter under consideration is reparation for
innocent persons who were convicted of terrorism.
Even when those persons received some benefits under Law No. 26,994, they
have not received any compensation for the material damages or pain and
suffering inflicted on them and their families by the State.
For the purposes of trying to resolve the above-mentioned situations, the
Commission considers that the State should begin by assuming its obligation to
pay compensation to the victims of human rights violations committed by the
State or its agents as a matter of policy.
In this regard, among other measures aimed at implementing such an
eventual policy, it is recommended that the National Compensation Fund be
allocated the budget it needs to carry out its aims and adopt a simple and brief
procedure for processing the requests it receives. It is also recommended, as another specific measure for
addressing the problem under study, that legislation be passed providing for
compensation for the victims of subversion, i.e. for the innocent persons who
have been pardoned or given clemency.
From another perspective, the Commission considers it important to
highlight that on November 11, 1992, Supreme Decree No. 077-92-DE was issued by
which the Peruvian State established the payment of compensation to victims of
subversion, i.e. to the members of the self-defense committees killed or wounded
as they fought dissident groups. Along
the same lines, Supreme Decree No. 068-DE-SG of December 27, 1998, set the
amount of that compensation. The
IACHR positively values this initiative of the Peruvian State, and attributes
importance to its expeditious implementation.
The Commission and the member states of the OAS have recognized the
important role of human rights defenders in fostering a greater awareness and
observance of fundamental rights, and so in safeguarding democracy and the
fundamental values of the inter-American system.
In addition, the General Assembly of the OAS has issued pronouncements, on
several occasions, on the need to protect human rights defenders in the
performance of their tasks.
The United Nations Commission on Human Rights has also recognized the importance
of human rights defenders and has reaffirmed the right and the duty of
individuals, groups, and institutions of society in fostering and protecting
universally recognized human rights and fundamental freedoms.
The Commission has found that human rights defenders are often victims of
all types of attacks and harassment, including legal actions brought to
intimidate them. In the case of
Peru, the Commission has received information that indicates that some of these
legal proceedings have not been initiated to determine rights and
responsibilities pursuant to the purposes of the law, but as reprisal against
defense counsel for persons accused of the crime of terrorism.
Many of the lawyers who defend persons accused of committing the crime of
terrorism in Peru are subject to constant threats against their lives through
phone calls, anonymous notes, and even physical violence. In some cases these threats have materialized.
In addition, the Commission has learned that after the promulgation of
Law No. 25,475, the Anti-Terrorism Act, criminal proceedings have been brought
against defense attorneys for the crimes of rebellion or forming illegal groups,
leading to their detention. The Commission has received numerous complaints
consistently indicating that far from being undertaken based on relevant
evidence, such proceedings have apparently been sponsored by sectors of the
security forces for the purpose of intimidating attorneys willing to defend
persons accused of terrorism.
The Commission considers that the States must carry out their obligation
to investigate and judge those who have violated the law, including acts in
support of the armed dissident groups considered offenses under the legislation
in force in the jurisdiction in question. Nonetheless,
the legal defense of individuals accused of having supported the armed dissident
groups can in no case be considered
by the authorities as an offense, but as part of a process provided for in the
American Convention, and presumably in domestic law, for judging those who are
effectively accused of violating the law.
The Commission, as already mentioned, has received information that
indicates that the criminal proceedings brought against defense attorneys
generally begin based on reports of the specialized National Police called the
DINCOTE (Dirección Nacional contra el
Terrorismo). These police
elements, according to the complaints, implicate innocent citizens in subversive
criminal acts, then fabricate evidence, and subject the person to cruel,
inhuman, and degrading torture to obtain self-incriminatory declarations.
For example, attorneys Alfredo Crespo and Jorge Cartagena were subjected
to a clandestine trial and convicted by "faceless" military courts
behind closed doors, in military quarters.
They were sentenced to life imprisonment, for the crime of
"treason" and "harm to the Intelligence Service of the Peruvian
Army" based on "secret" documents in a trial in which they were
subjected to the very summary procedure for trial in the theater of operations,
in which the investigative judge must hand down a judgment within 10 days at
most. During this trial before
"faceless" judges, these two attorneys were kept from presenting
evidence, testimony, experts, on-site inspections, review of documents, etc.,
for the purpose of refuting the charges. Their
defense counsel were blocked from preparing the defense, meeting in private with
their clients, or examining the "evidence" against them.
The Supreme Resolution of July 6, 1993, issued by the Special Court of
the Supreme Council of Military Justice, highlights that the only basis of the
conviction was their "... status as leading members of the Asociación
de Abogados Democráticos...." even though no evidence was presented
indicating that the Association, properly registered at file No. 4,034 of the
Public Registries of Lima, was in any way linked to unlawful acts or was
clandestine. The State, in
its response, considers that the IACHR cannot consider as clandestine procedures
that have been regulated by law under the Constitution of Peru, especially when
the investigations were transparent, open, including the presence of its
respective defense counsel, the Public Ministry, and especially under the close
watch of the majority of individuals and juridical persons, national and
foreign, familiar with what happened. The
State notes the "presence" of the defense counsel from the Public
Ministry, etc., indirectly ceding on the point of its own lack of participation.
One need not get into details on this point because the Inter-American
Court of Human Rights, in the judgment in the case Castillo Petruzzi et
al., already evaluated the nature of the right to defense in a treason case
similar to the procedure to which Crespo and Cartagena were subjected, and found
multiple violations of Article 8 of the American Convention.
At the same time, Mr. Luis A. Ramón Landaure--who was said to have
graduated with the accused and decided to assume their defense--came to be
subjected to harassment by the agents of the security forces, forcing him to
seek guarantees from the Lima Bar Association.
On November 20, 1997, Mr. Landaure was detained in his office by the
Special Operative Group ("GEO": Grupo
Especial Operativo), directed by a member of the Army Intelligence Service
("SIN"). Mr. Landaure was
detained for 30 days in the cells of DIRCOTE even though the law provides for a
maximum of 15 days detention.
The certificate of detention was delivered to him on November 21, 1997, for
terrorism, and not treason. Later,
the military jurisdiction convicted him and sentenced him to life imprisonment
at trial and on appeal. The Supreme
Council of Military Justice accepted his request for inhibition, and arrogated
to itself the power to try him on charges of terrorism, even though under Law
No. 25,475, it is DIRCOTE and the Office of the Public Prosecutor who have the
power to do so. The complaint by the Office of the Public Prosecutor in the
regular courts and the order to begin the investigation are dated October 5,
1998. On that same date, new
proceedings on terrorism charges were brought, on the same facts, in the regular
Not only have lawyers dedicated to defending persons accused of terrorism
or treason been subject to harassment and accusations. Ms. Delia Revoredo Marsano de Mur, former member of the
Constitutional Court, and former dean of the Bar Association, has also been the
victim of a series of incidents after denouncing six judges of the Supreme Court
of Justice to the National Council of the Judiciary for improper conduct in the
Novotec case (supra).
Next, the Congress approved and the Executive promulgated Law No. 26,933,
which took from the National Council of the Judiciary the power to remove judges
and supreme prosecutors without the authorization of the Internal Oversight
Organ and the Public Ministry. The
seven members of the National Council of the Judiciary submitted their
resignations in response to this limitation on their powers, and the cases were
transferred immediately to the Internal Control Organ of the Judiciary, which
decided not to hold the five judges accused liable.
Ms. Delia Revoredo publicly voiced her disagreement with what she
considered a new usurpation of the functions of an autonomous constitutional
organ and the consequent harm to the rule of law, and stated that she would
denounce these acts of the Congress and the Executive to the OAS. Some professional associations, municipalities, and workers'
unions backed her complaint.
While sitting as a member of the Constitutional Court, Ms. Revoredo
enjoyed immunity from trial. Despite
this immunity, there were other ways to coerce her.
Thus, a state customs agents allegedly falsified documentation relating
to certain imported goods, two trucks and a car, in order to accuse her and her
husband of the crime of contraband and thereby pressure her to refrain from
making a pronouncement on the constitutionality of the law that would have
allowed Alberto Fujimori a third presidential candidacy.
Surprisingly, the State Customs Prosecutor turned a blind eye to the
dozens of importers who had brought almost 600 vehicles into Peru on the same
boat and in the same circumstances. According
to Peruvian criminal law, contraband is constituted by the fact of:
(a) importing merchandise into an unauthorized zone, and (b) evading
taxes. In this case, there is
unquestionable evidence that the corresponding taxes were paid at the time the
three vehicles were brought into the customs area. During the proceeding, the Executive and Judicial Commissions
of the Judiciary and of the Public Ministry changed the prosecutors and judges,
created a totally new panel, entirely eliminated another panel, and indicted
Revoredo and her husband, Mr. Mur, of acts that did not constitute a crime.
As a result of this episode, Ms. Revoredo and her husband sought asylum
from the Government of Costa Rica, which accepted their request.
Mr. Heriberto Benítez, President of the Human Rights Committee of the
Lima Bar Association, has also been systematically and repeatedly persecuted for
his activities on behalf of human rights. On
several occasions, he has been impeded from exercising his profession, the law,
for defending polemical clients, such as Mrs. Leonor La Rosa Bustamante, a
former Army intelligence agent who told the Canal 2 television cameras that she
was brutally tortured by her colleagues. In
addition, Mr. Alberto Borea Odría, who defended General Salinas Sedó, and was
president of the dissolved Senate of the Republic, had to seek asylum in the
Costa Rican embassy and later leave Peru.
Mr. Borea returned to Peru and since then has been the victim of harassment for
his defense of other clients such as (ret.) Col. Gustavo Cesti and Baruch Ivcher
The Commission has also received a complaint regarding the case of judges
Sergio Salas, Elizabeth MacRae Rhays, and Juan Castillo Vásquez,
all judges of the Public Law Chamber of the Superior Court of Lima who on
June 26, 1997, were transferred from their posts by decision of a Supreme Court
panel, apparently upon instructions from the Executive Commission of the
Judiciary. The Commission had
occasion to meet with those judges during its on-site visit to Lima.
They are the three magistrates of the Public Law Chamber who ruled
favorably on the writs of habeas
corpus filed, among other former members of the Armed Forces, by
former Gen. Rodolfo Robles and (ret.) Capt. Gustavo Cesti Hurtado, respectively,
whose grievances were eventually examined by the Commission, and, in the case of
Gustavo Cesti, by the Inter-American Court.
The Supreme Council of Military Justice accused these judges of "dangerous
interference" in the military jurisdiction.
In July 1997, Ms. Elba Greta Minaya Calle, judge for the 37th Criminal
Court of Lima, was accused of terrorism and other crimes for having granted a
writ of habeas
corpus in a well-known case. The
Commission asked the Peruvian authorities to adopt precautionary measures on
behalf of Judge Minaya Calle, to protect her personal integrity, after which it
was reported that the charges had been withdrawn.
In November 1999, the President of the Superior Court of Lima, Pedro
Infantes Mandujano, lodged a complaint against former criminal law judge Elba
Greta Minaya Calle for "grave misconduct of duties" ("grave
inconducta funcional") before the District Office for Oversight of the
Judiciary (Odicma). This Office
initiated an administrative case against the former judge even though she had
not been a judge since October 1999, when she resigned.
She is accused of traveling to Costa Rica without the authorization of
Infantes Mandujano, from September 18 to 22, 1999, to serve as a witness before
the Inter-American Court of Human Rights in the Cantoral Benavides case.
According to the Organic Law of the Judiciary, it is a grave violation
that may be punished by the magistrate's removal.
The former judge told the press that "yes she did seek permission to
travel to Costa Rica, but that her request went by mistake to the Executive
Commission of the Judiciary, instead of being forwarded to Infantes
She added that the principal judge of the Lima Court knew of the motives for her
trip, and that "therefore, it is no grave violation.
In addition, it is absurd that they are bringing a disciplinary
proceeding against me when I am no longer a judge, and I don't know how they
could punish me," she indicated. "It
is very possible that this proceeding is in reprisal for having gone to the
Court at San José to testify on behalf of Cantoral," she noted.
The Commission is profoundly concerned over the fact that the justice
system itself is used to harass and intimidate defense attorneys and independent
judges. In complaints lodged with
the IACHR, it is indicated in many cases that there are state agents, especially
from the security forces, involved in the conduct of these proceedings.
The decision to initiate a case on charges of "terrorism" (supra)
or "traición a la patria," i.e. treason (infra), for example, depends in many cases on
"provisional" prosecutors, who
are, therefore, susceptible to the influence of the Executive and to the
extralegal considerations in the case. Insofar
as these forms of conduct are violative of the American Convention, they trigger
the State's international responsibility for the violation of rights set forth
in the American Convention.
Whenever criminal proceedings are used as a tool to harass defense
attorneys directly, the right of the victim to his or her mental and moral
integrity is compromised, and with it respect for Article 5 of the American
Convention. These proceedings may
also be manipulated for the purpose of publicly accusing those attorneys who
defend persons accused of "terrorism," who are considered
"enemies of the State" by the security forces, which can place the
physical security and even the life of these attorneys at risk.
The 1979 Constitution established a legal regime in which the military
jurisdiction was limited to judging members of the military and police.
Civilians were only subject to this jurisdiction if accused of treason in
the event of an external war, or when seeking to evade compulsory military
service. The 1993 Constitution
provides for the military jurisdiction at Article 139, and expressly defines its
scope over civilians at Article 173, expanding the military jurisdiction to
include civilians in cases of "treason," in the following terms:
173. In the case of a
service-related offense on the part of members of the Armed Forces or National
Police, they are subject to the respective jurisdiction and the Code of Military
Justice. The provisions of this
Code are not applicable to civilians, except in the case of crimes of Treason
and Terrorism as provided by the law.
The cassation referred to in Article 141 applies only when the death
penalty is imposed.
Peru's system of military justice recognizes that there are two separate
jurisdictions in the judicial system, the military courts and the regular or
civilian jurisdiction. The Code of
Military Justice establishes that offenses (regular) will be judged by the
civilian courts, and offenses that pertain exclusively to military service
(service-related offenses) committed by military, police, or civilian personnel
employed by the military are to be heard by the military courts (courts of the
Armed Forces and the Police). The
Peruvian State notes in its response that the military courts have jurisdiction,
in addition to what is spelled out in the Peruvian Constitution, to take
cognizance of common crimes, pursuant to Article 324 of the Code of Military
Justice, which provides that the military jurisdiction can be exercised over
common crimes committed in service-related acts when the injured persons and
accused are members of the military; the law applied is the
Criminal Code that applies to civilians generally (Código Penal Común).
Even though no international treaty contains an express provision
prohibiting the trial of civilians by military courts, there is international
consensus that the jurisdiction of such courts needs to be restricted.
The Human Rights Committee of the United Nations formulated the following
General Comment (No. 13) on the application of military justice to civilians:
provisions of Article 14 apply to all courts and tribunals within the scope of
that Article whether ordinary or specialized. The Committee notes the existence,
in many countries, of military or special courts which try civilians. This could
present serious problems as far as the equitable, impartial and independent
administration of justice is concerned. Quite often the reason for the
establishment of such courts is to enable exceptional procedures to be applied
which do not comply with normal standards of justice. While the Covenant does
not prohibit such categories of courts, nevertheless the conditions which it
lays down clearly indicate that the trying of civilians by such courts should be
very exceptional and take place under conditions which genuinely afford the full
guarantees stipulated in Article 14. The Committee has noted a serious lack of
information in this regard in the
reports of some States parties whose judicial institutions include such courts
for the trying of civilians. In some countries such military and special courts
do not afford the strict guarantees of the proper administration of justice in
accordance with the requirements of Article 14 which are essential for the
effective protection of human rights. If States parties decide in circumstances
of a public emergency as contemplated by Article 4 to derogate from normal
procedures required under Article 14, they should ensure that such derogations
do not exceed those strictly required by the exigencies of the actual situation,
and respect the other conditions in paragraph 1 of Article 14.
The Special Rapporteur on the independence of judges and lawyers, in his
report on Peru, cited General Comment No. 13 with the comment that he had
certain "reservations on this particular general comment in the light of the current development of international law which is
towards the prohibition of military tribunals trying civilians. "
In addition, principles 5 and 6 of the United Nations Basic Principles on
the Independence of the Judiciary suggest that the transfer of the jurisdiction
from the regular courts to the military courts destroys the independence of the
Everyone shall have the right to be tried by ordinary courts or tribunals
using established legal procedures. Tribunals
that do not use the duly established procedures of the legal process shall not
be created to displace the jurisdiction belonging to the ordinary courts or
judicial tribunals. 6.
The principle of the independence of the judiciary entitles and requires
the judiciary to ensure that judicial proceedings are conducted fairly and that
the rights of the parties are respected.
The Commission reiterates its doctrine that military justice can only be
applied to members of the military who have committed service-related offenses,
and that military courts do not have the necessary independence and impartiality
for sitting in judgment of civilians.
The Inter-American Court has confirmed that the purpose of the military
jurisdiction is to maintain order and discipline in the Armed Forces; in this
regard, it is a functional jurisdiction whose application should be reserved to
those members of the military who have committed
offenses or violations in the performance of their duties, under certain
In this regard, principle (5)(f) of the Singhvi principles provides that the
jurisdiction of military courts should be circumscribed to offenses related to
military service, and that one should have the right to appeal the decisions of
those courts to a legally qualified appellate court or to pursue a remedy to
move for annulment.
The State, in its response to the report, notes that "the American
Convention on Human Rights does not prohibit exceptional jurisdictions" and
that "the IACHR does not indicate its grounds" for establishing the
doctrine that the military courts do not have the necessary independence and
impartiality to try civilians. In
response, the Commission refers to paragraph 129 of the Inter-American Court's
judgment in the case Castillo Petruzzi et
al., which indicates: "A basic principle of the independence of the
judiciary is that every person has the right to be heard by regular courts,
following procedures previously established by law. States are not to create '[t]ribunals that do not use the
duly established procedures of the
legal process [...] to displace the jurisdiction belonging to the ordinary
courts or judicial tribunals.'" In
paragraph 130 of the same judgment, the Court notes: "In the case under
study, the armed forces, fully engaged in the counter-insurgency struggle, are
also prosecuting persons associated with insurgency groups.
This considerably weakens the impartiality that every judge must
Id., para. 25.
OC-9, para. 25.
Id., para. 38.
International Commission of Jurists, Report on the Administration of Justice
in Peru (published in Spanish by Instituto
de Defensa Legal, Lima, 1993, p. 45).
IACHR, Annual Report 1993, p. 507.
Inter-American Court of Human Rights, Case of Gangaram Panday, Judgment of
January 21, 1994, Series C No. 16, para. 47.
According to which: "Every person has the right: ... 2. To personal
liberty and security. Accordingly:
... (g) No one may be detained other than by written and reasoned warrant
issued by the Judge or by the police authorities in the case of
The Commission has established as follows: "The rationale behind this
guarantee is that no person should be punished without a prior trial which
includes a charge, the opportunity to defend oneself, and a sentence.
All these stages must be completed within a reasonable time. The time
limit is intended to protect the accused with respect to his or her
fundamental right to personal liberty, as well as the accused's personal
security against being the object of an unjustified procedural risk."
IACHR, Report 12/96, Case 11.245, Argentina, Annual Report 1995,
United Nations, Commission on Human Rights, Report of the Special Rapporteur
on the independence of judges and lawyers, Mr. Param Cumaraswamy, Mission to
Peru, Doc. E/CN.4/1998/39/Add.1 (1998), para. 71.
A subsequent statute partially amended Decree-Law No. 25,475, and it was
provided that persons accused of terrorism have the right to defense counsel
from the outset of the police intervention.
Human Rights Committee, Consideration of the Third Report submitted by Peru,
Documents of the fifty-first regular session, Vol. I, Supplement No. 40
(A/51/40), para. 356.
International Commission of Jurists, Report on the Administration of Justice
in Peru, (published in Spanish by Instituto
de Defensa Legal, Lima, 1993, p. 60).
Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment of
September 17, 1997, para. 46.
Human Rights Committee, op. cit., para. 355.
The Peruvian State, in its observations, contradicted the assertion of the
Inter-American Court and the Human Rights Committee, arguing that "it
is not true that there is a widespread practice of cruel treatment in
investigations into crimes of treason and terrorism....
In any event, some excesses perpetrated by Peruvian National Police
personnel, which were circumstantial, have been investigated and sanctioned
administratively, in addition to being prosecuted criminally by the Peruvian
National Police before the courts with jurisdiction."
By Law No. 26,248, published November 23, 1993, the procedure of habeas corpus was restored to cases involving crimes of terrorism
Inter-American Court of Human Rights, OC-9, para. 25.
Id., para. 38.
ICJ, op. cit., p. 62.
On October 12, 1996, Law 26,671 was published, by which it was established
that as of October 15, 1997, trials for the crime of terrorism would be held
by the respective competent judges, thereby voiding the provisions providing
for "faceless" judges.
IACHR, Report on the Situation of Human Rights in Peru, 1993, para. 64.
Human Rights Committee, op. cit., para. 355.
UN, Rapporteur's Report, Mr. Param Cumaraswamy, op. cit., para. 74.
Id., para. 73.
Id., para. 72.
IACHR, Annual Report 1993, p. 845.
See, e.g., UN, Rapporteur's Report, Mr. Param Cumaraswamy, op. cit., para.
Law No. 26,655, of August 15, 1996. Article
According to a government announcement, as of the year 2000 "the
National Council on Human Rights of the Ministry of Justice will take
cognizance of, study, and propose the benefit of pardon for those innocent
persons who were convicted on terrorism charges."
Expreso, December 15, 1999.
According to the Primer Informe del
Defensor del Pueblo al Congreso (1996-1998) [First Report by the Human
Rights Ombudsman to the Congress, 1996-1998], there were a total of 3,260
persons held for terrorism in the various places of detention in Peru.
According to the Technical Secretariat of the Ad Hoc Commission, 602
people were absolved, and 1,726 applications remain to be analyzed by the
National Council on Human Rights. The
other applications were resolved or did not meet the requirements.
UN, Rapporteur's Report, Mr. Param Cumarasawamy, op. cit., para. 85.
See, in this regard, e.g., APRODEH and the International Federation of Human
Rights, La Persecución Perpetua--Los
Inocentes Requisitoriados, Lima, 1999.
Office of the Human Rights Ombudsman, Preliminary report, Diagnóstico
de los Injustamente Requisitoriados por Terrorismo, Lima, 1998.
As of December 1999, the Human Rights Ombudsman estimates that approximately
200 of these 5,000 people were seeking review of their situation when the Ad
Hoc Commission ceased to exist.
"Consejo Nacional de Derechos Humanos no tendrá imparcialidad,"
Gestión, December 14, 1999.
Inter-American Court of Human Rights, Judgment of July 29, 1988, Series C
No. 4, para. 166.
IACHR, Third Report on the Human Rights Situation in Colombia,
OEA/Ser.L/V/II.102, doc. 9 rev. 1, February 26, 1999, p. 245 (chapter VII).
See AG/Res.1671 (XXIX-O/99).
DIRCOTE is the old name of DINCOTE.
The Inter-American Court, in the Loayza Tamayo case, declared that the
principle of non bis in idem is
established in Article 8(4) of the American Convention in the following
terms: "An accused person acquitted by a nonappealable judgment shall
not be subjected to a new trial for the same cause."
Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment
of September 17, 1997, para. 68.
Mr. César Tineo, who was the sixth judge, was removed from his position,
and the Congress recommended that the other five, Pedro Ibérico, Lino
Roncalla, Adalberto Seminario, Feliciano Almeida, and José Cerna be
suspended for ten days, for negligence.
See IACHR, Annual Report 1992-1993, p. 201.
The decision on the merits in the case of Gen. Rodolfo Robles was published
by the Commission in the Annual Report 1998, as Case 11.317, and the Court
decided the case of Gustavo Cesti Hurtado, in its judgment dated September
"Infantes denuncia a ex-jueza
Elba Greta Minaya," Expreso, November 12, 1999.
General Comment No. 13 of the Human Rights Committee, on Article 14 of the
International Covenant on Civil and Political Rights.
General Comments Approved by the Human Rights Committee pursuant to
Article 40(4) of the International Covenant on Civil and Political Rights,
CCPR/C/21/Rev.1, December 8, 1997.
UN, Report by the Special Rapporteur..., Mr. Param Cumaraswamy, op. cit.,
See, in general, IACHR, Report on the Situation of Human Rights in Chile,
OEA/Ser.L/V/II.34, October 5, 1974; Report on the Situation of Human Rights
in Uruguay, OEA/Ser.L/V/II.43), January 31, 1978; Report on the Situation of
Human Rights in Nicaragua, OEA/Ser.L/V/II.33, June 30, 1981; and Report on
the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.61), October
Inter-American Court of Human Rights, Case of Castillo Petruzzi et al., Judgment of May 30, 1999, para. 128.
Cited in United Nations, Commission on Human Rights, Report of the Special
Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy,
Mission to Peru, Doc. E/CN.4/1998/39/Add.1 (1998), para. 79.