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CHAPTER
II
ADMINISTRATION
OF JUSTICE AND RULE OF LAW ... continued
156.
In September 1997, the Inter-American Court of Human Rights decided not
to say anything on the supposed lack of independence and impartiality of
military courts, as argued by the Commission in the Loayza Tamayo case, since
Ms. Loayza was absolved by a military court.[97]
Two years later, the Inter-American Court, in its judgment in the case of
Castillo Petruzzi et al., handed down
on May 30, 1999, declared that the procedures followed by military courts in the
trial of civilians accused of the crime of treason violate the provisions of
Article 8 of the American Convention: The
Court considers that under Peru's Code of Military Justice, military courts are
permitted to try civilians for treason, but only when the country is at war
abroad. A 1992 decree-law changed
this rule to allow civilians accused of treason to be tried by military courts
regardless of temporal considerations. In
the instant case, DINCOTE was given investigative authority, and a summary
proceeding "in the theater of operations" was conducted, as stipulated
in the Code of Military Justice. The
Court notes that several pieces of legislation give the military courts
jurisdiction for the purpose of maintaining order and discipline within the
ranks of the armed forces. Application of this functional jurisdiction is confined to
military personnel who have committed some crime or were derelict in performing
their duties, and then only under certain circumstances.
This was the definition in Peru's own law (Article 282 of the 1979
Constitution). Transferring
jurisdiction from civilian courts to military courts, thus allowing military
courts to try civilians accused of treason, means that the competent,
independent and impartial tribunal previously established by law is precluded
from hearing these cases. In
effect, military tribunals are not the tribunals previously established by law
for civilians. Having no military
functions or duties, civilians cannot engage in behaviors that violate military
duties. When a military court takes
jurisdiction over a matter that regular courts should hear, the individual's
right to a hearing by a competent, independent and impartial tribunal previously
established by law and, a fortiori,
his right to due process are violated. That right to due process, in turn, is intimately linked to
the very right of access to the courts.[98]
157.
As a result, the Court concluded that "the Court considers that the
military tribunals that tried the alleged victims for the crimes of treason did
not meet the requirements implicit in the guarantees of independence and
impartiality that Article 8(1) of the American Convention recognizes as
essentials of due process of law."[99]
158.
In this part of the present chapter, the Commission will analyze the
expansion of the military jurisdiction, by Decree Law No. 25,659, on the crime
of treason, which has been carefully analyzed by the Inter-American Court.
1.
Decree-Law No. 25,659 on the Crime of Treason (Traición
a la Patria)
159.
As part of the strategy to combat the armed dissident groups, and in the
context of the emergency announced by the President on April 5, 1992, Decree-Law
No. 25,659 was handed down, conferring on the Armed Forces the power to
administer justice in cases regarding the activities of these groups.[100]
Article 1 of Decree No. 25,659 defines "treason" as the commission of
the acts provided for in Article 2 of Decree Law No. 25,475 (supra)
on "terrorism," when it entailed the use of certain modalities, such
as explosives that cause injury to persons or private property, or the storage
of explosive materials to be used for such purposes.
The Decree establishes, moreover, that the leaders of terrorist
organizations or those in the ranks of the armed groups of such organizations,
entrusted with the physical elimination of persons, also commit the crime of
"treason." The penalty established for such offenses is life
imprisonment. The State, in its
response to the report, indicates that Article 4 of Law No. 26,659 (sic)
establishes that the crimes of treason "shall be heard by the Exclusive
Military Jurisdiction" as though this designation would give them a certain
degree of independence. In this
context, the Commission would only like to cite paragraph 132 of the judgment of
the Inter-American Court in the case Castillo Petruzzi et al.: "In the instant case, the Court considers that the
military tribunals that tried the alleged victims for the crimes of treason did
not meet the requirements implicit in the guarantees of independence and
impartiality that Article 8(1) of the American Convention recognizes as
essentials of due process of law."
160.
On September 10, 1992, Decree-Law No. 25,708 was promulgated,
establishing that the summary procedure established in the Code of Military
Justice for trials in the theater of operations is to be applied in
"treason" cases. Under
this procedure, the investigative judge must hand down the judgment within no
more than 10 calendar days, and is authorized to make use of the supplementary
procedural rules for trials on terrorism charges provided for at Article 13 of
Decree Law No. 25,475, analyzed above. Decree
Law No. 25,708 also establishes that in cases of "treason" a motion
for annulment may only be brought when the penalty imposed is life imprisonment
or imprisonment for 30 years or more. It
should be noted that at first sight this provision seems superfluous, for under
Decree No. 25,659, the only penalty applicable to all those liable for the crime
of "treason" is life imprisonment.
161.
On January 28, 1994, the Commission received a complaint from the Chilean
organization Fundación de Ayuda Social de
las Iglesias Cristianas (FASIC) alleging that the Republic of Peru violated
Articles 1(1), 8, and 20 of the American Convention in relation to the trial of
four Chilean citizens, Jaime Francisco Castillo Petruzzi, María Concepción
Pincheira Sáez, Lautaro Enrique Mellado Saavedra, and Alejandro Astorga Valdéz,
by a "faceless"-judge military court; they were convicted and
sentenced to life imprisonment after they were found guilty of the crime of
"treason" in the terms of Decree Law No. 25,659.
162.
The Commission, in its report on the merits of the case, issued on March
11, 1997, concluded that Peru had violated Articles 8(1), 20, and 25 in
conjunction with Article 1(1) of the Convention, also indicating: “That the crime of treason, regulated by the Peruvian legal
order, violates universally accepted principles of international law, of
legality, due process, judicial guarantees, the right to defense, and the right
to be heard by impartial and independent courts; accordingly, it agreed to
recommend to the Peruvian State that: It
declare the nullity of the procedures in the Exclusive Military Jurisdiction for
Treason against Jaime Francisco Castillo Petruzzi, María Concepción Pincheira
Sáez, Lautaro Enrique Mellado Saavedra, and Alejandro Astorga Valdéz, and
order that the judgment of these persons be carried out in a new trial before
the regular jurisdiction, with full observance of the norms of due
process."
163.
The Commission, by letter of April 24, 1997, transmitted the confidential
report on the case of Castillo Petruzzi et
al. to the State, and asked that the Peruvian State adopt the measures
recommended within two months. As
the State did not abide by the Commission's recommendations, and given the
importance of the issues raised in the case, on July 22, 1997, the Commission
submitted the case to the Inter-American Court.
a.
Violation of the right to personal liberty [Article 7(5)]
164.
The Court examined "the problem raised by the prolonged detention of
the accused," raised by the Commission under Article 7(5) of the
Convention, pursuant to which: Any
person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to be released without prejudice to the continuation
of the proceedings. His release may be subject to guarantees to assure his
appearance for trial.
165.
The Court took account of the political context and of the right of all
states to defend themselves from acts of terrorism, but drew the limits of this
self-defense, which should be strictly proportionate to the needs of the
situation, and should not entail excesses nor persist after the emergency has
concluded: In
the instant case, the detention occurred amid a terrible disruption of public
law and order that escalated in 1992 and 1993 with acts of terrorism that left
many victims in their wake. In
response to these events, the State adopted emergency measures, one of which was
to allow those suspected of treason to be detained without a lawful court order. As for Peru's allegation that the state of emergency that was
declared involved a suspension of Article 7 of the Convention, the Court has
repeatedly held that the suspension of guarantees must not exceed the limits
strictly required and that "any action on the part of the public
authorities that goes beyond those limits, which must be specified with
precision in the decree promulgating the state of emergency, would
... be unlawful." The
limits imposed upon the actions of a State come from "the general
requirement that in any state of emergency there be appropriate means to control
the measures taken, so that they are proportionate to the needs and do not
exceed the strict limits imposed by the Convention or derived from it."[101]
166.
The Court found in this case that the Peruvian legislation (Decree Law
No. 25,744 of September 27, 1992, which sets forth the procedural rules on
"treason" allowing for preventive detention for up to 15 days, which
can be extended for a like period, without the detainee being brought before a
judicial authority) contradicted Article 7(5) of the American Convention.
The Court considered that the preventive detention of the Chilean
citizens for approximately 36 days, under this legislation, constituted a
violation of Article 7(5) of the American Convention.
b.
Violation of the principle of legality
[Article 9]
167.
The Commission raised the argument that in practice there are no
differences between the criminal-law definition of terrorism and or treason, or
aggravated terrorism, provided for in Peruvian legislation, and that both use
very vague terms that may be confusing. This
situation, the Commission alleged, violates the basic principle of criminal law
of tipicidad or precise legal
determination of the definition of what constitutes criminal conduct, set forth
at Article 9 of the American Convention. Article
9 provides: No
one shall be convicted of any act or omission that did not constitute a criminal
offense, under the applicable law, at the time it was committed. A heavier
penalty shall not be imposed than the one that was applicable at the time the
criminal offense was committed. If subsequent to the commission of the offense
the law provides for the imposition of a lighter punishment, the guilty person
shall benefit therefrom.
168.
The Court considered that "crimes must be classified and described
in precise and unambiguous language that narrowly defines the punishable
offense, thus giving full meaning to the principle of nullum
crimen nulla poena sine lege praevia in criminal law."[102]
As in the case of the preventive detention, supra,
the Court referred to the defects in the legislation (Decree Law No. 25,659,
etc.), and declared that the Peruvian State had violated Article 9 of the
Convention, for not having clearly set forth the elements of the offense,
consequently, it was not possible to distinguish the lawful from the unlawful
conduct. The Court concluded:
"Laws of the kind applied in the instant case, that fail to narrowly define
the criminal behaviors, violate the principle of nullum crimen nulla poena sine lege praevia recognized in Article 9
of the American Convention."
c.
Violation of judicial guarantees and due process [Article 8)
169.
The Commission alleged that in the proceedings in the exclusive military
jurisdiction for the crime of treason against the four Chilean citizens, the
State had violated the following rights and guarantees of due process of law in
the American Convention: to be
heard by an independent and impartial court (Article 8(1)); to be presumed
innocent (Article 8(2)), the right to defense (Articles 8(2)(c) and (d)); to
question witnesses present in the court (Article 8(2)(f)); to appeal the ruling
to a higher judge or court (Article 8(2)(h)); and to a public trial (Article
8(5)).
(i)
Violation of the right to a regular judge with jurisdiction [Article
8(1)]
170.
The Court, examining Peru's legislation, considered "that under
Peru's Code of Military Justice, military courts are permitted to try civilians
for treason, but only when the country is at war abroad.
A 1992 decree-law changed this rule to allow civilians accused of treason
to be tried by military courts regardless of temporal considerations.
In the instant case, DINCOTE was given investigative authority, and a
summary proceeding 'in the theater of operations' was conducted, as stipulated
in the Code of Military Justice."[103]
171.
The Court noted that the military jurisdiction has been established for
the purpose of keeping order and discipline in the armed forces. "Transferring jurisdiction from civilian courts to
military courts," the Court noted, "thus allowing military courts to
try civilians accused of treason, means that the competent, independent and
impartial tribunal previously established by law is precluded from hearing these
cases."[104]
When military justice assumes the jurisdiction over a case that should be heard
by the regular civilian courts, "the individual's right to a hearing by a
competent, independent and impartial tribunal previously established by law and,
a fortiori, his right to due process
are violated."[105]
172.
The Court indicated that "every person has the right to be heard by
regular courts, following procedures previously established by law."[106]
This right, moreover, is enshrined in Article 8(1) of the American Convention: Every
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature
made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.
Applying this right to the specific case, the Court noted that: 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 have.
Moreover, under the Statute of Military Justice, members of the Supreme
Court of Military Justice, the highest body in the military judiciary, are
appointed by the minister of the pertinent sector.
Members of the Supreme Court of Military Justice also decide who among
their subordinates will be promoted and what incentives will be offered to whom;
they also assign functions. This
alone is enough to call the independence of the military judges into serious
question.[107]
173.
The Court declared that there was a violation of Article 8(1) in this
case, because "the military tribunals that tried the alleged victims for
the crimes of treason did not meet the requirements implicit in the guarantees
of independence and impartiality that Article 8(1) of the American Convention
recognizes as essentials of due process of law."[108]
In addition, the Court considered that the situation was worsened considering
that the judges sat on "faceless"-judge courts, and the law prohibited
the recusal of such judges.[109] (ii)
Violation of the opportunity and adequate means to prepare a defense
[Articles 8(2)(b) and 8(2)(c)]
174.
The Convention provides at Articles 8(2)(b) and 8(2)(c): 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. During the proceedings,
every person is entitled, with full equality, to the following minimum
guarantees: b.
prior notification in detail to the accused of the charges against him; c.
adequate time and means for the preparation of his defense;
175.
The Court observed that the Peruvian legislation (Article 717 of the Code
of Military Justice, which applies to treason cases) provides that "once
the criminal indictment has been produced, the case files will be made available
to the defense for a period of twelve hours.
In the instant case, the criminal indictment was presented on January 2,
1994, and the attorneys were allowed to view the file on January 6, for a very
brief time. The judgment was
delivered the following day. As the
applicable law dictated, the defense was never allowed to cross-examine the
DINCOTE agents who participated in the investigation."[110]
In addition, "the accused did not have sufficient advance notification, in
detail, of the charges against them; the conditions under which the defense
attorneys had to operate were wholly inadequate for a proper defense, as they
did not have access to the case file until the day before the ruling of first
instance was delivered."[111]
Accordingly, the Court declared that the victims did not have an adequate
defense and that the State violated Article 8(2)(b) and 8(2)(c) of the
Convention.
(iii)
Violation of the right to choose one's defense counsel [Article 8(2)(d)]
176.
Article 8(2)(d) of the American Convention provides: 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. During the proceedings,
every person is entitled, with full equality, to the following minimum
guarantees: d.
the right of the accused to defend himself personally or to be assisted
by legal counsel of his own choosing, and to communicate freely and privately
with his counsel.
177.
The Court, referring once again to the Peruvian legislation in force,
considered that "the victims were not allowed legal counsel between the
time of their detention and the time they gave their statements to DINCOTE.
Only then were they assigned court-appointed attorneys.
Once the detainees had legal counsel of their choosing, the latter's role
was peripheral at best."[112]
In addition, the Court, citing the Suárez Rosero case, reiterated that "in
similar cases, where it was shown that defense attorneys had difficulty
conferring in private with their clients, the Court ruled that Article 8(2)(d)
of the Convention had been violated."[113]
(iv)
Violation of the right to question witnesses [Article 8(2)(f)]
178.
Article 8(2)(f) of the Convention provides: 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. During the proceedings,
every person is entitled, with full equality, to the following minimum
guarantees: f.
the right of the defense 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 facts;
179.
The Court concluded that the Peruvian legislation applied to the case
"did not allow cross-examination of the witnesses whose testimony was the
basis for the charges brought against the alleged victims.
The problem created by disallowing cross-examination of the police and
military agents was compounded ... by the fact that the suspects were not
allowed the advice of counsel until they had made their statements to the
police. This left the defense
attorneys with no means to refute the evidence compiled and on record in the
police investigation report."[114]
The Court declared that "the restrictions imposed on the victims' defense
attorneys violated the defense's right to examine witnesses and to obtain the
appearance of persons who might have shed light on the facts, as recognized in
[Article 8(2)(f) of] the Convention."[115] (v)
Violation of the right to appeal the judgment before a higher judge or
court [Article 8(2)(h)]
180.
Article 8(2)(h) of the American Convention provides: 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. During the proceedings,
every person is entitled, with full equality, to the following minimum
guarantees: h.
the right to appeal the judgment to a higher court.
181.
The Court observed that under the Peruvian legislation applicable to
crimes of treason, it is possible to file an appeal against the judgment of
first instance, and a motion for annulment against the ruling on appeal.
In addition, there is the special motion for review of a final judgment,
based on the presentation of supervening evidence, so long as it is not in the
case of a person convicted of treason as a ringleader, or chief, or as part of
the leadership group of an armed organization.[116] In the Castillo Petruzzi
case, the motions of appeal and for annulment were brought by the victims' attorneys.
182.
The Court noted that the proceedings before the military courts against
civilians for the crime of treason violate the guarantee of a competent tribunal
previously established by law enshrined in Article 8(1) of the Convention
(supra). Accordingly, the Court declared, the right to appeal the judgment ...
is not satisfied merely because there is a higher court than the one that tried
and convicted the accused and to which the latter has or may have recourse.
For a true review of the judgment, in the sense required by the
Convention, the higher court must have the jurisdictional authority to take up
the particular case in question. It
is important to underscore the fact that from first to last instance, a criminal
proceeding is a single proceeding in various stages.
Therefore, the concept of a tribunal previously established by law and
the principle of due process apply throughout all those phases and must be
observed in all the various procedural instances. If the court of second instance fails to satisfy the
requirements that a court must meet to be a fair, impartial and independent
tribunal previously established by law, then the phase of the proceedings
conducted by that court cannot be deemed to be either lawful or valid.
In the instant case, the superior court was part of the military
structure and as such did not have the independence necessary to act as or be a
tribunal previously established by law with jurisdiction to try civilians.[117]
183.
Consequently, the Court declared that the State violated Article 8(2)(h)
in this case, despite the existence of remedies, because they were not an
authentic guarantee that the matter would be reconsidered.
(vi)
Violation of the right to a public trial [Article 8(5)]
184.
Article 8(5) provides: Criminal
proceedings shall be public, except insofar as may be necessary to protect the
interests of justice.
185.
The Court declared that the Peruvian State violated Article 8(5) of the
Convention because it considered it proven that "the military proceedings
against the civilians accused of having engaged in crimes of treason were
conducted by 'faceless' judges and prosecutors, and therefore involved a number
of restrictions that made such proceedings a violation of due process. [For
example], the proceedings were conducted on a military base off limits to the
public."
(vii)
Violation of the right to judicial protection [Articles 25 and 7(6)]
186.
Article 25 of the Convention provides: Article
25. Right to Judicial Protection 1.
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, even though such violation may have
been committed by persons acting in the course of their official duties. 2.
The States Parties undertake: a.
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the
state; b.
to develop the possibilities of judicial remedy; and c.
to ensure that the competent authorities shall enforce such remedies when
granted.
187.
Article 7(6) of the Convention provides: ... Anyone
who is deprived of his liberty shall be entitled to recourse to a competent
court, in order that the court may decide without delay on the lawfulness of his
arrest or detention and order his release if the arrest or detention is
unlawful. In States Parties whose laws provide that anyone who believes himself
to be threatened with deprivation of his liberty is entitled to recourse to a
competent court in order that it may decide on the lawfulness of such threat,
this remedy may not be restricted or abolished. The interested party or another
person in his behalf is entitled to seek these remedies.
188.
The Court declared that the Peruvian State denied the victims--by
application of its domestic legislation--the possibility of filing actions to
guarantee their rights on their behalf, and consequently violated Articles 25
and 7(6). Decree-Law No. 25,659,
which regulates the crime of treason, denied persons accused of treason the
possibility of bringing actions to guarantee their rights.[118]
The Inter-American Court has already adopted case-law indicating that the
suspension of judicial guarantees (amparo,
habeas
corpus) during a state of emergency is a violation of the Convention.[119]
(viii)
Violation of the right to humane treatment [Article 5]
189.
Article 5 of the Convention provides: Article
5. Right to Humane Treatment 1.
Every person has the right to have his physical, mental, and moral
integrity respected. 2.
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person. 3.
Punishment shall not be extended to any person other than the criminal.
4.
Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons, and shall be subject to separate treatment appropriate
to their status as unconvicted persons. 5.
Minors while subject to criminal proceedings shall be separated from
adults and brought before specialized tribunals, as speedily as possible, so
that they may be treated in accordance with their status as minors. 6.
Punishments consisting of deprivation of liberty shall have as an
essential aim the reform and social readaptation of the prisoners.
190.
The Court declared that the conditions of detention imposed on the
victims as a result of the application of Articles 20 of Decree Law No. 25,475,
and Article 3 of Decree Law No. 25,744 (both provide for continuous solitary
confinement during the first year of detention) by the military courts
constitute cruel, inhuman, or degrading treatment, in violation of Article 5 of
the American Convention. Incommunicado
detention, presenting the detainee to judicial authorities who are blindfolded
or hooded, the Court declared, constitute per
se violations of Article 5(2) of the Convention.
Prolonged solitary confinement and incommunicado detention cause pain and
suffering and psychic disturbances and constitute, according to the Court, forms
of cruel, inhuman, or degrading treatment as provided for in Article 5(2).[120]
(ix)
Violation of Articles 1(1) and 2 of the Convention
191.
The Court held that the State, on submitting the victims to proceedings
in which several provisions of the Convention were violated, failed in its duty
to "respect the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction the free and full exercise of those rights
and freedoms," as provided for by Article 1(1) of the Convention.[121]
192.
At the end of its analysis, the Court summarized the essence of the
problem. The emergency legislation adopted by the State to address terrorism,
especially Decree Laws Nos. 25,475 and 25,659, applied to the victims in this
case, violated Article 2 of the Convention, because they created provisions that
prima facie violated the American
Convention. The Court explained
that the "general duty" of Article 2 implies the adoption of two kinds
of measures: on
the one hand, elimination of any norms and practices that in any way violate the
guarantees provided under the Convention; on the other hand, the promulgation of
norms and the development of practices conducive to effective observance of
those guarantees.[122]
193.
In its reports on Peru, the Commission has repeatedly recommended to the
Peruvian State that it make full reparation for the violations of the American
Convention committed, to the detriment of persons found guilty of terrorism and
treason, including the immediate review of their conviction by an independent
and impartial organ, consistent with due process guarantees, and the amendment
of Decree Laws Nos. 25,475 and 25,659, and their related provisions, so as to
bring them into line with the rights and guarantees set forth in the American
Convention.[123]
2.
Legislation on national security
194.
After the capture of the leaders of Shining Path and the MRTA, and the
gradual return to normality, the Peruvian authorities eliminated the
"faceless"-judge courts for trials on charges of terrorism and
treason, as of October 15, 1997, and all indications were that the emergency
legislation would be gradually eliminated.
Nonetheless, on May 19, 1998, the Congress adopted Law No. 26,950,
vesting a series of powers in the Executive under which it issued 13
legislative decrees on "national security" in response to mounting
crime in Peru's urban areas.[124]
The State, in its response to the report, notes that the IACHR "is not
mistaken when it indicates that this emergency legislation will be gradually
eliminated." The State notes
that Legislative Decree No. 895 was amended, "assigning jurisdiction to the
civilian courts to continue its investigation and trial."
The Commission is of the view that this change represents an important
stride forward.
195.
Legislative Decree No. 895 regulates the crime of "aggravated
terrorism," in order to protect property, individual liberty, life,
physical integrity, health, and even public security.
The Coordinadora Nacional de Derechos Humanos, in its analysis of the
legislation on national security, indicated that a law that seeks to define an
"aggravated" form of an offense must include all the elements of that
offense.[125] It would appear that
this law has been called the "aggravated terrorism" law for the mere
purpose of having such offenses be tried by the military courts, further
limiting the powers and jurisdiction of the judicial branch.
196.
Article 20 of the Criminal Code provides that persons under 18 years of
age shall not be criminally liable. Nonetheless,
this provision has been amended by Article 2(c) of Law 895, which subjects
adolescents over 16 years of age to the criminal law regime applicable to
adults. Adolescents are no longer
subject to the system of Family Courts, but to the jurisdiction of the military
courts, which may impose punishments of 25 to 35 years imprisonment on
adolescents who break the law.
197.
Decree 895 also provides for a 15-day period for the National Police to
carry out a "prejudicial" investigation, after which the accused must
be placed at the disposal of the military courts to be judged. The investigation is entrusted to the Military Prosecutor,
with which, in this case as well, another function of the civilian public
prosecutor is eliminated. The
protection afforded by Article 2(24)(f) of the Peruvian Constitution, which
establishes that the accused must be brought before a judge within 24 hours of
his or her arrest, has been suppressed through the distortion of the nature of
the crime, which is given the name of "aggravated terrorism," and
through the authorization given the Police to detain the accused for a maximum
period of 15 days. In addition, the
accused may be held incommunicado for 10 days, during which, authorities have
interpreted, the person may be interrogated without the presence of an attorney,
and consequently may be held in conditions propitious for torture.
198.
This law also provides that the police report may be used as evidence in
the proceedings before the military court.
Nonetheless, the police officials who have prepared the report cannot be
called as witnesses. It also
establishes that the procedures must be as abbreviated as possible, and makes it
impossible to recuse the judges. Once
the verdict is handed down, the law provides for one year of solitary
confinement.
199.
This law enables the military justice system to penetrate in areas
traditionally included in the sphere of civilian courts, to the detriment of the
doctrine of separation of powers and of the democratic state. Article 5 of
Legislative Decree No. 895 creates the "Military
Habeas Corpus," another example of the militarization of the regular
courts' jurisdiction. Under the
Peruvian Constitution, the military courts should be limited to judging acts
performed by active-duty members of the military and committed while on duty,
and matters that affect military discipline, thus they have no jurisdiction over
matters referring to the fundamental civilian guarantees such as habeas
corpus and amparo.[126]
200.
Legislative Decrees Nos. 896 and 897 define homicide, murder, kidnapping,
the rape of minors, armed robbery and aggravated armed robbery, and extortion as
"aggravated offenses" and have increased the penalties for those
crimes. Legislative Decree No. 896,
for example, modifies Article 108 of the Criminal Code, increasing the penalty
to a minimum of 25 years in prison, while the previous text provided for a
minimum of 20 years and a maximum of 30 years, compared to the previous
penalties of 10 and 15 years, respectively, provided for in the Criminal Code.
201.
Legislative Decree No. 899 defines the "pernicious bands" as
groups of adolescents ages 12 to 18 years of age who come together to assault
third persons, cause them physical injury, or carry out attacks on their lives,
or groups of persons who harm public or private property or cause any other
disturbance of public order. The
leaders of such a band may receive
sentences of two or four years of confinement in a re-education center.
202.
These legislative decrees seem to be inconsistent with the Constitution,
as they violate the principle of the presumption of innocence prior to the
declaration of guilt and provide incentives to those already convicted to
denounce other persons indiscriminately in order to reduce their own sentences
or receive some other material compensation.
203.
The Commission has received numerous reports alleging the violation of
the due process provisions of the American Convention.
In the press communique released upon the conclusion of the on-site
visit, the IACHR noted the following violations of due process: (A)
The use and distortion of national security legislation to fight common
crime. Peru levels charges of aggravated terrorism, under Legislative Decree No.
895, against persons who, under international treaties, are not terrorists but
common criminals. This extension of terrorism to common criminality deforms and
devalues terrorist actions and the need to penalize and punish them severely.
The IACHR understands the gravity of the crimes committed by common criminals
against personal property, individual freedom, human life, and other things of
value. However, universal legal traditions demand the appropriate application of
concepts that entail such important consequences as the imprescriptibility of
crimes or the existence of universal jurisdiction. (B)
The fact that detainees are kept incommunicado in violation of
international law; the presence of questionable types of evidence (the police
statement); lack of freedom during trial preparations; exaggeratedly short times
allotted for trials; the absence of mechanisms for making challenges; and
continuous isolation in cells (Legislative Decree No. 895). (C)
The classification of qualified homicide or murder, rape of minors,
kidnapping, aggravated robbery, and extortion as aggravated crimes (see Decrees
Nos. 896 and 897). In cases of this kind, the Department of Public Prosecutions
does not conduct the investigation; it only intervenes in it. In addition, the
period allowed for police investigations is often extended to 15 days, in breach
of the Constitution. The right of defense in these cases is undermined, in that
magistrates cannot be challenged and the individuals who prepared police
statements cannot be called as witnesses. (D)
The unconstitutional erection of major barriers to judges' authority in
cases of habeas
corpus and amparo
(Legislative Decree No. 900). Under this provision, Specialized Public Law
Judges have jurisdiction in these matters, whereas before the decree these
important proceedings could be heard by all criminal judges in Lima and Callao. (E)
The granting of competence to military justice, which can now try a new
type of proceeding-- military habeas
corpus --in circumstances in which military judges, under international law,
should only deal with breaches of the law committed in performance of those
functions (Legislative Decree No. 905). (F)
The adoption of provisions that negatively affect young people and
violate the rules of due process, such as including adolescents over the age of
16 into the adult criminal regime (Legislative Decree No. 895). In such cases,
Family Judges have no competence and adolescents are referred to military
justice, which can impose punishments of more than 25 years in prison. (G)
Rules for reconsidering common crimes that contain, among other elements
objected to, extremely subjective and unclear descriptions that therefore offer
the possibility for discretionary decisions by the authorities and false
accusations and charges (see Legislative Decrees Nos. 901 and 902). (H)
The distortion of functions belonging to the National Police (see
Legislative Decree No. 904). This decree created the National Intelligence
Directorate for Social Protection and Tranquility, allowing the National
Intelligence Service (SIN) to intervene politically in the police.
204.
As can be observed, the military jurisdiction in Peru has been
progressively expanded. The
Congress has transferred judicial powers to the military courts that belonged to
the regular courts; common crimes can be the subject of investigations by the
National Intelligence Service; the military courts judge civilians, and the
Armed Forces determine what acts constitute treason against the State.
E.
THE MILITARY JURISDICTION: IMPUNITY
205.
Impunity is one of the serious problems in the administration of justice
in the hemisphere, particularly in the case of human rights violations committed
by state agents. The Inter-American
Court has defined impunity as "the total lack of investigation,
prosecution, capture, trial and conviction of those responsible for violations
of the rights protected by the American Convention," and has indicated that
the State has the obligation to fight it by all means at its disposal since
impunity fosters the chronic repetition of human rights violations, and renders
defenseless the victims and their families.[127]
Impunity gives rise to international liability for the violation of the
obligation of States, under Article 1(1) of the American Convention, to ensure
the free and full exercise of the human rights set forth in the Convention.
In effect, as the Inter-American Court of Human rights has indicated,
this obligation implies the duty to organize the whole governmental apparatus,
and, in general, all the structures through which the exercise of public power
is expressed, so that they may be capable of legally ensuring the free and full
exercise of human rights. This
includes the obligation of the States to prevent, investigate, and punish all
violations of the human rights recognized by the Convention; and to seek to
restore the right violated and, as appropriate, make reparation for the harm
caused by the human rights violation.[128]
206.
Hemispheric experience suggests that in those States in which massive and
systematic human rights violations take place, there has been a tendency for
such crimes to go unpunished. In
some cases, it is a question of de facto
impunity, either because the authorities have not made significant efforts to
investigate, prosecuter, and punish the persons responsible, or because State
organs that lack the necessary independence and impartiality are in charge of
determining the responsibilities of their own members, as is the case of the
military courts.
207.
In other cases, the issuance of amnesty laws or the granting of benefits
such as pardon, private amnesty, or others, to persons responsible,
investigated, or punished for crimes against human rights has made possible what
could be called de jure impunity.
208.
As the Commission indicated in its special report included as part of the
1997 Annual Report, the problems of impunity and denial of justice continue to
be grave in Peru. In the following
sections, the Commission will analyze the de
facto impunity that results from the investigation, by military courts, of
human rights violations committed by members of the armed forces, as well as the
de jure impunity that has been
conferred by the amnesty laws.
1.
Military courts and impunity
209.
As the IACHR has indicated, the problem of impunity is aggravated by the
fact that most of the cases that involve human rights violations by the members
of the State security forces are tried by the military criminal courts.
The Commission has repeatedly and consistently stated that the military
jurisdiction does not offer the guarantees of independence and impartiality
needed for the trial of cases that involve punishing members of the Armed
Forces, thereby guaranteeing impunity.[129]
210.
The Commission has also noted that the problem of impunity in military
criminal justice is not linked exclusively to the absolution of the accused; the
investigation of human rights violations by the military courts itself entails
problems where it comes to having access to an effective and impartial judicial
remedy. The investigation of the
case by the military courts precludes the possibility of an objective and
independent investigation carried out by judicial authorities not linked to the
command structure of the security forces. The
fact that the investigation of the case was initiated in the military justice
system may make a conviction impossible, even if the case is passed on to the
regular courts, as it is likely that the necessary evidence has not been
collected in a timely and effective manner.
In addition, the investigation of the cases that remain in the military
jurisdiction may be conducted so as to impede them from reaching the final
decision-making stage.[130]
211.
The military criminal justice system has certain peculiar characteristics
that impede access to an effective and impartial remedy in this jurisdiction.
One of these is that the military jurisdiction cannot be considered a
real judicial system, as it is not part of the Judicial branch, but is organized
instead under the Executive. Another
aspect is that the judges in the military judicial system are generally
active-duty members of the Army, which means that they are in the position of
sitting in judgment of their comrades-in-arms, rendering illusory the
requirement of impartiality, since the members of the Army often feel compelled
to protect those who fight alongside them in a difficult and dangerous context.
The Peruvian State, in its response to the report, notes that under the
Peruvian Constitution, the exclusive military jurisdiction is a judicial body
that administers justice, and "therefore it can be said to constitute a
judicial system."
212.
In this respect, the Commission reiterates that certain offenses that are
either service-related or have to do with military discipline may be judged by
military courts with full respect for judicial guarantees.
Nonetheless, the Commission considers that the Peruvian State has
interpreted the concept of offenses committed in relation to military service in
overly-broad terms.
213.
Thus, for example, it has been denounced that the case of the
assassination of the Army intelligence agent Mariela Barreto, mentioned supra, and attributed to the Armed Forces, has not been
investigated. In addition, it has
been noted that the penalty imposed by the military court in the case of torture
inflicted on Leonor La Rosa, was alleged to be disproportionate to the gravity
of the offense committed.
214.
The Commission reiterates that military justice should be used only to
judge active-duty military officers for the alleged commission of
service-related offenses, strictly speaking. Human rights violations must be
investigated, tried, and punished in keeping with the law, by the regular
criminal courts. Inverting the
jurisdiction in cases of human rights violatinos should not be allowed, as this
undercuts judicial guarantees, under an illustory image of the effectiveness of
military justice, with grave institutional consequences, which in fact call into
question the civilian courts and the rule of law.
215.
On June 14, 1995, the Peruvian Congress approved Law No. 26,479
(hereinafter the "Amnesty Law" or "Law No. 26,479"), by
which amnesty was granted to the military, police, and civilian personnel
involved in "all acts derived from or originating on the occasion of or as
a consequence of the struggle against terrorism and which may have been
committed individually or by groups from May 1980 to the date of
promulgation" of that law, which was enacted into law by the President of
the Republic on June 14, 1995.
216.
Article 1 of the Amnesty Law establishes as its beneficiaries "the
Military, Police or Civilian Personnel, whatever their corresponding military or
police situation or other duties, who are accused, investigated, indicted,
placed on trial, or convicted or common and military crimes in the regular or
military jurisdictions." Article
4 of that Law provides that "the Judiciary, common jurisdiction, exclusive
military jurisdiction, and the Executive shall proceed on this day, under
responsibility, to wipe out the police, judicial, or criminal records that may
exist against the persons amnestied under this Law, and annuls any other measure
restricting liberty that may have affected them.
They shall also proceed to release the persons who received amnesty who
were under arrest, detained, in prison, or otherwise deprived of their liberty,
who are to be handled pursuant to the administrative measures put in
place." According to Article 6
of that law, "the acts and offenses covered in this amnesty, as well as the
dismissals with prejudice and absolutions, are not subject to investigation,
either as an inquiry (pesquisa) or as the preliminary stage in a criminal proceeding (sumario);
all of the judicial cases being processed or executed were archived
definitively."
217.
This Amnesty Law has been invoked in several cases.
The Commission has received, among others, complaints in respect of the
cases known as La Cantuta and Barrios Altos, which are currently pending
resolution under the individual case system.
The case known as La Cantuta refers to the assassination of one professor
and nine students from the Universidad
Nacional "Enrique Guzmán y Valle," located in La Cantuta, Lima,
on July 18, 1992. The investigation
of these events was initiated in both the civilian and military jurisdictions;
after jurisdictional clashes and a complex process, the Supreme Council on
Military Justice handed down its judgment on May 3, 1994, declaring several
members of the Army guilty and sentencing them to prison terms. Nonetheless,
the accused were released pursuant to the Amnesty Law.[131]
218.
The Barrios Altos case refers to events that occurred November 3, 1991,
when several heavily armed individuals broke into an apartment building located
in a Lima neighborhood known as Barrios Altos.
According to the information that circulated publicly in Peru, the armed
individuals forced the persons present to lie down and then shot at them
indiscriminately, resulting in 15 persons killed and four seriously injured.
219.
The Second Amnesty Law established "that the amnesty granted by Law
No. 26,479 ... does not constitute interference in the exercise of the judicial
function nor does it undermine the State's duty to respect and ensure the full
observance of human rights, recognized by Article 44 of the Constitution, and,
among other relevant treaties, Article 1(1) of the American Convention on Human
Rights"; it indicated that the amnesty in question "is not subject to
judicial review" and interpreted the amnesty law as being "... of
binding application by the Judicial Organs ... independent of whether the
military, police, or civilian personnel involved are or are not accused,
investigated, subject to criminal proceedings, or convicted; and all judicial
cases in process or under way definitively archived, pursuant to Article 6 of
the aforementioned Law."
220.
The Commission, recognizing that the two above-mentioned cases--Barrios
Altos and La Cantuta--are currently pending, will not embark upon an analysis of
the compatibility of Law No. 26,479 and Law No. 26,492 ("Amnesty
Laws") with the American Convention. Without
offering an opinion on these cases, the Commission must note that the concept of
"amnesty" was historically conceived of as a political measure by
which the victorious sovereign would grant a pardon for the crimes of his
enemies, so as to foster reconciliation after an armed conflict.
This concept has been distorted in modern times, marked by
"self-amnesties" by which the sovereign grants itself a pardon for its
own crimes, thereby creating a state of impunity and illegality, flagrantly
contradicting the original purposes of the institution of amnesty.
221.
The Commission had laid down its doctrine on the question of amnesties in
the hemisphere in a series of cases. The
Commission reiterated in a case on the Chilean amnesty law that it was
"competent to examine the legal effects of a legislative, judicial or any
other kind of measure to the extent that it is incompatible with the rights and
guarantees protected under the American Convention."[132]
In a recent report, the Commission outlined its doctrine on this point in the
following terms: Over
the years, this Commission has had the opportunity in several key cases to state
its views and crystalize its doctrine on the subject of amnesties. These
decisions have uniformly found that amnesty laws and comparative legal measures
that preclude or terminate the investigation and prosecution of State agents who
may be responsible for serious violations of the American Convention or
Declaration violate multiple provisions of these instruments. These views have
been confirmed by the Inter-American Court on Human Rights. The Court has
established that States parties have the duty "to investigate human rights
violations, prosecute those responsible and avoid impunity" and has defined
impunity as the lack of investigation, pursuit, detention, prosecution and
punishment of those responsible for human rights violations. The Court has
stated that States have the obligation to employ all available legal means in
order to avoid this kind of impunity which allows for the chronic repetition of
human rights violations and leaves the victims and their families powerless.
States parties to the American Convention cannot invoke the application of their
domestic law, in this case amnesty laws, in order to disregard their obligation
to ensure the full and proper functioning of justice for the victims.[133]
222.
The doctrine and practice of the Commission in relation to the amnesties
is supported by the study on impunity prepared in 1997 by Luis Joinet, United
Nations Special Rapporteur on amnesty.[134]
In his study, which was submitted to the UN Commission on Human Rights on
October 2, 1997, Mr. Joinet recommended the adoption of 42 principles for
combating impunity. He adopted the
recommendation of several principles to fight impunity in light of the victims'
rights to truth, justice, and full reparation for the harm done.
223.
That study indicated that those who have committed grave and systematic
violations of international law should not be protected by an amnesty unless the
victims have had access to an effective remedy and have been able to obtain a
just and effective decision. The
right to justice or the right to a fair and effective remedy, as Joinet says in
referring to the right to justice, entails more than simply making reparation to
the victim and his or her next-of-kin; it also requires guarantees that the
persons responsible be brought to trial.[135]
More specifically, the right to justice entails the State's obligations to
investigate the violations, place on trial those who perpetrate them, and, if
their responsibility is established, punish them.[136]
224.
For its part, the Human Rights Committee of the United Nations expressed
its concern over the amnesty granted by Law No. 26,479, since it makes it
practically impossible for the victims of human rights violations to be able to
attempt to bring a legal action to obtain compensation.
That amnesty, according to the Committee, hinders the adequate
investigation and sanction of those who have perpetrated human rights
violations, undermines efforts to establish respect for such rights, contributes
to creating an atmosphere of impunity and constitutes an obstacle in the effort
to consolidate democracy and foster respect for human rights.
In this respect, the Committee has reiterated its opinion that this type
of amnesty is incompatible with the "duty of States to investigate human
rights violations, to guarantee freedom from such acts within their
jurisdiction, and to ensure that they do not occur in the future."[137]
225.
The Human Rights Committee has also reiterated its concern over the
effects of Law No. 26,492, since, according to its statements, it deprives the
citizens of the right to have the courts review the legality of the amnesty
laws.[138]
226.
The Committee has established that the victims' relatives have the right
to be compensated for the violations of the right to life to the detriment of
their loved ones, due, among other things, to the fact that the circumstances of
their deaths are unknown.[139]
In this area, the Committee has clarified and insisted that the duty to make
reparation for the damage is not satisfied merely by offering monetary
compensation. The first step in
making reparation to the victims' families is to put an end to their uncertainty
and ignorance, i.e. public and full acknowledgment of the truth.[140]
227.
The United Nations Committee against Torture has also examined the
compatibility of these amnesty laws with Peru's international obligations.
In this regard, in the course of the session held May 13, 1998, Mr. Cámara,
the rapporteur for Peru, expressed the Committee's concern over the practice of
promulgating amnesty laws that in fact confer impunity on persons guilty of
torture, in breach of several provisions of the Convention against Torture.[141]
228.
The Commission has not received information on any case that indicates
that after the adoption of the amnesty laws, Law No. 26,479 and Law No. 26,492,
in 1995, which favor those who participated in the struggle against the armed
dissident groups that began in 1980, that any state agent accused of committing
human rights violations from 1980 to 1995 has been brought to trial.
This circumstance may have the effect of fostering the commission of new
violations. Despite the
international condemnation of this legislation, in April 1997, the
Constitutional Court rejected as unlawful an action aimed at attacking its
constitutionality, on the grounds that "its effects had already run their
course." In the press
communique it issued upon the conclusion of its on-site visit, the Commission
indicated: "The undue
extension of military justice, the intervention suffered by the judiciary, and
the amnesty laws promulgated in 1995 give rise to a serious situation in which
the perpetrators of human rights violations enjoy impunity, a circumstance which
could well affect the social fabric as a whole. In light of its broad,
hemisphere-wide experience, the IACHR is deeply concerned by this, and so its
final report will analyze this important question in detail."
229.
The organization Consejo por la Paz,
in its report submitted to the Commission during its on-site visit, noted the
importance of "the close links between the regime and the high-level
military commanders which, no doubt, was brought about by the so-called Amnesty
Law, legalizing the impunity of actors in the 'dirty war' such as the members of
the so-called 'Colina Group,' which apparently came about as a
counter-intelligence group against Ecuador and later became a paramilitary
squad. These same elements may have pressured Peru not to sign the Statute of
the International Criminal Court, at the United Nations, yesterday, after the
implications of the Pinochet case."[142]
230.
The Commission has argued repeatedly that the States have the obligation
to investigate, prosecute, and punish persons responsible for human rights
violations. In its press communique, the Commission reaffirmed "its
doctrine that when human rights crimes occur, the state is under the obligation
of investigating and punishing the perpetrators. This international obligation
of the state cannot be renounced, and so situations of impunity arising from de
facto or de jure amnesties contravene the American Convention on Human Rights
and, in addition, undermine the responsibility of the state. The Commission
presses for the amnesty laws to be declared null and void and for an independent
investigation to be conducted to establish the truth about the events that
occurred during the years of violence. In addition, the state has the power to
and obligation of punishing such violations in order to protect the population
and social tranquility." The
State, in its response to the report, analyzes at length the concept of amnesty
and justifies the adoption of these laws as "part of a policy to bring
peace to Peru." It also notes
that the Commission does not have, among its powers and jurisdictions, to
pronounce judgment on the compatibility of laws with the American Convention.
In this respect, it should be recalled that the Commission has
jurisdiction to determine whether the effects of the application of laws violate
the obligations assumed by the States under the American Convention.
The Inter-American Court has noted: At
the international level, what is important to determine is whether a law
violates the international obligations assumed by the State by virtue of a
treaty. This the Commission can and should do upon examining the communications
and petitions submitted to it concerning violations of human rights and freedoms
protected by the Convention.[143] F.
FAILURE TO ENFORCE JUDICIAL JUDGMENTS
231.
One problem that directly concerns the rule of law in Peru is the failure
to enforce judgments handed down by the country's courts against several
centralized and decentralized State entities. |