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          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.



          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.


          2.            Amnesty laws and impunity 

          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]



          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. 

          232.          The magnitude and relevance of this problem has been treated in detail by the Office of the Human Rights Ombudsman in a report entitled Incumplimiento de Sentencias por parte de la Administración Estatal ["Failure by the State Administration to Enforce Judgments"].[144] This section is largely based on the considerations set forth in that report. 

          233.          The failure to enforce judgments occurs mainly when an effort is made to enforce a final judgment in which a state organ is ordered to pay a sum of money to the plaintiffs, or to comply with a given obligation, such as, for example, reinstating plaintiffs to their jobs.  

          234.          In these cases, the State organ in question repeatedly ignores the order to enforce the unfavorable judgment, without any determination of criminal liability for the failure to enforce the judicial judgment. 

          235.          The practice of failing to enforce judicial sentences, in addition to gravely undermining the rule of law, violates the right to effective judicial protection, set forth at Article 25 of the American Convention.  [Article 25 provides that the States Parties undertake to guarantee implementation, by the competent authorities, of all the decisions in which the judicial remedies pursued with respect to acts that violate fundamental rights of persons recognized in the Constitution, the law, or the Convention have been deemed legitimate].  A fundamental premise of the administration of justice is the binding nature of the decisions adopted in the judicial determination of citizens' rights and obligations, which must be carried out, recurring to the security forces if necessary, even though they entail the liability of the State organs.


          G.            CONCLUSIONS

           236.          The judicial reform initiated by the current Government of Peru has gravely eroded judicial independence.  Judges and prosecutors have been and continue to be harassed, transferred, removed, or even indicted on criminal charges in those cases in which they have made decisions that affect the interests of the political sector in the Government.  The lack of guarantees against removal from the job has made the judges vulnerable to manipulation by the Executive.  The growing usurpation of the jurisdiction by the military courts has led to a growing militarization of criminal procedure, beginning with the detention of the accused by the DINCOTE, and continuing through trial. 

          237.          After eight years of Executive intervention in the Judiciary, more than 80% of Peru's judges and prosecutors hold their positions on a "provisional" basis.  In addition, the National Council of  the Judiciary, constitutionally entrusted with designating the judicial officers, has been intervened by the Executive Commissions of the Judiciary and of the Public Ministry.  This situation tends to run to the grave detriment of the independence and autonomy of the judiciary in the face of the political departments, and has been the subject of several complaints of improper interference.  

          238.          The impairment of the rule of law in Peru affects the fundamental corollary of human rights, i.e., the right to recourse to independent and impartial judicial authorities to ensure respect for fundamental rights and the essential principles of representative democracy in light of the effective and not merely formal separation of the executive, legislative, and judicial branches of government.  

          239.          Under Article 3(d) of the Bogotá Pact (1948), one of the fundamental principles of the Organization of American States is the requirement that the member States be organized politically in a manner consistent with the postulates of representative democracy.  Accordingly, the Convention reaffirms in its preamble the intent of the States "to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man."  In this same spirit, the Convention, at Article 29, prohibits the interpretation of any of its provisions so as to preclude "other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government," while Articles 15, 16, 22, and 32 also make reference to democracy as the presumed form of political organization of the States parties.  

          240.          The "Declaration of Santiago," adopted in 1959 by the Fifth Meeting of Consultation of Ministers of Foreign Affairs of the member states of the OAS, has been the first and thus far only effort on the part of an international organization to state some attributes of democratic government:  

1. The principle of the rule of law should be assured by the separation of powers, and by the control of the legality of governmental acts by competent organs of the state.


2. The governments of the American republics should be the result of free elections.


3. Perpetuation in power, or the exercise of power without a fixed term and with manifest intent of perpetuation, is incompatible with the effective exercise of democracy.


4. The governments of the American states should maintain a system of freedom for the individual and of social justice based on respect for fundamental human rights.


5. The human rights incorporated into the legislation of the American states should be protected by effective judicial procedures.


6. The systematic use of political proscription is contrary to American democratic order.


7. Freedom of the press, radio, and television, and, in general, freedom of information and expression, are essential conditions for the existence of a democratic regime.


8. The American states, in order to strengthen democratic institutions, should cooperate among themselves within the limits of their resources and the framework of their laws so as to strengthen and develop their economic structure, and achieve just and humane living conditions for their peoples.[145] 

          241.          The member States have taken specific actions to reflect their collective interest in protecting representative democracy.  Specifically, the OAS General Assembly has established the role of the Organization in strengthening democracy by approving Resolution 1080.  In addition, the member States have incorporated a series of reforms to the Charter by adopting the Protocol of Washington, which includes suspending those States whose democratic governments have been overthrown by force.  The Inter-American Court, in its capacity as a judicial organ of the Organization, has referred on several occasions to the importance of democratic government and observance of the rule of law for the enjoyment and protection of human rights, and has ruled that: 

The concept of rights and freedoms as well as that of their guarantees cannot be divorced from the system of values and principles that inspire it. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.[146] 

          242.          The Commission considers that human rights can only be fully guaranteed through the effective exercise of representative democracy.  The IACHR has also indicated that the protection of human rights in the framework of democracy implies the existence of institutional oversight of the acts of the different branches of government, as well as the supremacy of the law.  The maintenance of and respect for the rule of law depends on three fundamental principles.  First, the principle of limitation of powers, which focuses on the constitutional distribution of power.   Second, the principle of legality, which establishes that the organs of the State must act pursuant to the law.  The Constitution is the supreme law of the land, to which all the State organs, especially the Executive, are subjected.  Finally, the third principle is recognition of fundamental rights.[147] Therefore, not only is it a "State constructed on the principle of limitation of power to ensure freedom, and ON the principle of legality and respect for the Constitution, but also a State set up on the principle of the declaration or recognition of the fundamental rights accorded constitutional recognition." [148] 

          243.          In light of these conclusions, the IACHR is extremely concerned about the fact that even though the structure created by the 1993 Peruvian Constitution calls for a republic organized based on the principles of representative democracy, with separation of powers, the rule of law, and all other fundamental attributes, in practice this structure has been debilitated, as a result of the measures adopted by the Executive with the consent of the pro-government majority in the Congress.  This structural weakening has entailed serious breaches of the principles on which the Judiciary should operate in its role as an impartial third party for resolving disputes, and for investigating and judging, on its own initiative, those who commit breaches of the public order, and to review the constitutionality of the acts of the other two branches of government.  As summarized by the Human Rights Ombudsman, Peru has been and is the victim of the "blurring of the constitutional design."  The Commission considers that this blurring of the fundamental principles of the democratic rule of law in a member of the Organization of American States is incompatible with its obligations under the American Convention on Human Rights.


          H.            RECOMMENDATIONS 

          244.          The IACHR calls on the Peruvian State to ensure effective respect for the principle of separation of powers, and to abstain from taking measures that constitute an attack on the autonomy, independence, and impartiality of the Judiciary.  

          245.          The Commission also calls on the State to:


1.          Immediately re-establish the normal operation of the Constitutional Court, re-instating the three members who were removed from their posts.  In addition, appropriate measures should be adopted for the decision-making system within the Court to guarantee, transparently and effectively, the purpose that is the aim of its function of reviewing the constitutionality of laws. 

2.          Ensure the institutional autonomy of the Judiciary by re-establishing the management and administrative functions of the President of the Supreme Court and of its Plenary Chamber, as well as the functions of the Public Prosecutor, thereby concluding the work of the Executive Commissions that govern the judiciary and the Public Ministry. 

3.          Bring all of the anti-terrorist legislation and laws consistent with them into line with the American Convention. In this area, the State must fully implement Article 27 of the American Convention, which regulates emergency situations, including absolute respect for rights whose exercise may not be suspended, and of the guarantees essential for protecting those rights. 

4.          Render without effect any law or measure that impedes the investigation, trial, and punishment of state agents who may have committed human rights violations, especially those violations that entail international crimes, because those laws or measures are incompatible with the American Convention. 

5.          Render without effect the Legislative Decrees, especially Nos. 895, 897, and 904, which grant excessive powers to the National Police and to the Intelligence Service in the investigations.  Legislative Decree No. 895 extends the jurisdiction of the military courts, allowing them to judge civilians implicated in common criminal activity, a function that is not properly assigned to such courts. 

6.          Eradicate the practice of admitting evidence obtained under torture. 

7.          End the trial of civilians by military courts. 

8.          Make compensation to persons for prison sentences served unfairly. 

9.          Adopt the measures needed to prevent reprisals against human rights defenders and to protect the witnesses and attorneys who advise the victims, for the purpose of guaranteeing their right to justice and to effective judicial protection. 

10.          Render without effect Law No. 26,898, which granted the "provisional" judges the same rights and functions as the permanent judges, and Law No. 26,897, which granted the "provisional" prosecutors the same rights and functions as the permanent prosecutors. 

11.          Render without effect Laws Nos. 26,933 and 26,973, and re-establish the constitutional powers of the National Council of the Judiciary that guaranteed the independence of the members of the judiciary. 

12.          Adopt the measures necessary for the regular courts to review, with guarantees of independence and impartiality, the proceedings of those who have been convicted pursuant to the anti-terrorist legislation, in light of the parameters established by the Inter-American Court. 

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[97] Case of Loayza Tamayo, Judgment of September 17, 1997, para. 60.

[98] Inter-American Court of Human Rights, Case of Castillo Petruzzi et al., Judgment of May 30, 1999, paras. 127 and 128.

[99] Id., para. 132.

[100] From August 1992 to November 1998, 1,773 persons accused of the crime of treason were convicted.

[101] Inter-American Court of Human Rights, Case of Castillo Petruzzi et al., May 30, 1999, para. 109.

[102] Id., para. 121.

[103] Id., para. 127.

[104] Id., para. 128.

[105] Id.

[106] Id., para. 129.

[107] Id., para. 130.

[108] Id., para. 132.

[109] Id., para. 133.

[110] Id., para. 138.  This specific aspect is discussed infra in relation to Article 8(2)(f) of the American Convention.

[111] Id., para. 141.

[112] Id., para. 146.

[113] Id., para. 148.

[114] Id., para. 153.

[115] Id., para. 155.

[116] Id., para. 160.

[117] Id., para. 161.

[118] The Court noted that this provision was amended by Decree-Law No. 26,248, approved November 12, 1993, but the modification was introduced too late to benefit the victims in this case.

[119] Case of Castillo Petruzzi et al., op. cit., para. 103.  See also Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987, Inter-Am.Ct.H.R. (Ser. A) No. 9 (1987).

[120] Id., paras. 192, 194, 195, 197.

[121] Id., para. 206.

[122] Id., para. 207.

[123] See IACHR, Annual Report 1993, p. 515; IACHR, Annual Report 1996, pp. 745-746.

[124] The Congress granted the Executive the power to legislate in the area of "national security" through Law No. 26,950.  The ever wider jurisdiction of the military courts, and the ever more sweeping role accorded the National Intelligence Service for performing police functions in relation to crimes against "national security" reveal the growing militarization of the Executive.

[125] Coordinadora Nacional de Derechos Humanos, Carta Circular 43/44 (1998).

[126] According to that provision, in cases involving crimes of aggravated terrorism, jurisdiction to hear the habeas corpus motion is vested in a military investigative judge.

[127] Inter-American Court of Human Rights, Case of Paniagua Morales et al., Judgment of March 8, 1998, para. 173.  See also Case of Loayza Tamayo, Judgment of November 27, 1998, para. 170.

[128] Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988, Series C., No. 4, para. 166.

[129] IACHR, Third Report on the Human Rights Situation in Colombia, op. cit., paras. 17 ff.

[130] Id.

[131] In the La Cantuta case, the Commission, on March 11, 1999, adopted an admissibility report, published in the 1998 Annual Report of the IACHR.

[132] Report No. 36/96, Case 10.843 (Chile), IACHR, Annual Report 1996, para. 43.

[133] IACHR, Third Report on the Human Rights Situation in Colombia, op. cit., para. 345. See also the following cases, in which the compatibility of amnesty laws with the American Convention was challenged: Report No. 1/99, Case 10.480 (El Salvador), IACHR, Annual Report 1998; Report No. 36/96, Case No. 10,843 (Chile), IACHR, Annual Report 1996; Reports No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311 (Argentina), and No. 29/96, Cases 10.029, 10.036, 10.372, 10.373, 10.374, and 10.375 (Uruguay), IACHR, Annual Report 1992-1993.

[134] United Nations Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Administration of Justice and the Human Rights of Detainees, Question of the impunity of perpetrators of human rights violations (civil and political), Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20 Rev. 1, October 2, 1997.

[135] Id., para. 26.

[136] Id., para. 27.

[137] Human Rights Committee, Consideration of reports submitted by States Parties under Article 40 of the Covenant, Concluding observations of the Human Rights Committee, CCPR/C/79/Add.67, July 25, 1996, para. 9.

[138] Id., para. 10.

[139] Human Rights Committee, Case No. 107/1981, Elena Quinteros Almeida and María del Carmen Almeida de Quinteros v. Uruguay, Case Nos. 146/1983 and 148-154/1983, Johan Khemraadi Baboeram et al. v. Suriname, Case No. 161/1983, Joaquín David Herrera Rubio v. Colombia, Case No. 181/1984, A. and H. Sanjuán Arévalo v. Colombia.

[140] Theo Van Boven, Special Rapporteur, Commission on Human Rights, United Nations, Study on the right to restitution, compensation, and rehabilitation for the victims of flagrant violations of human rights and fundamental freedoms, Economic and Social Council, Subcommittee on Prevention of Discrimination and Protection of Minorities, 451st session, Item 4 on the provisional agenda, E/CN.4/Sub.2/1993/8, July 2, 1993.

[141] Summary record of the public part of the 333rd session: Panama and Peru, May 28, 1998.  CAT/C/SR.333 (summary record), p. 3.

[142] Consejo por la Paz: Informe sobre la situación de los Derechos Humanos en el Perú, submitted to the Inter-American Commission on Human Rights during its on-site visit.

[143] Inter-American Court of Human Rights, Certain Atributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights), Advisory Opinion OC-13/93 of July 16, 1993, Inter-Am.Ct.H.R. (Ser. A) No. 13, para. 30.

[144] Office of the Human Rights Ombudsman, Incumplimiento de Sentencias por parte de la Administración Estatal, October 1998.

[145] The Declaration may be found in: General Secretariat of the Organization of American States, Sistema Interamericano, a través de tratados, convenciones y otros documentos. Washington, D.C., 1981, Vol. 1, p. 533.

[146] Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1), and 7(6), American Convention on Human Rights).  Advisory Opinion OC-8/87, January 30, 1987, para. 26.

[147] IACHR, Report on the Situation of Human Rights in Paraguay, Annual Report 1999, para. 49.

[148] Presente y Futuro de los Derechos Humanos.  Ensayos en honor a Fernando Volio Jiménez; Inter-American Institute of Human Rights; Mundo Gráfico, San José, Costa Rica, 1998.