On concluding this report, the IACHR would like to highlight the
The structure created by the Peruvian Constitution of 1993 calls for a
republic organized under the principles of representative democracy, with
separation of powers and all other attributes which, together, characterize a
state under the rule of law. In
practice, this structure has been weakened as a result of measures adopted by
the Executive with the consent of the legislature.
The Commission considers that this weakening of the fundamental
principles of a democratic state under the rule of law in a member of the
Organization of American States to be incompatible with its obligations under
the American Convention on Human Rights.
The impairment of the rule of law in Peru affects the fundamental
corollary of human rights, i.e. the right to have recourse to independent and
impartial judicial authorities for the purpose of ensuring respect for the
rights guarantees and the essential principles of representative democracy in
light of the effective and not merely formal separation of the executive,
legislative, and judicial branches. This structural weakening is incompatible
with the principles on which the judiciary should function in its role as
impartial third party for settling disputes, to investigate and prosecute, on
its own initiative, those who breach the public order and to review the
constitutionality of the acts of the other branches of government.
Protection of human rights in the context of democracy implies the
existence of institutional checks on the acts of the various branches of
government, and the supremacy of the law. In
general, this is not the situation in Peru today, due largely to the dismantling
of the Constitutional Court and the current results of the judicial reform.
The judicial reform initiated by the current Government of Peru has
seriously eroded the independence of the judiciary. The lack of guarantees of tenure has made judges vulnerable
to manipulation by the Executive. After
eight years of Executive intervention in the judiciary, more than 80% of the
judges and prosecutors in Peru are "provisional," which tends to
seriously thwart the independence and autonomy of the judiciary vis-à-vis the
political authorities, with the consequent negative impact on the balance of
power among the branches of government and on the checks on the abuses of power
that should be characteristic of a democratic state.
In that context, of special concern are a series of aspects relating to
the enjoyment of political rights in Peru.
This concern is focused on the lack of effective constitutional review of
legislative acts pushed by the governing party; administrative and legislative
acts aimed at impeding the exercise of the right of citizens to political
participation; and the acts denounced involving the harassment of presidential
candidates by the opposition and other political figures.
The elements analyzed suggest that the power of the executive has been
visibly used to make it possible to perpetuate the current authorities in power
and to dissuade all other political actors from participating in the elections,
or diminishing their chances of success.
In addition, the analysis reveals that the necessary conditions are not
in place for the full exercise, without risk of retaliations, of the right to
freedom to express opposition political ideas or criticisms of the government's
performance through the communications media.
The systematic use of the intelligence services and the security forces
as instruments of harassment and persecution of investigative journalists and
opposition politicians, with the alleged tolerance of the highest State
authorities and the passive and active collaboration of the Judiciary, appear to
be a serious obstacle to the normal working of democracy in Peru.
The right to express dissent with respect to government acts, to denounce
irregularities and to express political ideas through the press is fundamental
for the existence of democratic government.
The Commission considers that the continuing violation of fundamental
human rights related to representative democracy in Peru could even constitute
an irregular interruption of the democratic process as contemplated in
Resolution 1080, adopted in 1991 by the General Assembly of the OAS.
By way of that resolution, it was considered that the highest-level
organs of the OAS may make the appropriate decisions, in accordance with the OAS
Charter and international law, "in the event of any occurrences giving rise
to the sudden or irregular interruption of the democratic political
institutional process or of the legitimate exercise of power by the
democratically elected government in any of the Organization's member
Finally, the Commission affirms that, after submitting voluntarily and
without reservations to respect the norms of the American Convention, the
Peruvian State is fully bound to carry out the judgments of the Inter-American
Court of Human Rights. Peru has no
grounds for invoking its internal law, nor its effort to withdraw from the
contentious jurisdiction of the Court, as an impediment to complying with the
judgments of the Inter-American Court. The
Commission considers it beyond doubt that the failure of the Peruvian State to
comply with the judgments of the Inter-American Court is in flagrant contempt of
In the current circumstances in Peru, analyzed above, i.e. the
subjugation of the other branches of government by the Executive; impunity;
restrictions on the freedom of expression and political rights, and, in general,
the lack of individual protections vis-à-vis the Peruvian executive, the
international protection of human rights takes on even more fundamental
importance for all persons under the jurisdiction of the Peruvian State.
Therefore, the attitude of the Government of Peru is especially grave as
it fails to perform on its international commitments, and challenges the
jurisdiction of the Inter-American Court of Human Rights, which together with
the Inter-American Commission on Human Rights is one of the few possibilities
that remain for persons subject to the jurisdiction of the Peruvian State to try
to obtain the independent and impartial justice that they do not receive in
The Commission ratifies that it agrees entirely with the final assessment
of the OAS Electoral Observation Mission, that "by international standards,
the Peruvian Election process falls far short of what could be called free and
as well as the statement by the Human Rights Ombudsman that "in a
globalized word as well as today's world, representative democracy and respect
for the right to political participation cannot be understood in terms that are
at odds with the provisions of human rights treaties."
For the Inter-American Commission, the elections that have been held in Peru
clearly represent an irregular rupture in the democratic process such as that
referred to in Resolution 1080, adopted in 1991 by the General Assembly of the
As a result, the election of Alberto Fujimori has not been held in
keeping with the guarantees of fair and free elections required for the people
of Peru to exercise their sovereign will. In
view of the foregoing, the time period covered by the next presidential term
will be characterized by the presidency having been obtained in violation of the
right of the Peruvian people "to vote ... in genuine ... elections, which
shall be by universal and equal suffrage and by secret ballot that guarantees
the free expression of the will of the voters," enshrined in Article 23 of
the American Convention.
The Inter-American Commission on Human Rights also reiterates that both
the process leading up to and the results of the 2000 elections in Peru are the
foreseeable outcome of several years in which the arbitrary will of the
Government has prevailed over the law and over democratic institutions.
Thereby, the legal and institutional order has been subordinated to the
will of the Fujimori Administration, which in authoritarian fashion has
manipulated its authority to thwart, often recurring to illegal methods, any act
perceived as a threat to its clear purpose of perpetuating itself in power. The IACHR is extremely concerned over this model of political
organization, in which there is an appearance of democratic organization but in
practice the fundamental postulates of representative democracy and, therefore,
the observance of the rights set forth in the American Convention, are totally
violated. The Inter-American
Commission, very much mindful of its long-standing defense of human rights and
democracy, will continue to closely observe the human rights situation in Peru.
12. The Inter-American Commission on Human Rights calls for a return to the rule of law in Peru, and to the convocation, in a reasonable time, of free, sovereign, fair, and genuine elections that are up to the respective international standards. In those new elections, the rights of Peruvians "to vote ... in genuine ... elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters," set forth at Article 23 of the American Convention, should be guaranteed. The IACHR offers to cooperate with Peru in achieving this aim.
In that resolution, the General Assembly of the OAS instructed the Secretary
General of the Organization to immediately call a meeting of the Permanent
Council to determine the advisability of convoking an ad hoc meeting of the Ministers of Foreign Affairs of the OAS member
countries, or even a Special General Assembly, to adopt appropriate
decisions in keeping with the OAS Charter and international law, when the
conditions mentioned are met.
Electoral Observation Mission. General
elections, Republic of Peru, 2000, Executive Summary of the Final Report of
the Chief of Mission, Washington, D.C., June 5, 2000.
Defensoría del Pueblo, Elecciones
2000, Informe de Supervisión de la Defensoría del Pueblo, Lima, April
2000, p. 8.