REPORT Nº 49/00
I.
SUMMARY
1.
In a petition submitted to the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) by the nongovernmental
organization APRODEH on June 23, 1993, it was denounced that the Republic of
Peru (hereinafter “Peru,” “the State,” or “the Peruvian State”)
violated the human rights of Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo
Dynnik Asencios Lindo, Marco Antonio Ambrosio Concha, and Carlos Florentino
Molero Coca (hereinafter “the victims”) by detaining and torturing them and,
subsequently, by sentencing the first three to 10 years and the fourth to 12
years in prison on terrorism charges at trials that were totally lacking in due
judicial guarantees and that concluded with sentences handed down by
“faceless” courts. The petitioner alleges that in doing so, the State
violated the victims’ right to personal freedom, right to humane treatment,
and right to a fair trial as set forth in Articles 7, 5, and 8 of the American
Convention on Human Rights (hereinafter “the Convention” or “the American
Convention”). The State denies having violated the victims’ rights. The
Commission concludes that Peru violated, in respect of these named persons, the
rights enshrined in Articles 7, 5, and 8 of the Convention, in connection with
the terms of its Article 1(1), and extends the relevant recommendations to the
Peruvian State. II.
PROCESSING BY THE COMMISSION A.
Processing prior to admissibility
2.
On July 30, 1993, the Commission opened this case, transmitted the
relevant parts of the complaint to the Peruvian State, and requested it to
provide information within 90 days. The State responded on December 2, 1993, and
the petitioner submitted comments on that response on January 17, 1994. Both
parties submitted additional information on different occasions. On May 10,
1998, Mr. Carlos Florentino Molero Coca appointed Dr. Luis Alberto Molero
Miranda and Dr. Luis Alberto Molero Coca to act as his representatives. B.
Admissibility — Friendly settlement
3.
On September 28, 1998, the Commission adopted Report on Admissibility Nº
53/98 with regard to this case. In that report, the Commission agreed to make
itself available to the parties in order to reach a friendly settlement based on
respect for the rights set forth in the Convention and it invited the parties to
respond regarding that possibility with a period of two months. The report was
sent to the parties on October 20, 1998. On January 13, 1999, the State replied
that it did not believe it was appropriate for it to submit to the friendly
settlement procedure. III.
POSITIONS OF THE PARTIES A.
The petitioners 4.
The petitioners allege that on April 30, 1992, during a security
operation conducted on the streets of Lima, a group of police officers stopped a
public transport vehicle and proceeded to search the passengers’ belongings.
As a result, they arrested one of the passengers—named Gladys Helen Ramos
Vargas—who was found to be carrying four homemade explosive devices of the
type known as quesos rusos and an ID
card identifying her as a sociology student at San Marcos University.
5.
They state that the detainee was handed over to police officers from the
anti-terrorist division, DINCOTE, who arrived at the scene; these
officers immediately went to her home, where they found her mother, Mrs. Dolores
Vargas Vergaray, with her grandson. The officers entered the home and searched
it. They then drew up a report stating they had found subversive printed
materials; the report did not speak of any arrests being made. 6.
They state that as a result of Gladys Helen Ramos Vargas’s arrest, the
police immediately launched an operation in the neighborhood (La
Curva del Diablo, in Villa El Salvador
district). They asked several people who were in the area for their IDs and
arrested several of them, simply because they identified themselves as students.
The victims were among the people arrested on the street: Rodolfo Gerbert
Asencios Lindo, a biology student at San Marcos National University, and his
twin brother Rodolfo Dynnik Asencios Lindo, an anthropology student at the same
university; Marco Antonio Ambrosio Concha, a sociology student at San Martín de
Porres University (a private school); and Carlos Florentino Molero Coca, an
anthropology student from San Marcos National University.
7.
Mr. Rodolfo Gerbert Asencios Lindo and Mr. Rodolfo Dynnik Asencios Lindo
report that they were in the vicinity of the Curva del Diablo neighborhood on
their way to the home of Fortunato Bajonero Trujillo, a relative of theirs, when
a group of police officers asked them for their ID. They identified themselves
as students at San Marcos University, whereupon the officers began to accuse
them of being terrorists. One of the officers asked them if they were related to
the lawyer Rodolfo Ascencios Martel, to which they replied that he was their
father. The officers then arrested them and took them to DINCOTE headquarters;
there they told the two students that since they could do nothing against their
father, who as a lawyer belonging to the Association of Democratic Lawyers had
defended individuals accused of terrorism, they were going to do it to them.
8.
They claim that once with the police, they were both tortured in order to
force them into stating that they had been arrested at the home of the student
Gladys Helen Ramos; they never made any such admission, since they did not know
that person and had not been arrested at her home. Regarding the torture they
suffered, Mr. Rodolfo Gerbert Asencios Lindo made the following statement before
the 45th Criminal Judge of Lima: They
punched me in the pit of the stomach and, when I bent over with the pain, they
punched me in the head and kicked me in the shin; they then took us out to
anther room, turned the volume up on the television, and on a table with a
mattress they laid my face against the inclined desk and twisted my arms. They
then punched me in the kidneys and threatened me with rape, blows with the knee
to the thigh. Then they put me in a dark room, I was blindfold all the time, and
they continued with my brother. On May 1st, they also mistreated me when they
were taking my fingerprints, with blows to the lungs and slapping my face. We
are constantly being threatened that they are going to take us to the beach and
that we won’t get out alive. 9.
They state that this torture was even recorded by a forensic physician,
who, during a habeas corpus action
that was brought, went to DINCOTE headquarters with the judge, examined the two
brothers, and declared that they had been mistreated and were displaying recent
wounds caused by a blunt object. This habeas
corpus action was admitted by the 3rd Criminal Chamber, which ordered the
46th Prosecutor in Lima to file the corresponding criminal complaint against
Capt. Manuel Arriola Cueva of the Peruvian National Police (PNP). However, no
such complaint was filed by the prosecutor. 10.
They also report that Mr. Marco Antonio Ambrosio Concha was in the Curva del Diablo neighborhood on April 30, 1992, waiting for a bus
to take him to the home of his friend Víctor Oré Ucharina. When he identified
himself as a student of San Martín de Porres University, he was arrested by
several police officers and, along with a number of other individuals, taken to
the DINCOTE’s facilities. 11.
Mr. Carlos Florentino Molero Coca, in turn, states that he was preparing
to return to his home in the Surco district when he was suddenly intercepted by
several police officers who were conducting an operation in the Curva del Diablo neighborhood. The officers asked Mr. Molero Coca to
identify himself, which he did by showing them an ID that accredited his status
as an anthropology student at San Marcos National University. Upon discovering
he was a student, the police officers covered his face and rushed him into a van
along with several other persons unknown to him. They were then all taken to a
DINCOTE police facility. 12.
They allege that upon arriving at that police facility, Mr. Molero Coca
received brutal and inhumane treatment and was brought before all the other
persons arrested during the operation, in an attempt to get them to admit they
knew each other and had ties with Ms. Gladys Helen Ramos Vargas, who had been
arrested while carrying explosives and subversive material. 13.
They claim that Mr. Molero Coca was tortured in an attempt to get him to
confess and identify the other detainees as members of the Shining Path (SL).
However, he repeatedly refused, since he did not know any of the individuals
placed alongside him.
14.
They state that during the interrogation, Mr. Molero Coca said that his
father, Dr. Luis Alberto Molero Miranda, had been a magistrate and that the
officers must know him, because as an investigating judge in Lima he had handled
a number of well-known cases, including many involving terrorism. The
officers’ reaction was surprising and violent: they proceeded to insult him,
beat him savagely, and make threats along the lines that “they were going to
destroy me, because my father had done the same to some police officers when he
was a judge, by admitting habeas corpus
remedies brought against them.” 15.
They state that the police officers, who never prepared an arrest report
specifying the circumstances under which they arrested the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca, decided to describe the
incident differently, making out that they had discovered and arrested a group
of terrorists instead of simply arresting a single person with alleged terrorist
ties. 16.
They claim that two days after the victims were arrested—that is, May
2, 1992—the police officers went to Gladys Helen Ramos Vargas’s house and
conducted a “home interview” of her mother, Mrs. Dolores Vargas Vergaray.
After threatening that her daughter would be hurt, as she later claimed in
court, they made her sign a statement that the four victims were arrested at her
home while allegedly waiting for her daughter to arrive.
17.
They claim that the police also searched Mr. Molero Coca’s home and, in
order to create doubts, took a notebook containing notes for a research project
titled “The Influence of Linguistics on Anthropology,” carried out during
the 1992 academic year for a class at university, in which he had copied out the
text of a poster on display on the university campus. This text would later be
used as evidence of Mr. Molero Coca’s alleged status as a terrorist. 18.
They state that based on these false assumptions and biased actions, with
no evidence whatsoever, without a deed of arrest or a report covering the
victims’ detention, and without an identification parade being conducted so
that the owner of the house where the police claimed the victims were arrested
could identify them, the police drew up the corresponding police affidavit (Nº
095‑D3‑DINCOTE) in which they maliciously concluded that the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were members
of Shining Path and should be brought to justice. 19.
They claim that on May 14, 1992, when the victims had been under arrest
for two weeks, the police affidavit was received by Lima’s 43rd Provincial
Criminal Prosecutor, responsible for terrorism cases, which drew up criminal
charges against the detainees for the crimes described in Articles 319 and 320
of the Criminal Code in force on the date of their arrest, covering actions
intended to cause terror, unrest, and alarm in urban areas. 20.
They state that on May 15, 1992, the Judge of the 43rd Criminal Court in
Lima drew up judicial file Nº 082‑92, began preliminary proceedings, and
issued arrest warrants for all the defendants; she also specified that regarding
the substance of the allegations, the terms of Articles 319 and 320 of the
Criminal Code would apply, but that adjective or procedural matters would be
handled in accordance with the procedure set forth in Decree Law Nº 25475 of
May 5, 1992. 21.
They claim that in their statements to the investigating judge, the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca repeated
that they were innocent and kept to the story they had told the police: that
they did not know each other prior to their arrest, that they had no personal
relationships of any kind, that they were not arrested at the address given in
the police report, that they were not members of any subversive organization,
and that they were not involved in any sort of political activity. They also
stated that they had been falsely accused by the police to justify their
arbitrary arrest and the abuses committed during their time in the DINCOTE’s
cells. 22.
They claim that during this preparatory phase, the accused Gladys Helen
Ramos Vargas specifically stated that she did not know Rodolfo Gerbert Asencios
Lindo, Rodolfo Dynnik Asencios Lindo, Marco Antonio Ambrosio Concha, or Carlos
Florentino Molero Coca, and that it was untrue that they were arrested at her
home. Similarly, on June 12, 1992, her mother made a statement under oath in
these preparatory proceedings to the effect that she did not know the Asencios
Lindo brother or Messrs. Ambrosio Concha and Molero Coca and that they were not
arrested at her home. In this statement she recanted her earlier statement to
the police, claiming that: If
I said what appears there in that statement it was because that same Thursday
afternoon, when they brought my daughter to my house, they told me that was what
I had to say. I was threatened as well, with them telling me they were going to
take my daughter to the beach to do away with her, and that was why I made that
declaration in the statement before me. 23.
They state that the representative of the Attorney General’s office
then drew up her decision, concluding that the responsibility of the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca had not been proven
and stating that the investigation had revealed no ties between them and any
subversive group or any evidence of their involvement in terrorist acts. The
43rd Criminal Judge stated in her final conclusions that “no deed was drawn up
in connection with the arrest of these four accused showing the date, place, and
circumstances of their arrest” and concluded that they were not criminally
liable since no ties between them and subversive organizations were established
and no evidence was provided of their involvement in any terrorist acts. She
did, however, identify criminal responsibility on the part of the accused Gladys
Helen Ramos Vargas. 24.
They state that on August 19, 1992, the 43rd Criminal Judge ordered the
release of the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero
Coca, and decided to consult the Superior Court regarding her decision prior to
carrying it out. She thus ordered an extra document to be added to the case file
for this consultation to take place, including with it the relevant parts of the
proceedings. Both files--the main one and the one dealing with the release of
Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik Asencios Lindo, Marco Antonio
Ambrosio Concha, and Carlos Florentino Molero Coca-- were sent to the higher
court. 25.
They claim that Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik
Asencios Lindo, and Marco Antonio Ambrosio Concha filed a habeas corpus motion to secure compliance with the decision of the
43rd Criminal Judge ordering their release. On August 25, 1992, this motion was
dismissed by Lima’s 15th Criminal Judge in accordance with the terms of Decree
Law 25475, under which no releases of any kind would be granted at that time,
and with the terms of Decree Law 25859, which stipulated that guarantee actions
were not admissible at any stage of police or criminal investigations into the
crimes covered by Decree Law 25475. An appeal against this ruling was heard by
the Supreme Court of Justice, which upheld it in a decision dated October 5,
1992. 26.
They state that the main case file was sent to the Special Chamber of the
Superior Court, composed of “faceless” judges, which in turn sent it to the
“faceless” superior prosecutor. This superior prosecutor, instead of only
filing charges against the accused Gladys Helen Ramos Vargas in accordance with
the conclusions reached by the provincial prosecutor and the investigating
judge, included the Asencios Lindo brothers and Messrs. Ambrosio Concha and
Molero Coca in his accusation, based on the terms of Articles 319 and 320 of the
Criminal Code, and asked for their conviction and expressed his opinion that
they should appear at trial. 27.
They report that this trial was held on October 22-24, 1992, in
accordance with the terms of Decree Law Nº 25475, before the Special Chamber of
the Superior Court, composed of “faceless” judges, in a room furnished for
the purpose in Miguel Castro Castro prison in Lima.
28.
They claim that the trial at which they appeared was plagued by
limitations of the right of defense and that it came to end with a sentence
handed down on October 24, 1992, condemning Rodolfo Gerbert Asencios Lindo,
Rodolfo Dynnik Asencios Lindo, and Marco Antonio Ambrosio Concha to ten years in
prison and Carlos Florentino Molero Coca to twelve years.
29.
They maintain that although the investigation carried out in their case
and the charges drawn up by the superior prosecutor of the office of the
Attorney General had been prepared in accordance with Articles 319 and 320 of
the Criminal Code, which typified as crimes actions intended to cause terror,
unrest, and alarm in urban areas, the sentence convicted them under entirely
different provisions: Articles 321 and 322 of the Criminal Code, for actions
related to “criminal association” which were covered in neither the
“investigation, judgment, or accusation.” 30.
They say that this sentence from the Special Chamber of the Superior
Court did not resolve objections and challenges that were filed at the
appropriate time, nor did it rule on questions of substance posed during the
judicial proceedings. The three basic pieces of evidence upon which the sentence
was based were the following: the police report of April 30, 1992, dealing with
the search conducted at Gladys Helen Ramos Vargas’s home, which does not state
that the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero were
arrested there; the record of the interview with Gladys Helen Ramos Vargas’s
mother, who later recanted her statement in court, claiming that the police had
forced her to say that the four of them were arrested at her home; and the
police affidavit drawn up by the DINCOTE, in which the police offered a series
of subjective, malicious, and utterly unfounded conclusions.
31.
They report that an appeal for annulment against this sentence was filed
with the Supreme Court which, in a ruling dated September 30, 1994, decided
there were no grounds for its annulment and upheld it. This ruling was reached
in secret by “faceless” judges of the Supreme Court’s Special Chamber, who
were solely identified by the numbers 10913297, 11329027, 11709197, 11004297,
10829137, and 29202405.
32.
They note that the terrorism convictions handed down to Messrs. Rodolfo
Gerbert Asencios Lindo, Rodolfo Dynnik Asencios Lindo, Marco Antonio Ambrosio
Concha, and Carlos Florentino Molero Coca were widely reported in the media and
received special coverage and emphasis because they were among the first
sentences given under the procedure set by Decree Law Nº 25475. They add that
the convictions, and the accompanying publicity, caused both the defendants and
their families moral injuries and other damages.
33.
They report that national and international campaigns were subsequently
waged to get the Peruvian State to accept the innocence of the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca and to release them. Mr.
Molero Coca and Mr. Ambrosio Concha were declared prisoners of conscience by
Amnesty International.
34.
The petitioners claim that as a result of these incidents, the State
violated the victims’ right to personal liberty, right to humane treatment,
and right to a fair trial, as set forth in Articles 7, 5, and 8 of the American
Convention. B.
The State
35.
On December 2, 1993, Peru gave the Commission a report on this case,
drawn up by the Ministry of Defense, according to which the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca were arrested by officers
of the San Juan de Miraflores national police and taken to the DINCOTE, the
agency responsible for investigating and later drawing up police affidavits for
terrorist crimes.
36.
This report added that the criminal proceedings against the individuals
in question were lodged with the Special Chamber of the Supreme Court, by virtue
of an appeal for annulment filed against a sentence of the Special Chamber of
the Superior Court that sentenced the Asencios Lindo brothers and Mr. Ambrosio
Concha to 10 years in prison and Mr. Molero Coca to 12 years. This report
specified that these individuals were being held at the Yanamayo and Castro
Castro prisons in Lima.
37.
On April 21, 1994, Peru gave the Commission a report on this case, drawn
up by the Ministry of the Interior, according to which the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca “were brought before the
DINCOTE under deed Nº 1833-D3-DINCOTE of April 30, 1992, after being arrested
by national police personnel from this specialized unit inside the home of the
suspected terrorist criminal Gladys Helen Ramos Vargas (21), in whose possession
national police personnel from the San Juan de Miraflores detachment found four
explosive devices (homemade bombs known as quesos
rusos) and subversive documents. After investigations were conducted,
affidavit Nº 095-D3-DINCOTE of May 12, 1992, was drawn up, it having been
established that they were suspected perpetrators of terrorist crimes after it
was shown that they belonged to or worked within the subversive organization
PCP-SL.”
38.
On April 22, 1994, Peru gave the Commission another report on this case,
drawn up by the Ministry of the Interior, according to which “on September 30,
1993, a supreme writ of execution declared there were no grounds for the
annulment of the ruling of October 24, 1992, that sentenced Gladys Helen Ramos
Vargas and others as perpetrators of crimes against public order and terrorism
to the detriment of the State. The case file has been returned to the Special
Chamber of the Lima Superior Court for applicable legal purposes, and that is
its current status.” 39.
On July 8, 1994, Peru gave the Commission a report on this case, drawn up
by the Ministry of the Interior, according to which “report Nº 20-93 by the
Health Division of the PNP in Puno shows that citizens (. . .)
Asencios Lindo and (. . .) Ambrosio Concha are clinically healthy.
Attached documents also show that the aforesaid inmates receive the
correspondence, foodstuffs, and personal items sent by their relatives.”
40.
On August 5, 1994, Peru sent the Commission a report on this case, drawn
up by the Ministry of Justice for the Executive Secretariat of the National
Human Rights Council. This report states that: With
the issuing of the supreme writ of execution on September 30, 1993, which stated
that there were no grounds for annulling the sentence of October 24, 1992,
against which the appeal was made and which convicted Gladys Helen Ramos Vargas
and others for crimes against public order and terrorism to the detriment of the
State, it would be impertinent to base dismissals on facts and police actions
that have been seen by the competent judicial bodies in accordance with the
rules of due process. Thus, I suggest the following: Reply to the IACHR that the
university students GERBERT ASENCIOS LINDO and others were not arbitrarily
detained but arrested by the police and submitted to a judicial process in
accordance with the normal procedures of our domestic law, which concluded with
the issuing of the supreme writ of execution on September 30, 1993.
41.
In a communication dated August 11, 1994, the content of which was
ratified on February 1, 1996, the State said that the sentence of October 24,
1992, convicting the Asencios Lindo brothers and Messrs. Ambrosio Concha and
Molero Coca, was definitively upheld on September 30, 1993, when the Supreme
Court ruled there were no grounds for annulling the sentence of October 24,
1992. 42.
On January 13, 1999, the State indicated that it was unable to begin
friendly settlement proceedings, because that would imply its acceptance of
responsibility in these incidents, which would have been contradicted by the
documents submitted to the Commission.
IV.
ANALYSIS A. Introduction 43.
Based on an analysis of the petitioners’ allegations and the reply
given by the Peruvian State, the Commission notes that Peru has not disputed the
incidents on which the petitioners’ claim is based. The Peruvian State
expressly stated that, “it would be impertinent to base dismissals on facts
and police actions that have been seen by the competent judicial bodies in
accordance with the rules of due process,” and went on to say that the
students in question “were not arbitrarily detained but arrested by the police
and submitted to a judicial process in accordance with the normal procedures of
our domestic law, which concluded with the issuing of the supreme writ of
execution on September 30, 1993.” 44.
In accordance with the above, the Commission accepts the facts not
disputed by the parties, which are basically all those set forth by the
petitioners: to summarize, that the Asencios Lindo brothers and Messrs. Ambrosio
Concha and Molero Coca were arrested on July 30, 1992, by police officers and
taken to the DINCOTE, where they were tortured to get them to admit that they
were members of Shining Path and that they had been arrested at the home of the
student Gladys Helen Ramos Vargas. Their torture was even corroborated by a
forensic physician, as a result of which the 3rd Criminal Chamber ordered
Lima’s 46th Prosecutor to prepare criminal charges against Capt. Manuel
Arriola Cueva of the national police; charges which were not made. In their
statements to the police and in spite of the torture they suffered, the students
declared that they did not know each other prior to their arrest, that there was
no personal relationship of any kind between them, that they were not arrested
at the address given in the police report, that they were not members of any
subversive organization, and that they were not involved in any kind of
political activity. The police later drew up the corresponding police affidavit
(Nº 095‑D3‑DINCOTE), in which they concluded that the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were members of
Shining Path and should be brought to justice. 45.
The parties agree that on May 14, 1992, after the victims had been in
detention for two weeks, the police affidavit was received by the 43rd
Provincial Criminal Prosecutor in Lima, responsible for terrorism cases, who
drew up criminal charges against all the detainees for the crimes referred to in
Articles 319 and 320 of the Criminal Code in force on the day of their arrest:
actions intended to cause terror, unrest, and alarm in urban zones. On May 15,
1992, the judge of Lima’s 43rd Criminal Court drew up case file Nº
082‑92, began preliminary investigations, and issued arrest warrants for
all the defendants; she also specified that regarding the substance of the
allegations, the terms of Articles 319 and 320 of the Criminal Code would apply,
but that adjective or procedural matters would be handled in accordance with the
procedure set forth in Decree Law Nº 25475 of May 5, 1992. In their statements
to the judge, the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero
Coca repeated their innocence and kept to the version of events they had told
the police. 46.
Neither do the parties dispute the fact that, during this phase of the
investigations, the accused Gladys Helen Ramos Vargas stated explicitly that she
did not know the students and that it was untrue that they were arrested at her
home. Ramos Vargas’s mother made a statement under oath in these preparatory
proceedings on June 12, 1992, stating that she did not know the Asencios Lindo
brothers or Messrs. Ambrosio Concha and Molero Coca and that they had not been
arrested at her home. In this statement she recanted her earlier testimony to
the police and claimed that her previous declarations had been made under duress
in the form of police threats that her daughter would come to harm. The
representative of the Attorney General’s office then drew up her ruling,
concluding that the responsibility of the Asencios Lindo brothers and Messrs.
Ambrosio Concha and Molero Coca had not been proven and stating that the
investigation had revealed no ties between them and any subversive group and had
revealed no evidence of their involvement in any terrorist act. The 43rd
Criminal Judge, in a decision dated August 19, 1992, found that the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were not responsible
of the crimes with which they were charged, ordered their release, and decided
to consult the Superior Court regarding her decision prior to carrying it out. 47.
The parties also agree that the Asencios Lindo brothers and Mr. Ambrosio
Concha filed a habeas corpus motion to
ensure enforcement of the 43rd Criminal Judge’s decision ordering their
release. This motion was dismissed by Lima’s 15th Criminal Judge on August 25,
1992. The basis for this decision was Decree Law 25475, under which no releases
of any kind would be granted at that time, and Decree Law 25859, which
stipulated that guarantee actions were not admissible at any stage of police or
criminal investigations into the crimes covered by Decree Law 25475. The appeal
against this ruling was heard by the Supreme Court of Justice, which upheld it
in a decision handed down on October 5, 1992.
48.
Neither do the parties dispute the fact that the main case file was sent
to the Special Chamber of the Superior Court, composed of “faceless” judges,
which in turn sent it to the “faceless” superior prosecutor. This superior
prosecutor filed charges against the Asencios Lindo brothers and Messrs.
Ambrosio Concha and Molero Coca, based on Articles 319 and 320 of the Criminal
Code, asked for them to be convicted, and expressed his opinion that they should
appear at trial. This trial was held on October 22-24, 1992, in accordance with
the terms of Decree Law Nº 25475, before the Special Chamber of the Superior
Court, composed of “faceless” judges,” in a room furnished for the purpose
in Miguel Castro Castro prison in Lima. This trial ended with a sentence issued
on October 24, 1992, the relevant part of which condemned Rodolfo Gerbert
Asencios Lindo, Rodolfo Dynnik Asencios Lindo, and Marco Antonio Ambrosio Concha
to ten years in prison, and Carlos Florentino Molero Coca to a twelve-year
prison term. 49.
The parties do not dispute the fact that that although the investigation
carried out in this case and the charges drawn up by the superior prosecutor of
the office of the Attorney General had been prepared in accordance with Articles
319 and 320 of the Criminal Code, dealing with actions intended to cause terror,
unrest, and alarm in urban areas, the sentence convicted the victims under
different provisions: Articles 321 and 322 of the Criminal Code, on charges
related to “criminal association” that were not an issue in either the
investigation, the judgment, or the accusations. Neither do the parties deny
that the three basic pieces of evidence upon which the sentence was based were
the police report of April 30, 1992, regarding the search conducted at Gladys
Helen Ramos Vargas’s home, the record of the interview with Gladys Helen Ramos
Vargas’s mother, and the police affidavit drawn up by the DINCOTE.
50.
Both parties concur that a motion for annulment was filed against this
sentence with the Supreme Court of Justice, which, in a ruling dated September
30, 1994, and arrived at in secret by a bench of “faceless” judges, decided
there were no grounds for its annulment and upheld the sentence.
51.
Where the parties do not agree is regarding the place where the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were arrested. The
petitioners maintain they were detained in public, on the street; the State, in
contrast, holds that the arrests took place at the home of Ms. Gladys Helen
Ramos Vargas. The Commission notes, however, that the parties do not dispute the
fact that the sentence convicting the students failed to take into account the
judicial statement made by Mrs. Gladys Vargas Vergaray on June 12, 1992, in
which she recanted her earlier testimony to the police in which she had said
that the students were arrested at her home and claimed that the police
statement had been obtained under police duress. 52.
Hence, the Peruvian State does not dispute the facts, and its defense
centers on the fact that the Asencios Lindo brothers and Messrs. Ambrosio Concha
and Molero Coca were tried and convicted pursuant to normal procedures under
Peruvian domestic law: specifically, Decree Law Nº 25475, of May 6, 1992,
dealing with terrorist crimes. 53.
Consequently, the issue before the Commission is whether the aforesaid
Decree Law Nº 25475 and its ancillary provisions are compliant with the
obligations Peru assumed by ratifying the American Convention on Human Rights,
in light of the undisputed facts of the present case. In this regard, it should
be noted that the Commission is competent to determine whether the effects of
enforcing a domestic law constitute violations of the obligations of a State
that is a party to the American Convention. In this regard, the Inter-American
Court has said that: There
should be no doubt that the Commission has in that regard the same powers it
would have if confronted with any other type of violation and could express
itself in the same way as in other cases. Said in another way, that it is a
question of “domestic legislation“ which has been “ adopted pursuant to
the provisions of the Constitution“ is meaningless if, by means of that
legislation, any of the rights or freedoms protected have been violated. The
powers of the Commission in this sense are not restricted in any way by the
means by which the Convention is violated. (. . .) 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.[1] 54.
In accordance with this, the Commission will now undertake an analysis of
Decree Law Nº 25475 and its ancillary provisions, in light of the undisputed
facts of the present case, in order to determine whether they comply with the
obligations Peru acquired by ratifying the American Convention on Human Rights.
The Commission will then be able to determine whether those procedures
constituted in and of themselves a legal structure contrary to the rights and
guarantees enshrined in the American Convention (a violation per se), the application of which to persons brought to trial under
such legal parameters would have meant a violation of the human rights set forth
in the Convention. The starting point for this analysis is the present case, in
which those procedures were applied to the Asencios Lindo brothers and Messrs.
Ambrosio Concha and Molero Coca, who were among the first people to be tried and
convicted under those provisions.
B.
Context of the anti-terrorist legislation
55.
Between 1980 y 1992, Peru underwent a period of armed internal conflict
that led to the death and disappearance of thousands of people and caused
massive material losses. The main participants in this conflict were, on the one
hand, individuals associated with the “Shining Path” (SL) and “Tupac Amaru
Revolutionary Movement” (MRTA) dissident groups, and, on the other, the
State’s police and military forces.
56.
On April 5, 1992, President Alberto Fujimori promulgated Decree Law Nº
25418, establishing an Emergency Government for National Reconstruction. Among
his reasons for this, he stated, was the desire to reorganize the judiciary to
purge it of corruption and prevent terrorism-related crimes from going
unpunished. The Emergency Government dissolved Congress and summarily dismissed
judges and public prosecutors at all echelons of the system. 57.
Against this backdrop, in 1992 Lima suffered its most violent wave of
terrorist attacks. Consequently, on July 24, 1992, President Fujimori addressed
the nation and announced drastic new legal measures to counter the situation.
Among these were two Decree Laws (Nos. 25475 and 25659) for prosecuting, trying,
and punishing persons guilty of the crimes of terrorism and treason against the
fatherland. 58.
The State’s national and international obligation to confront
individuals or groups who use violent methods to create terror among the
populace, and to investigate, try, and punish those who commit such acts means
that it must punish all the guilty, but only the guilty. The State must function
within the rule of law, punishing only the guilty and refraining from punishing
the innocent. The administration of justice according to the law and with due
judicial guarantees acts as a safeguard of the fundamental right of freedom
inherent to all human beings who have committed no punishable crimes. The only
way in which the State can perform that jurisdictional function with true
justice is by ensuring that the accused are guaranteed a fair trial. 59.
For this reason the American Convention on Human Rights expressly sets
forth the right to freedom and the right to due process. A trial with due
guarantees is the best way to avoid the injustice of convicting the innocent. In
this regard, the aforesaid Decree Law Nº 25.475--which was intended, along with
other related provisions, to prosecute, try, and punish the perpetrators of
terrorism--led to human rights violations, as shall be seen in this report, by
establishing procedures that undermined the guarantees of due process of the
individuals tried under them and sentenced innocent people to lengthy prison
terms, as occurred in the case at hand with the convictions of the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca. 60.
The Commission notes that the Peruvian State has made efforts to resolve
some cases of individuals convicted without ties of any sort to terrorist
activities or organizations. Thus, on 15 August 1996, the Peruvian State enacted
Law Nº 26655, creating an Ad Hoc Commission charged with evaluating cases and
suggesting to the President of the Republic that pardons be granted to
individuals accused or convicted of terrorist crimes when it could be reasonably
assumed that they had no connections to terrorist organizations or activities.[2]
This Commission, which continues to operate, is composed of three members:
People’s Defender (ombudsman) Dr. Jorge Santistevan de Noriega, who serves as
its chairman; Father Hubert Lanssiers, representing the President of the
Republic; and the Justice Minister. To date the Commission has received some
3,000 petitions and, as of November 8, 1998, had presented President Alberto
Fujimori with proposals for 494 pardons, of which 457 have been granted.[3]
61.
With regard to this Ad Hoc Commission, the Special Rapporteur of the UN
Commission on Human Rights responsible for the independence of the judiciary and
lawyers said that he: . . .
welcome[d] the establishment of the Ad Hoc Commission by the Government as an
attempt to correct the wrong done to the innocent people who were tried and
sentenced by “faceless” civil and military tribunals; however, the Special
Rapporteur would like to point out that the establishment of the Commission is
itself an acknowledgement by the Government of the serious irregularities that
surrounded the procedures for trying cases of terrorism and treason, which
amounted to a miscarriage of justice.[4] 62. The Commission
believes it should clarify that Article 27 of the American Convention stipulates
that during times of war, public danger, or other emergencies that threaten its
independence or security, a state party may suspend some of the international
obligations to which it is subject. Thus, Article 27 of the Convention reads as
follows: 1.
In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures derogating from
its obligations under the present Convention to the extent and for the period of
time strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law
and do not involve discrimination on the ground of race, color, sex, language,
religion, or social origin. 2.
The foregoing provision does not authorize any suspension of the
following articles: Article 3 (Right to Juridical Personality), Article 4 (Right
to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from
Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of
Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right
to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality),
and Article 23 (Right to Participate in Government), or of the judicial
guarantees essential for the protection of such rights. 3.
Any State Party availing itself of the right of suspension shall
immediately inform the other States Parties, through the Secretary General of
the Organization of American States, of the provisions the application of which
it has suspended, the reasons that gave rise to the suspension, and the date set
for the termination of such suspension. 63.
In accordance with Article 27 of the Convention and the guidelines set
down by the Court, a fundamental principle of respect toward the representative
democratic regime is needed and certain requirements must be met for a country
to validly declare a state of emergency. 64.
Regarding the principle that the representative democratic regime is to
be respected, it should be noted that under Article 3.d of the Charter of Bogotá
(1948), one of the basic principles governing the Organization of American
States is the requirement that its members must be organized politically on the
basis of the effective exercise of representative democracy. Consequently, the
preamble to the Convention reiterates its “intention
to consolidate in this hemisphere, within the framework of democratic
institutions, a system of personal liberty and social justice based on respect
for the essential rights of man.” Similarly, Article 29 of the Convention
prohibits the interpretation of any of its provisions as “precluding 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 refer to the democratic principle within the political organization
of the member states. 65.
Regarding the requirements for declaring a state of emergency, the
Inter-American Court has said that the starting point for a legally sound
analysis of Article 27 of the Convention: . . .
is the fact that it is a provision for exceptional situations only. It applies
solely “in time of war, public danger, or other emergency that threatens the
independence or security of a State Party.” And even then, it permits the
suspension of certain rights and freedoms only “to the extent and for the
period of time strictly required by the exigencies of the situation.” Such
measures must also not violate the State Party’s other international legal
obligations, nor may they involve “discrimination on the ground of race,
color, sex, language, religion or social origin.”[5] 66.
Thus, the prerequisites for declaring a state of emergency are the
following: 67.
Need: Under Article 27 of the Convention, for a true emergency to be
deemed to exist, the country must be facing a situation of extreme gravity, such
as a state of war, public danger, or other emergencies that threaten the
independence or security of the member state. The Commission has ruled that
measures relating to states of emergency “can only be justified when there is
a real threat to law and order or the security of the state.”[6] 68.
Nonpermanence: This requirement refers to the duration of the suspension
which, as stipulated by Article 27(1) of the Convention, must last only for the
period of time strictly required by the exigencies of the situation. In this
regard the Commission has said that it is a matter of great gravity to declare
states of emergency for lengthy or indefinite periods of time, particularly when
they grant heads of state broad powers, including the submission of the
judiciary to measures decreed by the executive, which in certain cases can lead
to the suspension of the rule of law itself.[7] 69.
Proportion: Article 27(1) of the Convention states that the suspension
can only take place to the extent strictly required by the exigencies of the
situation. This requirement prevents the unnecessary suspension of certain
rights, the imposition of greater restrictions than are necessary, and the
extension of the suspension into areas not affected by the emergency. 70.
Nondiscrimination: As stipulated by Article 27(1) of the Convention, in
conjunction with Articles 1 and 24, the suspension of rights cannot entail
discrimination of any kind against any person or group. 71.
Consistency with other international obligations: The suspension of given
rights must be consistent with all other obligations imposed by other
international instruments ratified by the country. 72.
Notice: In compliance with Article 27(3) of the Convention, notice of the
declaration of the state of emergency must immediately be given to the
Convention’s other states parties, through the Secretary General of the OAS.
73.
Even when these conditions are met, the Convention contains certain
rights and guarantees that states cannot suspend. 74.
Non-derogable rights: With
regard to the rights that can be suspended when a state of emergency is imposed,
the Inter-American Court has said that: It
is clear that no right guaranteed in the Convention may be suspended unless very
strict conditions – those laid down in Article 27(1) – are met. . . .
Hence, rather than adopting a philosophy that favors the suspension of rights,
the Convention establishes the contrary principle, namely, that all rights are
to be guaranteed and enforced unless very special circumstances justify the
suspension of some, and that some rights may never be suspended, however serious
the emergency.[8] 75. The rights that
the State cannot suspend, regardless of the gravity of the emergency, are for
the most part listed in Article 27(2) of the Convention and are those contained
in the following Articles: 3 (right to juridical personality), 4 (right to
life), 5 (right to humane treatment), 6 (freedom from slavery), 9 (freedom from ex
post facto laws), 12 (freedom of conscience and religion), 17 (rights of the
family), 18 (right to a name), 19 (rights of the child), 20 (right to
nationality), and 23 (right to participate in government). As stipulated by
Article 27(1) of the Convention, the suspension of rights must be consistent
with all other obligations imposed by other international instruments ratified
by the country. 76.
The Inter-American Court has stated that the suspension of guarantees
must not entail the suspension of the rule or law or the principle of legality:
The
suspension of guarantees also constitutes an emergency situation in which it is
lawful for a government to subject rights and freedoms to certain restrictive
measures that, under normal circumstances, would be prohibited or more strictly
controlled. This does not mean, however, that the suspension of guarantees
implies a temporary suspension of the rule of law, nor does it authorize those
in power to act in disregard of the principle of legality by which they are
bound at all times. When guarantees are suspended, some legal restraints
applicable to the acts of public authorities may differ from those in effect
under normal conditions. These restraints may not be considered to be
non-existent, however, nor can the government be deemed thereby to have acquired
absolute powers that go beyond the circumstances justifying the grant of such
exceptional legal measures. The Court has already noted, in this connection,
that there exists an inseparable bond between the principle of legality,
democratic institutions and the rule of law (The Word “Laws” in Article 30
of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9,
1986. Series A Nº 6, para. 32 ).[9] 77.
Thus, “in serious emergency situations it is lawful to temporarily
suspend certain rights and freedoms whose free exercise must, under normal
circumstances, be respected and guaranteed by the State. However, since not all
of these rights and freedoms may be suspended even temporarily, it is imperative
that the judicial guarantees essential for their protection remain in force.”[10]
Similarly, the independence of the judiciary is vital, since that independence
is the keystone of the rule of law and of human rights protection. The Court has
therefore ruled that habeas corpus and
amparo remedies are judicial
guarantees that protect non-derogable rights and those “judicial remedies
[are] essential to ensure the protection of those rights. “[11]
The judiciary serves to protect legality and the rule of law during a state of
emergency. 78. Non-derogable
guarantees: The Inter-American Court of Human Rights has stated that,
“guarantees are designed to protect, to ensure or to assert the entitlement to
a right or the exercise thereof. The States Parties not only have the obligation
to recognize and to respect the rights and freedoms of all persons, they also
have the obligation to protect and ensure the exercise of such rights and
freedoms by means of the respective guarantees (Art. 1.1), that is, through
suitable measures that will in all circumstances ensure the effectiveness of
these rights and freedoms.”[12] 79. In addition to
the rights mentioned above, according to the final part of Article 27(2) of the
Convention, the judicial guarantees that are essential for protecting
non-derogable rights cannot be suspended either; as the Court has said: It
must also be understood that the declaration of a state of emergency--whatever
its breadth or denomination in internal law--cannot entail the suppression or
ineffectiveness of the judicial guarantees that the Convention requires the
States Parties to establish for the protection of the rights not subject to
derogation or suspension by the state of emergency.[13]
80.
The Inter-American Court of Human Rights has concluded that: The
judicial guarantees essential for the protection of the human rights not subject
to derogation, according to Article 27(2) of the Convention, are those to which
the Convention expressly refers in Articles 7(6) and 25(1), considered within
the framework and the principles of Article 8, and also those necessary to the
preservation of the rule of law, even during the state of exception that results
from the suspension of guarantees.[14] 81.
In conclusion, as indicated by the jurisprudence of the Inter-American
Court quoted above, the judicial guarantees that cannot be suspended during
states of emergency are essentially habeas
corpus, amparo, remedies intended
to preserve the rule of law, and, in general, all other judicial procedures
ordinarily used to guarantee full enjoyment of the non-derogable rights referred
to in Article 27(2) of the Convention, which, even during states of emergency,
must be followed. 82. If it had fully
complied with the principles and prerequisites described above, Peru could have,
under certain conditions, suspended either in whole or part the enjoyment of
some of the rights and guarantees enshrined in the American Convention, provided
that said rights and guarantees were not non-derogable. However, since it failed
to comply in full with the requirements set forth in Article 27 of the
Convention, the obligations acquired by Peru through its free and sovereign
ratification of the American Convention remain in full force and effect. 83. The Commission
is not unaware of the situation prevailing in Peru when the anti-terrorist
legislation was enacted, with constant incursions by armed groups having caused
a state of permanent alarm among the populace. For that reason, a state of
emergency had been declared in several of the country’s departments, which
would appear, prima facie, to be justified by the crisis faced by the Peruvian
State in combating terrorism. Under this state of emergency, Article 2.20.g[15]
of the 1979 Peruvian Constitution had been suspended in many departments, and
the police and armed forces had been given the power to legally arrest
individuals without an order from a competent judge and without their being
caught in flagrante delicto. 84.
It must nevertheless be noted that, in spite of the prima facie legitimacy of
this measure, the authority to conduct arrests does not grant the security
forces unlimited power for arresting citizens arbitrarily. Suspending the need
for a court-provided arrest warrant does not mean that public officials have
been freed from the legal prerequisites needed to legally decree such a measure,
nor that the jurisdictional controls over how arrests are conducted have been
cancelled. 85.
The suspension of some of the components of the right to personal
liberty, authorized in certain cases by Article 27 of the American Convention,
can never be total. In any democratic society there are underlying principles
that the security forces must observe in making an arrest, even during a state
of emergency. The legal grounds for an arrest are obligations that state
authorities must respect, in compliance with the international commitment to
protecting and respecting human rights that was acquired under the Convention. 86. Similarly,
based on the above principles, police or military arrest as a precautionary
measure must solely be intended to prevent the flight of an individual suspected
of a criminal act, thereby ensuring his appearance before a competent judge to
be tried within a reasonable delay or, if appropriate, released. No state can
impose punishments without the guarantee of a prior trial.[16]
In a constitutional and democratic state based on the rule of law, in which the
separation of powers is respected, all punishments set forth in law must be
imposed by the judiciary after the person’s guilt has been established with
all due guarantees at a fair trial. The existence of a state of emergency does
not authorize the state to ignore the presumption of innocence, nor does it
empower the security forces to exert an arbitrary and uncontrolled ius puniendi.
87.
The Commission will next analyze Decree Law Nº 25475 and its ancillary
provisions in light of the undisputed facts of this case, in order to determine
whether by enacting and enforcing them--specifically, to the cases of the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca--the
Peruvian State violated the obligations it acquired by ratifying the American
Convention on Human Rights.
C.
Decree law Nº 25475 on the crime of terrorism 88.
Article 2 of Decree Law Nº 25475 of May 6, 1992, defines terrorism as an
act aimed at “provoking, creating, or maintaining anxiety, alarm, and fear in
the public, or a sector thereof; making attempts to harm the life, body, health,
freedom, and safety of the individual, or property, the security of public
buildings, modes and means of communication and transportation of any kind,
electric towers and power lines, power plants, or any other facility or service,
through the use of weapons or explosive devices or substances, or any other
means capable of inflicting damage or seriously disrupting the peace or
adversely affecting international relations or the security of society and the
State.” This decree expressly repealed the provisions of the Criminal Code
that, since April 1991, had applied to terrorism-related offenses, and it also
established prison terms ranging from a minimum of 20 years up to a maximum of
life imprisonment for those found guilty. 89.
The definition of terrorism contained in this decree is totally abstract
and inaccurate and, as such, the decree violates the principle of legality, an
inherent part of criminal law that is ultimately intended to secure the
juridical certainty an individual needs in order to know exactly what actions or
omissions will give rise to criminal responsibility.
90.
The Commission stands by the comments it offered in its 1993 report on
the general human rights situation in Peru regarding the inadequate definition
of terrorist crimes: the criminal actions that constitute terrorism are defined
and described in Article 2 of Decree Law Nº 25475 with a patent lack of
clarity, using very broad terminology and thus creating open definitions of
crimes that use very inexact terms and are therefore “contrary to one of the
basic principles of modern criminal justice, which is that the language used to
describe the prohibited conduct must be precise so as to leave as little
discretionary latitude as possible to those whose function it is to enforce and
interpret the law.”[17]
On that occasion the Commission reached the following conclusion, which it now
reiterates: “This new body of law is contrary to universally accepted
principles of legality, due process, judicial guarantees and the right of
self-defense; under these laws, merely being suspected of a terrorist act or of
in any way collaborating in terrorist acts is sufficient cause to hold someone
in prison for long periods, regardless of whether that person actually committed
an act classified as terrorism or treason. In the opinion of the Commission,
this is a grave threat to the people’s juridical security.”[18] 91. In connection
with this, the Inter-American Court of Human Rights has pointed
out that the right enshrined in Article 7(2) of the American Convention--that no
one shall be deprived of his physical liberty except for reasons established
beforehand by law--involves a principle under which “no one may be subjected
to arrest or imprisonment for reasons and by methods which, although classified
as legal, could be deemed to be incompatible with the respect for the
fundamental rights of the individual because, among other things, they are
unreasonable, unforeseeable or lacking in proportionality.”[19]
92.
Continuing with the analysis of Decree Law Nº 25475, Article 12
stipulates that Peru’s National Police is charged with investigating terrorist
crimes through the DINCOTE, its National Anti-Terrorist Directorate. The DINCOTE
is empowered to decide whether the evidence it gathers is enough to bring
charges. In addition, it also decides what charges are to be brought and whether
the defendant is to appear before a civilian or a military court. 93.
The UN’s Special Rapporteur on the independence of the judiciary and
lawyers stated, in the report quoted above, that Decree Nº 25475 gave the
police excessive powers, . . .
enabling them to impose incommunicado detention unilaterally, without consulting
with a judge, and the restrictions of the right of defence at both civil and
military “faceless” tribunals are inconsistent with provisions of
international human rights treaties to which Peru is a party, in particular
those that provide for the right to due process and its components. Article 8 of
the American Convention on Human Rights is of particular relevance because it
provides for the right to due process and is regarded as a non-derogable right
even during a state of emergency.[20] 94.
Thus, under Article 12(c) of the Decree, the national police is empowered
to detain suspects for fifteen days and is merely required to notify the judge
and the office of the Attorney General within 24 hours of their arrest. Article
12(d) further states that during this time, the police can keep detainees
completely incommunicado, while Article 12(f) stipulates that defendants’
appointed lawyers can only act in their defense after the detainees have given a
statement to the office of the Attorney General.[21]
Article 18 of the Decree stated that in terrorism trials, defense lawyers could
not simultaneously represent more than one defendant, and excepted
court-appointed attorneys from the terms of that provision.[22],[23]
95.
In the case at hand, the ban preventing defense lawyers from representing
more than one defendant at once was applicable to the defense of the Asencios
Lindo brothers and Messrs. Ambrosio Concha and Molero Coca, since they were
arrested on April 30, 1992, and appeared at trial on October 22-24, 1992, when
the provision was in force. 96. The UN’s
Human Rights Committee, set up under the Covenant on Civil and Political Rights,
has also recorded its concern regarding the provisions of Decree Law Nº 25475
that authorize extension of preventive detention in certain cases for up to 15
days, and it has stated that those provisions raise serious issues with regard
to Article 9 of the Covenant, which deals with personal liberty and is similar
in content to Article 7 of the American Convention.[24]
97.
The Commission believes that the aforesaid provisions of Decree Nº 25475
constitute a violation per se of
Articles 7 and 8 of the American Convention, in that the power given to the
police under which they can arrest a person and keep him incommunicado for 15
days clearly contravenes the terms of Article 7(5) of the American Convention,
according to which “any person detained
shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power”, as well as those of Article 8(2)(d), which
establishes as a minimum procedural guarantee the right of the accused “to communicate freely and privately with his counsel.” In addition,
the restriction limiting each lawyer to the representation of a single defendant
affected the defendants’ right to freely choose their own legal counsel
enshrined in Article 8(1)(d) of the American Convention. 98.
In this case it can be seen that, pursuant to these provisions, the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca were
detained for 15 days (April 30 through May 14, 1992), during which time they
were kept incommunicado. Thus, as explained above, the Peruvian State violated
the rights enshrined in Articles 7 and 8 of the American Convention with respect
to the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca.
99. It is important
to stress the numerous statements regarding the fact that while they were
detained and kept incommunicado, the defendants were subjected to serious
torture, frequently with the aim of securing a self-incriminating
“confession” from them. In 1992, the Commission of International Jurists
noted that: During
this critical period, the detainee is completely controlled by the police and is
not subject to any effective judicial supervision. We have been told that a
suspect when questioned normally is kept bound and blindfolded and never sees
his interrogators. The entire police squad that made the arrest frequently takes
part in the interrogations, which means that generally there are eight to ten
police officers exerting tremendous pressure on the detainee. For the most part,
the suspect is questioned during his first days in custody. These sessions can
take place at any time, day or night, although, as a rule, they are conducted at
night. A representative of the Public Prosecutor’s Office is required to be
present during the police interrogations. However, we have been told that this
is not always the case, and that when a prosecutor is present his attendance is
merely a formality since he exercises no control over the interrogators. We
believe that this period of prolonged incommunicado detention is, prima
facie, incompatible with the guarantees stipulated in Articles 7 and 9 of
the American Convention and the International Covenant, respectively[25]
100.
Similarly, the Inter-American Court of Human Rights has established that,
“during the period when Ms. María Elena Loayza-Tamayo was detained [1993]
there was a widespread practice in Peru of cruel, inhuman and degrading
treatment during criminal investigations into the crimes of treason and
terrorism.”[26]
The UN’s Human Rights Committee also made the following statement in this
regard: The
Committee is deeply concerned by persistent reports of torture or cruel, inhuman
or degrading treatment of persons detained under suspicion of involvement in
terrorist activities or other criminal activities. It regrets the failure of the
State party to provide the Committee with detailed information on the measures
adopted to prevent torture and cruel, degrading or inhuman treatment, and to
punish those responsible. It draws attention to the legislation which permits
incommunicado detention in certain cases. In this connection, the Committee
reiterates its view, as expressed in its General Comment 20 on article 7, that
incommunicado detention is conducive to torture and that, consequently, this
practice should be avoided.[27]
101.
The Commission also stresses that under Article 5 of the Inter-American
Convention to Prevent and Punish Torture, ratified by Peru on March 28, 1991,
“the existence of circumstances such as a state of war, threat of war, state
of siege or of emergency, domestic disturbance or strife, suspension of
constitutional guarantees, domestic political instability, or other public
emergencies or disasters shall not be invoked or admitted as justification for
the crime of torture.”
102.
Article 10 of the Convention to Prevent and Punish Torture also states
that: “No statement that is verified as having been obtained through torture
shall be admissible as evidence in a legal proceeding, except in a legal action
taken against a person or persons accused of having elicited it through acts of
torture, and only as evidence that the accused obtained such statement by such
means.” 103.
In accordance with the foregoing, the Commission also concludes that the
provisions of Decree Law 25475, granting the police power to conduct arrests and
to keep detainees incommunicado for fifteen days, created conditions that
allowed individuals under investigation for terrorist crimes to be
systematically tortured during this period of police arrest in order to secure
criminal confessions from them. This is a violation of Article 5 of the American
Convention, which states that “every person has the right to have his
physical, mental, and moral integrity respected,” and that “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.” In this case, the “confessions”
obtained by torture were the main evidence used to convict the detainees. 104.
In the case at hand and in accordance with the facts that the Commission
has established, the Asencios Lindo brothers and Messrs. Ambrosio Concha and
Molero Coca were tortured[28]
at the DINCOTE facility, a fact that was even certified by a forensic physician.[29]
By doing this, as explained above, the Peruvian State violated, to the detriment
of the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca, the
right to humane treatment enshrined in Article 5 of the American Convention. 105.
Aggravating the defenselessness and isolation of individuals being
investigated and tried for terrorist crimes, Article 6 of Decree Law 25669
stipulated that at no time during police investigations or criminal proceedings
would relief injunctions be admitted, including the habeas
corpus action provided for in Articles 295 and 200 of the Peruvian
Constitutions of 1979 and 1983, respectively.[30]
A suspect arrested and held incommunicado was thus denied the only legal remedy
available for challenging the reasonableness of his arrest and for enabling a
judge to verify that the arrest was properly made. 106.
In order to analyze the consequences of this denial of the right to habeas
corpus relief vis-à-vis the terms of the American Convention, it must first
be noted that Article 25 of the Convention stipulates that: “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.” In turn, Article 7(6) of the Convention, which deals
with the right of personal liberty, states that 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. Similarly, as analyzed
in detail above, Article 27 of the Convention states that there are certain
rights that cannot be suspended even during a state of emergency and, further,
that the judicial guarantees needed to protect those rights can never be
suspended. 107. In this regard,
the Inter-American Court of Human Rights has stated that: “Guarantees are
designed to protect, to ensure or to assert the entitlement to a right or the
exercise thereof. The States Parties not only have the obligation to recognize
and to respect the rights and freedoms of all persons, they also have the
obligation to protect and ensure the exercise of such rights and freedoms by
means of the respective guarantees (Art. 1.1), that is, through suitable
measures that will in all circumstances ensure the effectiveness of these rights
and freedoms.”[31]
108.
The Court has maintained that habeas
corpus constitutes a fundamental guarantee that States Parties may not
suspend even during a state of emergency, ruling that: The
judicial guarantees essential for the protection of the human rights not subject
to derogation, according to Article 27(2) of the Convention, are those to which
the Convention expressly refers in Articles 7(6) and 25(1), considered within
the framework and the principles of Article 8, and also those necessary to the
preservation of the rule of law, even during the state of exception that results
from the suspension of guarantees.[32] 109.
Thus, suspending the right to the judicial guarantee of habeas corpus relief of those facing trial for terrorist offenses is
also a violation per se of Article
7(6) of the American Convention, which deals with the right to personal freedom
in the following terms: 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.
110.
Denying access to habeas corpus
relief is also a violation of Article 25 of the American Convention, which
provides that, “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.” 111.
In the case at hand and in accordance with the facts that the Commission
has established, it can be seen that the illegal denial of habeas corpus relief indeed took place when on August 5, 1992, the
15th Criminal Judge in Lima invoked the terms of the aforesaid Decree Law Nº
25859 to dismiss the habeas corpus
action that had been brought by the Asencios Lindo brothers and Mr. Ambrosio
Concha to ensure compliance with the decision of the 43rd Criminal Judge
ordering their release. With this, as explained above, the Peruvian State
violated the right of habeas corpus
set forth in Article 7.6 of the American Convention, in conjunction with the
terms of Article 25 thereof. 112.
Continuing with its analysis of Decree Law Nº 25475, the Commission
notes that it requires the DINCOTE, at the end of its investigation, to prepare
a police report (affidavit) and send it to the prosecutor at the office of the
Attorney General, who, in theory, assesses it independently and decides what
charges to bring before the corresponding criminal court judge. Nevertheless,
the ICJ reports that: it has “been repeatedly told by knowledgeable persons
both within and outside the government that, in actual practice, DINCOTE
formalizes the charges which then are invariably endorsed by the
prosecutor. Thus, DINCOTE ultimately decides whether the prisoner will be tried
by a civilian court for terrorism or by a military court for treason.”[33]
This situation is obviously anomalous, in that it implies that the police--which
is not a judicial body, nor independent, nor impartial--is performing
jurisdictional functions. 113.
The office of the Attorney General then submits formal charges to a
criminal judge, who has 24 hours to issue an order beginning the investigation
phase, with arrest warrants. Article 13.a of Decree Law Nº 25475 stipulates
that the criminal judge can rule on no prior issues, objections, or defense, and
neither can he order the defendant’s release. Thus, even were he convinced of
the prisoner’s innocence, he could not have him freed. This clearly
constitutes another violation per se
within the procedure, infringing on the right to presumption of innocence
enshrined in Article 8(2) of the American Convention, under which “every
person accused of a criminal offense has the right to be presumed innocent so
long as his guilt has not been proven according to law.” It should be noted
that Law Nº 26248 of November 25, 1993, amended this provision, stipulating
that the investigating judge, either on an ex
officio basis or at the party’s request, could order a prisoner’s
conditional release, but that this decision had to be confirmed by a superior
court and the release could not be carried out until this had taken place. In
the case at hand, however, on August 19, 1992, the 43rd Criminal Judge ordered
the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca to be
released and, when a habeas corpus
action was filed to bring about enforcement of that decision, Lima’s 15th
Criminal Judge declared it inadmissible in a ruling dated August 25, 1992, later
upheld by the Supreme Court of Justice on October 5, 1992, on the grounds that
Decree Law Nº 25475 disallowed any sort of release during judicial
investigations. 114.
Decree Law Nº 25475 required that once the initial phase was concluded,
the investigating judge would send the case file to the presiding magistrate of
the corresponding Superior Court of Justice. This magistrate would then in turn
refer it to the chief superior prosecutor, who would appoint a superior
prosecutor to present the charges within a period of three days. Once the
superior prosecutor had formulated the charges, the presiding magistrate would
appoint the members of the Specialized Chamber charged with the judgment from
among all the judges in the judicial district. In accordance with the terms of
Article 15 of Decree Law Nº 25475: The
identities of magistrates and members of the Office of the Attorney General, as
well as of judicial auxiliaries involved in trying terrorism cases shall be
secret, to which end the necessary arrangements shall be made. Court decisions
shall not bear the signatures or initials of the magistrates involved, nor of
the judicial auxiliaries. Codes will be used for that purpose, which shall also
be kept secret.[34]
115.
Such a system of secret justice constituted a flagrant violation per
se of the right--that is an integral part of due process--to be tried by an
independent and impartial judge or tribunal, enshrined in Article 8(1) of the
American Convention, and of the guarantee providing for the public nature of
criminal proceedings, enshrined in Article 8(2)(5). Iin connection with this, in
its 1993 Report on the Situation of Human Rights in Peru, the Commission stated
that: “If no one knows the identity of the presiding judges, then nothing can
be said about their impartiality and independence. This in itself is
questionable, given the measures adopted by the Executive Power in relation to
the Judiciary since April 5 [1992].”[35]
Furthermore, Article 13(h) of Decree Law Nº 25475 provided that in terrorism
proceedings, challenges to judges or judicial auxiliaries were inadmissible. To
some extent, this last provision was certainly redundant, since the secret
identities of the aforesaid officials prevented defendants and their attorneys
from learning of the existence of any grounds for challenges. 116.
In connection with this, the UN’s Human Rights Committee has criticized
the fact that defendants did not know who was judging them and were denied the
right to a public trial.[36]
Evidently, the right of the accused in any proceedings to know who is judging
him and to be able to determine that judge’s subjective competence--that is,
whether there are any grounds for challenging or removing the judge--is a basic
guarantee. The anonymity of judges deprives the accused of this basic guarantee
and violates his right to be tried by an impartial court, since he is unable to
object to a judge when there are grounds for a challenge. 117.
The reason given for establishing the aforementioned system of secret
justice seemingly has to do with the protection of judges, prosecutors, and
other officials involved in the trial from possible reprisals by terrorist
groups. In this regard, the UN’s Special Rapporteur on the independence of
judges and lawyers made the following remarks: The
main argument presented by the Government for providing “faceless” judges
was to protect the physical integrity of the judges, given the terrorist threat.
Based upon the testimony received from the judges themselves, the general
impression of the Special Rapporteur was that the judges and prosecutors who are
supposed to benefit from the fact that they operate anonymously do not feel
protected by the system. In their opinion, it is quite easy to discover who the
judges and prosecutors are, in particular in the provinces or small towns;
therefore, they consider that the system does not serve the purpose for which it
was established (i.e. the protection of the judges and prosecutors), and the
majority of those interviewed acknowledged that under this system there is a
lack of guarantees for due process. In this respect, international standards
provide that derogatory measures shall be implemented only if they are strictly
necessary. According to the information received by the Special Rapporteur, from
1992 to 1997, judges were not targets of the terrorist-related violence.
Therefore, the use of “faceless” tribunals does not meet the principle of
strict necessity. Moreover, even if a real need existed to implement measures to
protect the physical integrity of the judges and of judicial auxiliaries, these
measures should be consistent with other international obligations of the
Government and they should not impair the right of the accused to due process.[37] 118.
In accordance with the above, the Commission reiterates that this system
of secret justice constituted a flagrant violation per
se of the guarantee--inherent to due process--of being judged by an
independent and impartial tribunal, set forth in Article 8(1) of the American
Convention, and of the guarantee of public criminal proceedings, enshrined in
Article 8(2)(5) thereof. 119.
In the case at hand and in accordance with the facts that the Commission
has established, it can be seen that this system of secret justice was applied
in full in convicting the Asencios Lindo brothers and Messrs. Ambrosio Concha
and Molero Coca: their trial was conducted by “faceless” prosecutors and
decided on by the Special Chamber of the Superior Court, composed of
“faceless” judges, in a ruling handed down on October 24, 1992. In addition,
the members of the Supreme Court of Justice who heard the annulment motion filed
against that ruling were also “faceless” judges. Thus, as explained above,
the Peruvian State violated the victims’ right to due process, as set forth in
Article 8 of the American Convention. 120.
Continuing with its analysis of Decree Nº 25475 and its ancillary
provisions, the Commission notes that under Article 16, terrorism trials are
held in the respective penitentiary centers, in rooms equipped so as to prevent
judges, prosecutors, and judicial auxiliaries from being visually or aurally
identified by the defendants and their defense counsel. Regarding these trials,
the UN’s Special Rapporteur on the independence of judges and lawyers offered
the following comments: The
main characteristic of the proceedings before “faceless” courts, both
civilian and military, is secrecy. Judges and prosecutors are identified by
codes. When handling treason cases, Supreme Court judges also identify
themselves by secret codes. The judges are at all times invisible to the
defendants and their counsel, and trial proceedings are conducted in private.
Hearings take place in specially equipped courtrooms inside high-security
prisons or, in treason cases, at military bases. The courtrooms are small, with
a single door and a large one-way mirror along one wall. In an adjoining room on
the other side of the mirror, the judges, prosecutor and court secretaries have
their seats. They communicate with the accused persons and their counsel through
voice-distorting microphones. Since the sound system does not always function
properly, it is sometimes impossible for the defendant or his or her counsel to
understand what is being said, which has in many cases seriously obstructed the
proceedings or affected the defence.[38] 121.
In turn, Article 13(c) of Decree Law Nº 25475 and Article 2.b of Decree
Law 25744 prohibit the officers involved in preparing the police affidavit and
the members of the armed forces who captured or arrested the accused from
appearing as witnesses at trials dealing with the crimes of terrorism and
treason against the fatherland. 122.
The Commission finds that the aforementioned legal denial of the right of
defendants to cross-examine the persons who arrested them or who otherwise
played a major part in gathering--and even fabricating--the evidence later used
to convict them constitutes another violation per se of the guarantee of due process enshrined in Article 8(2)(f)
of the American Convention, under which the defense has the right to “examine
witnesses present in the court and to obtain the appearance, as witnesses, of
experts or other persons who may throw light on the facts.” 123. In the case at
hand and in accordance with the facts that the Commission has established, it
can be seen that pursuant to the aforesaid provisions, the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca were unable to
cross-examine the police officers who had arrested them. This was of particular
relevance since the victims never accepted that they had been detained at the
home of Mrs. Gladys Vargas Vergaray, as the police claimed; it was thus vitally
important that the victims’ defense lawyers were allowed to question the
arresting officers. By denying them that, the Peruvian State violated, with
respect to the victims, the right set forth in Article 8(2)(f) of the American
Convention, according to which the defense is entitled 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.” 124.
In addition to the restriction preventing the defense from examining the
police officers who produced the evidence for the prosecution, and to the
above-mentioned initial limitation under which an individual lawyer can only
represent one person indicted for terrorism, the UN’s Special Rapporteur on
the independence of judges and lawyers, among other sources, has stated that:
In
the civil “faceless” tribunals, defence attorneys claim that they have
restricted access to evidence. Further, they are not allowed to cross-examine
police or military witnesses whose identities are not revealed prior to, during
or after the trial. In the military “faceless” tribunals, defence lawyers
claim that they have serious difficulties in accessing trial documents.[39] 125.
As a result of the various restrictions imposed on defendants and their
attorneys, the defense of persons on trial for terrorism implied a virtual
inversion of the burden of proof, to the point where it could be said that, in
practice, irrespective of the evidence that might exist, the accused was
presumed guilty and not innocent, in flagrant violation of Article 8(2) of the
American Convention. As the Commission has previously remarked, such
circumstances turn the defense counsel into a “mere spectator to the
proceedings.”[40]
This role was even more symbolic when defense counsel was provided by the
Justice Ministry and appointed on an ex
officio basis by the police, in accordance with Article 12(f) of Decree Law
Nº 25475. For example, during its on-site visit to Peru in November 1998, the
Commission was told by inmates at Ayacucho prison that in such cases, affecting
all defendants who were unable to pay for an attorney’s services, suspects
were even more defenseless, since the appointed lawyers did not even attempt to
conduct any sort of conscientious defense of their clients, with whom they had
one brief formal meeting at the most. In practice, therefore, such defendants
were convicted from a position of total defenselessness. 126.
Similarly, pursuant to the terms of Decree Law Nº 25475, once the
Superior Court has issued a conviction, the defendant can challenge the sentence
or apply for annulment with the Supreme Court of Justice, for the matter to be
decided by other “faceless” judges within a Specialized Chamber. It has been
reported that defense attorneys at the Supreme Court faced practically the same
difficulties as at the superior courts; in addition, on account of the
provisional status of the Supreme Court’s judges, their independence was not
guaranteed. As a result, the possibilities of a successful appeal, regardless of
how well grounded it was, were practically nonexistent.[41] 127.
The Commission must note that according to the information it has
obtained from complaints brought before it, from different general reports on
the human rights situation in Peru, from press reports, and from its direct
contacts with detainees during its on-site visits to the country, the actions of
the police officers, prosecutors, judges, and judicial auxiliaries were
generally aimed at convicting defendants regardless of whether they were
innocent or guilty. In light of this, the temporary status of the vast majority
of judges and prosecutors, the result of steps taken by the Government after
April 5, 1992 obviously,
affected their independence and impartiality to the extent that they were unable
to make decisions based on the facts of the case and their legal knowledge and
experience; instead, their rulings were more in response to their natural
interest in preserving their positions and their earnings: they were expected to
act blindly to secure convictions, and that was what they provided. 128.
The foregoing characteristics of terrorism trials thus constituted
violations of the right of every person to a hearing, with due guarantees, in
order to substantiate any accusation of a criminal nature made against him; to
be presumed innocent so long as his guilt has not been proven according to law;
to prior notification in detail of the charges against him; and to adequate time
and means for the preparation of his defense. All these are guarantees that are
expressly enshrined in Article 8 of the American Convention. D.
Human rights violations in trials for the crimes of terrorism 129.
It is therefore clear that procedures in terrorism trials violate the
minimum standards necessary for a fair trial. In this regard, after analyzing
the case of one person who was tried and convicted under those procedures, the
Inter-American Court of Human Rights stated that: Ms.
María Elena Loayza-Tamayo was tried and convicted by application of an
exceptional procedure in which it is obvious that the fundamental rights
embodied in the concept of due process were greatly restricted. Those
proceedings do not meet the criteria of a fair trial, since the presumption of
innocence was not observed; the defendants were not allowed to challenge or
examine the evidence; the defense attorney’s power was curtailed in that he
could not communicate freely with his client or intervene in all stages of the
proceeding in full possession of the facts.[42]
130.
Similarly, the Special Rapporteur on the independence of judges and
lawyers of the UN Commission on Human Rights has stated that: The
shortcomings of the anti-terrorist legislation enacted by the Government have
already been pointed out by different national and international organizations.
The consensus is that Peru did not observe the general conditions provided in
international law for a state of emergency; in particular, the Peruvian
Government, in vaguely defining the crimes of terrorism and treason and by
punishing them with disproportionate penalties, failed to observe the rule of
proportionality. In enacting such measures it failed to abide by its
international obligations, and it suspended fundamental rights that are
non-derogable even during a state of emergency, principally the right to due
process and the right to have an independent and impartial judge to hear one’s
case.[43] 131.
Pursuant to the above and in accordance with the analysis of the
procedures for trying the terrorist crimes contained in Decree Law Nº 25475 and
its ancillary provisions, the Commission reaffirms its conclusion that said
procedures constitute a violation per se
of the right to personal freedom enshrined in Article 7 of the American
Convention, which reads as follows: Article
7. Right to Personal Liberty 1.
Every person has the right to personal liberty and security. (. . .)
3.
No one shall be subject to arbitrary arrest or imprisonment. 4.
Anyone who is detained shall be informed of the reasons for his detention
and shall be promptly notified of the charge or charges against him. 5.
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. 6.
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. 132. In this case,
as has already been said, the violation of Article 7 of the Convention occurred
when the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca
were arrested and kept incommunicado for a period of 15 days (from April 30 to
May 14, 1992) under the terms of Decree Law Nº 25475. As has also been shown,
and in accordance with the jurisprudence of the Inter-American Court quoted
above, the State also violated Article 7 of the Convention in respect of the
victims by denying them the right to habeas
corpus relief. 133. The Commission
also reaffirms its conclusions that the procedure in question established a
legal framework that facilitated violations of the right to humane treatment,
through the power granted to the police to arrest people and keep them
incommunicado, and that created conditions that meant that people under
investigation for the crime of terrorism were coerced or even tortured during
those periods of detention and isolation in order to secure confessions from
them, which were then used as the main evidence at their trials and in their
convictions, in contravention of the aforesaid provisions of the Inter-American
Convention to Prevent and Punish Torture and in violation of Article 5 of the
American Convention, which reads as follows: 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. 134. In this case,
as has already been said, the violation of Article 5 of the Convention occurred
with the torture inflicted on the victims during their detention at the DINCOTE
facility, which was even documented by a forensic physician. 135. The Commission
also reaffirms its conclusion that the procedure in question constituted a
violation per se of the right to a fair trial set forth in Article 8 of the
American Convention, which states the following: Article
8. Right to a Fair Trial 1.
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. 2.
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: a.
the right of the accused to be assisted without charge by a translator or
interpreter, if he does not understand or does not speak the language of the
tribunal or court; b.
prior notification in detail to the accused of the charges against him; c.
adequate time and means for the preparation of his defense; 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; e.
the inalienable right to be assisted by counsel provided by the state, paid or
not as the domestic law provides, if the accused does not defend himself
personally or engage his own counsel within the time period established by law; 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; g.
the right not to be compelled to be a witness against himself or to plead
guilty; and h.
the right to appeal the judgment to a higher court. 3.
A confession of guilt by the accused shall be valid only if it is made without
coercion of any kind. 4.
An accused person acquitted by a nonappealable judgment shall not be subjected
to a new trial for the same cause. 5.
Criminal proceedings shall be public, except insofar as may be necessary to
protect the interests of justice. 136. In this case,
as has already been said, the violation of Article 8 of the Convention occurred
when the Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca
were subjected to a secret trial for terrorist offenses under the provisions of
Decree Law Nº 25475, which was heard and ruled on by “faceless” judges,
with the cited restrictions of the fundamental rights that make up due process. 137.
In light of the above considerations, the Commission concludes that
trials and convictions in Peru for terrorist crimes conducted in accordance with
the procedure set forth in Decree Law Nº 25475 and its ancillary provisions
constituted violations per se by the
Peruvian State of the aforesaid human rights enshrined in the Convention, to the
detriment of the individuals tried and convicted under that procedure —
specifically, in the case at hand, Messrs. Rodolfo Gerbert Asencios Lindo,
Rodolfo Dynnik Asencios Lindo, Marco Antonio Ambrosio Concha, and Carlos
Florentino Molero Coca; this does not imply that every person tried and
convicted under that procedure was necessarily subjected to torture. V.
DEVELOPMENTS SINCE THE ADOPTION OF REPORT Nº 91/99 138. The Commission
adopted Report Nº 91/99 (Article 50) on this case at its 104th session. This
report, containing the Commission’s recommendations, was transmitted to the
Peruvian State on October 21, 1999. The State was granted a period of two months
following that date to comply with the recommendations. 139. In Note Nº
7-5-M/561, dated December 20, 1999, Peru sent the Commission its comments on
Report Nº 91/99; it said was in disagreement with some matters of fact and law
contained therein and with the conclusion reached by the Commission.
Specifically, the State said, inter alia, that it disagreed with the IACHR’s conclusion that
Decree Law Nº 25475 violated human rights per
se, that the petition did not make claims questioning the anti-terrorist
legislation, and that the legislation in question has since been toned down, at
the State’s initiative. 140. Peru added that
the IACHR had not duly assessed the state of internal political emergency that
required the enactment of extraordinary legislative measures, which did accord
with the exceptions in international human rights instruments under which
certain rights could be suspended. The State noted that the IACHR did not
recommend that the Ad Hoc Commission conduct a review of the cases of the
Asencios Lindo brothers and Messrs. Ambrosio Concha and Molero Coca and
indicated that, as regards the payment of damages, the complainants could
initiate such legal action as they deem appropriate. 141. In concluding,
the Peruvian State said that the IACHR did not have the authority to review a
judicial proceeding that had concluded within the State and that the
Commission’s recommendations were inadmissible because “even under
conditions of complex terrorist violence, the rule of law was respected and the
investigations and judgments were serious and impartial.” 142. Peru ended by
saying that “the Peruvian State, at its own initiative, has taken the steps
necessary to determine whether the cases of the aforesaid citizens are being
studied by the Ad Hoc Pardons Commission, bearing in mind the restricted nature
of that Commission’s files, and it will notify the IACHR in due course. If
they are not under analysis, the Government will conduct prior assessments in
order to recommend the relevant study.” 143. The Commission
refrains from analyzing the Peruvian State’s comments that do not address its
compliance with the recommendations made by the Commission in Report Nº 91/99
since, pursuant to Article 51(1) of the Convention, what the Commission must
determine at this stage in the proceedings is whether the State did nor did not
resolve the matter. In this regard, the IACHR notes that the Peruvian State has
not complied with any of the recommendations made by the Commission in Report Nº
91/99. 144. Irrespective of
the above and in connection with Peru’s claim that Decree Law Nº 25475 did
not constitute a violation per se of
the American Convention, the Commission must point out that, as has been
demonstrated in the case at hand, the very structure of the Decree is
intrinsically incompatible with the Convention. It is not that the police
officers, judges, and prosecutors interpreted the terms of the Decree
incorrectly; instead, they enforced it strictly and rigorously and, in doing so,
violated a series of rights and guarantees that were due to the Asencios Lindo
brothers and Messrs. Ambrosio Concha and Molero Coca. In connection with this,
the Commission notes the Peruvian State’s report that some of the Decree Law Nº
25475’s provisions have been modified, which has been reflected by the
Commission in the corresponding paragraphs of this report. Nevertheless, those
modifications do not change the fact that the Asencios Lindo brothers and
Messrs. Ambrosio Concha and Molero Coca were tried in accordance with the
original parameters of Decree Law Nº 25475 and that they have been denied
physical freedom for the past eight years. 145. The Peruvian
State argued that the petition covering this case made no claims questioning
Decree Law Nº 25475. In this regard, it should be remembered that the
Commission is competent to determine whether the effects of implementing laws
lead to violations of the obligations assumed by states under the American
Convention. The Inter-American Court has said that: 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.[44]
146. Regarding
Peru’s claim that the IACHR did not give due consideration to the situation of
internal political emergency that required the introduction of extraordinary
legislative measures that were in line with the exceptions allowed by
international human rights instruments for suspending certain rights, the IACHR
refers back to the content of paragraphs 55 through 87 above, in which the
Commission offers an extensive analysis of the context behind the anti-terrorist
legislation, including the conflict that led to the death and disappearance of
thousands of people, massive material losses, the terrorist attacks in Lima in
1992, the international obligations of States in situations of this kind, and
the non-derogable nature, even during states of emergency, of some of the rights
and guarantees enshrined in the American Convention. 147. Regarding the
State’s claim that the IACHR lacks the authority to review judicial
proceedings that have concluded within the State, the Commission must inform
Peru that, as was recently pointed out by the Inter-American Court of Human
Rights: In
order to clarify whether the State has violated its international obligations
owing to the acts of its judicial organs, the Court may have to examine the
respective domestic proceedings. In
this respect, the European Court has indicated that the proceedings should be
considered as a whole, including the decisions of the courts of appeal, and that
the function of the international court is to determine if all the proceedings,
and the way in which the evidence was produced were fair. (…) To
this end, in view of the characteristics of the case and the nature of the
violations alleged by the Commission, the Court must examine all the domestic
judicial proceedings in order to obtain an integrated vision of these acts and
establish whether or not it is evident that they violated the norms on the
obligations to investigate, and the right to be heard and to an effective
recourse, which arise from Articles 1.1, 8 and 25 of the Convention.[45] 148. Although Peru
has not to date complied with the IACHR’s recommendations, the Commission
hopes that the Peruvian State will continue with “the prior assessments in
order to recommend the relevant study” to which it refers and that these will
lead to a review of the aforesaid proceedings, which ended with the conviction
of four innocent people who, more than eight years later, are still being denied
the basic human rights of liberty. VI.
CONCLUSIONS The
Commission repeats the following conclusions that it reached in its aforesaid
Report Nº 91/99: 149. The conviction
of Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik Asencios Lindo, Marco
Antonio Ambrosio Concha, and Carlos Florentino Molero Coca was handed down by
“faceless” judges in accordance with the procedure for terrorist cases set
forth in Decree Law Nº 25475 and its ancillary provisions. Also involved in
those proceedings were “faceless” prosecutors. The case shows that they were
tortured, as was duly certified by a forensic physician. The case also reveals
that victims were denied the immediate execution of the decision ordering their
release handed down by the 43rd Criminal Judge on August 19, 1992, pursuant to
the terms of Decree Law Nº 25475 forbidding the release of defendants during
police or judicial investigations. The same Decree Law was also used as a the
basis for denying Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik
Asencios Lindo, and Marco Antonio Ambrosio Concha the habeas
corpus relief they filed to secure execution of the August 19 decision. 150. The Commission
also notes that the conviction handed down on October 24, 1992, by the Special
Chamber of the Superior Court did not take into account the judicial statement
made by Mrs. Gladys Vargas Vergaray on June 12, 1992, in which she recanted her
earlier police statement according to which the victims were arrested at her
home, since said police statement was obtained under duress from the police. The
Commission must therefore point out that the sentence appears to be totally
arbitrary in that it contains no evidence that, assessed in accordance with
sound criticism, could reasonably indicate that the defendants were guilty of
the crimes with which they were charged; consequently, the proceedings appear to
have concluded with the conviction of four innocent men. 151. In connection
with this, and since the Commission has ruled that judgments and convictions in
Peru for terrorist crimes under the procedure set forth in Decree Law Nº 25475
and its ancillary provisions constituted violations per
se of human rights enshrined in the American Convention by the Peruvian
State, the Commission concludes that Peru violated, with respect to the persons
tried and convicted under those parameters--in the specific case at hand,
Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik Asencios Lindo, Marco
Antonio Ambrosio Concha, and Carlos Florentino Molero Coca--the right to
personal freedom contained in Article 7 of the American Convention, the right to
humane treatment contained in Article 5 of the American Convention, and the
right to a fair trial contained in Article 8 of the same Convention, by trying
and convicting them under the terms of Decree Law Nº 25475.
152.
These conclusions additionally imply that the Peruvian State has not
complied with the terms of Article 1(1) of the Convention--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--that it
violated the rights of the victims enshrined in Articles 7, 5, and 8 of the
Convention.
153.
Similarly, the second obligation arising from Article 1(1) of the
Convention is that States must ensure the free and full exercise of the rights
and freedoms the instrument contains. In this regard, the Inter-American
Court’s jurisprudence has stated that: “This obligation implies the duty of
the States Parties to organize the governmental apparatus and, in general, all
the structures through which public power is exercised, so that they are capable
of juridically ensuring the free and full enjoyment of human rights. As a
consequence of this obligation, the States must prevent, investigate and punish
any violation of the rights recognized by the Convention.”[46] It is clear that Peru also failed to meet that
obligation, by establishing government practices and judicial and police
procedures that curtailed the full exercise of the rights enshrined in the
American Convention. VII.
RECOMMENDATIONS
Based on the foregoing analysis and conclusions, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ONCE AGAIN RECOMMENDS THAT THE
PERUVIAN STATE SHOULD: 1.
Conduct a serious, impartial, and effective official investigation into
the torture reported by Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik
Asencios Lindo, Marco Antonio Ambrosio Concha, and Carlos Florentino Molero
Coca; punish the guilty, if applicable; and take the steps necessary to put an
end to this practice. 2. Make full
amends for, by means of different applicable measures, the human rights
violations committed against Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo
Dynnik Asencios Lindo, Marco Antonio Ambrosio Concha, and Carlos Florentino
Molero Coca, including the immediate review of their convictions by an
independent and impartial body, with all pertinent guarantees of due process. 3.
Compensate Messrs. Rodolfo Gerbert Asencios Lindo, Rodolfo Dynnik
Asencios Lindo, Marco Antonio Ambrosio Concha, and Carlos Florentino Molero Coca
for the physical, moral, and material harm arising from the aforesaid violations
of their human rights by the Peruvian State. 4.
Amend Decree Law Nº 25475 and its ancillary provisions in order to bring
it into line with the rights and guarantees enshrined in the American
Convention. VIII.
PUBLICATION
154.
On March 2, 2000, the Commission transmitted Report 18/00--the text of
which precedes--to the Peruvian State and to the petitioners, according to
article 51(2) of the Convention, and granted Peru a one-month period to comply
with the recommendations set above. On April 10, 2000 the State forwarded the
Commission a note and reiterated its considerations pertaining the conclusions
of fact and of law of the Commission, and did not exposed any action taken
towards the compliance of the recommendations made by the Commission. 155.
According to the above considerations, and to Articles 51(3) of the
American Convention and 48 of the Commission’s regulations, the Commission
decides to reiterate the conclusion and the recommendations set forth in
chapters V and VI; to make public the present report and to include it in its
Annual Report to the OAS General Assembly. The Commission, according to the
norms contained in the instruments which govern its mandate, will continue
evaluating the measures adopted by the Peruvian State in respect to the above
recommendations, until they have been complied with by the Peruvian State. Done and signed by the Inter-American Commission on Human Rights.on the 13 day of the month of April, 2000. (Signed): Hélio Bicudo, Chairman, Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo. [ Table of Contents | Previous | Next ]
[1] Inter-Am.Ct.H.R., Certain Attributes 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, July
16, 1993, Series A No. 13, paragraphs 27 and 30.
[2] Article 1 of Law 26655 stipulates the following: “An
Ad Hoc Commission shall be established, charged with evaluating, assessing,
and, in exceptional cases, proposing to the President of the Republic the
granting of pardons to individuals convicted of the crimes of terrorism or
treason against the fatherland based on inadequate evidence that would allow
the Commission to reasonably assume that they had no connections of any kind
with terrorist elements, activities, or organizations.”
[3] Ad Hoc Commission, Pardon Recommendations, Statistical
Report, October 1998; drawn up for the Inter-American Commission on Human
Rights on the occasion of its on-site visit to Peru, Lima, 1998.
[4]
UN, Commission on Human Rights, Report on the Mission to Peru by the Special
Rapporteur on the independence of the judiciary and lawyers, Mr. Param
Cumaraswamy, Doc. E/CN.4/1998/39/Add.1 (1998), paragraph 85.
[5] Inter-Am.Ct.H.R., Habeas Corpus in Emergency
Situations (Arts. 27(2) and 7(6) of the American Convention on Human
Rights), Advisory Opinion OC-8/87, January 30, 1987, Series A Nº 8,
paragraph 19.
[6] IACHR, Annual Report 1980-1981, p. 115.
[7]
Idem.
[8] Inter-Am.Ct.H.R., Habeas Corpus in Emergency
Situations . . ., op.
cit., paragraph 21.
[9] Ibid., paragraph 24.
[10] Ibid., paragraph 27.
[11] Ibid.
[12] Ibid., paragraph 25.
[13] Inter-Am.Ct.H.R., Judicial Guarantees in States of
Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human
Rights), Advisory Opinion OC-9/87, October 6, 1987, Series A Nº 9,
paragraph 25.
[14] Ibid., paragraph 38.
[15] According to which: “All persons shall have the
following rights: . . . 20. To personal freedom and personal security.
Consequently, . . . (g) No person may be detained except under a
written, grounded order from a judge or by police authorities in
flagrante delicto.”
[16] The Commission has established that: “The rationale
behind this guarantee is that no person should be punished without a prior
trial which includes a charge, the opportunity to defend oneself, and a
sentence. All these stages must be completed within a reasonable time. The
time limit is intended to protect the accused with respect to his or her
fundamental right to personal liberty, as well as the accused’s personal
security against being the object of an unjustified procedural risk.”
IACHR, Report Nº 12/96, paragraph 76 (Case 11.245, Argentina), published in
Annual Report, 1995.
[17] IACHR, Annual Report, 1993, p.
807.
[18] Ibid.
[19] Inter-Am.Ct.H.R., Gangaram Panday Case, Judgment of
January 21, 1994, Series C Nº 16, paragraph 47.
[20] UN, Commission on Human Rights, Report by Special
Rapporteur Param Cumaraswamy, op.
cit., paragraph 71.
[21] Later legislation partially amended Decree Law 25475,
allowing defendants in terrorism cases the right to receive counsel from
their defense lawyers immediately following arrest.
[22] This article was repealed by Law Nº 26248 of November
25, 1993.
[23] In a recent report the Commission concluded that the
right to defense had been restricted and, consequently, that Article 8(2) of
the Convention had been violated by a series of restrictions that were
imposed on a defense lawyer, such as forcing her to undress prior to
visiting her client in prison, forbidding her to converse in private with
her client, and refusing to issue her with the ID card needed to enter the
prison facility. See Report Nº 2/99, Case 11.209 (Mexico), IACHR, Annual
Report, 1998, paragraphs 88-102.
[24] UN, Human Rights Committee, Examination of the Third
Report Submitted by Peru to the Committee, Documents of the 51st Session,
Vol. I, Supplement Nº 40 (A/51/40), paragraph 356.
[25] Report of the Commission of International Jurists on
the Administration of Justice in Peru, Instituto de Defensa Legal, Lima
1993, pap.60.
[26] Inter-Am.Ct.H.R., Loayza Tamayo Case, Judgment of
September 17, 1997, paragraph 46.
[27] UN, Human Rights Committee, op. cit., paragraph 355.
[28] As an example of the torture that was inflicted, Mr.
Rodolfo Gerbert Asencios Lindo made the following statement before the 45th
Criminal Court in Lima: “They punched me in the pit of the stomach and,
when I bent over with the pain, they punched me in the head and kicked me in
the shin; they then took us out to anther room, turned the volume up on the
television, and on a table with a mattress they laid my face against the
inclined desk and twisted my arms. They then punched me in the kidneys and
threatened me with rape, blows with the knee to the thigh. Then they put me
in a dark room, I was blindfold all the time, and they continued with my
brother. On May 1st, they also mistreated me when they were taking my
fingerprints, with blows to the lungs and slapping my face. We are
constantly being threatened that they are going to take us to the beach and
that we won’t get out alive.”
[29] Among the documents before the Commission is a copy of
a decision handed down by the 45th Criminal Court in Lima, dated May 15,
1992, in which the existence and content of the forensic report can be
inferred. This decision reads as follows: “Since (. . .) the
deed drawn up by the Criminal Court (. . .) indicates that the
citizens (. . .) were examined by the forensic physician, who
verified that they presented traces of wounds caused by a blunt object, and
that those wounds were recent—that is, not more than about seven days
old—thus indicating that they were indeed inflicted during the time when
the aforesaid citizens were detained at the premises of the National
Police’s Anti-Terrorism Directorate.”
[30] Law Nº 26248 of November 25, 1993, reinstated the
admissibility of habeas corpus in cases involving terrorism and treason
against the fatherland.
[31] Inter-Am.Ct.H.R., Habeas Corpus in Emergency
Situations . . ., op.
cit., paragraph 25.
[32] Inter-Am.Ct.H.R., Judicial Guarantees in States of
Emergency . . ., op.
cit., paragraph 38.
[33] Report of the Commission of International Jurists, op.
cit. (Note 25).
[34] Law Nº 26671 was published on October 12, 1996, which
stipulated that as of October 15, 1997, terrorist trials would be judged by
the corresponding competent judges, thus abolishing trials by “faceless”
judges.
[35] IACHR, Report on the Situation of Human Rights in
Peru, 1993, paragraph 64.
[36] UN, Human Rights Committee, op. cit., paragraph 355.
[37] UN, Commission on Human Rights, Report by Special
Rapporteur Param Cumaraswamy, op.
cit., paragraph 74.
[38] Ibid., paragraph 73.
[39] Ibid., paragraph 72.
[40] IACHR, Annual Report, 1993, p.
845.
[41] See, for example, UN, Commission on Human Rights,
Report by Special Rapporteur Param Cumaraswamy, op. cit., paragraph 53.
[42] Inter-Am.Ct.H.R., Loayza Tamayo Case, Judgment of
September 17, 1997, paragraph 62.
[43] UN, Commission on Human Rights, Report by Special
Rapporteur Param Cumaraswamy, op.
cit., paragraph 70.
[44] Inter-Am.Ct.H.R., Certain Attributes 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, July
16, 1993, Series A Nº 13, paragraph 30.
[45] Inter-Am.Ct.H.R., Case of Villagrán Morales et
al., Judgment of November 19, 1999, paragraphs 222 and 224.
[46] Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment
of July 29, 1988, paragraph 166.
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