Distr.
GENERAL

E/CN.4/1999/63/Add.2
11 January 1999

ENGLISH
Original: ENGLISH/FRENCH/SPANISH

COMMISSION ON HUMAN RIGHTS
Fifty-fifth session
Item 11 (a) of the provisional agenda


CIVIL AND POLITICAL RIGHTS, INCLUDING QUESTIONS OF:
TORTURE AND DETENTION


Report of the Working Group on Arbitrary Detention


Addendum


Report on the mission to Peru


CONTENTS

Paragraphs

Introduction 1 - 15

I. HISTORICAL BACKGROUND TO THE TERRORIST MOVEMENT IN PERU AND ACTION TAKEN TO COMBAT IT 16 - 22

II. THE JUDICIARY AND RELATED INSTITUTIONS 23 - 40
A. Reform of the judiciary 25 - 32
B. Reform of the Office of the Public Prosecutor 33 - 34
C. Provisional status of judges and prosecutors 35 - 36
D. Constitutional Court 37 - 38
E. National Council of the Judiciary 39 - 40

III. ANTI-TERRORIST LEGISLATION 41 - 107
A. Penal measures to combat terrorism 41 - 55
B. Procedural measures to combat terrorism 56 - 107

IV. PRISON REGIME FOR PERSONS CONVICTED OF TERRORIST OFFENCES AND TREASON 108 - 118

V. THE SITUATION OF FORCED CONSCRIPTS 119 - 121

VI. CAUSES OF ARBITRARY DETENTIONS 122 - 150
A. Violation of the right to freedom of expression (category II) 123 - 124
B. Serious violations of the right to a fair trial (category III) 125 - 150

VII. “INNOCENT PRISONERS”, THE LAW OF PARDONS AND THE AD HOC COMMITTEE 151 - 166

VIII. CONCLUSIONS AND RECOMMENDATIONS 167 - 180
A. Conclusions 167 - 174
B. Recommendations 175 - 180


Introduction


Mandate and objective of the mission

1. The Working Group on Arbitrary Detention visited Peru from 26 January to 6 February 1998, at the invitation of the Peruvian Government. The delegation was composed of the Vice-Chairman of the Working Group, Louis Joinet (head of delegation), and Roberto Garretón. The Working Group was interested in visiting Peru because it lacked information on the laws and practices used to combat terrorism, which has been plaguing Peru since 1980, and had therefore been unable to state its opinions on the subject.

2. The visit was scheduled for 1997 but was postponed because of the hostage crisis at the Japanese Ambassador's residence.

3. The cooperation of the Peruvian authorities was exemplary and characterized by complete transparency. The delegation spoke in private with detainees whose names appeared on lists made available at the prisons and with other prisoners chosen at random. The prison directors cooperated willingly as they had received written instructions to do so. The Working Group obtained all the information it requested.

4. The Working Group would like to thank the Peruvian authorities for their warm welcome and cooperation. It also thanks public officials, private individuals, organizations, lawyers, families, and all those who provided it with useful information in Lima, Juliaca, Puno and Chiclayo.

5. Special thanks go to Ms. Kim Bolduc, United Nations Resident Coordinator, and her staff, who efficiently coordinated the logistics of the programme. The Committee would also like to thank the head of the United Nations Information Office, Ms. Rosario Sheen.

Mission programme

6. In Lima, the Working Group met with the Minister of Justice and the Minister for Foreign Affairs. It also met with the Director of the National Prisons Institute and with the Secretary of the Executive Commission for Human Rights. The meeting with the Minister of the Interior was cancelled because of the natural disasters caused by El Niño.

7. The Working Group also held meetings with the President and members of the Government and the opposition; the Commission on Human Rights and Pacification of the National Congress; the Vice-President and members of the Parliamentary Justice Committee; the President and four members of the Supreme Court; the Attorney-General of the Nation; the Ombudsman and lawyers from his office; two members of the Ad Hoc Committee on Pardons; Fr. Hubert Lanssiers; the President of the Supreme Council of Military Justice; the Secretary of the Executive Committee of the Judiciary and his advisors; the President of the Bar Association, Dr. Delia Revoredo; the President of the Human Rights Commission of the Bar Association, Mr. Heriberto Benítez; the President of the Lima High Court, Dr. Marco Ibazeta Marino; and the Director-General of the Academy of the Judiciary, Mr. Francisco Eguiguren Praelli. The Working Group also met with Judge Elba Minaya and the President of the National Association of Judges of Peru.

8. Also in Lima, the Working Group met with the following non-governmental organizations, collectively and separately: National Coordinator for Human Rights, Centre for Studies and Association for Peace (CEAPAZ), Legal Defence Institute (IDL), Ecumenical Federation for Development and Peace (FEDEPAZ), Pro Human Rights Association (APRODEH), Amazon Centre of Anthropology and Practical Application (CAAAP), Episcopal Commission for Social Action (CEAS) and Andean Commission of Jurists (ACJ). It also met with lawyers and relatives of detainees and released persons.

9. In Lima, the Working Group visited the prisons of Castro Castro, Lurigancho and Santa Monica in Chorillos, which houses female prisoners. During the discussions prior to the mission, the Peruvian authorities informed the Working Group that it could have free access to all detention centres in the country, except for the Callao naval base, which is under military jurisdiction.

10. The Working Group visited the cities of Puno, Juliaca and Chiclayo, where there are High Courts which have tried a large number of cases of terrorism, as well as prisons housing prisoners whose cases have been submitted to the Working Group.

11. In Puno, the Working Group met with the President of the Juliaca High Court and prosecutors, the main NGOs in the southern region and the defence lawyers of persons detained for terrorist acts. It visited Yanamayo prison, which is located at an altitude of 4,200 m.

12. In Chiclayo, the Working Group was received by the President of the Lambayegue High Court and by prosecutors and judges. It also met with lawyers and relatives of prisoners, the directors of CEAS, IDL and CEAPAZ and the Deaconry for the Office of the Archbishop of Piura and Tumbes and the Office of the Bishop of Chulucanas; it also visited Picsi prison.

Legislation relevant to the mission

13. The cases of imprisonment reported to the Working Group since 1991 all relate to criminal charges of terrorism or treason. The Group has received no communications about detentions for ordinary offences.

14. The Group studied anti-terrorist legislation enacted since 1992. Harsh to begin with, many of these laws have either been amended in a positive sense or repealed, an improvement that the Working Group commends highly, as did the Special Rapporteur on the independence of judges and lawyers, Param Cumaraswamy, in his report (E/CN.4/1998/39/Add.1) on his visit to Peru in September 1996. However, the earlier laws were applied in many of the cases brought to the attention of the Working Group and it therefore had to study them in depth so that it could express opinions on the detentions based on them.

15. After the visit, eight “legislative decrees” with procedural and penal provisions were enacted to combat ordinary crime and protect “national security”, along the same lines as the anti-terrorist legislation. Observations are made on these provisions as they could give rise to arbitrary detention.

I. HISTORICAL BACKGROUND TO THE TERRORIST MOVEMENT IN PERU AND ACTIONS TAKEN TO COMBAT IT

16. Terrorism started in Peru on 17 May 1980 with attacks by a splinter group of the Peruvian Communist Party, founded by Carlos Mariátegui. The first action by the group was to destroy the voting materials for the presidential election then taking place in Chuschi. Invoking the “Shining Path which Mariátegui showed us ...”, the splinter group then launched a ruthless war against the State. Soon, the movement became known as the Shining Path, although the name was not accepted by its members. Shining Path is divided into cells and it operates mainly through recruitment under threat of death; a large number of persons are forced to join its ranks without being able to put up any resistance.

17. It is the public perception that the Shining Path declared a “total revolution”, employed violent means to achieve it, and in the process showed contempt for the right to life. Some contend that its genesis could be attributed to each successive Government's historical neglect of the peasant majority. The modus operandi of the Shining Path is the following: when it arrives in a village, it rounds up the population, demands assistance in the form of lodging and food, and kills groups of people to show how powerful it is. It is said that the victims are usually those who have been forced to provide food and lodging for members of the armed forces hunting the Shining Path. The civilian population is apparently caught between subversive and repressive violence. Among the victims are local authorities, mayors and persons with social standing; on occasion the Shining Path is said to have killed up to 80 unarmed civilians, including women and children.

18. Since the capture of its leader, Abismael Guzmán, in 1992, Shining Path has been split between those who, following Guzmán's example, call for peace and those who continue to commit barbarous acts to achieve the demands of marginalized populations, who themselves reject Shining Path's methods.

19. The Marxist Tupac Amaru Revolutionary Movement (MRTA) started its operations in 1984 and is definitely Shining Path's rival; there is no contact or solidarity between them and they are constantly disputing areas of influence. / See the report of the representative of the Secretary-General on internally displaced persons (E/CN.4/1996/52/Add.1)./ The rivalry between them is so great that they have to be separated from each other in prisons. Their cruelty and fighting methods are nevertheless similar.

20. These groups have caused about 30,000 deaths since 1980, including those killed by the armed forces, as well as the exile and displacement of many persons.

21. The State decided to defend society by using military and legal means. The military approach resulted in the deaths of countless non-combatants and in many respects in no way differed from the practices of the subversive groups. Torture was reported so often between 1992 and 1994 that the Committee against Torture and the Special Rapporteur on the question of torture refer to torture as being frequently practised in Peru. / See Official Records of the General Assembly, Fifty-third Session, Supplement No. 44 (A/53/44), para. 202./

22. The main legal instruments are states of exception and criminal and procedural legislation which often does not respect international human rights standards.


II. THE JUDICIARY AND RELATED INSTITUTIONS / A more complete study of the structure of the judiciary and the Office of the Public Prosecutor can be found in the report of the Special Rapporteur on the independence of judges and lawyers (E/CN.4/1998/39/Add.1)./

23. One of the first acts of President Fujimori after the coup he orchestrated on 5 April 1992 was to reorganize the judiciary and the Office of the Public Prosecutor, which had lost prestige in all sectors. Decree-Law No. 25.418 of 7 April, which is designed to ensure “the moral administration of justice”, suspended the 1979 Constitution as being incompatible with it.

24. Thirteen members of the Supreme Court, all members of the Court of Constitutional Guarantees, the members of the National Council of the Judiciary, the Attorney-General of the Nation and 130 magistrates at different levels were dismissed on 9 April. Their replacements were appointed by the Government itself. The new Supreme Court was authorized to evaluate the civil servants under its jurisdiction and to fill vacant posts in other courts.


A. Reform of the judiciary

25. The aim of the reform process is to relieve judges of functions other than purely judicial ones, which were carried out by the plenary of the Supreme Court. The Executive Council was responsible for the management of the Court and the General Management Office had executive administrative functions (Act No. 25.869 of 1994).

26. In 1995, the Executive Commission of the Judiciary (CEPJ) was set up, assumed the functions of the Executive Council and became responsible for implementing the reform. The CEPJ, composed of the presidents of the various chambers of the Supreme Court, takes the initiative on legal matters, evaluates and dismisses judges, and establishes the promotion register for judges. The Executive Secretary of CEPJ is Navy Commander José Dellepiani, who has enormous influence over the whole process. The reform has strong government and international financial backing.

27. In addition to CEPJ, another dual structure body, the Judicial Coordinating Council, was created in 1996. It is responsible, inter alia, for coordinating general policy on the development and organization of judicial institutions and for defining strategies, “without prejudice to the independence and autonomy of each constituent organ”. In future, the entire legal community (the judiciary, the Ministry of Justice, the National Council of the Judiciary, the Attorney-General of the Nation, bar associations, law faculties and, possibly, the police and others) will be a part of its permanent structure. Until the end of the reform (31 December 1998), however, it will be composed only of the judicial organs and of an Executive Secretary, who is entitled to speak and to vote. During this time, the Council will formulate judicial policy. In judicial circles, it is generally believed that, because it replaces the ordinary judicial organs provided for in the Constitution, this Council is unconstitutional. Five of the seven members of the Constitutional Court were of this opinion, but the required constitutional majority to overturn legislation is six.

28. The reform has positive aspects in terms of administration, decentralization, judicial rosters (turnos), operations, and a significant increase in judges' salaries. It is a major achievement to have freed judges from administrative tasks, which are now carried out by “corporate” support services. Good results have been achieved in areas where the system has been operating on an experimental basis, i.e. Lima and Lambayegue, but the backlog has not yet been dealt with in Lima. Computerization appears to have been successful. New courts and services have been created, facilitating notification procedures, rogatory commissions, communications and archives. One hundred fifty provisional courts have been set up to deal with the backlog.

29. Other administrative measures include the distribution of cases to different competent courts, a common court office, the holding of hearings and judicial proceedings in the prisons for reasons of security and economy (which the lawyers interviewed appear to have accepted). The Working Group visited the courtrooms in Castro Castro prison and saw that the facilities were comfortable and that since 1997 equipment that had been used to protect the anonymity of judges had been removed. Separate courts try persons who are imprisoned and persons who are at liberty. “Itinerant” judges and courtrooms have been set up in places where trials are held, thus avoiding the need to transfer case files, accused persons and witnesses. “Permanent courts” operate 24 hours a day, thereby reducing the number of persons held in police custody. Previously, 80 per cent of the persons arrested by the police remained in detention, whereas now, only 20 per cent do. The Supreme Court is considering setting up provisional courts.

30. It was ordered that, in the event of conflicting precedents, the full court must establish which jurisprudence is compulsory.

31. A major effort is being made by the Academy of the Judiciary to train judges.

32. The main criticisms of the reform which have been brought to the Working Group's attention and which threaten its credibility are: neither the legal community nor the general public perceive, as is generally held to be the case, that the reforms are politically neutral; according to many critics, the reform does not deal with important issues such as the independence of the judiciary and, in particular, it does not tackle the thorny problem of the competence of military courts to try civilians or members of the army when the victims are civilians or society as a whole. Another criticism relates to political interference, such as the transfer or dismissal of judges who are critical of the Government. One example is Administrative Decision No. 399 of 14 October 1997, which provides that habeas corpus cases can be heard only by the only two judges specializing in public law, thereby ruling out the participation of judges who have proven their independence (formerly, any criminal judge could hear cases of this kind). Another criticism was directed at the arbitrary change in the composition of the divisions of the Lima High Court, normally done at the start of the judicial year. Moreover, judges and lawyers feel that the Executive Commission of the Judiciary influences the appointment and transfer of judges, as well as the composition of divisions of collegiate courts, something the Executive Secretary categorically denied.


B. Reform of the Office of the Public Prosecutor

33. The Office of the Public Prosecutor is headed by the Attorney-General of the Nation, who is elected for three years by the six-member Board of Senior Prosecutors and may be re-elected for a further two. An act adopted in 1992 stipulated that the post should be given to the most senior prosecutor, account being taken of the time served in a provisional capacity; this postponed until 1997 the election of the present Attorney-General, who is recognized as being independent.

34. Act No. 26.623 established the Executive Commission of the Office of the Public Prosecutor (CEMP), which the Government made responsible for servicing and administering the reform process and for appointing provisional prosecutors. This Act and the amendment thereto (Act No. 26.738) placed a serious constraint on the powers of the new Attorney-General of the Nation by making the new body responsible for appointing senior and provisional provincial prosecutors and bringing a public right of action for ministerial offences against judges and, most importantly, by giving it management responsibility for the service as a whole. The establishment of CEMP may well compromise the transparency of appointments and the independence of the Office of the Public Prosecutor.


C. Provisional status of judges and prosecutors

35. Since the dismissal from their posts of prosecutors and judges in 1992, vacancies in the Supreme Court and among senior prosecutors have been filled by the executive branch and, in more junior posts, by the judiciary itself, by naming “provisional” officials. For the Working Group, this situation, which has existed for six years, is serious because, at present, only 27 per cent of judges and prosecutors (1,456 posts) have tenure. Of the remainder, 16 per cent are provisional (they hold a junior post, but have been provisionally promoted to a more senior post in the hierarchy) and 57 per cent are alternates (judges who are not part of the system of the administration of justice). For the Special Rapporteur on the independence of judges and lawyers, “the trial of persons ... by judges without security of tenure constitutes prima facie a violation of the right to be tried by an independent tribunal” (E/CN.4/1998/39/Add.1, para. 106).

36. The Working Group received many statements critical of Act No. 26.898 of 15 December 1997, which gives provisional judges the same rights, prerogatives and restrictions as tenured judges and would therefore affect the results of key elections in which the latter have a majority such as that for the Supreme Court judge who is to chair the National Electoral Board.


D. Constitutional Court

37. This Court is the body which monitors the Constitution (art. 201). It has jurisdiction in second instance over amparo, habeas corpus and habeas data proceedings which have been dismissed and in sole instance over unconstitutionality actions. A limited number of persons are entitled to bring such actions (the President of the Republic, the Attorney-General of the Nation, the Ombudsman, 25 per cent of members of Congress, 5,000 citizens, the Presidents of Regions and vocational associations in their own areas of specialization). According to the Court's regulatory act, the unconstitutionality of laws must be approved by six of the Court's seven members (86 per cent).

38. The Court's credibility in the eyes of the public and particularly in the eyes of the legal community has been weakened by the dismissal of three of its judges, who considered an interpretative provision of the Constitution with obvious political content to be unconstitutional.


E. National Council of the Judiciary

39. The 1993 Constitution increases the powers of the National Council of the Judiciary, which it declares to be autonomous. The Council is responsible for selecting and appointing, with the approval of two thirds of its members, judges and prosecutors at all levels, except when they are elected by the people (justices of the peace). The Council is required to confirm judges and prosecutors every seven years. The Council is composed largely of members of the legal community (Supreme Court, Board of Senior Prosecutors, bar associations), but also of other social sectors, including the rectors of private and national universities, other vocational associations and, if the Council so decides, business and labour.

40. At present, it does not exercise its basic function: alternate or provisional officials are appointed only in the form described, without the participation of the National Council of the Judiciary, which can also not dismiss Supreme Court judges at present.


III. ANTI-TERRORIST LEGISLATION


A. Penal measures to combat terrorism

41. Since March 1981 (Legislative Decree No. 046), a large number of anti-terrorist laws have been promulgated (Act Nos. 24.651 and 24.700 of 1987, 24.953 of 1988 and 25.031 of 1989), while the new Penal Code (Legislative Decree No. 635) of 1991 contains new provisions on terrorism. The laws have all increased the powers of the police and reduced the supervisory role of judges. They were repealed in 1992, but then replaced by more stringent measures.


1. The new definition of the offence of terrorism

42. Decree-Law No. 25.475 of 6 May 1992 was the first law promulgated by President Fujimori to fight terrorism after he dissolved Parliament. Article 2 provides for prison sentences of 20 years to life for various acts described generically as “terrorism”. Under the law, a terrorist is a person who provokes or maintains a state of terror among the population or part of the population, commits acts against life, physical integrity, health, freedom and security of person or against property, against the security of public buildings, roads or means of communication or any other goods or services, by the use of arms, explosive materials or devices or any other means which may cause criminal damage or serious disturbance of the peace or affect the international relations or security of the State.

43. The penalty depends on where the perpetrator stands in the organization: anyone who orders or commits murder is given a life sentence; other activists who cause damage, loss or injury, 30 years; anyone who “in any form” assists in the commission of terrorist acts, a minimum of 20 years' imprisonment.

44. The vagueness of the definition, particularly of the first part, has given rise to cases of arbitrary detention. The term “acts” (which may not be offences) against life, physical integrity, health, etc. is just as vague, and even more so is the fact that the material objects affected may be “other goods or services”. A person who carries out an attack on property and causes fear in a sector of the population, even if that was not his intention, is as criminally liable as someone who attacks a group of persons with intent to kill.

45. It is, moreover, not good legislative practice to establish only minimum, but not maximum, penalties, thus leaving room for violations of one of the aspects of the principle of legality.

46. Acts of collaboration without criminal intent, a form of criminal participation that is normally not punishable, and the concealment of another crime may be punished. The Working Group received a large number of complaints about this because, in many cases, people collaborated with subversive elements only under duress.


2. The offence of “treason”

47. Decree-Law No. 25.659 of August 1992 penalizes aggravated forms of terrorism (which it terms “treason”) committed in the following ways:

48. The Decree-Law amends the definition of “participation” given in Decree-Law No. 25.475, considering as perpetrators of treason: the ringleaders of terrorist organizations; those given the task of physically eliminating other persons; anyone who provides reports, data or documentation which facilitates the entry of terrorists into buildings or premises so that damage may be caused. Life imprisonment is the only penalty.

49. Such offences have nothing to do with what is usually defined as treason. The Constitution in force when the Decree-Law in question was enacted defined “acts which are accepted as such” as treason (art. 245). Apparently, the intention was to allow the application of the death penalty for terrorist offences, as Peru has been a party to the American Convention on Human Rights since 28 July 1978, i.e. since before the adoption of the 1979 Constitution, and the Convention allows the death penalty for treason. / The American Convention on Human Rights provides that the death penalty should not be re-established in States that have abolished it. In countries that have not abolished the death penalty, its application must not be extended to crimes to which it does not apply at present (art. 4, paras. 2 and 3)./ In the opinion of the Working Group, this is an obvious misuse of terms for purposes contrary to those of criminal law.

50. A number of foreigners have been convicted of treason, apparently on the basis of article 78 of the Code of Military Justice, which provides that this offence can be committed by “any Peruvian by birth or naturalization or any person in any way under the jurisdiction of the laws of Peru”. General Guido Guevara, President of the Supreme Council of Military Justice (CSJM), said that “it is a fallacy that treason cannot be committed by foreigners. If it was committed in Peru, then the Peruvian courts have jurisdiction to try the case. The easiest cases to try are those of treason committed by foreigners”.

51. The extreme vagueness of the Act has caused serious conflicts of jurisdiction, which have led to unacceptable trial delays, as a well-known report, which had a great impact in the country, warned in 1993, stating that “Since the offences of terrorism and treason can easily be confused, it is very possible that a case may be assigned to the wrong court and that inappropriate sentences may be imposed”. / Robert Goldman, Professor at American University and other universities in the United States; Carlos Arslanian, former Minister of Justice of Argentina and former Appeal Court judge, who tried the cases against the members of the Military Juntas which governed Argentina between 1976 and 1983; Fernando Imposimato, judge, former Deputy and former member of the Italian Senate; José Raffucci, United States Navy commander and lawyer in Puerto Rico and the District of Columbia./ The Working Group has been notified of cases in which the accused was twice declared innocent, each time by both courts, before finally being released, whereas in other cases, the individual was acquitted for an act defined in one way by the police only to be convicted later for another offence arising from the same set of facts. In the case of María Elena Loayza Tamayo, the Inter-American Court of Human Rights stated that this procedure is contrary to the principle non bis in idem. / This is a typical case: arrested on 6 February 1993 and brought before the military court on 26 February, she was acquitted in first instance on 5 March. On 2 April, the Navy Court Martial convicted her of the offence of treason, a verdict which was overturned on 11 August by the Supreme Council of Military Justice, which acquitted her, but ordered that she should be tried by the civil courts for the offence of terrorism. Although acquitted, she was held in detention without trial until 8 October, when the trial for the offence of terrorism - for the same act - began in Lima Examining Court No. 43, a trial in which she was convicted. The case was brought to the Working Group's attention.

52. In previous reports (E/CN.4/1993/24, para. 32, E/CN.4/1994/27, para. 63, and E/CN.4/1995/31, para. 51), the Working Group, although not specifically referring to Peru, warned that one of the main causes of arbitrary detentions was the vague definition of “treason”.

53. The Decree-Law penalizes other behaviour such as particular types of association with criminal intent and the offence of endangering others, which do not necessarily have to give rise to any specific harm. Being a member of an armed group with responsibility for killing people is thus deemed to be treason, even if no one is killed.


3. Subsequent laws

54. More than 15 other laws have been promulgated, justified, it is claimed, by the fight against terrorism, and which have led to arbitrary detentions. Some of the most heavily criticized are: the “Repentance” Act, No. 25.499, later repealed; the Act on the Criminal Responsibility of Minors Aged between 15 and 18 Years, also repealed; and Decree-Law No. 25.708, on summary proceedings in the theatre of operations in cases of treason. A particularly well-known law was Act No. 25.880, which made it treasonable for teachers to “influence” their students by “defending” terrorism, thus not only making the definition of criminal offences even vaguer, but also directly affecting academic freedom, which is simply one manifestation of freedom of opinion and expression. In this case, moreover, the trial is held in the military courts and the maximum penalty is life imprisonment. Under Act No. 26.508 of 20 July 1995 any beneficiary of the Repentance Act who commits a terrorist offence is guilty of treason.


4. Extension of the concept of terrorism to ordinary offences

55. Legislative Decree No. 895 of 1998, enacted to “combat organized crime by armed groups”, punishes as a perpetrator of “aggravated terrorism” (even if it is an ordinary offence) any member or accomplice of a criminal group who carries firearms or explosives to commit any offence against life, physical integrity, health, property, individual freedom or public security, even if the perpetrator acts alone. The maximum penalty is life imprisonment. The Working Group believes that this is yet another violation of the principle of legality.


B. Procedural measures to combat terrorism


1. Extension of the jurisdiction of the military courts

56. The 1979 Constitution provided that military courts could try civilians only in the case of evasion of compulsory military service and treason during a war with another country. This important limitation was brought to an end with laws subsequent to 5 April 1992. Article 4 of Act No. 25.659 states that certain offences, such as treason, which are committed by civilians and in which no exclusively military interest is at stake may be transferred to military courts.

57. Article 173 of the 1993 Constitution goes even further, since it allows military courts to try the offences of “terrorism determined by the law”, a law which has not yet been enacted, so that they continue to be within the jurisdiction of the civil courts.

58. Decree-Law No. 25.659 of 1992 also established a procedure, but Decree-Law No. 25.708 provided that summary proceedings would apply to trials “in the theatre of operations”.

59. There are six areas of military justice. At the first level are the judges (around 30) who conduct the investigations and hand down sentences, of whom 50 per cent are military lawyers, according to the President of the Supreme Council of Military Justice (CSJM), General Guevara. At the second level are the courts-martial, made up of three military judges, one of whom is a lawyer. The highest level is the Supreme Council of Military Justice, which is composed of eight judges, an auditor and a public prosecutor, which functions in Chambers with five members, three of them lawyers.

60. Conflicts of jurisdiction between civil and military courts are settled by the Supreme Court (art. 141 of the Constitution). This is the only area where the civil courts have pre-eminence over military courts since the other case provided for is an appeal on cassation in the event of the death penalty for treason in wartime, which is not applicable.

61. The President of the CSJM reported that since August 1992, the military courts have tried 1,628 civilians, with the following results:

Sentenced to life imprisonment 370 persons

to 30 years' imprisonment 123 persons

to 25 years 81 persons

to 20 years 95 persons

to 15 years 38 persons

Total sentenced 707 persons

Acquitted 39 persons

Referred to the civil courts 315 persons

Still on trial in the military courts 567 persons

62. Although neither the Universal Declaration of Human Rights nor the International Covenant on Civil and Political Rights prohibits military justice from trying cases in which the accused or the victims are civilians, the practice in many countries, as the Working Group has verified, has shown that this often tends to be a source of injustice, particularly with regard to impunity for human rights violations, / In Peru, it has been the rule that not only members of the armed forces, but also members of the National Police are subject to what is known as “exclusive jurisdiction” (“fuero privativo”)./ and the cause of arbitrary detentions, which are of particular concern to the Working Group.

63. The Group asked the President of the CSJM whether or not military personnel who act as judges are still subject to the chain of command. He said that military personnel in the system of military justice are outside the military chain of command. However, all the lawyers questioned indicated that the opposite is true.

64. Legislative Decree No. 895 of 1998 gave military courts jurisdiction over ordinary offences committed by armed groups.


2. Measures to protect judges

65. Act No. 25.475 on “faceless judges”, applicable to ordinary courts, was improperly applied to military courts. It provided that the identity of judges, members of the Office of the Public Prosecutor and auxiliary staff should be kept secret at all stages of a trial. Decisions would not be signed, but the judges' identification codes would be recorded. Voice-distorting microphones and image distorters were installed. The Act was due to expire on 14 October 1995, but was extended, expiring on 14 October 1997. Although the Act has, wisely, been repealed, the Group is obliged to analyse it, as many of the prisoners whose cases are under consideration were tried under it. Since the withdrawal of anonymity, the Permanent Criminal Chamber of the Supreme Court is now the last resort for persons accused of terrorist offences.

66. The Government explained that the anonymity of judges was for their protection, as several of them were said to have been assassinated between 1983 and 1994. The Special Rapporteur on the independence of judges and lawyers reported that, “from 1992 to 1997, judges were not targets of the terrorist-related violence” (ibid., para. 74). The Government also repeatedly reported that the legislation was provisional and that it was repealed as a result of the success of the pacification process.

67. The Working Group received complaints that the system was a source of injustices: one person sentenced to 20 years' imprisonment said that the voice distorters “only made noise. I never heard the questions; I asked them to repeat them for me, but I don't know whether they did so” (Margarita Chiquiure, Santa Monica Prison, quoted by permission).

68. The Working Group understands that the State must protect its judges so that they can act without fear of reprisals. Only in this way can the right of the person on trial to be tried by an independent and impartial judge be respected. However, the Group also believes that such an exceptional and disproportionate measure - to use the words of Supreme Court judge Carlos Ernesto Giusti, killed during the rescue of hostages from the Japanese Ambassador's residence - should be accompanied by adequate safeguards and controls in order to ensure a fair trial and to establish the responsibility of the judges. Otherwise, the requirements of article 14 of the International Covenant on Civil and Political Rights would not be met, as stated by the Human Rights Committee in its preliminary observations (CCPR/C/79/Add.67), its concluding observations (CCPR/C/79/Add.72), and in its views on the communication concerning Victor Polay Campos (No. 577/1994).


3. Changes in criminal procedure

(a) Civilian courts

(i) The police investigation

69. As Ronald Gamarra maintains, trials for terrorism are based on the principles of exceptionality, summariness and secrecy. / Ronald Gamarra, Terrorismo. Tratamiento Jurídico, Legal Defence Institute, May 1996./ Proceedings are summary (investigations lasting not more than 50 days, trial lasting up to 15 days, proceedings before the Supreme Court lasting up to 15 days), with both automatic imprisonment and a prohibition on release during the investigation; trial in camera; limitation on the equal treatment of evidence; excessive weighting of the police investigation; restriction of the rights of the defence; until 1997, anonymity of judges; and lack of responsibility for legal actions and sentences.

70. In principle, the preliminary investigation should be the responsibility of the Office of the Public Prosecutor, in conformity with article 159 of the 1993 Constitution; the police should only carry out its orders. Nevertheless, Decree-Law 25.475 provides that, in the investigation of terrorist offences, it is the responsibility of the National Police of Peru “to conduct the police investigation” and, if it is not able to do so, then the Armed Forces should. The law orders the National Anti-Terrorism Department (DINCOTE) to guarantee the rule of law and respect for human rights and international treaties and, to this end, to request that a representative of the Office of the Public Prosecutor be present.

71. The time limit for bringing the detained person before a judge is 15 days, but in cases involving the offence of treason, it may be doubled, despite a provision to the contrary in the 1993 Constitution. The competent judge, the public prosecutor and the military court (in cases of treason) only have to be “notified” within 24 hours of the arrest, which is not what article 9, paragraph 3, of the Covenant or principle 11 of the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment require. Moreover, the National Police has the power to order the prisoner held incommunicado.

72. In areas where there are no representatives of the police, the Armed Forces may arrest suspects but have no power of investigation. But according to testimony that has been heard, the Armed Forces have often taken the place of the National Police and hold detainees for long periods. The allegations of torture relate to this period, as indicated by the Special Rapporteur on torture, Mr. Nigel Rodley, in his most recent reports (E/CN.4/1996/35, paras. 124-136, and E/CN.4/1997/7, para. 157), in which he cautiously welcomes measures designed to put an end to impunity. The same concern was expressed by the Human Rights Committee (A/51/40, para. 354). The cases of Luis Armando Quevedo (No. 86-93, Lambayeque High Court), Primogénito Losada and others (No. 110-93, Lambayeque), Gumercindo Tolentino (No. 755-94, Junín High Court) and others show that torture has been widespread, but has become less so recently.

73. Initially, during police interrogation the detained person did not have a lawyer, who “shall be able to intervene only from the time when the detained person makes a statement in the presence of the representative of the Office of the Public Prosecutor”, which could be up to 15 days after the arrest. This was a breach of the rules and of principle 17 of the Body of Principles. Act No. 26.447 provides that persons accused of the offence of terrorism have the right to appoint a defence counsel of their choosing from the start of the police investigation, and that counsel can be present during the statement to the police; this is clearly a big step forward.

74. The “statement” or extrajudicial declaration is made at this stage. The lawyer and the representative of the Office of the Public Prosecutor should be present. In practice, according to complaints by NGOs and lawyers, the participation of the Office of the Public Prosecutor is particularly deficient. In the provinces, it is rare. An investigation by a reputable human rights defence organization states that 87 per cent of prisoners said that they saw no public prosecutor during the police investigation.

75. The investigation ends with the sworn statement (if a person has been detained) or the report (if no one has been detained), by means of which the court and the Office of the Public Prosecutor are informed of the steps taken. The sworn statement or report does not require the Office of the Public Prosecutor to bring a charge or the judges to hand down a sentence. The police often assign cases to the wrong court, one which does not have jurisdiction (see para. 51).

(ii) Incommunicado detention

76. A person can be held incommunicado in police custody with the knowledge of, but without an order from or the authorization of, the Office of the Public Prosecutor and a judge. The law limits this power to cases where “the circumstances and the complexity of investigations make it necessary”, but all the interviewees stated that they had been subjected to incommunicado detention in police premises. None of them stated that they had received a visit from a lawyer while being held incommunicado. Fortunately, Act No. 26.447 of 20 April 1995 recognized that a person being held incommunicado has the right to speak with a lawyer.

77. It was said that prosecutors usually do not analyse the evidence collected by DINCOTE or the Armed Forces and limit themselves to reproducing the sworn statement, which will later become the basis of the accusation and subsequently of the sentence.

(iii) Examination proceedings

78. The examination is the investigation carried out by the judge. On receipt of the charge from the prosecutor, the judge initiates investigations which must be completed within 30 days, extendable for another 20 days if there are many persons accused or if it has not been possible to gather substantial evidence. Recently, it has been understood, with good reason, that the prosecutor is free to decide whether or not to bring charges.

79. Originally, article 13 (a) of Act No. 25.475 provided, in cases of the offences of terrorism and treason, that “without any exceptions, no type of release is appropriate”. This severity was partially tempered by Act No. 26.248, which allowed unconditional release once the innocence of the person was established. Even in this case, however, release does not take place until it is approved by the High Court.

80. The most serious situation is that which the person deprived of liberty faces at the beginning of the examination. The judge may order an investigation if he considers it proven that an offence was committed, even if he is convinced that the person arrested by the police is not responsible for the offence. The law rules out the possibility of releasing the person, since it provides that “the judge shall issue the order for the start of the investigation by issuing an arrest warrant”. It is, therefore, the police that, de facto decides the defendant's fate. This has been one of the phenomenon of “innocent prisoners” who have not been brought to trial (see chap. VII).

81. Once the examination has ended, the Office of the Public Prosecutor issues a legal opinion with its recommendations, after which the judge draws up a report stating whether the accused is innocent or guilty. There have been cases in which the prosecutor considers that the accused is innocent, but nevertheless brings charges (for example, in the case against José Luis Gutiérrez Vivanco, in the Lima High Court).

82. Once the case has been referred to the High Court, the High Court prosecutor may request oral proceedings. If he considers it inappropriate and the Court agrees, the release of the prisoners is ordered. Otherwise, oral proceedings are begun.

(iv) Oral proceedings

83. In principle, oral proceedings are public. This is a right protected by article 14 of the International Covenant on Civil and Political Rights. Terrorism cases were tried in camera, it being understood that they could not last more than 15 consecutive days. Since the suppression of “faceless” judges, the trials are public, but access to the courtroom is difficult.

84. Since the appearance in court of the officials who prepared the sworn statement is ruled out and the appearance of witnesses is restricted, the proceedings are limited to questioning the accused again; until October 1997, voice distorters were used and often did not reflect what the person said.

85. A common complaint is the lack of time to prepare the defence. “I was told on Tuesday at 8 p.m. that the trial was the following day; I did not even manage to read through the case file”, said a lawyer. Another said, “They informed me on the morning of the previous day that the trial would be the following day. I had to share the case notes with four other lawyers. I managed to study a little, but I did not have time to see my client to ask him about what I had read. The trial took place the following morning and, by 12 noon, my client was sentenced to life imprisonment.” There were many testimonies like these. This situation is another cause of “innocent prisoners”.

(v) Sentencing

86. The trial ends either with acquittal or conviction.

87. There are also complaints in regard to sentencing. Some sentences do not take account of the accused's defence, but simply repeat the facts contained in the sworn statement, reiterated also by the prosecutor. The examination of a large number of sentences appears to confirm this finding. In the case of Mr. Gutiérrez Vivanco, mentioned above, the sentence takes it for granted that he contributed to the statements made to the police by the people who were arrested with him but whom he had never seen before (sentence of 17 June 1994, upheld by the Supreme Court on 28 February 1995). The defence counsel for Violeta Robles, case No. 40-95, added that the defence was a formality because the sentence had already been prepared and was read out as soon as the pleas had been made.

88. This would appear to be confirmed by the very large number of convictions. According to the prosecutor of Chiclayo High Court, statistics show that, in 1997, the Court convicted 635 persons and acquitted 589. / Nevertheless, the legal texts examined mention more cases ending in acquittal than conviction. Lawyers explain this anomaly by the fact that books publish cases which may be useful in defending other cases.

89. A member of the Supreme Court told the Working Group that, in Peru, it is not customary explicitly to compare the statements of the prosecution and of the defence, but that judges do consider what is said by both parties.

(vi) Legal remedies

90. The remedy against a judgement by the High Court (“faceless” or open), although referred to as annulment, is designed to bring about a modification of the judgement regarded as unjust. This remedy can be lodged either by the prosecutor or by the convicted person.

91. The first-instance judgement is reported to the Supreme Court prosecutor, but no special action by the defence lawyer is provided for, although written submissions are permitted. A panel of judges appointed by the President of the Supreme Court hands down the judgement, stating whether or not the sentence appealed is annulled.

92. Between 1993 and 1997 the Supreme Court heard 5,339 cases for offences of terrorism and overturned 844 judgements (15.81 per cent).

(b) Military courts

93. In cases relating to the offence of treason which are tried by military courts, the procedure is similar to that for the offence of terrorism, with some significant differences:

(a) The time limits are reduced by up to two thirds: the investigation thus lasts for up to 10 days, extendable by 6 days. The oral proceedings cannot last for more than five days, and the remedy of annulment must also be decided within five days. Moreover, since September 1982, summary proceedings are applicable to these offences for trials in the theatre of operations, which require the judge to rule within 10 days;

(b) Originally, legal remedies such as habeas corpus were not admissible at any stage of the proceedings, but it has since been restored with certain conditions;

(c) However, the time limit for the police investigation is not reduced; extrajudicial detention, by the National Police of Peru in the case of the offence of treason and authorized for a period of 15 days, can be extended for the same amount of time, at the request of DINCOTE;

(d) Incommunicado detention can be extended for the entire period of extrajudicial detention;

(e) Neither persons who contributed to the sworn statement nor the members of the Armed Forces who carried out the arrests can be called as witnesses;

(f) No benefit of any kind established in the Penal Code or in the Code on the Enforcement of Criminal Sentences is applicable to persons who are awaiting trial or have been convicted;

(g) The examination and the sentence in first instance are the responsibility of a military judge; the trial takes place in a court martial, with the only counsel being a military lawyer;

(h) The Supreme Council of Military Justice (CSJM) reviews sentences handed down by the court-martial as a result of the aforementioned “remedy of annulment” only when the penalty imposed is 30 years' deprivation of liberty or more; no appeal to a civil court is possible. A bill to remedy this situation, submitted in 1995, was shelved without discussion;

(i) Lawyers question the short period allowed for preparing the defence. The United States citizen, Lori Berenson, said “during my statement, I had no lawyer and, during the trial, the only thing they asked me was whether I intended to appeal, as the sentence was ready” (quoted by permission).

4. Restrictions on the use of particular forms of evidence, primarily witness evidence

94. The current text of article 13 of Act No. 25.475 prohibits persons involved in the drafting of the police report and “repenters” from appearing as witnesses; this is a violation of the right of defence, as provided for in article 14, paragraph 3 (e), of the Covenant. Moreover, this provision becomes a guarantee of impunity for any official who engaged in torture and other prohibited forms of treatment during interrogations.

95. All evidence is not given equal weight. The Working Group questioned a person sentenced to 20 years' imprisonment for the offence of terrorism, in whose case the only evidence was documents found in his home and whose authorship he denied, adding a verifiable fact: another person had lived in the house before and, when he moved in, the documents were already there. The police graphological evidence supports the theory that the documents were by the accused, but a private expert study shows the opposite. The Working Group has no details to enable it to believe either the accused or the police, but finds that it is contrary to the norm, embodied in the Covenant, that the court hear expert testimony requested by the defence. In the Gutiérrez Vivanco case, referred to above, a young man with a disabling heart condition was accused and convicted of armed assault on the basis of a police sworn statement, despite the fact that neither the witnesses nor the victims recognized him.


5. Repentance Act

96. To combat terrorism, the Government has encouraged members of subversive organizations to dissociate themselves from those groups. The aim was “to pacify the country, eliminate the problem of subversion and give those on the wrong track of terrorism an opportunity by providing them with guarantees of safety and privacy within the unconditional framework of human rights”.

97. The first Act aimed at pacifying the country was Act No. 25.499 of 16 May 1992, which established three benefits for deserters: (a) a reduction in sentence for a person who abandons terrorism and confesses to the acts in which he participated; (b) exemption from punishment for the person providing information leading to the group being put out of action; (c) a suspension of sentence for a convicted person providing information leading to the routing of a terrorist group. This Act does not apply to those responsible for the most serious crimes or to those who took part in offences which caused loss of human life. It requires that the statement made by the repenter must be proven.

98. The beneficiary is guaranteed that his identity will remain secret, as well as a change of identity, maximum measures to ensure his safety and physical integrity, welfare benefits and the extension of these benefits to his family.

99. The Act extended these benefits to peasants captured by terrorist groups and forced by threats to participate in terrorist activities. In 1993 these benefits were further extended to those involved in treason. The Act was abrogated on 1 November 1994 by Act No. 26.345.

100. According to the Act's Evaluation Commission, 8,390 persons benefited from the Act and most of them are now apparently at liberty. Nevertheless, in August 1997, 378 of them were still prisoners.

101. The Working Group notes that legislation concerning repentance of members of subversive groups is not directly contrary to international human rights instruments, but, as the Group saw in Peru, the risks of abuse the implementation of such legislation entails are considerable, since it gave rise to the phenomenon of “innocent prisoners”.

102. Genuine repenters interviewed in Picsi claimed that promises of freedom had not been kept. Others said that they felt “cheated because the guarantees offered are not respected, as in the case of Crisanto Tiquillahuanca, who was murdered by militants of Shining Path”. Although the repenters who are still in prison are isolated from the militants, they run the risk of being identified by their former comrades.

103. Peasants convicted of crimes which they were forced to commit protested that they had not received what they had been offered. According to the Ombudsman, this is because their situation was regarded as being cases of repentance and, as such, subject to the established administrative or legal procedures, and not, as the peasants thought, as cases not involving criminal responsibility or, consequently, punitive prosecution (Ombudsman's decision No. 040/97/DP).

104. However, the main complaints come from the victims of the repenters' testimonies. NGOs in Chiclayo said that in Chulucanas, one repenter was responsible for denouncing more than 200 persons, all were arrested, and they in turn denounced others. It was said that, in one case alone, No. 117/93, charges were brought against more than 80 persons as a result of denunciations by repenters. There was so much lying that 60 of them were freed; other examples were also cited. One well-known lawyer stated that “many members of the Shining Path gave out names in a completely irresponsible way, naming union members, journalists, local leaders, and all of them were imprisoned”, since, “to justify its existence, DINCOTE forced detainees to repent for practically anything”. One lawyer said that even the titles of the “leaders” -who attract the harshest penalties - were false: “On recruitment, they name the military chief, the civilian chief, etc., and, in the end, those people are convicted for their titles'”; “the most serious thing is that judges do not require proof of what the repenter has said”. This last criticism was heard over and over.

105. Other abuses also occurred: (a) many testimonies given during the time the Act was in force continue to be invoked informally; (b) DINCOTE continues to interrogate repenters; (c) the arrest warrants continue to be valid (see para. 166).

106. Another serious criticism is that repenters are not allowed to be cross-examined during trial.

107. Legislative Decree No. 901 of 1998, which uses the term “cooperation” rather than the term “repentance”, has re-established certain benefits to “combat crime, thereby facilitating the cooperation of the persons involved”.

IV. PRISON REGIME FOR PERSONS CONVICTED OF TERRORIST OFFENCES AND TREASON

108. Although material prison conditions are not directly within the Working Group's mandate, the Group will inevitably take note of them when visiting a country, as it did in Peru. In Peru, there are 89 prisons with a population of 24,408 inmates, of whom 13 per cent are on trial for or have been convicted of the offences of terrorism or treason; 91.8 per cent are men and 8.2 per cent women.

109. The prisons are administered by the National Prisons Institute of the Ministry of Justice, which is also being reorganized. Prisons for terrorist prisoners are within the jurisdiction of the Ministry of the Interior.

110. The Ombudsman said that security is more important than treatment in prisons, “despite the fact that, in accordance with article 139, paragraph 22, of the Constitution of Peru, the basic objective of penitentiary regimes is re-education, rehabilitation and reintegration into society”.

111. Persons accused of terrorism and treason are separated from those accused or convicted of ordinary offences. The former are separated politically: members of Shining Path, members of the Tupac Amaru Revolutionary Movement and the “independents”, who include those who do not belong to these movements and those who no longer belong to these movements, particularly the repenters.

112. In the maximum security prisons, the regime applicable to prisoners held for terrorist-related offences and treason, the living conditions and the system of visits are very harsh, although improvements are being made. Prisoners are confined to their cells and are allowed no visits during the first year. Later, they are subjected to forced labour and are allowed only one visit a month for one hour by their three closest family members. This regime is now weekly, but for those who are imprisoned in towns other than where their family lives, such improvements are largely academic.

113. In Picsi Prison, there were 1,053 inmates, of whom 327 were being held for terrorism. They included 104 “repenters” (99 sentenced and 5 on trial). Of the remainder, 159 were convicted and 64 accused. Politically, 251 were from Shining Path and 76 were from Tupac Amaru. They were housed in two-person cells and in “blocks” of 20 to 30 inmates.

114. The new section of the same prison housed 142 prisoners, of whom 2 were convicted of ordinary offences and they were the cooks - which was the only way to avoid suspicions or favouritism in the matter of food among the two groups of offenders. Of the remaining 140, 130 were convicted and 10 were awaiting trial; politically, 113 were from Shining Path and 29 from Tupac Amaru. As of this year, the prisoners have had up to one hour of “sunshine” and one weekly visit.

115. In Santa Monica Women's Prison for persons convicted of treason and terrorism, there were 285 inmates who, until October 1997, had had only half an hour daily in the prison yard and, since that date, have been subject to the following regime: (a) special maximum security: 116 prisoners, separated politically, with one hour in the yard per day and one hour-long visit per week speaking through a grille in the visiting room; they can only work in their cells; (b) “improved category”: 19 prisoners with the same regime of visits and yard exercise, but without separation for political reasons; (c) medium security: 84 prisoners, with two hours daily in the prison yard and two hours of visits without the visiting room grille; they can work outside their cells; (d) the 66 remaining inmates (minimum security) have an open regime of work, 4 hours a day in the yard and 4 hours of visits, and both adults and children can visit. The “repenters” are separated from the first group.

116. Yanamayo prison, a maximum security prison, is near Puno and houses 369 inmates, 33 of them women. The range of sentences is striking: 50 per cent (184, of whom 19 are women) are sentenced to life imprisonment, 150 others to a variety of very long sentences, and only 35 are awaiting trial. They are separated by party: 288 from Shining Path, 53 from Tupac Amaru, and 9 independents, plus 19 “felicianistas” (Shining Path dissidents who continue the armed struggle).

117. Castro Castro, a high-security prison, housed 395 common-law convicts considered dangerous (drug traffickers), separated from 995 “terrorists” subject to a different regime. Accused and convicted persons are not separated, which is contrary to the United Nations Standard Minimum Rules for the Treatment of Prisoners.

118. Lurigancho was built for 1,800 prisoners, but today houses over 6,000, all for ordinary offences. The main complaint of the persons interviewed was the scarcity of work materials and the slowness of trials, which meant that 96.4 per cent of the prisoners were awaiting trial and only 3.6 per cent were convicted (among those imprisoned for terrorism, 68.8 per cent were awaiting trial and 31.2 per cent were convicted). They were informed of their rights and had a system for complaining to the authorities. They are entitled to one weekly visit.


V. THE SITUATION OF FORCED CONSCRIPTS

119. Commission resolution 1997/50 enables the Working Group to examine cases of deprivation of liberty other than “arrest” or “detention”. Such is the case of the “levies” that have frequently been reported to the Group. The term applies to forced recruitment by the Armed Forces of young men allegedly old enough to perform compulsory military service. Complaints have been made that minors under 18 years of age and even children under 15 years of age have been conscripted in this manner. Levies are made easier because subversive groups have destroyed public records, which makes it difficult to prove one's age, although cases have also been reported in which the military were the ones who destroyed the records.

120. Regrettably, in those cases in which an application for habeas corpus was filed, it was not successful (Constitutional Guarantees Court, habeas corpus on behalf of Jorge Briones. El Peruano, 22 August 1987). The judges allow only public documents as proof of age, rejecting other means such as expert witness statements.

121. The Working Group hopes that the new legislation adopted by the Peruvian Government on 9 November 1998 (Law No. 26.989 amending article 7 of the Law on Compulsory Military Service and prohibiting forced recruitment) will put an end to the practice of “levies”.


VI. CAUSES OF ARBITRARY DETENTION

122. The Working Group regards as arbitrary deprivations of liberty those which come within one of the categories mentioned in its terms of reference. It is recalled here that Peru is a party to the International Covenant on Civil and Political Rights. The Group did not note any cases of deprivation of liberty without any legal basis (category I of its methods of work).

A. Violation of the right to freedom of expression (category II)

123. Although in principle action to combat incitement to violence is legitimate, the Working Group has dealt with prison sentences which are based on the offence of “advocating terrorism” and may be categorized as arbitrary: one person was sentenced for painting a hammer and sickle (this is not advocating terrorism or eulogizing a terrorist) on the basis of the precedent of “proceedings” for a terrorist offence (Supreme Court judgement, 20 April 1994, case No. 623-93). Another was sentenced for possession of subversive literature and the assumption that he had used it in indoctrination (Supreme Court, 30 January 1995).

124. Arbitrary arrests are carried out under Act No. 25.880 (see para. 54).


B. Serious violations of the right to a fair trial (category III)


1. The right to habeas corpus

125. Habeas corpus, a right protected by article 9, paragraph 4, of the International Covenant on Civil and Political Rights, is recognized in article 200 of the 1993 Constitution. In this provision, which is highly valued in legal writings and by human rights defenders, it is also stated that this right cannot be suspended during states of emergency. The law allows it to be invoked even when imprisonment is ordered by a judge.

126. Habeas corpus was suspended until 25 November 1993 for persons arrested for the offences of terrorism or treason. It was restored by Act No. 26.248 with restrictions: only a judge specializing in terrorism, where such exists, can try such cases; the petitioner must be identified; the petitioner may not challenge the jurisdiction of the court; and other, similar, restrictions.

127. The Working Group regrets that there are judges who continued to apply the prohibition after it was repealed: the action on behalf of the lawyers Ernesto Messa, Carlos Gamero, Luis Ramón, Teófilo Bendezú and Freddy Huaraz was thrown out on the basis of the repealed Act (15 December 1997, case No. 287-97-HC, Judge Percy Escobar, upheld by the Provisional Corporative Chamber Specializing in Public Law).

128. Other limitations on the effectiveness of habeas corpus result from the refusal of military courts to give due regard to decisions of the civil courts. The Working Group was of the opinion that the detention of Gustavo Adolfo Cesti, ordered by the military court in contravention of a release order contained in a habeas corpus action, was arbitrary (Opinion No. 18/1997). General Rodolfo Robles told the Working Group that he was not released by the military court as ordered by the ruling in the legal protection action handed down by Judge Elba Minaya because it was considered that the ruling would interfere with military affairs. The same judge said that, in another situation, she had tried official habeas corpus proceedings in DINCOTE premises and ordered the release of a detainee. As a result criminal action was taken against her on charges of violence, resisting authority in violation of judicial functions and terrorism (Ministerial decision of 7 July 1997). Judges in the Public Law Chamber of the Lima High Court who accepted legal protection actions against military courts were also accused of obstructing justice.

129. The remedy of habeas corpus, which is regarded under the Constitution as a human right, is available against all authorities. The Working Group considers that the interpretation of military courts which considers this remedy to be available only when deprivation of liberty is challenged before a civil court to be without any legal basis.

130. The Working Group regrets that Legislative Decree No. 900, which amends the law on habeas corpus, gives sole jurisdiction in such actions to judges specialized in public law, for ordinary offences known as “aggravated terrorism”.


2. Nullum crimen sine lege

131. Article 11, paragraph 2, of the Universal Declaration of Human Rights states that “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed”, a rule which is repeated in article 15 of the International Covenant on Civil and Political Rights. This is the principle of legality.

132. The vagueness of some of the criminal laws analysed and the offences referred to in the 1998 laws is a serious violation of the principle of legality.


3. The right to a public trial

133. As stated in paragraphs 83 and 84, the right to a public trial, as provided for in article 14 of the Covenant, is being violated. Moreover, in the military courts, it is very difficult to become acquainted with the text of sentences, since these are read out and copies can be obtained only occasionally.

134. However, there is no doubt that it was the institution of anonymous judges that in the past most flagrantly violated this principle, as reflected in paragraphs 65 to 67 of this report, and as dealt with by the Special Rapporteur on the independence of judges and lawyers in paragraph 73 of his report.

4. The right to a fair and public hearing by a competent, independent and impartial tribunal

135. This right has been seriously jeopardized as a result of the dismissal of judges and prosecutors and their replacement by individuals appointed by the executive branch immediately following the 5 April 1992 coup, and especially by the lack of irremovability of provisional and substitute judges and the fact that challenges are prohibited by law.

136. Judges, especially military judges, show partiality in the treatment of accused persons. The Working Group believes that judges must limit themselves to the evaluation of facts and the application of the law, without displaying personal feelings. This principle is not respected where a judgement states that the accused “has cynically denied the facts presented in these proceedings” (Navy examining magistrate PL-10005000, case No. 009-TP-94-LC of 24 June 1994). It was also not an impartial judge who said that lawyer Ramón Landauro “has admitted self-confidently that he cannot explain why his name appears in this list, cynically stating that ...”.


5. The right to be presumed innocent

137. The presumption of innocence, which is protected under article 2, paragraph 24, of the Constitution, is not rigorously applied. The judgement handed down by the Lima High Court on 20 October 1994 (case No. 95-94) states that the accused cannot be released, as “there is no substantive evidence to prove that she is innocent beyond a reasonable doubt ...”. It is not often that such harsh sentences are handed down, but the lawyers interviewed indicated that there often is “natural animosity” towards persons accused of terrorist offences.

138. The presumption of innocence is also violated if prisoners are displayed to the press wearing prison clothes and carrying degrading posters when they are being transferred to court, a practice which is prohibited under Decree 01/95, except in the case of the leaders of terrorist organizations.

6. The right to be brought promptly before a judge or other officer authorized by law and to be informed of the nature and cause of the charge

139. The contents of paragraphs 71 and 93 (c) have led the Working Group to conclude that the time it takes before persons are brought before a judge is not compatible with the idea of “promptly”, as provided for in article 9, paragraphs 2 and 3, of the International Covenant on Civil and Political Rights.

140. The Working Group was also informed of cases such as that of Alfredo Carrillo, a minor who was held by DINCOTE from 10 January to 18 February 1993 (Opinion No. 13/1995).


7. The right to be released on bail

141. The situations described in paragraphs 52, 80 and 81 and the relevant provisions of Legislative Decree No. 895 of 1978 are not consistent with article 14 of the Covenant (pre-trial detention should be the exception, but release may be subject to guarantees to appear for trial).

8. The right to have adequate time and facilities for the preparation of one's defence and to communicate with counsel

142. Article 14, paragraph 3 (b), of the Covenant, the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Prisoners in Havana in 1990 and principles 7 and 8 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment seem to be seriously undermined, as shown by paragraphs 73, 76, 77, 85 and 93 (i), although the initial harshness was eliminated as a result of the adoption of Act No. 26.447. The prohibition on defence lawyers defending more than one person at a time was also repealed on 25 November 1993.

143. In Opinion No. 13/1995, concerning the case of the minor Alfredo Carrillo, the Working Group noted that the accused had had no defence and, even though the lawyer had been present during the interrogation, he had been totally passive and did not participate in any other part of the proceedings.

144. In 1994, the DINCOTE Anti-Terrorism Security System Headquarters asked the Bar Association of Piura for information on 260 lawyers, many of them outstanding human rights defenders, allegedly as part of an investigation into the illegal practice of the law by those lawyers. NGOs have argued that, if that were so, it did not explain why so many of the persons under investigation were defenders of so-called terrorists or why this was of concern to the intelligence unit. The report of the Special Rapporteur on the independence of judges and lawyers (paras. 125 and 126) mentioned other cases of harassment of lawyers.

145. The Working Group interviewed lawyers arrested in November 1997 on charges of treason. They said that the only charge that might cause them problems was that they had defended persons accused of terrorist crimes and treason. Carlos Gamero, the defence counsel for Abismael Guzmán, was sentenced to life imprisonment for treason and there are other similar cases. The Working Group accordingly regards as positive, in this area, the repeal of the measures that led to these irregularities, in particular the repeal, through the Act of 25 November 1993, of the rule prohibiting a lawyer from defending several people at the same time. In view of the remaining risks, it encourages the Peruvian Government to persevere with these repeals and reforms.


9. The right to examine, or have examined, witnesses

146. The restrictions on evidence referred to in paragraphs 84, 93 (e) and 94 and those contained in the 1998 laws are a violation of the rights provided for in article 14, paragraph 3 (e), of the Covenant. This is also the opinion of the Special Rapporteur on the independence of judges and lawyers (paragraph 63 of his report).


10. The rights of juvenile detainees

147. Decree-Law No. 25.564 of June 1992 lowered the minimum age of criminal responsibility for terrorist offences from 18 to 15 years, which, in the Working Group's opinion, is “too young” for the beginning of criminal responsibility and is inconsistent with principle 4.1 of the Beijing Rules. The courts made the Decree-Law applicable to the offence of treason, which is contrary to its provisions, as stated by the Working Group in its Opinion No. 13/1995. It was brought to the attention of the Group that many minors were given life sentences, contrary to principle 17 of the Beijing Rules on proportionality and the needs of juveniles.

148. That Decree-Law was effectively repealed by the 1993 Code on Children and Adolescents and later expressly repealed by Decree-Law 26.447 of 1995. However, over 40 juveniles under 18 years of age have been tried or sentenced. The authorities have tried to blame a lack of documentation resulting from the destruction of public records by subversive elements. Regrettably, no other means were used to verify the ages of the persons concerned. For example, Ruth Karina Alvis was abducted by Shining Path; she was detained, tortured and sexually assaulted in military premises; she was later sentenced to 25 years' imprisonment for acts of treason allegedly committed during the period of her abduction. On 6 March 1997, the Supreme Council of Military Justice overturned the sentence, but, despite proof that the alleged acts took place when she was 17 years old, it ordered that she should be tried for the offence of terrorism. In January 1998, the trial had still not begun.


11. The right to have one’s sentence reviewed

149. The restriction of the right to have one’s sentence reviewed, as referred to in paragraph 93 (h) of this report, violates the guarantee provided for in article 14, paragraph 5, of the Covenant.

12. The right not to be tried twice for the same offence (non bis in idem)

150. The principle of non bis in idem, which is provided for in article 14, paragraph 7, of the Covenant, may be violated as a result of: (a) the assignment of cases to the inappropriate court by the police (para. 51); and (b) the reopening of cases in which the accused has been tried and acquitted (paragraph 57 of the report of the Special Rapporteur on the independence of judges and lawyers). This view is shared by the Working Group.

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