Distr.
GENERAL

E/CN.4/1998/39/Add.1
19 February 1998


Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Fifty-fourth session
Item 8 of the provisional agenda

QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT



Report of the Special Rapporteur on the independence of judges
and lawyers, Mr. Param Cumaraswamy


Addendum

Report on the mission to Peru

CONTENTS

Introduction

I. GENERAL BACKGROUND

A. Human rights situation prior to the events of 5 April 1992 and subsequent events related to the judiciary
B. Current human rights situation as it relates to the judiciary
C. Brief overview of judicial institutions

II. EXCEPTIONAL MEASURES IMPLEMENTED BY THE PERUVIAN GOVERNMENT TO PROSECUTE CIVILIANS CHARGED WITH TERRORISM AND TREASON

A. Anti-terrorist legislation enacted by the Emergency and National Reconstruction Government
B. The anti-terrorist legislation in light of international standards
C. The Ad Hoc Commission for Pardons

III. INDEPENDENCE OF JUDGES AND PROSECUTORS: THE ONGOING JUDICIAL REFORM IN PERU
A. The need for judicial reform
B. The Peruvian judicial reform process in light of international standards

IV. SITUATION OF LAWYERS AND HUMAN RIGHTS DEFENDERS

V. CONCLUSIONS AND RECOMMENDATIONS

Introduction
I. GENERAL BACKGROUND

A. Human rights situation prior to the events of 5 April 1992 and subsequent events related to the judiciary
B. Current human rights situation as it relates to the judiciary
C. Brief overview of judicial institutions

Ordinary courts
Military courts
II. EXCEPTIONAL MEASURES IMPLEMENTED BY THE PERUVIAN GOVERNMENT TO PROSECUTE CIVILIANS CHARGED WITH TERRORISM AND TREASON

A. Anti-terrorist legislation enacted by the Emergency and National Reconstruction Government

The crime of terrorism
The crime of treason
Repentance Law
"Amnesty laws" of 1995
B. The anti-terrorist legislation in light of international standards
C. Ad Hoc Commission for Pardons
III. INDEPENDENCE OF JUDGES AND PROSECUTORS: THE ONGOING JUDICIAL REFORM IN PERU

A. The need for judicial reform
B. The Peruvian judicial reform process in light of international standards
1. Objectives of the judicial reform
2. Bodies created for carrying out the judicial reform
3. Concerns regarding the judicial reform
Recertification procedure
Concerns with regard to the Constitutional Court
IV. SITUATION OF LAWYERS AND HUMAN RIGHTS DEFENDERS
V. CONCLUSIONS AND RECOMMENDATIONS
Exceptional measures
Amnesty laws and impunity
Judicial reform
Situations of lawyers and human rights defenders
Ad Hoc Commission Pardons
Notes

1. By its decision 1980/124, the Economic and Social Council authorized the Sub-Commission on Prevention of Discrimination and Protection of Minorities to entrust Mr. L.M. Singhvi with the preparation of a report on the independence and impartiality of judiciary jurors and assessors and the independence of lawyers. The text of the draft universal declaration on the independence of justice was submitted in the Special Rapporteur's final report to the Sub-Commission at its thirty-eight session in 1985 (E/CN.4/Sub.2/1985/18 and Add.1-6) the declaration itself being contained in document E/CN.4/Sub.2/1985/18/Add.5/Rev.1. [back to the text]

2. Adopted at the IBA's Nineteenth Biennial Conference held in New Delhi, October 1982. [back to the text]

3. After six years of study by a special subcommittee chaired by Mr. Subrata Roy Chowdhury of India and two additional years of revision by the full Committee on the Enforcement of Human Rights Law, the 61st Conference of the International Law Association, held in Paris from 26 August [back to the text]

to 1 September 1984, approved by consensus a set of minimum standards governing states of emergency. The American Journal of International Law, vol. 79, 1985, pp. 1072-1081. [back to the text]

4. These Principles were adopted on 1 October 1995 by a group of experts in international law, national security, and human rights convened by Article 19, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of Witwatersand, South Africa. [back to the text]

5. The two laws had been questioned in 1995 in a joint letter by the Special Rapporteurs on extrajudicial, summary or arbitrary executions, torture, and the independence of judges and lawyers, as well as the Chairman of the Working Group on Enforced or Involuntary Disappearances. In addition, the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a Chairman's statement relating to the issue (E/CN.4/1996/2-E/CN.4/Sub.2/1995/51, para. 338). [back to the text]

6. The Human Rights Committee, upon examination of Peru's third periodic report under article 40 of the ICCPR, expressed its deep concern about the amnesty granted by Decree-Law 26.479. The Committee considered that 2 "(...) such an amnesty prevents appropriate investigation and punishment of perpetrators of past human rights violations, undermines efforts to establish respect for human rights, contributes to an atmosphere of impunity among perpetrators of human rights violations, and constitutes a very serious impediment to efforts undertaken to consolidate democracy and promote respect for human rights and is thus in violation of article 2 of the Covenant". In this connection, the Committee reiterated its view that this type of amnesty is incompatible with the duty of States to investigate human rights violations, to guarantee freedom from such acts within their jurisdiction, and to ensure that they do not occur in the future. Official Records of the General Assembly, Fifty-first session, supplement No. 40 (A/51/40), paras. 37 ff. [back to the text]

7. For instance, the Human Rights Committee expressed its deepest concern with regard to Decree-Laws 25.475 and 25.659. It considered that the laws "seriously impair the protection of the rights contained in the Covenant for persons accused of terrorism and contradict in many respects the provisions of article 14 of the Covenant. Decree-Law 25.475 contains a very broad definition of terrorism under which innocent persons have been and remain detained. It established a system of trial by 'faceless judges' where the defendants do not know who are the judges trying them and are denied public trials, and which places serious impediments, in law and in fact, to the possibility for defendants to prepare their defence and communicate with their lawyers. Under Decree-Law 25.659, cases of treason are tried by military courts, regardless of whether the defendant is a civilian or a member of the military or security forces. In this connection, the Committee expresses its deep concern that persons accused of treason are being tried by the same military force that detained and charged them, that the members of the military courts are active duty officers, that most of them have not received any legal training and that, moreover, there is no provision for sentence to be reviewed by a higher tribunal. These shortcomings raise serious doubts about the independence and impartiality of the judges of military courts". The Committee emphasized further that the trial of non-military persons should be conducted in civilian courts before an independent and impartial judiciary. Ibid., paragraphs 350 ff.

The Inter-American Commission on Human Rights published a special report on Peru after the 1992 coup d'état. The Commission regarded as "[p]articularly disturbing the new system of 'secret justice' in which the impartiality and independence of judges could not be determined". Along with the suspension of habeas corpus and the summary dismissal of judges, the Commission concluded that "this process is creating the institutional and legal conditions to justify arbitrary rule". Organization of American States, Report on the Situation of Human Rights in Peru, Washington, D.C.,1993, p.200.

In its 1993 annual report, the Inter-American Commission stated that "the lack of an independent judiciary is one of the main reasons for the decline of the enjoyment and exercise of human rights in Peru". Organization of American States, Annual Report of the Inter-American Commission on Human Rights, 1993, Washington, D.C., 1994, pp. 506-507.
Under the auspices of the United States Government, an international commission of jurists composed of Mr. León Carlos Arslanian, Mr. Robert Kogod Goldman, Mr. Ferdinando Imposinato and Mr. José Raffuci visited Peru in September 1993 and, after studying the situation, released a comprehensive study of the anti-terrorist legislation in light of international standards ("The Goldman Report").
International human rights non-governmental organizations such as the Centre for the Independence of Judges and Lawyers, Human Rights Watch and Amnesty International have devoted several issues of their respective publications to studies of the case of Peru and have formulated recommendations addressed to the Peruvian Government.
At the national level, Mr. Ronald Gamarra published a book on the legal treatment of terrorism and the National Human Rights Coordinator proposed changes to the anti-terrorist legislation. [back to the text]

8. According to lawyers and lawyers' organizations, the right to defence before the "faceless courts" continues to be severely limited. The main complaints brought to the attention of the Special Rapporteur were the lack of adequate access to court files, as well as timely information on sentences and the progress of cases. A rigid limit of 30 days, extendable to 50 days, is provided for the investigation, unlike the four months provided by the Code of Criminal Procedure for ordinary criminal investigations. As a result of these summary proceedings, hearings take place very rapidly, leaving the defence attorney little or no time to prepare. The time and place of hearings is frequently announced only at the last minute. The conditions for interviewing clients are reported to be often improper. Members of the police or army cannot be questioned in court, nor does the defence have the right to adequately and independently cross-examine witnesses for the prosecution. The identity of witnesses, often individuals claiming to be repentant terrorists, is kept from the defence throughout trial. Lawyers testified that they themselves are at times intimidated or harassed during the proceedings. The lawyers with whom the Special Rapporteur met stated that it is impossible for any contradictions or doubtful points in the evidence to be clarified at the trial stage, since only the defendants and their counsel appear. [back to the text]

9. See the Goldman Report, p. 67. [back to the text]

10. See the Goldman Report, p. 69. [back to the text]

11. The Inter-American Court of Human Rights has ruled on a case concerning violations of the right to due process committed by military and civil "faceless tribunals" in trying Ms. María Elena Loayza Tamayo, accused of treason on 17 September 1997 (Corte Interamericana de Derechos Humanos, Caso Loayza Tamayo, Sentencia de 17 de septiembre de 1997). Ms. Loayza was detained on 6 February 1993 by DINCOTE and charged with treason. She was tried by a "faceless" military tribunal and was acquitted on 24 September 1993. However, she continued to be detained at a military installation until her case was transferred to the civil jurisdiction under charges of terrorism on 8 October 1993. Ms. Loayza was found guilty of the crime of terrorism and consequently sentenced by a "faceless" civil tribunal on 10 October 1993 to 20 years' imprisonment. The "faceless" civil tribunal tried and sentenced Ms. Loayza based on the same facts on which she was acquitted by the military "faceless" tribunal.

In submitting this case to the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights considered that military tribunals lack independence and impartiality as required by article 8.1 of the American Convention on Human Rights. The Inter-American Court of Human Rights considered it unnecessary to address this issue because Ms. Loayza was acquitted by the military court and thus the absence of these requirements did not affect her rights (paragraph 60). However, the Inter-American Court did regard as violations of Ms. Loayza's rights her continuation in detention after her acquittal and the ultra vires decision of the military court to classify her case as a terrorist-related crime and to refer it to the civil courts (paragraphs 61 and 62). In addition, the Court held that Ms. Loayza was tried and sentenced under an exceptional procedure in which her fundamental right of due process was severely restricted. The Court considered that these procedures do not meet the standards of due process because they do not recognize the principle of presumption of innocence; they restrict the right of the accused to contradict the evidence and to communicate with the defence attorney (paragraph 62). The Court considered that the military court, and consequently the Government of Peru, violated the right to be presumed innocent provided by article 8.2 of the American Convention by attributing to Ms. Loayza the commission of another crime different from the one she had initially been charged with, without having competence to do so (paragraph 63).
The Court also held that the judicial guarantee of non bis in idem was violated by the Peruvian Government because Ms. Loayza was tried and subsequently sentenced by a civilian court for the same facts for which she had been acquitted by the military tribunal. The Court considered that one contributing factor to that situation was the vague definitions of terrorist-related crimes and treason provided by Decree-Laws 25.475 and 25.659, respectively.
In compliance with the judgement of the Inter-American Court of Human Rights, the Government of Peru freed Ms. Loayza on 16 October 1997.
Judges Antonio A. Cancado Trindade and Oliver Jackman of the Inter-American Court of Human Rights stated in a concurring opinion that military tribunals do not meet the standards of independence and impartiality required as an essential element of due process as provided by article 8.1 of the American Convention on Human Rights. [back to the text]

12. Poder Judicial, Avances del Proceso de Reforma y Modernización, Lima, June 1997, p. 11. [back to the text]

13. The implementation of the corporate modules began on 20 November 1996 in the judicial district of Lambayeque, specifically in the city of Chiclayo, the headquarters of the court. This experience has been applied to the management of files on civil cases. [back to the text]

14. Law 26.546 suspended the following articles of the Organizational Law of the Judicial Power: articles 81 and 82 that provide for the Executive Commission of the Judiciary and its attributions; articles 83, 84, 85, 86 and 87 that provide for the Management Board of the Judicial Power. [back to the text]

15. For instance, a Supreme Court judge who used to earn 6,695 soles in 1995 is earning 12,435 in 1997, an increase of 86 per cent. A High Court judge who used to earn 3,005 soles in 1995 is currently earning 4,780, an increase of 57 per cent. A specialized first instance court judge who used to earn 2,005 soles in 1995 is nowadays earning 3,500 soles, an increase of 75 per cent. Poder Judicial, Official Bulletin, September-October 1997, p. 5. [back to the text]

16. Furthermore, Principle 15 of the draft universal declaration on the independence of justice provides that, "Except pursuant to a system of regular rotation or promotion, judges shall not be transferred from one jurisdiction or function to another without their consent, but when such transfer is in pursuance of a uniform policy formulated after due consideration by the judiciary, such consent shall not be unreasonably withheld by any individual judge". [back to the text]

17. According to the 1993 Constitution (article 179), the highest organ of the National Board of Elections is a plenary of five members chaired by the representative of the Supreme Court elected by secret ballot of the judges of the Supreme Court. [back to the text]

18. Furthermore, principle 11 of the draft universal declaration on the independence of justice provides that:
"11. (a) The process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects.
"(b) Any methods of judicial selection shall scrupulously safeguard against judicial appointment for improper motives.
"(c) Participation in judicial appointment by the Executive or the Legislature is consistent with judicial independence so long as appointments of judges are made in consultation with members of the judiciary and the legal profession or by a body in which members of the judiciary and the legal profession participate effectively." [back to the text]

19. The Human Rights Committee, upon examination of the third periodic report of Peru under article 40 of the ICCPR, stated in that regard that "the Committee notes with concern that the judges retire at the expiration of seven years and require recertification for reappointment, a practice which tends to affect the independence of the judiciary by denying security of tenure". (CCPR/C/79/Add.67, para. 14). [back to the text]

20. In this connection, the Singhvi Principles provide that the power of removal may be vested in the legislature by impeachment, preferably upon a recommendation of a court or board composed predominantly of members of the judiciary (principle 27 (b)). [back to the text]
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