University of Minnesota




Special Report on the Human Rights Situation at the Challapalca Prison, Department of Tacna, Republic of Peru, Inter-Am. C.H.R., OEA/Ser.L/V/II.118, Doc. 3 (2003).


 

 

SPECIAL REPORT ON THE HUMAN RIGHTS SITUATION AT THE CHALLAPALCA PRISON, DEPARTMENT OF TACNA, REPUBLIC OF PERU

I. INTRODUCTION

1. The present report is the result of the visit by the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) to the Challapalca Prison (hereinafter also “the prison”), located in the department of Tacna, Republic of Peru (hereinafter “Peru,” “the Peruvian State,” or “the State”), on August 22 and 23, 2002.

2. In the framework of its functions of promoting and protecting human rights, the Inter-American Commission on Human Rights (IACHR) has been closely monitoring the development of these rights in the Americas in specific situations, such as those of persons deprived of liberty in prisons in which inmates, both men and women, suffer a variety of grave human rights violations.[1]

3. In November of 1998 the Inter-American Commission made an on-site visit to Peru, which included visits to some prisons. Subsequently, the Commission released its Second Report on the Situation of Human Rights in Peru, which included a chapter on the prison situation.[2] In that report, the IACHR indicated that:

The right and obligation of the State to punish persons who commit crimes are beyond any doubt. Yet certainly this does not imply that persons deprived of their liberty, most of whom in Peru and elsewhere in the hemisphere are in preventive detention, i.e. they have not been found liable by any court, do not have the right to be treated with full respect for their human dignity.[3]

4. In its on-site visit, the Inter-American Commission visited the Challapalca Prison, which is a penitentiary situated more than 4,600 meters above sea level, between the departments of Tacna and Puno, in the Andean Cordillera, near Peru’s border with Bolivia. In that same report, the Commission noted:

some prisons, such as those at Challapalca and Yanamayo, are in totally inhospitable places, both cold and geographically isolated. This makes it very difficult, in practice, for relatives to visit, because of the distance and other related obstacles. In addition, the conditions of detention of many detainees are excessively severe, as they are practically not allowed to spend time in the yard nor to do physical exercise.[4]

5. As regards the extreme conditions of detention in that prison, the Commission recommended to the Peruvian State that “the prisons at Challapalca and Yanamayo be deemed unfit to serve that purpose, and that the personnel detained at those prisons be transferred to other prisons.”[5]

6. In the context of a visit to the country by Marta Altolaguirre, Second Vice-President of the IACHR and rapporteur for Peru, August 19 to 23, 2002, with the consent and assistance of the Peruvian State, and having received information on circumstances involving alleged human rights violations at that prison,[6] a visit was made to the Challapalca Prison on August 22 and 23, 2002. The IACHR designated attorneys Ignacio J. Alvarez and Pedro E. Díaz, specialists with the Commission’s Executive Secretariat, to perform that visit, and to report on it to the plenary of the Commission.

7. During the Commission’s visit meetings were held with Fausto Alvarado, Minister of Justice of Peru, Vice-Minister of Justice Alfredo Solf Monsalve, and other officials of the Ministry of Justice. Those meetings addressed the conditions of detention at the Challapalca Prison, especially regarding the IACHR’s recommendation that it be deemed unfit to serve as a prison. At that meeting, the Minister of Justice stated that the Peruvian State would carry out the IACHR’s recommendation by shutting it down.[7]

8. Prior to traveling to the prison, the Commission also met with relatives of prisoners held there,[8] with members of the Coordinadora Nacional de Derechos Humanos, and with representatives of various state organs that provided valuable information related to the conditions of detention of the persons held there, information that they have continued to provide since the visit, and during the time that it has taken to prepare this report. In addition, the State has given several answers to the Commission’s request for further information on some figures, indicating the number of detainees transferred during this time.

9. All the aspects mentioned have been taken into account by the Commission in preparing this report.

10. The Peruvian State granted all the facilities necessary for carrying out the visit, in which the Commission’s delegation was accompanied by José Luis Robles, Third Director of the National Penitentiary Institute (INPE). The Commission had full access to the Challapalca Prison, and to the records kept there. The Commission was allowed to speak in private with any inmate, and to freely move about, film, and photograph all the facilities.

11. After that visit, and in keeping with the provisions of Article 41 of the American Convention on Human Rights, Article 18 of the IACHR’s Statute, and Articles 56 and 58 of its Rules of Procedure, the Inter-American Commission, in plenary, adopted this Special Report on the Human Rights Situation at the Challapalca Prison.

12. The Commission expresses its gratitude to the Peruvian State for all the support it has provided for carrying out the visit, and hopes that his report will be a decisive contribution to solving the human rights situation at the Challapalca Prison.

II. LEGAL FRAMEWORK

13. This report has been prepared taking into account international rules and standards related to the conditions of detention, as well as provisions of Peruvian legislation on the matter.

A. International Law

14. Article 1 of the American Convention establishes that the States parties undertake to respect the rights and freedoms recognized in it, and to ensure the free and full exercise by all persons subject to their jurisdiction, with no discrimination whatsoever. Article 5 of the American Convention, on the right to humane treatment, provides as follows:

1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

3. Punishment shall not be extended to any person other than the criminal.

4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.

15. Article 7 of the same Convention provides that:

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.

16. In the context of the universal system for the protection of human rights, there are also specific instruments related to the human rights of persons deprived of liberty. The main ones–the Standard Minimum Rules for the Treatment of Prisoners[9] and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment[10]–establish important standards and provisions for the treatment of detainees.

17. The Inter-American Court has highlighted the importance of the international standards for the protection of human rights applicable to conditions of detention, and specifically has recognized the above-noted Standard Minimum Rules for the Treatment of Prisoners as an applicable fundamental standard in this area.[11] Taking this circumstance into account, in this report the Commission will draw especially on the Standard Minimum Rules for the Treatment of Prisoners, in analyzing the various aspects of the conditions of detention at the Challapalca prison, making reference not only to the serious problems that exist there, but also to the positive aspects observed by the IACHR in its visit.

B. Domestic law

18. The Constitution of Peru provides in its first article that “the defense of the human person and respect for human dignity are the supreme end of society and the State.” The Constitution also enshrines, in Article 139, the “right of the prisoners and convicts to occupy adequate establishments” and the “principle that the prison regime has as its purpose the re-education, rehabilitation, and re-incorporation into society of the person punished.”

19. The 1991 Code of Criminal Enforcement provides that “enforcement of criminal sentences and measures that deprive the accused of their liberty to be free from torture or inhuman or humiliating treatment and of any other act or procedure that is an affront to the dignity of the inmate,” that the “prison regime respects those rights of the prisoner not affected by the conviction,” that the “Penitentiary System incorporates the provisions, conclusions, and recommendations of the United Nations for the prevention of crime and treatment of the criminal,” and that the "inmate occupy an adequate environment and be accorded comprehensive treatment, from intake to release.”[12]

20. There are also specific laws, regulations, guidelines, and practices related to the conditions of detention, that the State can always apply so long as they are not contrary to the international principles and standards that govern the matter.[13]

III. CONDITIONS OF DETENTION IN THE CHALLAPALCA PRISON

A. General description

21. The Challapalca Prison is located in the department of Puno, in the Andean cordillera near Peru’s border with Bolivia, in southeastern Peru, at an altitude of 4,600 meters above sea level,[14] near the Inclán military fort of the Cavalry, 211 km from the city of Puno, by land, in poor conditions (dirt road), through unpopulated areas. The trip from the city of Puno takes about six hours, depending on road conditions.

22. The closest population center, by road, is Mazocruz, located approximately two hours away. This town does not offer sufficient facilities for persons to arrive and spend the night prior to continuing on to Challapalca.

23. The prison was built in 1997. It has a relatively modern and finished structure, but it does not have basic water, power, and communications services on a permanent basis. The prison consists of five blocks of buildings. One is for the prison administration sleeping quarters for the guards, and a sector with four cells for solitary confinement, or “spaces for reflection,” as they call them. Another block has the kitchen and the infirmary area, which is made up of the doctor’s office, the pharmacy, and two more rooms for laboratories and an operating room.

24. There are three blocks or pavilions with two independent floors, walls covered with bars, zinc roofs, and enclosed in a hard mesh. They are divided into four sectors or corridors with cells, two rooms in each pavilion which were said to be earmarked for a library or workshops, and an inner yard. There are 122 cells, with a capacity for 242 inmates.

25. There is no regular electricity or running water. The prison has an electrical generator that operates from 5:00 p.m. to 5:00 a..m. for the outside areas, and until 9:00 p.m. for the cells. Water for human consumption in the prison is drawn from a well located approximately one kilometer away.

26. The temperatures recorded most of the year are from 8 to 9 degrees Celsius in the day, and dropping sharply through the late afternoon and evening, to minus 20 degrees Celsius, with a steady icy wind that sharpens and worsens the effects of the altitude, especially as of June, when the winter begins.[15]

27. Challapalca is considered a closed-regime prison in the terms of the Peruvian prison code.[16] Prisoners who have difficulty adapting at the other prisons, who incite disobedience or indiscipline, or who are considered highly dangerous considering the crime for which they’ve been convicted, such as the crimes of terrorism (terrorismo) and treason (traición a la patria), among others, or due to their personality, are taken there.

28. The security of the prison is guaranteed by 51 INPE guards who work in three-month shifts, as does the director; they are then transferred to other prisons. It was indicated that the staff should receive an additional economic incentive to accept working at the prison, due to the poor conditions and the remote location. It was also reported that it had been some time since they had been paid such incentive pay, due to the lack of resources.

29. As indicated supra, special attention will be given to the American Convention on Human Rights, the Standard Minimum Rules for Treatment of Prisoners, and Peru’s domestic legislation.

1. Register and location of detainees

30. The American Convention on Human Rights provides:

Article 5. Right to Humane Treatment

4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

31. As regards the location and classification of detained persons, the Standard Minimum Rules for the Treatment of Prisoners provide:

7(1) In every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received: (a) Information concerning his identity; (b) The reasons for his commitment and the authority therefor; (c) The day and hour of his admission and release. (2) No person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register. Separation of categories

8. The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus, .... (b) Untried prisoners shall be kept separate from convicted prisoners;....

32. The Code of Criminal Enforcement of Peru indicates:

Article 98. The closed-regime establishments are classified as ordinaries and specials.

Closed-regime establishments are classified as regular and special. The regular closed-regime establishments are characterized by the strict control and limitation on common activities and on contact with the outside world. The special closed-regime establishments are for convicts who have difficulty readapting, and, on an exceptional basis, in separate areas, for unconvicted persons who have difficulty readapting, in which case the competent authority is to be informed.

33. Based on the information presented by the prison administration, it was determined that there is a registration book showing 95 inmates as of August 2002. Of these, six are on record as accused, i.e. they have not been convicted, and two are serving sentences of less than six years. The untried persons are held in the same pavilions as the convicts.

2. Accommodation

34. The Standard Minimum Rules for the Treatment of Prisoners provide:

9.(1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself.

35. The Commission found that the detainees are kept in one-person cells, thereby complying with this principle. The prison is not overcrowded.

3. Physical conditions of detention

36. The Standard Minimum Rules for the Treatment of Prisoners provide:

10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.

11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.

12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.

13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.

14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.

37. The Constitution of Peru provides:

Article 139. The following are principles and rights of the judicial function:

21. The right of prisoners and convicts to occupy adequate establishments.

38. Despite the difficult conditions, due to the temperature, the Commission found that the cells and corridors have no heating, and that the prisoners are prohibited from having portable stoves or heaters in their cells. The corridors and cells are extremely cold, and this becomes more intense with the continuing currents of cold wind that penetrate through the skylights or windows located on the upper part of the walls that run from the corridor to the yards of the pavilions, which do not have glass and over which they are not allowed to place any kind of protection from the excessive cold. Some cells also have leaks of water in the walls and floors that makes them humid, as they lack ventilation.

39. The cells have no electricity. The little bit of artificial light is tenuous and is in the corridors, according to the administration and the prisoners, and is only turned on at nightfall; soon thereafter it is turned off. The prisoners have no opportunity whatsoever to read or study once they are locked in the cells.

40. Each cell has a latrine attached to the floor, and a small raised deposit of water at room temperature for drainage and personal hygiene, without any mechanism to dispense it, such as a tap or shower.

41. The Commission was able to verify that the low temperatures are so severe that inside one of the pavilions there were three blocks of ice of considerable size, still solid, which according to the prisoners had been drawn from the internal drainpipes of the building two weeks earlier.

42. Based on the foregoing, the Commission is of the view that the Peruvian State does not comply with the obligation to provide the prisoners at the Challapalca Prison with facilities adequate for serving the sentence imposed, considering its geographic location.

4. Conditions of personal hygiene

43. The Standard Minimum Rules for the Treatment of Prisoners provide:

15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.

16. In order that prisoners may maintain a good appearance compatible with their self_respect, facilities shall be provided for the proper care of the hair and beard, and men shall be enabled to shave regularly.

44. Most of the prisoners interviewed indicated that personal hygiene cannot be practiced every day because the water is so cold; they only bathe twice weekly. In addition, they indicated that they do not receive the articles they need to wash their clothes, the cells, toilets, and other places in the pavilions. It was further established that the water for personal hygiene is drawn from the Maure river, which passes near the prison, and used directly, without any treatment.

45. The Commission considers that the Challapalca Prison has not made adequate provision for the basic hygienic conditions needed to protect the health and hygiene of the persons held there.

5. Clothing and bedding

46. The Standard Minimum Rules for the Treatment of Prisoners provide:

17.(1) Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating. (2) All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene. (3) In exceptional circumstances, whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing.

18. If prisoners are allowed to wear their own clothing, arrangements shall be made on their admission to the institution to ensure that it shall be clean and fit for use.

19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.

47. The prisoners wear their own clothes. The administration reported that they supplied seven blankets to each prisoner upon their arrival at the prison. The detainees, however, indicated that they had only received two blankets from the administration, which were taken back two weeks later, and that they had not been provided with overcoats sent for them by the International Committee of the Red Cross. The Commission observed that the light mattresses are mostly deteriorated due to the humidity.

48. The Commission observes that the prison administration does not guarantee the delivery of clothes and blankets, as provided by the Standard Minimum Rules.

6. Food

49. The Standard Minimum Rules for the Treatment of Prisoners provide:

20.(1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it.

50. The Code of Criminal Enforcement of Peru provides:

Article 17. The Prison Administration provides the inmate the food prepared that meets the dietary and hygienic standards established by the health authority.

51. The prison administration reported that the prisoners were given food three times a day, with a balanced and varied diet in keeping with the possibilities and budget of 2.50 soles (approximately US$ 0.60) daily per inmate. In other reports of the Office of the Ombudsman, and in comments by some inmates, it was indicated that the daily amount allocated per prisoner was 3.50 soles (approximately US$ 1.00).[17]

52. The prisoners stated that the food was of fair quality, without much variety; that there was no possibility of them improving it by having their own kitchens, or of getting a special diet for those in need of it for health reasons.

53. They also indicated that the water for human consumption was not potable, as a result of which they had repeated gastric problems. The Commission was able to verify the insufficient treatment of the water, as it is drawn from a well a considerable distance from the prison, taken in a tin tank, then has chlorine pills placed in it, and one liter daily is distributed to the prisoners in pots, plastic containers, or bottles.

54. The Commission observes that the administration of the National Penitentiary Institute does not provide adequate, hygienic, and sufficient food for the persons held there.

7. Exercise and sport

55. The Standard Minimum Rules for the Treatment of Prisoners provide:

21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. (2) Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.

56. The prisoners have no possibility of doing physical exercise, or practicing any sport, or having any kind of open-air recreation. They can only take sun or walk in the internal yard of each pavilion.

57. The Commission determines that the Challapalca Prison does not have the facilities for performing physical activities and sports for the well-being and re-socialization of the persons held there.

8. Medical services

58. The Standard Minimum Rules for the Treatment of Prisoners provide:

22. (1) At every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. (2) Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers. (3) The services of a qualified dental officer shall be available to every prisoner.

59. The Code of Criminal Enforcement of Peru states:

Article 76. The prisoner has the right to attain, maintain, or recover his or her physical and mental health. The Prison Administration shall provide as necessary for the promotion, prevention, and recovery of health.

60. The prison has one physician and one nurse, who are stationed there for periods of up to three months, whereupon they are transferred, and another physician is assigned who attends to the prisoners who seek his assistance. The medical office has the files of the exams performed on the prisoners when they enter the prison. There is a pharmacy with the basic drugs, an operating room with a chair which, according to the prison physician, has never been used, because it lacks aseptic conditions; and an X-ray lab with its respective equipment, but without the supplies needed to use it.

61. One of the prisoners’ complaints in this respect is that the medical service does not have the appropriate medicines for diseases that require some treatment and special medication. They also noted that the affections most commonly encountered are gastric infections, herpes, headaches, respiratory problems, ophthalmological problems, the vast majority of which are caused by the altitude, and are not properly addressed, since in some cases they require a diagnosis, adequate medicines, or more specialized care.

62. Oxygen in the body diminishes as altitude increases, bringing on acute mountain sickness commonly known as soroche, which may be mild to severe. In addition to acute mountain sickness is chronic soroche, or enfermedad de monge, which has the following symptomatic picture:

This disease is characterized by the presence of neuropsychic symptoms such as the lack of mental concentration, difficulty sleeping well, headaches, buzzing in the ears, fatigue, changes in the character and memory, and certain difficulties in movement. In addition, there may be problems at other levels, such as in the locomotor, circulatory, digestive, and endocrine systems, which, when compromised, may substantially reduce physical and mental performance. High red blood cell counts is always a clear sign of the affection.[18]

63. As indicated, most of the prisoners the Commission interviewed told of such afflictions, and of the lack of medicines for treating them in the pharmacy.

64. Persons who are taken from sea level to altitudes greater than 4,500 meters should periodically be given altitude tolerance tests (Richalet test) and persons suffering obesity, bronchial asthma, chronic bronchitis, and similar health problems should not be taken there. Physical exercise is recommended to maintain good tissular oxygenation at the new altitude.[19] Nonetheless, the Commission saw that the prisoners are not afforded the opportunity to engage in such activities.

65. Similarly, the Commission has found through the situation of one prisoner who sought and received precautionary measures on his behalf as of April 2002,[20] that this prison is not equipped to handle patients with any degree of complexity in their disease, who must be given hospital care at the Juliaca Hospital.

66. The Commission has also learned that it takes more than five hours in a mid-sized cargo truck to get to the nearest hospital, located in the town of Juliaca, this being the prison’s only vehicle. This has led to situations of such scale such as those that led to the prompt care for prisoner Manuel Ipanaqué Tovar, who died October 13, 1999, at the Hospital Regional de Juliaca, after having suffered lesions apparently due to an accident with steel weaving needles (or reeds), affecting his neck and chest at about 2 p.m. that day, and not having received medical care until 9 p.m., when he entered that hospital.[21]

67. The Commission considers that due to the location of the Challapalca Prison, the health conditions and medical care for the prisoners, for the family members who visit them, and for the INPE staff assigned to the prison all endanger the physical integrity and health of these persons.

9. Discipline and sanctions

68. The Standard Minimum Rules for the Treatment of Prisoners provide:

27. Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life.

28. (1) No prisoner shall be employed, in the service of the institution, in any disciplinary capacity. (2) This rule shall not, however, impede the proper functioning of systems based on self-government, under which specified social, educational or sports activities or responsibilities are entrusted, under supervision, to prisoners who are formed into groups for the purposes of treatment.

29. The following shall always be determined by the law or by the regulation of the competent administrative authority: (a) Conduct constituting a disciplinary offence; (b) The types and duration of punishment which may be inflicted; (c) The authority competent to impose such punishment.

30. (1) No prisoner shall be punished except in accordance with the terms of such law or regulation, and never twice for the same offence. (2) No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case. (3) Where necessary and practicable the prisoner shall be allowed to make his defence through an interpreter.

69. The Code of Criminal Enforcement of Peru indicates:

Article 27. Only the following disciplinary sanctions may be imposed:

1. Admonishment.

2. No outings or common recreational activities, as appropriate, for up to 30 days.

3. Limitation on communications with the outside world for up to 30 days.

4. No permission to leave for up to 60 days.

5. Solitary confinement for up to 30 days, except as provided in Article 33.

Article 34. The prisoner is informed of the breach of which he is accused, and is afforded the opportunity to set forth his defense.

70. The prisoners stated that the sanctions involving 30 days solitary confinement, meted out by the prison administration, were for arbitrary decisions by the guards and the administration, without any procedure whatsoever, without any charges drawn up, and without the prisoner being afforded any opportunity to defend himself. They indicated that their specific pleas or petitions were not answered, and voicing them repeatedly could be grounds for punishment. They also indicated that the sanction of solitary confinement was applied regularly, without any graduation of sanctions, and for periods longer than allowed by the rules.

71. The lack of application of the regular proceedings to those inmates who do not follow the disciplinary rules represents by itself a breach to the judicial guarantees enshrined in Article 8 of the Convention. These judicial guarantees are applicable to all types of proceedings and the inobservance of these guarantees amounts to a violation of the due process.[22]

72. The Standard Minimum Rules for the Treatment of Prisoners provide:

31. Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.

32.(1) Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it. (2) The same shall apply to any other punishment that may be prejudicial to the physical or mental health of a prisoner. In no case may such punishment be contrary to or depart from the principle stated in rule 31. (3) The medical officer shall visit daily prisoners undergoing such punishments and shall advise the director if he considers the termination or alteration of the punishment necessary on grounds of physical or mental health.

73. The solitary confinement cells, also called “environments for reflection,” were visited; it was noted that they have no ventilation or the minimum hygienic conditions for those who are kept there. The administration reported that solitary confinement was never imposed for more than 45 days, yet the Commission saw that one prisoner had remained in solitary confinement from the date he was taken to the prison, in September 2001, to the date of the visit.[23]

74. The prison administration recognized in an investigation undertaken in response to a writ of habeas corpus, that in effect these prisoners had been placed in solitary confinement out of security considerations.[24]

75. As it was preparing this report, the Commission received news from the relatives of the persons detained at the Challapalca Prison that on the night of October 23, 2002, the prison guards performed a search of the prisoners’ cells in which the needles they had for their craft work were taken; the delegates of the prisoners in pavilions 1 and 2 were placed in solitary confinement for protesting this act. Later, on October 25, they reached an agreement with the directors of the INPE and the prison to return their tools, return the delegates to the pavilions, follow through on the transfers to other prisons of prisoners because they had shown progress in rehabilitation, and provide medical care to the prisoners who were ill. The prisoners pledged not to recur to the use of force.[25]

76. The American Convention on Human Rights provides:

Article 5. Right to Humane Treatment

1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

77. The Standard Minimum Rules for the Treatment of Prisoners provide:

33. Instruments of restraint, such as handcuffs, chains, irons and strait-jacket, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances: (a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority; (b) On medical grounds by direction of the medical officer; (c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.

34. The patterns and manner of use of instruments of restraint shall be decided by the central prison administration. Such instruments must not be applied for any longer time than is strictly necessary.

78. One of the situations most widely denounced by the prisoners interviewed and by their family members is the physical and psychological abuse to which they are subjected by the guards.

79. The most common forms are for the guards to come to the pavilions at night to take away one of the prisoners, and apply methods of psychological torture, such as threatening them with bodily harm, not letting them return to their cells until dawn, or abusing them verbally to make them feel the uncertainty that during that period they might be subject to any mistreatment or persecution, including the threat of death in the guise of an apparent escape. Another common form of intimidation and harassment is to beat the metal gates by which the corridors are accessed with clubs and sticks, late at night, to wake them and scare them, for no reason. On some occasions, the prisoners said that they were beaten with sticks or with hands, and that care was taken not to leave marks on their bodies.

80. In addition, it was reported that physical torture was used, such as “the baptism,” which consists of beating the body with sticks and electric prods, which is inflicted on the prisoners who come from other prisons, after the guards force them to strip and bathe with cold water, in order to make them feel absolute submission to the prison’s discipline. This method was applied to the group of prisoners transferred on September 21, 2001, from Yanamayo, supra 66 and 67, and a to group of five prisoners convicted of common crimes who were transferred from Arequipa in April 2002. For the first of these incidents, the prisoners and their relatives filed a criminal action against the prison director, Alfonso Garay, who they accused of participating directly in the torture of prisoners.[26]

81. Those complaints on physical and psychological abuse are not new. The staff of the Office of the Ombudsman who visited the prison on October 19, 1999, noted the use of physical punishment by the police in charge of vigilance at that time; this was verified in the medical examinations of the prisoners.[27]

82. The Commission observes that the directors of the Challapalca Prison and the prison guards mete out sanctions and punishments of the prisoners without any prior disciplinary proceeding and without any incremental criteria; and that some prisoners, according to the information received, have been victims of physical and psychological treatment and aggression that violates their right to humane treatment, protected by the American Convention. These facts, due to their violence and systematic nature, represent acts of torture, which are forbidden by the American Convention, supra 14. In addition, the IACHR remarks that, by signing and ratifying the Inter American Convention to Prevent and Punish Torture, the Peruvian state expressly committed itself to prevent and punish these acts.[28]

10. Contact with the outside world and visits

83. The American Convention on Human Rights provides:

Article 5. Right to Humane Treatment

3. Punishment shall not be extended to any person other than the criminal....

6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.

84. The Standard Minimum Rules for the Treatment of Prisoners provide:

37. Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.

39. Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration.

85. The Code of Criminal Enforcement of Peru provides:

Article 37. The prisoner may communicate periodically, orally or in writing, and in his own language, with his family members, friends, diplomatic representatives, and organizations of institutions providing prison assistance, except for incommunicado status declared by the judicial authority, in the case of a defendant, in keeping with articles 140, 141, and 142 of the Code of Criminal Procedure.

With respect to privacy. The communications are done respecting the intimacy and privacy of the prisoner and his interlocutors.

Article 38. The Prison Administration encourages and intensifies communication and visits insofar as they are beneficial for the prisoner and avoids those contacts with the outside world that are harmful to him.

Article 39. The visits take place in special places, schedules, frequency, and conditions as established by Regulation.

Article 40. The prisoner has the right to meet with and communicate in private with his defense counsel, in an adequate environment. This right cannot be suspended or interfered with, under the responsibility of the Director of the Prison Establishment.

11. Books

86. The Standard Minimum Rules for the Treatment of Prisoners provide:

40. Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.

87. The Challapalca Prison does not have any library or facility that the prisoners can use for gaining access to books, magazines, or newspapers for their information or leisure provided by the prison administration. According to the prisoners’ relatives, the magazines or newspapers they take to the prisoners to read are screened and in some cases seized when they cover issues or news related to the public order situation.

88. As for preserving the affective and family ties of the prisoners, the visits by family and friends are very restricted de facto by the remote, isolated location of the prison, the lack of regular means of transportation, and the rigors of the altitude,

89. By internal regulation, the visiting days are Saturday and Sunday. Most of the prisoners are from Lima and vicinity, and that is where their families live. To reach the prison by land, they must set aside two days for travel, generally leaving Thursday night and arriving by 10:00 a.m. on Saturday, when visiting time begins. The cost is approximately $300 to $500 soles (from US$ 80 to US$ 150). Due to those conditions, and the altitude, children and the elderly are unable to make the trip. The prisoners’ relatives take turns bringing food, which on occasion they are not allowed to bring in.

90. The Commission was informed by the prison administration that on average there are 10 to 12 visitors for all the prisoners each weekend. The relatives of persons convicted of terrorism or treason noted that when they take turns for the weekly visits, only four or five people go, and they meet up there with one or two persons visiting the prisoners convicted of common crimes. The relatives and prisoners indicated that when they were held in the Castro Castro Prison in Lima, they were visited weekly.

91. In terms of visits by attorneys, persons convicted of the crimes of terrorism or treason do not regularly receive these visits since they are excepted from prison benefits. The persons detained for common crimes said they had difficulties meeting with their attorneys due to the distance and geographical conditions. This situation has worsened, for since the entry into force of the Code of Criminal Enforcement, decree-law 654 of June 30, 1991, the jueces de ejecución de penas (judges for the enforcement of penalties) were eliminated, and review of convictions was transferred to the National Penitentiary Institute (INPE), which is charged with evaluating compliance with the requirements for granting benefits, even though it is also the authority in charge of the prison.

92. Due to the prison’s geographic location, there is practically no access to the communications media. Radio and television signals are not picked up. No magazines or newspapers come in. There are rooms in the pavilions for libraries, but they are empty. The total incommunication with the outside world is redeemed only by the visits of some family members who bring them news about what is going on outside. The prisoners transferred in September 2001 from the Yanamayo Prison denounced that the prison had some television sets that had been given to them by a priest, but that they were stolen, along with their belongings, when they were transferred to Challapalca.

12. Religion

93. The Standard Minimum Rules for the Treatment of Prisoners provide:

41.(1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis. (2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times. (3) Access to a qualified representative of any religion shall not be refused to any prisoner. On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected.

94. In the course of the year, from January to August, only twice had the prisoners at Challapalca received a visit from a Catholic priest.

13. Retention of prisoners’ property

95. The Standard Minimum Rules for the Treatment of Prisoners provide:

43.(1) All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition. (2) On the release of the prisoner all such articles and money shall be returned to him except in so far as he has been authorized to spend money or send any such property out of the institution, or it has been found necessary on hygienic grounds to destroy any article of clothing. The prisoner shall sign a receipt for the articles and money returned to him. (3) Any money or effects received for a prisoner from outside shall be treated in the same way. (4) If a prisoner brings in any drugs or medicine, the medical officer shall decide what use shall be made of them.

96. The prisoners, especially those transferred from the Yanamayo Prison in September 2001, reported that their personal effects and clothing were taken and stolen, and that to this day no investigation has been undertaken to determine their whereabouts or the responsibility for those acts.

14. Psychosocial Care

97. The Standard Minimum Rules for the Treatment of Prisoners provide:

49.(1) So far as possible, the personnel shall include a sufficient number of specialists such as psychiatrists, psychologists, social workers, teachers and trade instructors. (2) The services of social workers, teachers and trade instructors shall be secured on a permanent basis, without thereby excluding part-time or voluntary workers.

98. The visits by administrative support staff such as social workers, psychologists, and attorneys are very sporadic and for one or two days at a time. In 2002, only twice were such professionals present, once three days prior to the Commission’s visit.

15. Treatment

99. The Standard Minimum Rules for the Treatment of Prisoners provide:

65. The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility.

66.(1) To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release. (2) For every prisoner with a sentence of suitable length, the director shall receive, as soon as possible after his admission, full reports on all the matters referred to in the foregoing paragraph. Such reports shall always include a report by a medical officer, wherever possible qualified in psychiatry, on the physical and mental condition of the prisoner. (3) The reports and other relevant documents shall be placed in an individual file. This file shall be kept up to date and classified in such a way that it can be consulted by the responsible personnel whenever the need arises.

100. There are no literacy or education programs at the basic levels for the persons detained at the Challapalca Prison, from the prison administration or social, religious, or other types of organizations, to address this important aspect in the re-socialization of prisoners.

101. The Commission considers that in view of the place where the Challapalca Prison is located, the situation of geographic isolation, the altitude, and the resultant living conditions, an additional affliction is created for those serving sentences, which extends to their family members and the staff of the INPE. Furthermore, such circumstances endanger the personal integrity and health of those who stay there or visit, and undercut the real possibilities of achieving the purposes of the penalty, especially re-socialization and reincorporation of convicts to society. Therefore this situation encloses cruel, inhumane and degrading circumstances, which were designed for this prison to stand, within the penitentiary system, as a symbol of punishment to those considered as a problem in other prisons throughout the country.

16. Work

102. The Standard Minimum Rules for the Treatment of Prisoners provide:

71.(1) Prison labour must not be of an afflictive nature. (2) All prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer. (3) Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day. (4) So far as possible the work provided shall be such as will maintain or increase the prisoners’ ability to earn an honest living after release. (5) Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners. (6) Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, the prisoners shall be able to choose the type of work they wish to perform.

103. The Constitution of Peru provides:

Article 139. The principles and rights of the judicial function are as follows:

22. The principle that the prison regime’s purpose is to reeducate, rehabilitate, and reincorporate the prisoners to society.

104. As regards this basic principle in the Standard Minimum Rules for the Treatment of Prisoners, the Commission established that there is no facility or possibility for the persons held at Challapalca to engage in any remunerated activity.

105. The pavilions have rooms that appear to be designated for workshops, yet they have no furniture, machinery, tools, or raw materials to this end.

106. Some prisoners, no more than 10 of those visited in the whole prison, are engaged, on their own, in craft work weaving jute, using materials brought by their family members. The other prisoners must remain in a constant state of idleness, which makes the isolation to which they are subject more serious and prejudicial to them. On some occasions, as in the search that occurred on October 23, 2002, the prisoners had the needles and other tools that they use in their craft work taken from them, so they were unable to continue their activities. Supra 74.

107. The Commission is of the view that the administration of the National Penitentiary Institute and of the Challapalca Prison do not give the persons held there resources or programs for working or for engaging in any productive activity for themselves or their families. Similarly, they restrict the few initiatives involving lawful economic activities by the prisoners, making the penalty imposed all the more rigorous.

108. During the 117 regular sessions of the IACHR, in the context of the hearing on the General Situation of Human Rights in Peru, the State presented information about the situation of this prison, indicating that currently forty people are being held there, and specially about what the Constitutional Tribunal resolved on its sentence of November 19th, 2002, during the reviewing proceedings of the Habeas Corpus sentence, presented by the relatives of some of the prisoners, in which they alleged the isolation, incommunication and the humiliating, degradating and inhumane conditions under which the 34 inmates that had been brought from the Miguel Castro Castro prison, in Lima, are. In its decision, the Constitutional Tribunal ordered the National Penitentiary Institute ("Instituto Nacional Penitenciario") to transfer the inmates whose health situation was clinically proved not to allow them to continue in this penitentiary facility. Also, it ordained that medical attention was to be given to the rest of the prison's population, and that transportation was to be provided to their families to visit them, at least, every fifteen days.

109. Likewise, the IACHR received the Informe Defensorial Nº 073 of March 2003, drafted by the Defensoría del Pueblo, "Informe sobre el Establecimiento Penitenciario de Régimen Cerrado Especial de Challapalca", which was written as part of the fulfillment of its constitutional functions, in which several aspects of the penitentiary and the present imprisonment conditions were discussed, recommending the suspension of new incarcerations, the progressive transfer of the forty inmates to other high security prisons in the country, and its final closure to be arranged, "because the conditions of its location, functioning and regime violate the right to life, to humane treatment, to health, and the right to have proper facilities, the principles of re-socialization and re-integration of the prisoner to society, the right of visit and the constitutional-democratic principle of control".

110. On March 6th, 2003, the Commission, during its 117th regular sessions, approved the draft of the “Special Report on the Situation of Human Rights in the Prison of Challapalca in Peru”. In accordance to the provision of Article 58(a) of the Rules of Procedure of the Commission, it sent this document to the Government of Peru on March 13th, 2003, requesting the State to present observations it deemed pertinent in 15 days. By the communication Nº 7-5-M/091 of April 1st, 2003, the State requested additional time to present its observations. On April 3rd, 2003, the Commission granted the State an additional 15 days to present its response.

111. By a communication of April 21st, 2003, the state submitted its observations to the Draft Report, reiterating part of the information which had been presented during the drafting of this report. It also briefly mentioned that, in compliance with the sentence of the Constitutional Tribunal of November 19th, 2002, a forensic doctor, accompanied by the Prosecutor of Tarata, went to the Challapalca prison on 21 February, 2003, in order to verify the conditions of the medical storage and to examine the inmates in order to establish who should be transferred to other prisons due to health reasons. The physician concluded that the prison had an adequate storage of essential medicines, chirurgical instruments and materials; and that none of the inmates should be moved to other detention center for health reasons. The report further mentioned that the resolution
Nº 148-2003-INPE/P of February 27, 2003 determined the allocation of funds to facilitate the transportation of relatives of the detainees to the prison every 15 days.

112. By communication of August 29, 2003, the Peruvian state reiterated that, in accordance to the information of the National Penitentiary Institute and the sentence of the Constitutional Tribunal, the special closed-regime prisons of Challapalca and Yanamayo fulfilled the conditions to host inmates from any geographic part of the country. Regarding the interdiction of the prison, the State affirmed that it has been developing an evaluation of the costs and benefits, taking into consideration the detainees population, “which does not mean by any means that the prison will not be closed before the end of the year, in compliance with the instructions given by the President of the Republic.”

113. The Commission has previously considered that:

In other words, the State, by depriving a person of his liberty, places itself in the unique position of guarantor of his right to life and to humane treatment. When it detains an individual, the State introduces that individual into a "total institution"--such as a prison--where the various aspects of his life are subject to an established regimen; where the prisoner is removed from his natural and social milieu; where the established regimen is one of absolute control, a loss of privacy, limitation of living space and, above all, a radical decline in the individual's means of defending himself. All this means that the act of imprisonment carries with it a specific and material commitment to protect the prisoner's human dignity so long as that individual is in the custody of the State, which includes protecting him from possible circumstances that could imperil his life, health and personal integrity, among other rights.

The obligation that follows from being the guarantor of these rights means that agents of the State must not only refrain from engaging in acts that could harm the life and physical integrity of the prisoner, but must also endeavor, by all means at their disposal, to ensure that the prisoner is maintained in such a way that he continues to enjoy his fundamental rights, especially his right to life and to humane treatment. Thus, the State has a specific obligation to protect prisoners from attacks by third parties, including other inmates. [29]

114. In compliance with the sentence of the Constitutional Tribunal on the writ to have the decision nullified (recurso de nulidad) in the proceeding of a habeas corpus brought by some of the detainees of this prison, the Peruvian state has adopted measures which do not represent a complete solution to the grave circumstances that the inmates have been suffering, which are described in this report. Nevertheless, the Commission considers that the conditions in the Challapalca prison disregard the state obligations and its role as a guarantor of the rights of the detainees, endangering their lives, personal integrity and human dignity as a result of the drastic structural and geophysical conditions of the prison. This situation cannot be overcome with the decision of the Constitutional Tribunal that only seeks to tackle the effects in a partial manner and still maintain a situation that violates the human rights of the inmates. Several problems remain, such as: the distance, the highness, the drastic weather, the harms to the health, the lack of specialized medical assistance, of educative and religious services, as well as the difficulties of access for relatives and lawyers. In order to definitely overcome these conditions, this prison should be closed due to its disregard for the minimum international standards regarding the treatment of detainees and the protection of those submitted to detention or prison.

IV. CONCLUSIONS AND RECOMMENDATIONS

115. The Commission has verified on site that the Peruvian State has not carried out the IACHR’s recommendation set forth in the Second Report on the Situation of Human Rights in Peru, issued in the year 2000, to deem the Challapalca Prison unfit for use as a prison, because of the violations of human rights of the persons held there. In addition, the IACHR notes that this situation remains in spite of the denouncements of the inmates, their relatives and the control institutions, such as the Office of the Ombudsman (Defensoría del Pueblo).

116. The Commission has determined that since the 1998 visit by the IACHR the State, to the contrary, has gradually increased the number of persons held there, notwithstanding the difficult conditions of isolation due to the distance, altitude, and climate to which the persons held there are subjected. In addition, some of the detainees have been subject to physical and psychological abuse, which are prohibited by the American Convention, the Constitution, and Peruvian legislation, which should be investigated and sanctioned by the Peruvian authorities.

117. The conditions of detention of the persons held there, arising from the geographic situation of the Challapalca Prison, amount to an additional punishment for them, their family members, and the staff of the Prison Institute stationed there, endangering the right to life, the right to humane treatment, and the right to be deprived of liberty in dignified and safe conditions, rights set forth in the American Convention and the international instruments which, to this end, the Peruvian State has undertaken to implement and respect.

118. Such conditions also affect the family members of the prisoners held at Challapalca Prison, who not only have a difficult time visiting, but whose health is jeopardized when they visit. These circumstances stand in the way of carrying out the principles of re-socialization and comprehensive treatment for persons subject to detention, in keeping with the international standards adopted by the Organization of American States, the United Nations, and Peru’s domestic legislation.

119. In view of the foregoing and having the final version of this report been approved on October 9 of 2002, the Commission urges the Peruvian State to comply with the recommendation made in 2000 by the IACHR, to immediately deem the Challapalca Prison unfit to serve as a prison, for good, and to transfer the prisoners held there to prisons near their families, within 60 days of the time it receives this report.

120. Meanwhile, the Commission requests the Peruvian State to duly protect the rights to life, humane treatment, and re-socialization of the persons who continue to be held there, until this prison is shut down for good, and to report to the Commission on their status.

121. Similarly, it recommends that a serious and objective investigation be undertaken to verify the different complaints presented by the prisoners and their family members on alleged physical and psychological torture to which they say they have been subjected by the prison guards, with the acquiescence of the prison administration.

Notes____________________________________

[1] Article 41(b) of the American Convention on Human Rights.

[2] IACHR, Second Report on the Situation of Human Rights in Peru, June 2, 2000, Chapter IX.

[3] Id., para. 2.

[4] Id., para. 17.

[5] Id. Recommendation 12.

[6] The Commission was informed that in early 2001 the number of persons held at this prison had been reduced considerably, but that as of September 2001 the policy of the Ministry of Justice and of the National Penitentiary Institute (INPE) was to once again expand the number of persons held there, especially for those prisoners convicted of terrorism and those who posed difficulties adapting to discipline at other prisons. As of September 2001, it was reported that there were 40 prisoners, and on September 21, 33 more were transferred from Yanamayo; the number then continued to increase gradually.

[7] See, in this respect, IACHR, Press Release Nº 35/02, August 23, 2002.

[8] The meeting included two mothers and two wives of persons held at Challapalca, one person who had been released from that prison days earlier, and one attorney who represents the prisoners and their family members in writs of amparo and criminal complaints against the prison administration.

[9] Adopted August 30, 1955, and approved by Economic and Social Council resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977.

[10] A/RES/43/173, December 9, 1988.

[11] See I/A Court H.R., Case of the Urso Branco Prison, Provisional Measures, Resolution of June 18, 2002, eighth whereas paragraph; and Resolution August 29, 2002, tenth whereas paragraph. See also, I/A Court H.R., Hilaire, Constantine and Benjamin et al. Case, Judgment of June 21, 2002, para. 217.

[12] Articles III, V, and X of the Code of Criminal Enforcement, Decree-Law 654.

[13] Since 1997, when the construction of the prison was finalized, the Office of the Ombudsman has produced several reports on the conditions of detention of the prisoners at the Challapalca Prison, including Informe DP-DA-098 of May 30, 1997; Primer informe del Defensor del Pueblo al Congreso de la República 1996-1998, p. 192; Informe sobre el establecimiento Penitenciario de Máxima Seguridad de Challapalca. Lima, September 2000. Report of August 15, 2002.

[14] The altitude was determined by altimeter in July 1997, during a visit by a commission from the Coordinadora Nacional de Derechos Humanos.

[15] Due to snowfall in southern Peru and the grave impact of the 2002 winter on the population, the national government issued Supreme Decree 069-2002-PCM of July 14, 2002, declaring this zone to be in a state of emergency.

[16] Article 98. Closed-regime establishments are classified as regular and special. The regular closed-regime establishments are characterized by the strict control and limitation on common activities and on contact with the outside world. The special closed-regime establishments are for convicts who have difficulty readapting, and, on an exceptional basis, in separate areas, for unconvicted persons who have difficulty readapting, in which case the competent authority is to be informed.

[17] Informe sobre el establecimiento de Penitenciario de Challapalca, Defensoría del Pueblo, August 15, 2002.

[18] Informe sobre la aclimatación del hombre a alturas mayores de 4.500 M. (Report on the acclimatizing of man to altitudes greater than 4,500 m.) Doctors León Velarde and Carlos Monge C. Oxygen Transportation Unit, Department of Physiological Sciences, Research Institute at the Universidad Peruana Cayetano Heredia.

[19] Id., p. 7.

[20] Precautionary Measures 482/98 VL.

[21] “The experience of the death of prisoner Manuel Ipanaqué Tovar for failure to receive timely specialized medical care highlights the fragility of life at Challapalca.” Informe Actuación Defensoría del Pueblo, Lima Regional Office, Lima headquarters. Criminal and Penitentiary Matters. 0101-1999-011199. Conclusions from the Record. 1. Special Regime Challapalca-lack of health services. October 28, 1999.”

[22] “28. For cases which concern the determination of a person's rights and obligations of a civil, labor, fiscal, or any other nature, Article 8 does not specify any minimum guarantees similar to those provided in Article 8(2) for criminal proceedings. It does, however, provide for due guarantees; consequently, the individual here also has the right to the fair hearing provided for in criminal cases. It is important to note here that the circumstances of a particular case or proceeding -its significance, its legal character, and its context in a particular legal system- are among the factors that bear on the determination of whether legal representation is or is not necessary for a fair hearing.” Inter American Court of Human Rights, Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights ), Advisory Opinion OC-11/90 of August 10, 1990, Ser. A No. 11, paragraph 28.

[23] The Commission interviewed Mr. Miguel Atahualpa Inga, a physician, who has been convicted of the crime of terrorism, and he said that he had been in solitary confinement since September 21, 2001; he said he had been allowed to relate to or communicate with other prisoners on only two occasions. His family members said that since he has been held at Challapalca, on only two occasions have they been able to visit him, because of the distance and the affections experienced by persons from the coast due to the altitude. The prison directors indicated that he is the one who instigates indiscipline and disobedience on the part of the other prisoners, which is why he remains in solitary confinement in a cell contiguous to the infirmary.

[24] The writ of habeas corpus was filed by the relatives of the prisoners transferred from the Yanamayo Prison on September 21, 2001; they lost, as set forth in a resolution of January 17, 2002.

[25] Email communication of October 30, 2002, and annexes.

[26] Alfonso Garay was the director of the prison in September 2001, when the prisoners were transferred from Yanamayo. A judicial investigation was opened into the crime of abuse of authority for these incidents.

[27] Defensoría del Pueblo. Informe sobre el establecimiento penitenciario de Máxima Seguridad de Challapalca. Lima, September 2000, p. 7.

[28] The Peruvian state ratified the Inter American Convention to Prevent and Punish Torture on March, 28th, 1991.

[29] See, CIDH, Report N° 41/99, Case 11.491, Minors in Detention, Honduras, March 10, 1999, paragraphs 135
and 136.



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