III. THE SITUATION SINCE APRIL 5, 1992
42. Following the disruption of institutional democracy in Peru on April 5, the Executive Secretariat of the Inter-American Commission on Human Rights received numerous communications reporting measures of force adopted and employed by the new Government. Among these was the fact that the Legislative Palace and the Palace of Justice were taken over and closed. The chairmen of both houses of Congress were held under house arrest, as were other parliamentarians. Private homes were searched and well-known political leaders arrested. A journalist was arrested, as were other opposition political leaders. They were held for several days and their whereabouts went unreported. The Commission was also told that two news agencies were closed down and military personnel were sent to the offices of newspapers, magazines, and radio and television stations. On Tuesday, April 7, the Commission was informed that combined troops of the Army and the National Police had occupied the facilities of the "Miguel Castro Castro" prison and that all civilian personnel had been removed from the National Penitentiary Institute. This heightened tensions, given a recent experience that had resulted in very serious human rights violations. The Executive Secretariat of the Commission processed the communications received and forwarded them to the Government. It also took other measures appropriate in situations of this nature. The Commission issued a press release on the situation (Appendix VI).
B. The Organization of American States
43. In response to the situation in Peru, the Permanent Council of the Organization convened an ad hoc Meeting of Ministers of Foreign Affairs, under the provisions of resolution AG/RES. 1080 (XXI-0/91) and the Santiago Commitment to Democracy, to consider "the grave events" in Peru. The ad hoc Meeting was held in Washington on April 13. It resolved "to appeal for the immediate reestablishment of democratic institutional order in Peru, for an end to all actions that impair the observance of human rights, and for abstention from the adoption of any new measures that will further aggravate the situation." The ad hoc Meeting also resolved to "voice profound concern over the present status of rights and liberties in Peru and to demand that the Peruvian authorities guarantee full observance and exercise of the rights of assembly and association and of freedom of expression, thought and the press." The ad hoc Meeting also decided to send to Peru a mission of foreign ministers, accompanied by the Secretary General, to promote "immediate measures to bring about a dialogue among the Peruvian authorities and the political forces represented in the legislature, with the participation of other democratic sectors, for the purpose of establishing the necessary conditions and securing the commitment of the parties concerned to reinstate the democratic institutional order, with full respect for the separation of powers, human rights and the rule of law."
44. In operative paragraph 5 of that resolution, the ad hoc Meeting of Ministers of Foreign Affairs urged the Peruvian Government "to make formal its invitation to the Inter-American Commission on Human Rights to investigate the human rights situation in Peru so that it may report thereon to the Permanent Council." At that same ad hoc Meeting, the Government of Peru, through its Minister of Foreign Affairs, invited the Commission to visit Peru "as soon as possible."
45. The President of the ad hoc Meeting of Ministers of Foreign Affairs, Dr. Héctor Gros Espiell, accompanied by the Secretary General of the Organization, Ambassador João Clemente Baena Soares, went to Lima from April 20 through 23, 1992. A second mission travelled to Peru on May 4 and 5. In addition to the President of the ad hoc Meeting, that mission included the Foreign Minister of Honduras, Dr. Mario Carías Zapata, the Foreign Minister of Paraguay, Dr. Alexis Frutos Vaesken, the Vice Minister of Foreign Affairs of Argentina, Dr. Fernando Petrella, and the Deputy Minister of Foreign Affairs of Canada, Mr. Stanley Gooch. Accompanying them was the Secretary General of the Organization.
46. On May 18, 1992, before the General Assembly of the Organization of American States convened, another session of the ad hoc Meeting of Ministers of Foreign Affairs was held. There, the President of Peru, Alberto Fujimori, pledged to convoke a Constitutional Congress through an election where the people's right to express their will would be fully guaranteed and for the purpose of reinstating representative democracy in his country. The Meeting of Ministers recommended to the Secretary General that: "... subject to prior consideration by the Permanent Council and in light of developments in the political situation in Peru and in particular, the timely compliance with President Fujimori's commitment, he provide such assistance as may be formally requested of him, including observation of the elections for a prompt return to the system of representative democratic government."
47. Resolution 2/92 of the ad hoc Meeting of Ministers requested the Inter-American Commission on Human Rights to continue to observe the situation of those rights in Peru and to report thereon to the Permanent Council of the Organization.
48. The President of Peru scheduled the elections for representatives to the "Democratic Constitutional Congress" for November 22, 1992. The Congress was to begin its business on January 1, 1993. The municipal elections, which under the Constitution were to be held on November 8, were postponed by the Government until late January 1993. The Government of Peru formally asked the Secretary General to send observers to verify "the transparency" of the elections. Leaders of Peru's major political parties have opposed the Organization's participation given that there is no national consensus on the election and other aspects of the Constitutional Congress convened.
C. Participation of the Inter-American Commission on Human Rights
49. Given the human rights situation in Peru, the request form the ad hoc Meeting of Ministers of Foreign Affairs, the requests received from human rights organizations and individuals, and the invitation extended by the Government of Peru, the Chairman of the Inter-American Commission on Human Rights, after making the appropriate inquiries, was of the view that he should visit Peru, accompanied by a lawyer from the Executive Secretariat. Following a number of incidents, the Government of Peru agreed that the Commission should make its visit on April 23 and 24. On Monday, April 20, a misunderstanding began to develop between the Government of Peru and the Chairman of the Commission. When it became impossible for members of the Commission to go to Peru, the Chairman instructed Dr. Edith Márquez, Executive Secretary of the Commission, to travel to Peru with one lawyer from the Secretariat, and then present a report on her visit. The corresponding report was presented to the Chairman and analyzed with Commission members Ambassador Oliver Jackman and Dr. Alvaro Tirado Mejía. That Report (Appendix VII) was sent to the Chairman of the Permanent Council on April 28, 1992.
50. Once the misunderstanding between the Government of Peru and the Chairman of the Inter-American Commission had been cleared up, a decision was made to send a Special Commission of the IACHR, composed of Dr. Marco Tulio Bruni Celli and Dr. Alvaro Tirado Mejía, to visit Peru on May 11 and 12. Due to last-minute problems, Dr. Tirado Mejía was unable to participate in the visit, so that Dr. Bruni Celli arrived in Lima, Peru, on May 10. Mr. Luis F. Jiménez, an attorney from the Executive Secretariat, had arrived in Lima earlier, on May 6, to make the necessary preparations. The activities conducted and the matters considered during this visit were included in the report that the Chairman of the Inter-American Commission on Human Rights presented to the ad hoc Meeting of Ministers of Foreign Affairs during the course of the meeting it held in the Bahamas (Annex VIII).
51. The information gathered during the Chairman's visit and during the Executive Secretary's mission, as well as information subsequently conveyed to the Commission, were used as the basis for the update presented below.
a. Changes introduced in the juridical-institutional structure
52. Since April 5, 1992, the Government has introduced a set of significant juridical changes, the effect of which has been to substantially alter the institutions provided for in the Constitution. Those articles of the Constitution that were considered incompatible with the Government's objectives were suspended. This began with Decree Law 25418, called the Emergency and National Reconstruction Government Law, Article 2 of which enumerates the Government's objectives and the goals it proposes to accomplish. Article 4 dissolves the National Congress and Article 5 provides that the functions of the Legislative Power shall be exercised through decree laws. Article 6, which is particularly relevant for purposes of the work of the Inter-American Commission on Human Rights, "ratifies and respects the treaties, conventions, pacts, agreements, contracts and other international commitments in effect and signed by the Peruvian State."
53. The method used to dissolve Congress was a violation of specific provisions -articles 227 to 229- of the Constitution that stipulate the procedure to be followed to dissolve the Chamber of Deputies. Also violated was Article 230 of the Constitution, which prohibits dissolution of the Senate. In articles 206 paragraph 4 and 210 of the 1979 Constitution, such conduct is cited as grounds for impeachment. It is important to point out that the Congressional fact-finding committees had been helpful in shedding light on events that violated human rights.
54. Congress was dissolved through the use of military force, and parliamentarians were barred from entering their Congressional offices. A number of deputies were arrested, and the chairmen of both chambers, Dr. Felipe Osterling and Dr.Roberto Ramírez del Villar, were initially placed under house arrest. According to reports provided to the Chairman of the Commission, the offices of the legislators are still being occupied. The lawmakers themselves do not have access to the documents and materials in those offices, though in a few cases lawmakers have managed to remove certain items. According to what the Chairman of the Commission was told, there is serious concern because not even personal documents have been delivered to the legislators and their personal vehicles that were parked on the property of the Congress building at the time of the takeover have not been returned. The Chairman of the Commission was also told that with no external control, there was genuine concern that instruments might be planted in the offices for incriminating purposes. Another piece of disturbing news was the fact that notices were going out to the parliamentarians that they should return the pistols that the Congress itself had supplied to them for their personal protection. They were being left utterly defenseless, since the personal guard service to which they are also entitled, by law, had also been withdrawn in most cases; only those lawmakers who had expressed support for the Government were still being guarded.
55. On May 18, 1992, during the ad hoc Meeting of Ministers of Foreign Affairs of the Organization, held in the Bahamas, the President of Peru announced elections to elect a Constitutional Congress, charged with amending the Constitution and exercising legislative power until the end of the Constitutional mandate, in other words, July 28, 1995.
b. The right to a fair trial, to due process of law and to judicial guarantees
56. Article 8 of the American Convention on Human Rights recognizes every person's right "to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law..." The Inter-American Commission on Human Rights has stated the following: "The rights recognized and the remedies for protecting them are two fundamental elements in the rule of law. The independence of the Judiciary is the third, since the specific protection of the rights protected depends on its actions." (Situation of Human Rights in Chile, 1985, page 149).
57. The Commission has also said the following:
It is the doctrine of the Commission that the effective observance of the guarantees set forth in the above-cited articles (XVIII and XXVI of the American Declaration) is based on the independence of the Judiciary, which derives from the classic separation of the three branches of government. This is a logical consequence of the very concept of human rights. In effect, to protect the rights of individuals against possible arbitrary actions of the State, it is essential that one of the branches have the independence that permits it to judge both the actions of the Executive Branch and the constitutionality of the laws enacted and even the judgments handed down by its own members. Therefore, the Commission considers that the independence of the Judiciary is an essential requisite for the practical observance of human rights. (Seventh Report on the Situation of Human Rights in Cuba, page 51).
58. On April 5, 1992, the Government of Peru declared that the Judiciary, the Office of the Government Attorney and the Office of the Comptroller General of the Republic were undergoing reorganization. Troops of the Security Forces, supported by tanks, occupied the Palace of Justice and the premises of the other institutions, and barred entry thereto. On April 6, the President of the Republic announced the removal of judges and justices: on April 9, Decree Law 25423 removed 13 justices from the Supreme Court; Decree Law 25422 removed the eight members from the Tribunal of Constitutional Guarantees;, and Decree Law 25424 removed members of the National and District Judiciary Councils. As for the Office of the Attorney General, its incumbent announced his resignation on April 7; that same day he was removed as Attorney General of the Nation and as Chairman of the National Judiciary Council. Dr. Nélida Colán was later appointed Attorney General of the Nation. On April 8, through Decree Laws 25419 and 25420, the Comptroller General of the Republic was removed and the Judicial Office and the Office of the Government Attorney were suspended for ten working days, leaving only examining judges and lower-ranking prosecutors in place. By Decree Law 25445, of April 23, 1992, 130 individuals were removed, among them magistrates on the superior courts, chief prosecutors, judges in the court districts, provincial prosecutors and minors' court judges in the districts of Lima and Callao. That Decree Law specifically precluded any possibility that judges might avail themselves of amparo to have this measure declared null and void.
59. Repeatedly, the Commission has been told of the negative consequences that the Judiciary's predicament is having for purposes of protecting and guaranteeing the rights of the citizenry. In effect, the total absence of judicial activity made it impossible to exercise the remedies of amparo and habeas corpus. The most notorious case was that of Mrs. Pilar Nores de García, who twice unsuccessfully attempted to file a petition on behalf of her husband, former President Alan García, and was prevented from doing so by security forces. According to reports the Commission has received, the obstacles that Mrs. García's suit encountered stand in stark contrast to the rapid action taken by the Judiciary in instituting proceedings against Dr. Alan García and Mr. Agustín Mantilla, for possession of weapons. Both cases are now being processed by the Inter-American Commission on Human Rights, and a decision will be adopted in due course.
60. The remedies filed to protect the rights of individuals were denied in the case of judges whom the Executive Power had removed from the bench, without any type of formality or proceedings; in other cases, such remedies have come up against insurmountable obstacles. One measure that affects all citizens' ability to avail themselves of the remedies provided under the law is Decree Law 25433, which the Government enacted to amend the procedure and effects of the remedies of amparo and habeas corpus. The changes introduced in the laws governing these crucial remedies have had the effect of making them less effective in guaranteeing the rights of individuals, since this decree law requires that "the imminent threat that a constitutional right will be wronged or violated must be obvious" before the judge suspends execution of the contested act; under the previous legislation, the action being challenged was suspended as soon as the remedy was filed. Moreover, the new law demands that the Office of the Government Attorney intervene in the processing of the actions filed, so that such resources are deprived of the simplicity and promptness required under Article 25 of the American Convention on Human Rights. Decree Law 25433 also penalizes judges and prosecutors who hear appeals without the Office of the Government Attorney of the Judiciary participating.
61. The amendments introduced in the rules governing the petitions of amparo and habeas corpus and the selectiveness with which the judicial remedies are being applied is further exacerbated by the fact that there have been massive dismissals in the Judiciary. The Chairman of the Commission was informed that a proceeding is in progress to reconsider the dismissal of magistrates, based on the individual requests that those magistrates have submitted. The IACHR must repeat that it hopes that the Government of Peru will supply a list of the objective criteria it employed when removing magistrates from the bench, as this is a very serious penalty. It would also like an explanation of the procedure now being followed. The Commission would like to know who the responsible authority is for enforcing this measure. As the Commission's Chairman told the high-ranking authorities of the Peruvian Government, it would have been preferable to continue the cases under way against magistrates who were being investigated and, after guaranteeing their right to self defense, to have adopted the appropriate decision, rather than the other course of action that was chosen, which was to dismiss them first and then analyze requests for reconsideration later.
62. The IACHR must point out that the procedure followed by the Government subsequent to April 5, 1992, seriously affects the independence of the Judiciary. Any reform needed to correct corruption and inefficiency, should have been carried out in such a way that the basic rules of due process and the complete separation of powers were fully respected.
63. The legal framework that the Government has been developing since April 5, has increased the penalties for the crime of unauthorized assumption of functions. Numerous sources have told the Commission that these provisions were designed to be used by the Government against those leaders, parliamentarians and civil servants whom it might wish to put on trial. Some also expressed the view that this decree law could end up hurting the Government authorities themselves, because of the provision contained in Article 210 of the National Constitution.
64. Particularly disturbing are the provisions of Decree Law 25475, of May 5, 1992, which establish the penalties for the crimes of terrorism and the procedures for the investigation, pre-trial hearing and trial. There is a strong consensus in Peru on the need to develop a legal system with which to investigate and punish properly acts of terrorism. The new system must not only be judicially effective, however, but must also guarantee the human rights of the accused. It is, therefore, a very delicate but very important issue. The Chairman of the Commission heard views to the effect that Decree Law 25475 would not properly guarantee the exercise of the rights to due process and judicial guarantees recognized in the American Convention on Human Rights. The Decree Law makes it possible to arrest suspects and hold them incommunicado for fifteen days, during which time they may not have the advice and assistance of an attorney. In addition, the Decree Law in question makes it unlawful for any single attorney to defend more than one person accused of the crime of terrorism; this affects the accused's right to be assisted by legal counsel, under the terms of Article 8.1.d of the American Convention on Human Rights, which recognizes the accused's right "to be assisted by legal counsel of his own choosing..."
65. In a new twist, Decree Law 25475 institutes the system of "secret justice," also known in Peru as "judges without faces." This system is designed to guarantee the personal safety that presiding magistrates need to be free of the kind of coercion that judges in the ordinary courts may be subjected to. Human rights organizations, however, have criticized the system. It has been said that if no one knows the identity of the presiding judges, then nothing can be said about their impartiality and independence. This in itself is questionable, given the measures adopted by the Executive Power in relation to the Judiciary since April 5.
66. The Commission has received reports on a provision in Article 2 of Decree Law 25475 which introduces a very significant change in Article 319 of the Penal Code, simply by changing the tense of a verb. In effect, Article 319 of the Penal Code reads as follows:
Anyone who provokes, creates or maintains anxiety, alarm, or terror in the population or in a sector thereof, by taking measures against the life, person, health, liberty, personal security or physical integrity of individuals ..., using violent methods, weapons, explosive materials or artifacts or any other means capable of causing damage or a serious disturbance of public tranquility or of affecting international relations or the safety of society ...
67. Article 2 of Decree Law 25475 simply changed the word "by taking" to the word "takes" and with that eliminated the effect of the acts against a life, etc., in creating a state of anxiety, alarm or terror. By separating the two, those who instigate, create or maintain a state of alarm in the population by using any means capable of causing serious disturbance to the public tranquility or affecting international relations is covered by the provisions of this Decree Law. The Chairman of the Commission heard the serious concerns voiced by a number of directors of communications media who are worried that these provisions will be used against the press.
68. Another source of serious concern was the fact that Article 22 of Decree Law 25475 eliminated forced disappearance of persons by rescinding Article 323 of the Penal Code, which provided that
Any public official or civil servant who deprives someone of his freedom by ordering or carrying out actions that result in that individual's disappearance, shall be imprisoned for no less than fifteen years and disqualified from the exercise of his rights as a citizen.
69. On June 20, 1992, Decree Law 25564 reduced the age when minors can be tried as an adult for the crime of terrorism from 18 to 15. This Decree Law provides that those between 14 and 15 who are convicted and sentenced shall be located in special areas of juvenile prisons, while those between the ages of 15 and 18 will be in special areas of regular prison institutions.
70. On July 2 of this year, Decree Law 25592 was issued, which again criminalized the practice of enforced disappearance, which had previously been provided for under Article 323 of the Penal Code but had been nullified by Decree Law 25475. The difference between Article 323 of the Penal Code and Decree Law 25592 is that the latter requires that the disappearance be "duly established." One of the very purposes of the practice of enforced disappearance is to prevent the existence of the criminal act from being established.
71. On July 24, 1992, after the most violent wave of attacks in Lima, the President addressed the Nation to announce the adoption of drastic legal measures to contend with the situation. On July 25, Decree Law 25643 was issued prohibiting the free importation and marketing of ammonium nitrate, a substance used in the detonation of explosives, but which has other uses as well; one of the ways it is used is as a fertilizer in farming. This Decree Law provides that those found to be in unlawful possession of ammonium nitrate and/or using it for acts of terrorism will be tried by military tribunals.
72. On August 13, 1992, Decree Law 25659 was enacted, which classifies as a traitor anyone who uses "car bombs", explosives or weapons of war, causing death or injury to individuals; anyone who is a leader of a terrorist organization, any member of an armed group, death squad or similar group; anyone who unlawfully stores or possesses ammonium nitrate; anyone who spreads or provides reports, data and "other information" or allows terrorists access to premises in his/her charge in order to aid and abet their activities. This Decree Law also punishes such crimes with life imprisonment and denies them the right to the remedies of amparo or habeas corpus which an accused can file up until the proceedings are final. Moreover, Decree Law 25659 gives the military courts jurisdiction over crimes of treason.
73. This Decree Law has been the target of serious criticism. It has been pointed out that the suspension of the remedies of habeas corpus and amparo is blatantly at odds with the Advisory Opinion of the Inter-American Court of Human Rights, requested by the Inter-American Commission, whereby suspension of certain rights during states of emergency cannot mean suspension of the remedies instituted to protect nonderogable rights such as the right to life and the right to humane treatment. Suspending the exercise of such remedies is a very grave measure, since it undoes the principle whereby the accused is innocent until proven guilty; suspects are subjected to extremely rigorous treatment. Human rights organizations in Peru have also pointed out that to allow military tribunals to try civilians is contrary to Article 282 of the Constitution, which states that the military shall not try civilians; those human rights groups also note that trial by military tribunal has not been the most effective method for combatting violence in other countries of Latin America and, in the Peruvian case, is creating confusion, since there is an overlap with the provisions of Decree Law 25475 of May 6, 1992, which instituted the system of "judges with no faces."
74. The Commission received a complaint, which became case No. 11,006, to the effect that on the night of April 5, 1992, the home of former President Alan García was surrounded by tanks and more than 100 soldiers in an attempt to arrest him. The troops fired at the house and then entered, but did not manage to arrest Dr. Garcia, who had escaped only moments before. Enclosed with the petition was a photocopy of a document bearing the letterhead of the Chairman of the Joint Command of the Armed Forces ordering the arrest of those individuals whose names and identity had been reported, by word of mouth, to the groups making the arrests.
75. The petition also stated that the troops overpowered the security staff and locked the service staff and the García Nores children in a room. They then beat Deputy Jorge del Castillo, put a hood over his head and took him into custody. He was kept that way for five days. The petition stated that the soldiers took Dr. García's secretary into custody and then searched the house and the office, taking away books and personal documents such as property deeds, passports, tax declarations, correspondence, articles of clothing, and so on. The complaint stated that the car belonging to Deputy Del Castillo was broken into and that a number of legal documents were confiscated, among them the originals of the Florida State Department's Licensing Division, which was the basic proof used by the Supreme Court of Peru to acquit Dr. Alan García.
76. When the troops withdrew from the home of former President García, according to the petition received by the Commission, Mrs. García tried unsuccessfully to file a petition of habeas corpus, on April 12, 13 and 14.
77. Ministerial resolution 305-92 IN/DM appeared in the Official Gazette of April 15, 1992 and ordered that criminal proceedings be instituted against former President García, who was accused of storing weapons on the premises of the Aprista party, of which Dr. García is Secretary General. According to the petition, the weapons were discovered during a search that Army troops made of the party's offices. The Prosecutor never intervened. The petition pointed out that in the past, the crime of illegal possession of arms carried a penalty of two years conditional imprisonment; since April 5, however, the penalty is now a minimum of four years effective imprisonment. Dr. García was also accused of storing weapons in his home.
78. Once the initial complaint was processed, on May 7, 1992 the Government of Peru sent a reply to the effect that Dr. Alan García was "of his own free well, in hiding" and that he was engaged in various political activities "for the purpose of creating alarm in national and international organizations that he will later use to his advantage for political/partisan dividends." The Government's reply did not make any reference to the charges made in the petition.
79. On May 19, 1992, the Inter-American Commission on Human Rights was informed that the First Criminal Chamber of the Supreme Court had decided to reopen case 13/92 against former President García, for unlawful enrichment; according to the petition, the final judgment handed down by the Supreme Court on January 29 had made this res judicata. At the time of the January 29 judgment, the Court's ruling had been that there were no grounds to continue the case against Alan García.
80. According to additional information supplied on May 19, the Executive Branch of Government directly appointed, without following any kind of procedure, the members of the Court who were to replace the justices dismissed; the information stated that the criminal chamber in charge of reopening this case was chaired by Dr. Moisés Pantoja, who was the only justice who voted in favor of prosecuting the case against Dr. Alan García. The communication stated that the other 14 justices who ruled on the case were dismissed by the Executive subsequent April 5. According to information that appeared in the government newspaper El Peruano on July 17 last, the ad hoc prosecutor Jorge Melo Vega has asked the Supreme Court to vacate all of the proceedings in the trial against Dr. García for undue enrichment.
81. On June 2, 1992, the Inter-American Commission on Human Rights received further information to the effect that Dr. Alan García had opted for diplomatic asylum because of the Peruvian Government's persecution of him. By way of example, the communication mentioned that the judge of the Sixteenth Civil Court of Lima, Dr. Julio Escobedo, was dismissed in May by the Superior Court of Lima, when he ruled on a petition of amparo filed by Dr. Alan García against the Government's resolution that sought to reopen the constitutional proceeding against him. Earlier, it had removed the principal judge, Dr. César Emilio Mendoza, who had granted the petition of amparo filed on behalf of Alan García and had ordered measures to protect his rights. With both these magistrates dismissed, the judge who replaced them denied the petition of amparo. Again, according to the petition, the Lima Superior Court, where the petition of amparo on behalf of Dr. García had been filed, upheld the ruling that the petition was inadmissible and nullified the precautionary measures ordered by judge Mendoza.
82. The petition stated that the prosecutor from the Ministry of the Interior had sought the arrest of Alan García on charges of illegal possession of weapons, according to an edict that appeared in the Official Gazette of August 15, 1992. According to the prosecutor, Dr. García could be sentenced to eight years imprisonment. Under Article 176 of the Constitution, because Dr. García is a former President and a Senator for life, the Senate must give its consent before he can be put on trial. However, the Senate was dissolved by the Government, so that the Attorney General of the Nation, who was designated subsequent to April 5, issued an order to the effect that those articles of the Constitution that prescribe the procedure to be followed "are suspended inasmuch as they are contrary to the objectives and purposes of that decree law" (No. 25418, called Basis of the Emergency and National Reconstruction Government, mentioned earlier).
83. None of the formalities was observed when the members of the Judiciary were removed from the bench. Hence, judges who remain in their posts or those who have been appointed to replace judges who have been removed from the bench, are at the mercy of the Chief Executive and their independence and impartiality seriously compromised. This situation is even further exacerbated by the fact that the public authorities have allegedly removed important documents related to the reopen case, thereby impairing Dr. García's right to self defense.
84. As for the institutional and legal amendments instituted by the Peruvian Government since April 5, 1992, where the right to a fair trial and to due process of law are concerned, the Commission is of the view that those measures have effectively collapsed the separation of powers, which are now concentrated in the Executive Branch. That concentration of functions has enabled the Executive to adopt sweeping measures against magistrates in the Judiciary, many of whom have been removed from the bench without any type of formality or hearing. Thus far, there is no information as to the criteria used to justify the measure or the procedure followed, or the authority that applies it. The result of such measures has been to subordinate the Judiciary even more to the dictates of the Executive, which was, ironically, one of the defects that it sought to correct.
85. In consequence of elimination of the separation of powers, the remedies instituted to protect and guarantee the exercise of rights by individuals have been weakened, which situation has been made worse by the promulgation of decree laws whose provisions have placed the exercise of human rights in an extremely precarious situation. The result is increasing uncertainty and insecurity among large segments of the Peruvian population. The Commission believes that this process is creating the institutional and legal conditions to justify arbitrary rule.
c. The right to personal liberty
86. In the period immediately subsequent to April 5, 1992, as reported in the report of the Chairman of the Commission, prominent members of the opposition, congressmen, the journalists Gustavo Gorriti, and members of the Association of Democratic Lawyers were arrested. Dr. Felipe Osterling, Chairman of the Senate, and Dr. Roberto Ramírez del Villar, Chairman of the Chamber of Deputies, were placed under house arrest. Also placed under house arrest was Dr. Horacio Valladares, a justice of the Supreme Court. The measures adopted were nullified in the days that followed. The Chairman's report also recounts how a group of unidentified civilians arrested Mr. Andrés de los Ríos. The circumstances surrounding this incident point to the fact that his abductors were members of the Police Force. Fifteen days passed without any news of Mr. de los Ríos. He was finally released, but never knew who had actually arrested him. According to Mr. de los Ríos, during his captivity he was seriously mistreated and interrogated as to the whereabouts of former President Alan García and asked where the weapons were located that, they said, belonged to Mr. de los Ríos' political party.
87. Other individuals arrested were able to identify where was they were held and said that they had been taken to military facilities. These individuals were denied their liberty without any type of legal formality, without being advised the charges against them, simply by means of an open order signed by the Chairman of the Joint Command of the Armed Forces, with a verbal indication of the individuals who were to be arrested, and without informing their families of the arrest. The role played by the Judiciary obviously prevented any remedy from being exercised on behalf of the affected parties.
88. While such egregious conduct as that described above has been corrected, it must be taken into account that it was performed on the orders of the highest authorities of the State and continues to be a threat to anyone who wishes to exercise a remedy. The Chairman of the Commission was told that such events could happen again in the near future. Therefore, one should make note of the case of the industrialist Samuel Dyer Ampudia, who was arrested on July 27, 1992, as he was getting ready to travel abroad. The arrest was allegedly made on the basis of a warrant issued for the arrest of one of his brothers, Edward Moisés Dyer. According to reports, Samuel Dyer was held eight days incommunicado in the Army Intelligence Service and was never brought before a competent judge. He was able to escape. The Commission has opened the respective case file and is now awaiting information from the Government.
d. Right to life
89. As for the right to life, one particularly serious development since April 5, 1992, was the death of a large number of prisoners charged with terrorist activities and at the time being held at the "Miguel Castro Castro" prison. This occurred between May 6 and May 9, 1992, as described in the report of the Chairman of the Commission (Annex VIII). Reports disagreed on the number of people who died and the measures taken to transfer prisoners, which impartial observers were not allowed to observe. The government's official report to the Commission says that 39 people died: 28 men and 11 women. The Commission has instituted a case on this matter and is now compiling the corresponding information.
90. Also denounced was the disappearance of 8 people, allegedly on May 2, 1992, in the Province of Santa, Department of Ancash, while on June 9, the disappearance of Honorato Laura Luján in Ayacucho was reported. It has also been reported that on the night of July 18, a group of heavily armed men entered the dormitories of the National University of Cantuta and arrested 9 students and one professor; they are still classified as disappeared. The University of Cantuta is heavily guarded by military troops, as are all the State universities in the Lima metropolitan area. And one must have the authorization of the military to move about. Also denounced was the abduction and disappearance of the journalist Pedro H. Yaudi, in the Province of Huacho on June 24. This incident was also attributed to army troops. Another denunciation reported the disappearance of Dr. Wilfredo Terrones Silva, an attorney with the Association of Democratic Lawyers of Peru, as he was leaving his office on August 26, 1992. His whereabouts are still unknown. Also denounced was the disappearance of professor Teresa Díaz Aparicio, on August 18, as she was in route to the Universidad Mayor de San Marcos, where she teaches.
91. As for paramilitary groups, it has been reported that Dr. Jorge Cartagena, a member of the Association of Democratic Lawyers of Peru, was shot five times while in his office. Dr. Cartagena was left lying there with a letter pinned to his body, indicating that the PCP-SL was responsible for the shooting. Dr. Cartagena himself and members of the association to which he belongs believe that it was the work of paramilitary groups with ties to the security forces.
e. The prison situation
92. The Inter-American Commission on Human Rights has monitored closely the situation of prisons in Peru, which have been the scene of very egregious violations of human rights. These reached a climax with the deaths that occurred in 1986. The Commission has submitted a case to the Inter-American Court of Human Rights that concerns the events at the prison known as El Frontón, in 1986, during which many prisoners died.
93. In May 1989, a member of the Special Commission of the Inter-American Commission on Human Rights visited the "Miguel Castro Castro" prison and spoke at length with prisoners being held for terrorism and subversive acts. In October 1991, Dr. Gilda Russomano, Dr. Marco Tulio Bruni Celli and Dr. Oscar Luján Fappiano, accompanied by Dr. Edith Márquez and an attorney from the Executive Secretariat, spoke with prisoners in that institution who were being held for terrorism. They also spoke with the authorities of the National Penitentiary Institute.
94. On April 7, 1992, the Executive Secretariat of the Inter-American Commission on Human Rights received reports to the effect that combined army and police troops had entered the Miguel Castro Castro prison, removing the staff of the National Penitentiary Institute and taking complete control of the prison. The situation stabilized immediately. On April 23, 1992, Dr. Edith Márquez, Executive Secretary of the Inter-American Commission, visited Peru with Mr. Luis F. Jiménez, an attorney from the Secretariat. They were permitted to enter the prison, and their observations appear in the report that the Chairman of the Commission presented (Appendix VII). There they sensed that the atmosphere between the prison officials and the inmates was good.
95. The report of the Chairman of the Commission, attached as Appendix VIII, contains a detailed account of the activities carried out in response to the serious events that began on May 6, 1992 and ended on May 9 of that year, resulting in many dead and wounded. As indicated in the Chairman's report, the Inter-American Commission made several overtures to get the Government to agree to allow it to use its good offices, but to no avail. According to reports, the Red Cross had no role whatever in the earlier stages of the operation, and was allowed only a brief visit on the night of Friday, May 8. According to reports, the only nonmilitary presence within the prison was that of a prosecutor. No other individual or independent institution was permitted to be present to observe the events. No offer to explore the possibility of a peaceful settlement to the situation before using force was accepted.
96. As reported by independent sources, on Thursday, May 7, and especially on Friday, May 8, the inmates asked to speak with the authorities in the presence of institutions such as the Red Cross and the Inter-American Commission on Human Rights, so that a transfer could be effected. However, no offer of good offices was accepted and on Saturday, May 9, the combined army and police forces used force against cellblock 4B. At around seven that night, the inmates left a cellblock that had been under heavy siege, involving explosives and weapons of war. One group of women was transferred to the Santa Mónica prison, and another group to the Cachiche prison in the Department of Ica. On Sunday, May 10, the President visited the prison and announced the Government's statistics: 28 dead, 11 wounded and 13 disappeared. Some 470 inmates had surrendered.
97. On May 13, 1992, the Chairman of the Commission forwarded a communication to the Minister of Foreign Affairs of Peru, to the following effect:
I have the honor to address Your Excellency in connection with the events that occurred at the "Miguel Castro Castro" prison starting on May 6, 1992 to request that you kindly adopt the following measures as soon as possible:
1. Provide the Inter-American Commission on Human Rights with a complete list of the male and female inmates who were in cellblocks 1A and 4B of that institution on May 5 last.
2. Provide the Inter-American Commission on Human Rights with a complete list of the individuals who were killed, wounded, or who have been missing since May 6.
3. Provide the Inter-American Commission on Human Rights with a complete list of the survivors, and where they are at the present time.
4. Reestablish, as soon as possible, visits from relatives of the inmates, so that they may provide them with any clothing, medications and toiletries that they may need.
5. Take the necessary measures to provide the wounded with the medical care they require.
98. On June 12, 1992, the Inter-American Commission on Human Rights instituted case No. 11,015, based on a petition received. On July 9, it forwarded additional information on that case, and again on August 10 and 12, 1992. The additional documentation supplied to the Commission and forwarded to the Government of Peru makes reference to the serious situations that are occurring in the case of individuals who are denied their liberty. Subsequently, a case was instituted in connection with Mr. Alfredo Polay Campos, an MRTA leader who was also transferred to the Yanamayo prison in Puno.
99. The disturbing information provided to the Commission concerning the situation of the inmates prompted it to send a request to the Government of Peru, dated August 14, 1992, to take measures to protect the rights of the detainees. The situation denounced was described as follows:
a. That a group of around 80 inmates in cellblock 4-B and 2 members of the Tupac Amaru Revolutionary Movement had been transferred to Yanamayo prison in Puno.
b. That prison does not have the facilities to provide inmates with the minimum protection needed to cope with the very low temperatures at that altitude and the inhospitable climate.
c. The individuals being held have been taken to Yanamayo with only the clothes on their backs, after having spent several weeks exposed to the elements, poorly fed, and subjected to various types of serious mistreatment; a number of them were also wounded.
d. No authorization has been given to allow relatives to visit those being held in Yanamayo and they are not allowed to send them the food, clothing, coats or medicine the prisoners need to cover their basic needs.
e. Two inmates have already died as a result of the inadequate facilities, their very weakened physical condition at the time they were transferred and because of the authorities' refusal to permit the vital necessities of those being held at Yanamayo prison to be supplied by those outside.
f. Members of rival armed groups are said to be held inside the same facilities, which poses a serious threat to their personal safety and life should serious violence occur.
100. In view of the information supplied and the fact that there had been no reply from the Government of Peru, the following precautionary measures were requested:
1. That the Government of Peru authorize the Inter-American Commission on Human Rights to conduct an on site inspection of the Yanamayo prison facilities in the Department of Puno.
2. That the Government of Peru authorize the Inter-American Commission on Human Rights to speak with persons deprived of their liberty in that penal institution.
3. That the Government of Peru authorize relatives and attorneys to visit prisoners in that and other detention centers and that it allow clothing, medicine, coats and toiletries that the inmates require to meet their vital needs to enter.
4. That the Government of Peru provide persons suffering from health problems with needed medical care and that such persons be transferred to establishments where they can receive proper medical attention.
5. That the Government of Peru adopt measures to keep separate persons who are considered members of rival armed groups, so as to avoid the kind of violence that could threaten the safety or life of the inmates.
6. That the Government of Peru forward to the Inter-American Commission on Human Rights the official list of persons who died and disappeared as a result of the events that occurred at the Miguel Castro Castro penal institution, as well as a list of the wounded and the whereabouts of those transferred.
101. On September 11, 1992, a communication was received from the Permanent Mission of Peru to the Organization, which forwarded detailed information from the Ministry of Justice on the measures the Government had adopted in connection with the request made by the Commission. It also agreed to an on-site visit by the Inter-American Commission on Human Rights to ascertain the conditions under which inmates are imprisoned.
102. It should be mentioned that the Commission has received additional information concerning case 11.015, to the effect that inmates in the Miguel Castro Castro penal institution were in very bad condition, very poorly fed -far below the minimum requirements, and that the sick and those in need of medical attention were living alongside healthy inmates. No inmate was allowed to receive visits from relatives or from their attorneys. In general, conditions were such that they posed a serious threat to the inmates' personal security and even their lives.
f. Political rights
103. The Inter-American Commission on Human Rights has said repeatedly that exercise of the political rights recognized under Article 23 of the American Convention on Human Rights is an essential element in representative democracy. It is also stated that proper exercise of those rights presupposes observance of other related civil and political rights: the rights to personal liberty, to a fair trial, to freedom of expression, freedom of assembly and freedom of association. The Commission has also noted, when examining recent experiences in the exercise of political rights, that they cannot be confined to sporadic elections held for specific purposes; instead, they must be the result of the complete efficacy of democratic institutions, which certainly includes the separation of powers and the institutional checks and balances. Upon the disruption of democratic institutional order in Peru, the Inter-American Commission on Human Rights issued a press release (Appendix VI).
104. The mandate of the OAS mission created through Resolution 1/92 of the ad hoc meeting of Ministers of Foreign Affairs was to "take immediate measures to bring about a dialogue among the Peruvian authorities and the political forces represented in the legislature, with the participation of other democratic sectors, with the purpose of establishing the necessary conditions and securing the commitment of the parties concerned to reinstate the democratic institutional order, with full respect for the separation of powers, human rights, and the rule of law." The mission, which was led by Foreign Minister Gros Espiell, decided to propose to the Peruvian authorities that representative democracy be restored before the end of 1992 and that the proposed amendments to the Constitution be prepared through a process that is compatible with the norms of representative democracy (for example, by a constitutional assembly or a high level constitutional commission) and that no attempt be made to legitimize, by means of plebiscites, acts that are basically anticonstitutional."
105. Though President Fujimori's reaction was initially unfavorable, he did go to the Bahamas for the next session of the ad hoc Meeting of Ministers of Foreign Affairs. There he announced that a constitutional congress would be convened, along lines similar to those suggested by the Organization's mission. The date set for the elections was November 22, 1992. Opposition parties demanded a dialogue, as provided for in Resolution 1/92; they had made several attempts to institute that kind of dialogue. The major opposition parties were of the view that there had been no significant dialogue between them and the Government, since the only dialogue had been between the Government and five lesser parties.
106. The leaders of the major political parties in Peru felt that the election legislation enacted by the Government to govern the November 22 election had serious problems and that it would not properly guarantee the exercise of political rights that is so essential if democratic institutional order is to be restored. To this argument they added the fact that the President of the National Election Panel and all the officials who would participate in the elections had been appointed by the Government since April 5, which shows that the Government would be in complete control of the institutional apparatus and that it was using all the means it had at its disposal, including considerable amounts of money, to promote a list of candidates that backed the Government. They also say that the municipal elections should have been held at the same time as the elections for the constitutional congress as provided in the Constitution, and that the Government's delay was not justified. That being the case, they are saying that the election process will not be democratic and that the Constitution that comes out of it will not reflect the consensus of the major political forces in Peru. Based on that reasoning, on September 1, 1992, 13 political parties asked the Organization of American States to refrain from participating in an election process for which there was no national consensus.
107. The Government believes itself to be complying with the commitment made in the Bahamas by President Fujimori in the framework of the talks it held with the Organization's mission, and that the dialogue has been frustrated by the intransigence of opposition party leaders who realize that they may lose their positions because of the strong sentiment against them among the people. It is also said that the rank and file of some of the major parties are pressuring their leaders to take part in the elections scheduled for November 22.
D. Acts of violence by irregular armed groups
108. The political violence caused by irregular armed groups, especially the PCP-SL, has escalated since April 5, 1992. Whereas there were three "car-bombs" that exploded between January 1 and April 4, in the period from April 5 to July 31, 33 such bombs exploded. It is a well known fact that this method inflicts suffering on the entire population, indiscriminately. It reached its climax with the attack that occurred on July 16, 1992, which drew a public condemnation from the Inter-American Commission on Human Rights (Appendix IX). Public information that the Commission has in its possession indicates that in the first half of 1992, there were a total of 775 attacks in Peru, of which 669 are attributed to the PCP-SL, 52 to the MRTA and the rest to other authors. In the first half of the year, 1,807 people died; of these, 255 were members of the security forces, 915 were civilians, 600 were alleged subversives and 8 were considered drug traffickers.
109. With the capture last June of Víctor Alfredo Polay, leader of the MRTA, and the recent capture of Abimael Guzmán, founder and leader of the PCP-SL, along with a considerable number of important members of that group, there may be changes in the modality and intensity of political violence in Peru.