University of Minnesota




Second Report on the Situation of Human Rights in Peru,
Inter-Am. C.H.R., OEA/Ser.L/V/II.106,
Doc. 59 rev. (2000).



 

 

CHAPTER II

ADMINISTRATION OF JUSTICE AND RULE OF LAW

A. INTRODUCTION

1. The observance of rights and freedoms in a democracy requires a legal and institutional order in which the laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law.

2. The Judiciary has been established to ensure compliance with the laws, and is no doubt the fundamental organ for protecting human rights. In the inter-American human rights system, designed for a hemisphere of democratic countries, the adequate operation of the judiciary is essential for preventing the abuse of power by another State organ, and, therefore, for protecting human rights. In effect, the fundamental corollary of human rights is the possibility of going before the judicial organs to see to it that rights are upheld.

3. In order for the judicial branch to be able to serve effectively as an organ for the oversight, guarantee, and protection of human rights, not only must it exist formally, but in addition, it must be independent and impartial. In the inter-American human rights system, this stems not only from the very concept that States must be organized pursuant to the principles of representative democracy as a requirement for belonging to the OAS.[1] In addition, the American Convention establishes, at Article 8:

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligation of a civil, labor, fiscal, or any other nature.

4. In order to define the meaning and scope of the concepts of independence and impartiality, a series of "basic principles" have been established in the framework of the United Nations (UN), among which the Commission makes special mention of the following:

1. The judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats, or interferences, direct or indirect, from any quarter or for any reason.

2. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

3. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

4. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.[2]

5. The existence of an independent judiciary is essential for the practical observance of human rights and democracy, and constitute a right that the member States of the OAS are under an obligation to respect and ensure to all persons under their jurisdiction.

6. As mentioned supra, the Peruvian Constitution notes at Article 43 that the Republic of Peru is democratic, and is organized pursuant to the principle of the separation of powers, and that one of the essential duties of the State is to "ensure the full observance of human rights."

B. THE CIVILIAN JURISDICTION: JUDICIAL REFORM

7. The current executive authorities of the Peruvian State, with whom the Commission met during its on-site visit, have for many years emphasized the need for in-depth reform of the judicial branch, with the stated objective of improving it substantially and overcoming long-standing shortcomings.

8. Prior to the on-site visit (November 1998), during the course of this visit, and after it, the IACHR, in the performance of its functions, has closely followed judicial reform in Peru. This monitoring has been done mainly by looking at laws promulgated related to judicial reform; reports prepared by national and international agencies and institutions, both governmental and non-governmental; news reports in the national and international press; and the interviews that the Commission had with the various Peruvian authorities, including, among them, Peruvian judges and prosecutors at all levels.

9. The information collected by the Commission indicates repeatedly and convincingly that the reform process undertaken, instead of leading to the stated objective of substantially improving the judiciary, has made it possible to subordinate it to the political authorities. This warping of the reform process has severely diminished the independence, autonomy, and impartiality of the judiciary, to the detriment of the balance of powers and checks on abuses of power that should be characteristic of a democratic State. The information provided in the Peruvian State's response to the Report merely indicates an increase in the number of cases being processed by the courts, with no reference to the autonomy and independence of the courts with respect to the political authorities.

10. Distinguished professors of law and leaders of the Lima Bar Association, during the on-site visit, repeatedly set forth very severe criticism of the rule of law in Peru. In addition, Congressman Jorge Avendaño, former professor at the Universidad Católica and former dean of the Bar Association, argues: "There is no rule of law in the country ... because there is no separation of powers. There is no independent justice, and the right of the people to express themselves through the referendum has been impeded. In Peru, it is not the law that prevails, but the will of the ruler, and this is the opposite of the rule of law."[3] In addition, Avendaño notes that the Executive uses the Legislature and the Judiciary: "The first was useful for decapitating the Constitutional Court, and for adopting unconstitutional laws that have enabled it to capture and dominate the institutions (National Elections Board, Public Ministry, National Council of the Judiciary, etc.). The second, the judiciary, is used to persecute political enemies, such as Ivcher, Mur--because of his wife--, etc. and to rule favorably in cases with political implications, such as the amparo filed on behalf of Martha Chávez."[4] According to these statements, it has implied, in practice, that all Peruvians, and all other persons subject to the jurisdiction of the Peruvian State, lack adequate legal and institutional order for the defense and protection of their human rights.

11. It should be noted that the special measures of April 5, 1992, to reorganize the State, were adopted for "the institutional reform of the country, aimed at achieving an authentic democracy, substantially increasing the standard of living of the population, creating the conditions for better realization of the human person."[5] In this historical context, the judiciary and the Public Ministry began to undergo reform. Thirteen of the 25 members of the Supreme Court, all the members of the Constitutional Court, the members of the National Council of the Judiciary, the Public Prosecutor, and 134 judges were removed on April 9, 1992. Their replacements were appointed by the Executive, with the legislative majority.

12. In 1995 and 1998, the Congressional majority approved, and the Executive promulgated, Laws Nos. 26,546 and 26,933, which give the Executive branch functions that should properly vest in the judiciary and the National Council of the Judiciary.[6]

13. These transitory provisions, which have now become permanent, eliminate the institutional autonomy of the judiciary, which is no longer entrusted with its own management, administration, or financing, attributes which are essential and indispensable for maintaining the necessary balance of power in a democratic society. The main characteristic of the reform process is the high level of concentration of power and decision-making powers that has been granted to the Executive Commission of the Judiciary, and especially its Executive Secretary. The Peruvian State, in its response, underscored that the Executive Commission is made up of the President of the Supreme Court, who presides over it, the President of the Supreme Criminal Chamber, the President of the Supreme Constitutional Chamber, and an Executive Secretary. The first Executive Secretary, José Dellepiane, was widely criticized for not being an attorney (but rather a retired career military officer) and for his cozy relationship with the Executive branch. David Pezúa, who replaced him, worked as a clerk to Francisco Acosta, President of the Constitutional Court, after the removal of three judges by the Congress, and as an adviser to Gen. Guido Guevara, President of the Supreme Council of Military Justice. It has been considered that the Executive Commission constituted unconstitutional and intolerable interference in the judicial system by the Executive. The Peruvian State, in its response, indicated that "the make-up of the organs of Government and administration of the Judiciary ... is fully constitutional" because the Executive Commission has been created by Law No. 26,546. The Commission would like to note that the government cannot alter the functions that the Constitution has set forth for the various State organs by the mere adoption of supposedly "transitory" laws.

1. The "Provisional" judges

14. As of this writing, more than 80% of the judges in Peru are "provisional" [7]and have been elected by the Congress, without public competition, through the Judicial Coordination Council and the Executive Commission of the Judiciary, and they are allowed to administer justice in positions higher in rank than those for which they have been evaluated and designated by the National Council of the Judiciary. Since 80% of the judges in Peru are provisional, i.e., they do not enjoy the guarantee of stability and may be removed without cause, added to all the other actions limiting rights and freedoms adopted by the Executive and the legislature, the judiciary has seen its autonomy and independence severely limited. Article 151 of the 1993 Peruvian Constitution provides that the Judicial Academy is entrusted with the education and training of judges and prosecutors at all levels, so that they may then be selected. In this regard, the Organic Law on the Academy (Law No. 26,335) determines that one of its programs has the purpose of academic training of the magistrates of the judiciary and the Public Ministry, and that their access to posts is by an admissions examination. Since 1992, the Judicial Academy has not graduated a single student, and the National Council of the Judiciary has not carried out its constitutional obligation to appoint permanent judges (jueces titulares).[8] For the same reason, no judge has been promoted. Consequently, due to the lack of new permanent judges, the organs created by the Congress, made up of persons selected by the Congress, have chosen judges of lower rank for positions of higher rank. Those judges are called "provisional" and may be removed from their posts without cause. The Peruvian State, in its response, also emphasized the need to address the problem of backlogs in the justice system with the creation of transitory chambers and transitory courts. It states: "To address that problem, the Executive Commission of the Judiciary was entrusted with carrying out an aggressive policy of reducing the caseload, for which transitory chambers and transitory courts were created with judges who, being permanent judges of the immediate preceding instance, meet all the requirements for occupying the next highest post, pursuant to the provisions of the Peruvian Constitution and of the Organic Law of the Judiciary." It should be noted that the Inter-American Commission has received repeated reports of the appointment of certain judges in higher posts due more to their political connections than their merits. In addition, what the State says does not refute the fact that the judges have not been evaluated and designated by the National Council of the Judiciary, which is assigned that power by the Peruvian Constitution. It is surprising that the State affirms that all provisional judges have stability in their posts, especially in view of the evidence submitted to the Commission of the frequent removal of judges whose rulings run contrary to the interests of the Government, including members of the Constitutional Court.

15. The "provisional" judges are provided for in the Peruvian Constitution as an exceptional measure and only for filling vacancies, but this exception has become the rule. This high percentage of "provisional" judges has a serious detrimental impact on citizens' right to adequate administration of justice. It is not just that "provisional" judges are selected by an organ other than that stipulated in the Constitution, but that in addition those judges are allowed to perform functions for which they have been neither prepared or evaluated, as mandated by the Constitution. In addition, the pertinent organ, the National Council of the Judiciary, is not in a position to evaluate the ethical conduct of a "provisional" judge throughout his or her judicial career. The State points out in its response that the functional control of the magistrates in the Judiciary is performed by the Judicial Oversight Organ (OCMA), and by the District Judicial Oversight Offices (ODICMAS), made up of one of the 25 judicial districts in the country. This is precisely the point. The Peruvian Constitution assigns this power to the National Council of the Judiciary, but it is exercised by organs that have been created by the State to replace the constitutional organs. The National Council of the Judiciary cannot confirm these judges in their posts, since it is only empowered to confirm tenured judges. Accordingly, it is a judicial system permanently in the hands of "provisional" judges who, in general, do not have the qualifications required for carrying out the tasks assigned to them. The independence of the judicial system is also undermined by the fact that the "provisional" judges do not enjoy the right to stability in their posts when they are placed on a level approximately equal to permanent judges, which means the decision as to whether they keep their jobs is made unilaterally by the Executive. The Peruvian State notes in its response that the situation will change with the first graduating class of the Judicial Academy in June 2000.

16. The Organic Law on the Judiciary provides that the Plenary Chamber of the Supreme Court of Justice is made up of 16 members. The Plenary Chamber elects, by majority vote, the representative of the judiciary to the National Elections Board, which is the highest level state authority on electoral matters. Two of the 16 posts on the Plenary Chamber were vacant; consequently, two "provisional" judges had to be appointed to fill them. The Executive Commission of the Judiciary, however, decided to create 16 new posts and selected 16 lower-level judges, appointing them as "provisional" judges of the Supreme Court. Consequently, of the 32 judges of the Supreme Court today, 18 have been elected indirectly by the Congress, without any technical or ethical evaluation of their qualifications for those posts. In late 1997, members considered sympathetic to the interests of the Executive were a majority of the Plenary Chamber of the Supreme Court.

17. Given that the "provisional" judges of the Supreme Court of Justice were elected indirectly by the Congress, they lack the status of permanent judges, and in principle they do not possess the same rights, prerogatives, or powers as the permanent judges (who have been evaluated and appointed by the National Council of the Judiciary). As the "provisional" judges had no right to vote to elect a representative of the Judiciary to the National Elections Board, Congress approved Law No. 26,898, and the Executive promulgated it on December 12, 1997, giving the "provisional" judges the same rights, powers, and privileges as the permanent judges.[9] The Peruvian State notes in its response that recognizing the provisional judges to have the same rights, attributes, and privileges as the permanent judges represents an application of the right to equality before the law, and the principle of non-discrimination, since the provisional judges "meet the same requirements and do the same work." Yet on the previous page of its response, the State observes that "they are permanent judges of a lower instance, "who have been called on to fill higher-level posts. It is clear that a permanent judge fills the requirements of his or her post, but when becoming "provisional" and transferred "transitorily" to fill a higher-level post, he or she may not meet the requirements for that post.

18. According to repeated allegations received by the Commission, the reasons inspiring this law, like the earlier ones, were apparently to allow the judges of the Plenary Chamber of the Supreme Court to vote to elect, by majority vote, the representative of the judiciary to the National Elections Panel. The composition of the National Elections Panel is important considering that it must decide, in the year 2000, on Alberto Fujimori's possible third presidential candidacy. It is clear that persons sympathetic to the Executive will be more favorable to their candidacy. Although the Constitutional Court is the highest-level authority regarding interpretation of the Constitution, and already interpreted Article 112 of the Constitution so as to deny the President the possibility of aspiring to a third term, public opinion has the impression that it is the JNE that should settle the matter. The response of the Peruvian State notes that the assessment of the IACHR, that Law No. 26,808 was issued for political purposes, is completely subjective. The Commission refers the reader to Chapter IV, on political rights, in this connection.

19. On September 30, 1999, the Judicial Academy adopted Administrative Resolution No. 027-99-CRG-AMAG, which allows for promotions of provisional judges. A group of at least 58 permanent magistrates of the Court of Lima submitted a motion for reconsideration to the Executive Commission of the Judiciary calling for derogation of this resolution. The permanent magistrates hold that the call of the Academy tends to undermine the judicial career as provided for in the Organic Law on the Judiciary, on allowing for provisional judges to be promoted, even beyond the next-higher level. The tenured magistrates stated: "We do not call into question the rights, powers, and prerogatives that Law No. 26,898 establishes for the tenured magistrates, for whom, moreover, we express the utmost respect, recognizing their personal and professional qualities." They added: "Yet until Article 225 of the Organic Law on the Judiciary is amended, promotion is possible to the extent that the magistrate was permanent in the previous post; accordingly, the first course of promotion aimed at specialized or mixed judges, provisional prosecutors, and senior adjuncts (adjuntos superiores) should be exclusively for magistrates of that instance who are permanent." They added that the provisional magistrates who act as specialized judges or provincial prosecutors have not won any competition to hold those posts, and in the best of cases are permanent judges of peace, clerks, or permanent court reporters. They underscored that in the case of the clerks or court reporters who serve as provisional specialized judges, the situation is even more serious, for according to the Organic Law, they could aspire only to being justices of the peace, while the current call of the Academy would make it possible to perpetuate in their posts many provisional magistrates who have been called into question for the anti-juridical nature of their rulings, such as public law judges Percy Escobar Lino and Víctor Raúl Martínez Candela, who in normal circumstances would be mere judicial auxiliaries.[10] The Peruvian State notes in its response that this Administrative Resolution does not alter the current regulation of the judicial career, "since the requirements for promotion are not strictly academic, and that are to be found in the Organic Law on the Judiciary and other provisions cited, should be met by those who seek promotion in the judicial career or accede to it." The Commission notes that the policy has been formulated by 58 permanent judges who evidently were not in agreement with the position expressed by the State.

20. In February 1998, the Dean of the Lima Bar Association denounced six judges of the Supreme Court of Justice, four of whom are "provisional," to the National Council of the Judiciary for improper conduct. The National Council of the Judiciary set in motion an investigation that was later dismissed (infra).

21. On March 12, 1998, the congressional majority adopted another law, Law No. 26,933, according to which the power to remove the judges of the Supreme Court who belonged to the National Council of the Judiciary was vested in the Organ for Internal Oversight of the Judiciary, which will decide, in each case, whether the case should be archived or whether the judge should be removed.[11] Only in those cases in which the Internal Oversight Organ resolves that the judge should be removed will the matter be passed on to the National Council of the Judiciary. In addition, the law provides for the transfer of all proceedings pending against magistrates to that new organ. Law No. 26,933 deprives citizens of the right to present allegations against the judicial authorities to the National Council of the Judiciary, as provided by the Constitution. The Peruvian State, in its response, notes that the power to apply the sanction of removal to the members of the Supreme Court was restored to the National Council of the Judiciary by Law No. 26,973, of September 10, 1998.

22. By application of this provision, the Congress and the Executive avoided removal from the Supreme Court of the four "provisional" judges who had been called into question for improper conduct, and whose votes were essential for them, and they controlled all the proceedings against judges and prosecutors from that moment on. In addition, it has impeded investigations of judicial authorities called into question by the citizens, making it possible for them to continue administering justice.[12]

23. In April and May 1998, the judicial organs appointed the new members of the National Council of the Judiciary. In addition, in April four members of the National Council of the Judiciary resigned (infra), in solidarity with the members of the National Council of the Judiciary and because their autonomy in respect of their policies and procedures had not been recognized.[13] The new members of the Judicial Academy prolonged the program for training of judges and prosecutors, and kept them in their positions of "provisional" officials subject to manipulation by the Executive.

24. To exercise control over those organs, the Coordinating Council (Consejo de Coordinación) and the Executive Commission have increased the number of judges and supreme prosecutors, thereby obtaining a majority of votes favorable to the Government in the highest-level state organs, such as the Plenary Chamber of the Supreme Court and the Board of Supreme Prosecutors.[14] Also, in this case it should be noted that the reforms are not purely administrative, since the decision of a collegial body depends on the opinion of each of its members. As a result of the creation of 16 new posts on the Supreme Court, and three new supreme prosecutor positions, the selection of persons whose interests are closer to those in power could be favored, in addition to making it possible to manipulate the decisions of the highest-level collegial bodies of the Judiciary and the Public Ministry, and, consequently, of the National Elections Board.

25. The provisional nature of the judges' term also influences the review of laws adopted by the Congress. In Peru, the judges are constitutionally required to give precedence to the Constitution on reviewing the laws at odds with it. It is easy to understand that the judges appointed to provisional posts by the Congress (through the Executive Commissions), in general, might refrain from exercising that power of according priority to the Constitution, as they may be removed without cause. This diminishes the effectiveness of the constitutional power of "diffuse control" of the laws, assigned to judges in Peru.

2. Public Ministry

26. The Public Ministry is autonomous and, according to law, is headed up by the Public Prosecutor, who is elected by the Board of Supreme Prosecutors. The Public Prosecutor takes an oath before the President of the Republic on taking office. The supreme prosecutors are designated by the President only after a recommendation is made by the National Council of the Judiciary.

27. The Public Ministry initiates judicial actions to defend legality, supervises the adequate administration of justice, represents society in judicial procedures, investigates crimes, institutes criminal proceedings, on its own initiative and upon the initiative of parties, issues opinions prior to making judicial decisions, and may introduce proposed legislation. Its budget is approved by the Board of the Public Ministry (Junta del Ministerio Público) and it is defended, before the Congress and the Executive, by the Public Prosecutor.

28. The duration of the term of the current Public Prosecutor, Miguel Aljovín, is three years, which may be prolonged by re-election for two more years. The Public Prosecutor is empowered to challenge laws, on grounds of unconstitutionality, before the Constitutional Court. According to the Constitution, the public prosecutor makes criminal accusations against judges and prosecutors of the lower courts and appellate courts, and generally against public officials. It monitors the activities of prosecutors and supervises compliance with the independence of the judicial organs and the proper administration of justice. It oversees respect for fundamental human rights in the sphere of the public administration, including the Armed Forces and National Police. The members of the Public Ministry enjoy the same rights and prerogatives and are subject to the same obligations and proceedings as judges.

29. The process of re-organizing the Public Ministry began when the Government shut it down, along with other branches of government and institutions in the wake of the events of April 5, 1992. By Decree-Law No. 25,505, of May 20, 1992, Blanca Nélida Colán Maguiño was provisionally appointed Public Prosecutor.[15] Later, the provisional supreme prosecutors were also appointed, by decree-laws. A large percentage of prosecutors were removed by decree-law with no type of administrative process, depriving them of the right to defense. Later, some were restored to their posts by judicial orders.

30. Later, in June 1992, by Decree-Law No. 25,530, the Evaluation Committee was created, made up of two provisional supreme prosecutors designated by the Board of Supreme Prosecutors upon the proposal of the Public Prosecutor, who was entrusted with investigating the professional conduct of the prosecutors (fiscales), attorneys (abogados), auxiliaries, and administrative staff of the Public Ministry. By Decree-Law No. 25,735, of November 21, 1992, the functions of the Evaluation Committee were considered concluded, and it was declared that the process of organic restructuring and re-organization of the Public Ministry was under way, under the responsibility of the Public Prosecutor, for a period of 90 days, which was later extended by Decree-Law No. 25,991.[16]

31. On June 19, 1996 (Law No. 26,623), the Judicial Coordination Council was created, and the Public Ministry was once again declared to be "in the process of re-organizing," for an indefinite period. All the powers and functions of administration entrusted to the Public Ministry, as a constitutional body, were transferred to an "Executive Commission of the Public Ministry" made up of three supreme prosecutors. The Executive Commission is entrusted with re-structuring and reforming the Public Ministry, drafting its Regulation, issuing opinions on behalf of the Public Ministry, pressing criminal charges against judges for misconduct, and determining areas of specialization at all levels. This Executive Commission is currently made up of the former Public Prosecutor, Blanca Nélida Colán, and two supreme prosecutors, appointed by the Government. The Executive Commission is in charge of the government and management of the institution, even though by constitutional mandate this is a power of the Public Prosecutor. The Public Prosecutor was not only removed from the reform process, but his powers were cut back and limited to the following: (1) to press charges, before the judiciary, when it is presumed that there has been illicit enrichment of public officials and public servants; and (2) to exercise legislative initiative, in keeping with the Constitution. The Public Prosecutor is not able to exercise his or her power of bringing actions on grounds of unconstitutionality before the Constitutional Court, since this Court does not have a sufficient numbers of members, infra. Nor may it bring civil or criminal actions against high-level officials before the Supreme Court, as this is only possible if the Congress first adopts an accusatory resolution.[17] In summary, the process of re-organizing the Public Ministry has curtailed the powers and representation of the Public Prosecutor, creating a climate of uncertainty, not only among the members of the Public Ministry, but among the citizenry in general.

32. Based on Law No. 25,735, Miguel Aljovín Swayne, who was Permanent Deputy Supreme Prosecutor, was removed from his post, by the then-provisional Public Prosecutor, for not agreeing to undergo an evaluation not provided for by the Constitution or by any law. Aljovín returned to the Public Ministry by public competitive examination before the Board of Honor of the Judiciary, which appointed him Permanent Supreme Prosecutor on December 29, 1993.[18] Aljovín was elected Public Prosecutor in January 1997. As the post has a three-year term, the elections to choose the next Public Prosecutor, or to re-elect Miguel Aljovín for two years, will be held in January 2000. Mr. Aljovín indicated that he will not be re-elected as he does not enjoy majority support in the Board of Supreme Prosecutors, thereby leaving open the possibility that the President of the Executive Commission of the Public Ministry, Blanca Nélida Colán, will be elected for the third time.[19]

33. As of the approval of this Report, Mr. Aljovín, despite holding the post of Public Prosecutor, does not preside over the Executive Commission of the Public Ministry. Law No. 26,623 vested in the same person the positions of Public Prosecutor and President of the Executive Commission. Nonetheless, when the new Supreme Prosecutor was elected to the post, and despite being the highest-level authority and representative of the Public Ministry, the presidency of the Executive Commission continues to be held by the previous Public Prosecutor, and consequently the Public Prosecutor does not preside over the reform process. That Nélida Colán was Public Prosecutor at the time she was appointed does not necessarily have a decisive impact on her ability to preside over the Executive Commission. Under the law, Ms. Colán and the two supreme prosecutors should continue to serve on the Executive Commission, whatever posts they may hold in the subsequent years. One can conclude that, as in the case of the Judiciary, the Public Ministry has been entrusted--ignoring the Constitution--to four persons selected by the Congress.[20]

34. It should be noted that in May 1997, then-President of the Supreme Council of Military Justice (CSJM), Gen. Guido Guevara, announced his intent to bring criminal charges against Public Prosecutor Miguel Aljovín, for having accused him of failing to abide by rulings of civilian courts in respect of two writs of habeas corpus on which he had ruled favorably in the cases of Demetrio Chávez Peñaherrera, known as "Vaticano," and Gustavo Cesti Hurtado.[21] The CSJM then filed an accusation against the judges of the Lima Court of Appeals (Cámara de Apelaciones), who had ruled favorably on the writs of habeas corpus. In June, a chamber of the Supreme Court removed the three judges from their posts in the Court of Appeals. One of the cases pending before the Court of Appeals at the time was the amparo action brought by Baruch Ivcher against the resolution stripping him of Peruvian nationality. The Supreme Court also dismissed charges filed by Aljovín against Gen. Guevara, arguing that the military courts could reject any habeas corpus proceedings considered "illegal" and ordered that the three judges be tried for breach of public duty (prevaricato). This panel of the Supreme Court was made up of "provisional" judges subject to political pressures. On September 4, 1997, the Executive Commission of the Public Ministry decided not to order the trial of the three members of the Court of Appeals.

3. The "Provisional" prosecutors

35. Law No. 26,738, of January 6, 1997, amended Law No. 26,623, and granted the Executive Commission the power to designate "provisional" superior and provincial supreme prosecutors. It suspended application of criteria such as seniority, the specialization of prosecutors, and the power of the Public Prosecutor to designate supreme prosecutors. This law declared that the Public Ministry would be in a state of "reorganization" until December 1998; this term has now been extended to the year 2000 (supra). The law provides that the Public Prosecutor, on assuming the post, should take the oath of office before the Executive Commission of the Public Ministry.

36. Accordingly, the Judicial Academy has not been able to graduate a single lawyer as candidate to prosecutor or prepare a single prosecutor for promotion. The National Council of the Judiciary cannot perform its functions of evaluating the candidates to appoint permanent prosecutors. Due to the lack of permanent prosecutors, the Executive Commission of the Public Ministry has continued to appoint "provisional" prosecutors, selecting persons to hold higher-ranking posts for which they have been neither evaluated nor appointed by the National Council of the Judiciary, as called for by the Constitution. At present, more than 80% of the prosecutors in Peru are "provisional." Ms. Blanca Nélida Colán informed the Commission, in a meeting held during the on-site visit on November 10, 1998, that 1,067 prosecutors, of a national total of 1,259, are provisional. In addition, the exception becomes the rule and the functions of the Public Ministry are exercised mostly by persons who are not qualified for those posts, nor have they undergone periodic evaluations of their technical or ethical aptitude.

37. The most important organ of the Public Ministry, pursuant to the Organic Law, is the Board of Supreme Prosecutors. This Board, made up of six supreme prosecutors, has the function of electing the Public Ministry representative to the National Elections Board. The Executive Commission decided to create three additional supreme prosecutors, and, given the lack of permanent prosecutors, selected three of lower rank, and appointed them "provisionally" to the post of Supreme Prosecutor. Law No. 26,897 granted identical rights, powers, and prerogatives to the "provisional" prosecutors as those enjoyed by the permanent prosecutors, in their respective categories, which enabled these "provisional" supreme prosecutors to vote and elect a representative to the National Elections Board.

38. The Public Prosecutor, Miguel Aljovín, presented a complaint against Blanca Nélida Colán, President of the Executive Commission of the Public Ministry, alleging she had violated the Constitution by appointing these three "provisional" supreme prosecutors,[22] based on the provisions of the Peruvian Criminal Code regarding illegal appointments. One month later, Adelaida Bolívar was removed from her position in the Office of the Prosecutor for Internal Oversight (Fiscalía de Control Interno) by Blanca Nélida Colán, for having supported the criticisms made by Mr. Aljovín with respect to those appointments.[23] These three "provisional" prosecutors became members of the Board of Supreme Prosecutors that elected the representative of the Public Ministry to the National Elections Board.

39. In order to avoid the removal of any of the supreme prosecutors, by the National Council of the Judiciary, the Congress also did away with the Council's power to remove supreme prosecutors and vested it in the Office of the Prosecutor for Internal Oversight of the Public Ministry, as it did with the Judiciary, through the same law (supra). The Constitutional Court was not empowered to derogate the laws that reorganized the Public Ministry or the judiciary because two of the seven judges of that Court made it impossible to secure the six votes required by Congress (infra).

40. The political party Cambio 90-Nueva Mayoría, which holds a majority in Congress, has taken advantage of the "re-organization" of the judicial branch to justify its control, together with the Executive, over the management, administration, and finances of the various judicial organs, and of the appointment and oversight of its members, and the disciplinary regime that applies to them.

41. As appears from this analysis, the activities of the Executive Commission of the Judiciary and the Executive Commission of the Public Ministry have not been exclusively administrative. In several cases those two committees and the Coordinating Council have replaced judges and prosecutors reputed to be independent by officials more favorable to the State when they were involved in judicial proceedings of interest to the Government.

42. By definition, all "provisional" appointments must be related to an emergency situation. Those emergency situations are provided for in the Constitution and in no case should crisis situations be allowed to be used to indefinitely suspend the supremacy of the Constitution.

43. Law No. 26,546, of November 21, 1995, created the "Executive Commission of the Judiciary," which "temporarily" assumed the functions of the National Council of the Judiciary, and which was entrusted with "reforming" the judiciary. That law should have been in force for a period of 360 days of the calendar year, and should have expired on December 1, 1996. This law, and Law No. 26,623 (infra), suspended the jurisdiction and powers of the judicial organs and transferred them to the Executive Commission of the Judiciary. This Committee is made up of the Presidents of the various chambers of the Supreme Court (constitutional, civil, and criminal chambers), and performs the functions that the 1993 Constitution assigns to the judiciary: it evaluates and removes judges, decides as to their promotions, and may propose legislation. Its president is Víctor Castillo Castillo, President of the Supreme Court. The Executive Secretary was Peruvian Navy Commander José Dellepiane Massa, an officer of the Armed Forces who was not a lawyer; in 1998 he was replaced by David Pezúa Vivanco.[24]

44. The life of the Committee has been extended several times by the Congress, most recently in late 1998, despite its express statement by the Inter-American Commission on Human Rights upon the conclusion of its on-site visit in November 1998 that it "hopes that the reorganization of the judicial sector will not take longer than the period set by law, which is due to expire in December of this year, and that the powers of the National Prosecutor will be reinstated."[25] On December 5, 1998, the legislative majority, through Law No. 27,009, despite strong opposition from public opinion, extended the existence of the two Executive Commissions for an additional two years, until December 31, 2000.[26] The Peruvian State, in its response, indicated that it could not accommodate the Commission's recommendation "at the risk of losing all of the gains to date..., for obvious reasons." The Commission would like to emphasize that the system extended by Law No. 27,009 undermines the constitutional principles of independence of the judiciary and is holding one of the branches of government hostage to the other two.

4. The Judicial Coordination Council (Consejo de Coordinación Judicial)

45. Law No. 26,623, of June 19, 1996, created the Judicial Coordination Council, financed by resources from the Judicial branch, with the mandate to establish the policy guidelines of the organs for the administration of justice, and their restructuring and reorganization; to evaluate its own goals and their attainment; and with the power to extend its own existence. The Council was to be made up of the President of the Supreme Court, as President of the Constitutional Court, the Minister of Justice, the president of the National Council of the Judiciary, and several other notable members.[27] According to the regulations of this entity, its members may adopt resolutions by simple majority. Nonetheless, in accordance with the transitory provisions of Law No. 26,623, the Judicial Coordination Council is made up of four persons--the president of the Supreme Court, one representative from the Public Ministry, one representative from the National Council of the Judiciary, and one executive secretary--three of whom do not belong to the judiciary and have been designated by the Congress.

46. As this Council makes decisions by simple majority, these three members are in a position, numerically, to ensure that their vote prevails over that of the sole representative of the judiciary, further undermining judicial autonomy. This law suspends the functions that the Organic Law of the Judiciary entrusts to the president of the Supreme Court and its Plenary Chamber for administration of the judicial branch. Specifically, the permanent judges of the Supreme Court's Plenary Chamber have been impeded from electing its president; their functions of supervising the presence and punctuality of judges, signing internal regulations, decisions, and official correspondence, and imposing administrative sanctions for flagrant irregular acts, among others, have been limited. The Supreme Court has been deprived of its power to introduce legislation, and the full judges of the Plenary Chamber have been deprived of their prerogative of attending meetings of Congress to support proposed legislation, even when it relates to the budget of the judiciary. The Supreme Court no longer has the powers to initiate actions of unconstitutionality against the laws of Congress, or to elect from among its members those who sit on the Office of Judicial Oversight and the National Elections Board. Renowned jurists have expressed serious doubts about the constitutionality of this Council, given that its purpose is to take the place of the regular judicial organs established in the Constitution.

5. The National Council of the Judiciary

47. According to Article 154 of the 1993 Constitution of Peru, the National Council of the Judiciary (CNM: Consejo Nacional de la Magistratura) is an independent and autonomous organ in charge of appointing, ratifying, and sanctioning judges and prosecutors, except for those chosen by popular election (supra).[28] Its seven members are elected by the following organs: one by the Plenary Chamber of the Supreme Court, one by the Board of Supreme Prosecutors,[29] two by Peru's other organization of legal professionals, the public universities, and one by the rectors of the private universities.[30]

48. By constitutional provision, the appointment of judges and prosecutors is a power of the CNM, based on a merit-based public competition and personal evaluation; the academic training of persons aspiring to the posts of magistrate of the judiciary or of the Public Ministry is entrusted to the Judicial Academy (Academia de la Magistratura), pursuant to the provision of Article 2(a) of the Organic Law on the Judicial Academy (Law No. 26,335).

49. As regards the designation of permanent judges and prosecutors, Law No. 26,696 of December 2, 1996, provided that persons applying to the positions of judge or prosecutor must show that they have satisfactorily completed the training course for persons aspiring to serve as judge in the judicial branch or prosecutor in the Public Ministry, which are two-year appointments, as recently provided by Resolution No. 333-98-SE-TP-CME-PJ of August 14, 1998; this continues the trend of working with provisional judges and prosecutors, even though as of 1997 only 27.12% of the positions were covered by permanent judge, and 72.88% by provisional and alternate judges; there were only 392 permanent judges, and 1,053 provisional and alternate judges; this situation worsened in 1998.

50. In February 1998, five judges from the Supreme Court surprised the country by denouncing that a sixth "provisional" judge, César Humberto Tineo, had falsified the text of a judgment, and had induced them to sign in error, without reading it. The dean of the Bar Association lodged a complaint against the six judges, alleging misconduct on their part, with the National Council of the Judiciary. The five judges leveling the accusation said that they believed that Mr. Tineo had drafted the judgment in the manner agreed upon, ruling in favor of the Central Reserve Bank, but that instead he drafted the judgment so as to favor the company Novotec, S.A. They stated that they had signed the judgment, which was a ruling in the final instance and had become res judicata. The five judges in question declared the judgment handed down eight months earlier null and void, although it was being carried out, and issued a new judgment in its place. The judgment that was rendered null and void had required that the state pay the private firm Novotec S.A. approximately US$ 43 million.[31]

51. By Law No. 26,933 of March 12, 1998, the National Council of the Judiciary saw its power to directly impose the sanction of removal on members of the Supreme Court and supreme prosecutors curtailed, as this power was vested in the executive commissions of the judiciary and the Public Ministry, respectively, which are to hear such proceedings in the first instance; the CNM will only hear the cases that come to it on appeal from the respective committees. In addition, it was required that the disciplinary measure of suspension be applied prior to removal. The curtailing of the powers of the CNM sparked the resignation of the Council's seven members, and led the World Bank to suspend a loan in the amount of approximately US$ 22.5 million earmarked to judicial reform.

52. The immediate passage of Law No. 26,933 prevented the National Council of the Judiciary from removing the members of the Supreme Court who had signed the fraudulent judgment. These same judges elected the future representative of the judiciary to the National Elections Board, which was entrusted, among other tasks, with deciding whether President Fujimori was constitutionally qualified to run for a third presidential term.

53. On March 13, 1998, the president of the CNM, Róger Rodríguez Iturry, resigned along with his six colleagues, and declared to public opinion:

According to many analysts, the impression exists that we find ourselves before a clearly authoritarian government, which, moreover, is said to have a concrete and specific plan to keep itself in power. Perhaps an independent CNM is not needed in this context and for that project.[32]

54. Later, Law No. 26,973 of September 11, 1998, ratified the procedure for applying the sanction of removal to magistrates and supreme prosecutors, without requiring prior suspension. This law, contrary to what was announced, did not restore the powers of the CNM.

55. In summary, the National Council of the Judiciary, in practice, does not carry out its function of appointing permanent judges and prosecutors. Law No. 25,726 and other provisions that organized the Judicial Academy provided that the students must graduate from the Academy in order to be appointed by the National Council of the Judiciary. Nonetheless, since 1992, the Judicial Academy has not appointed any judges or prosecutors, and continues to be in the process of "reorganizing." The Peruvian State, in its response, notes that the approval of the training program given by the Judicial Academy is a requirement to be considered candidates for appoint as judge or prosecutor. Therefore, the State argues, "the fact that at present no judges or prosecutors are being appointed is not attributable to the National Council of the Judiciary." The Commission shares this assessment that the Council is not the one responsible for the failure to appoint judges and prosecutors, but rather the Executive.

56. Neither can the National Council of the Judiciary confirm "provisional" judges and prosecutors. This allows the Executive Commission and the Judicial Coordination Council to continue appointing "provisional" judges and prosecutors.

57. Mr. Rodríguez Iturry was replaced by Mr. Faustino Luna Farfán. Mr. Luna Farfán also resigned, on April 6, 1999; in his resignation speech, he characterized the judicial reform process as "indefensible" because "the reform is not governed by its natural representatives, because it is a reform imposed."[33]

6. The Constitutional Court

58. In 1996, after four years of inactivity, the Constitutional Court was constituted by the following judges: Ricardo Nugent (president), Guillermo Rey Terry, Manuel Aguirre Roca, Luis Guillermo Díaz Valverde, Delia Revoredo Marsano de Mur, Francisco Javier Acosta Sánchez, and José García Marcelo. It should be noted that the last two have held positions in the government, or have been candidates for the governing party.[34] The Congress established in the Organic Law of the Constitutional Court the requirement, unreasonable in comparative law, of a supermajority of six out of seven votes for the Court to find any statute or law unconstitutional.[35] This voting system resulted in the majority opinion of the Court being subject to the vote of just two of its members. In effect, repeatedly and suggestively, several motions of unconstitutionality, of political-institutional interest, were dismissed even when they had five votes. Moreover, laws considered unconstitutional by five members of the Court had their constitutionality affirmed and were strengthened, thereby depriving the judges in the lower courts of the option of limiting their application in other cases. In its 1996 and 1997 annual reports, the Commission stated its concern over the need to have a supermajority of six out of seven votes to declare a law unconstitutional, rendering practically null this Court's power of review. The Peruvian State notes in its response three examples in which a supermajority, greater than half plus one, is required. The State cited the example of other countries, yet in none of them is the supermajority as high as in Peru.

59. The action brought against Law No. 26,657, or the Law on "Authentic Interpretation" of Article 112 of the Constitution, was a telling example. That law states that re-election "refers to and is conditioned on the presidential terms that begin after the date of promulgation of the constitutional text in question."[36] Alberto Fujimori was elected president in 1990, under the 1979 Peruvian Constitution. The Constituent Congress included the possibility of re-election of the president in the 1993 Constitution, and Fujimori was elected once again in 1995. The congressional statute referred only to the specific case of President Fujimori, the only Peruvian who was president before and after the entry into force of the 1993 Constitution. Five judges considered that the Law on Authentic Interpretation did not apply to the specific case of Alberto Fujimori, according priority to the constitutional principle established in Article 112 and "diffuse control" over the interpretive statute (Articles 51 and 138 of the Constitution).

60. The draft judgment containing the ruling regarding the inapplicability of this interpretive law, prepared by Judge Guillermo Rey Terry, was unlawfully taken from his file by Judge José García Marcelo, who confessed he had taken it and delivered it to the police and the press. Judge Delia Revoredo publicly denounced this theft. As a result, an official campaign was launched to pressure the five judges. The daily newspaper Expreso, of Lima, accused them of being "golpistas," i.e. coup supporters, and compared them with the terrorists of Shining Path; 40 members of Congress from the majority party threatened in writing to remove them if they ruled that the law was deemed inapplicable; they were pressured, blackmailed, and received all sorts of offers; the "contraband" case came up against Judge Delia Revoredo and her husband, Jaime Mur. Two of the five judges called for a new vote, withdrew their signatures, and abstained from voting "for having expressed an opinion ex ante." The two judges from the official party also abstained. The three judges who did cast a vote--Aguirre Roca, Rey Terry, and Revoredo--voted for the inapplicability of the law to Alberto Fujimori. Since it was not a ruling of unconstitutionality, the judgment of the Constitutional Court did not require six votes, but rather a "simple majority of votes cast" (Article 4 of the Organic Law on the Constitutional Court). The Lima Bar Association called for a "clarification" of the judgment. The Court decided--against the opinions of judges Acosta Sánchez and García Marcelo--that only those who had voted should clarify the vote, not those who had abstained. The "clarification" by the three judges was that "as there is nothing to clarify, the request is denied."

61. The Congress decided to investigate the allegations by Judge Delia Revoredo regarding the theft of the draft judgment and the threats to which she was subjected. To this end, it appointed two investigative commissions with a clear pro-government majority, and, in response to a well-founded request by the opposition, expressly prohibited its members from ruling on judicial matters properly within the jurisdiction of the Constitutional Court. Nonetheless, those investigative commissions concluded by accusing the three magistrates who ruled against the second presidential election, and on that basis, the Congress removed them May 29, 1997, for "violation of the Constitution." Mr. Ricardo Nugent, President of the Court, resigned in solidarity with his colleagues. A law, however, requires him to remain in the post until Congress appoints his replacement, subject to a penalty of two years imprisonment. Once domestic remedies were exhausted, the matter was brought before the Inter-American Commission. The Commission analyzed the issue and prepared a report pursuant to Article 50 of the American Convention, in which it set forth a series of recommendations, which were not adopted by the State. In July 1999, the Commission sent the case to the Inter-American Court.

62. Law No. 26,801 of May 29, 1997, established that until the vacant posts on the Constitutional Court are filled, the quorum for hearing resolutions denying motions of habeas corpus, amparo, habeas data, and action for enforcement as well as motions alleging jurisdictional disputes will require four members. As it does not have the sufficient number of members required by the law, to this day the Constitutional Court cannot take cognizance of the actions of unconstitutionality against laws and decree-laws issued by the national government. This creates a grave vacuum of control and is an assault on the very essence of the rule of law. The Peruvian State notes that "it is not true that there is a grave vacuum in the review of constitutionality, since a dual system exists in Peru that allows for the diffuse control by the judges who exercise jurisdiction, with which judicial review of unconstitutional norms, and at the same time, the acción popular is available (Article 202 of the Constitution) to challenge regulations, administrative rules, and resolutions and decrees of general application, whatever the authority from which they emanate." Despite what the Peruvian State points out, the inoperability of the Constitutional Court, which is the organ created by the Constitution to hear actions of unconstitutionality, creates a serious vacuum, especially if one takes into account that diffuse control refers only to the case in question.

63. The judges who were removed denounced attacks by state agents. Ms. Revoredo and her husband sought temporary asylum in the embassy of Costa Rica.[37] Mr. Nugent was shot by unknown persons in an official car; three persons accompanying him were killed. The Minister of Interior, who visited him in the hospital just 30 minutes after the attack, shut down the investigation into the matter alleging that it had been caused by confusion among the kidnappers, who allegedly were trying to kidnap a Swiss businessman, and who had mistaken a police vehicle with his car. It should be noted that even though the Constitutional Court, as the highest-level authority as regards interpretation of the Constitution, had already ruled on the third candidacy of Alberto Fujimori, the official party has sought to have the issue re-examined by the National Elections Court.

C. THE CIVILIAN JURISDICTION: THE ANTI-TERRORIST LEGISLATION

1. Context of the anti-terrorist legislation

64. April 5, 1992, as indicated supra, President Alberto Fujimori promulgated Decree Law No. 25,418, with which he instituted a Government of Emergency and National Reconstruction. The justifications for of that decree included "to upgrade the moral standards of the administration of justice and the institutions linked to it; and the National Oversight System, decreeing the complete re-organization of the Judiciary, the Court of Constitutional Guarantees, the National Council of the Judiciary, the Public Ministry, and the Office of the Comptroller General of the Republic" and "to pacify the country within a legal framework that guarantees the application of drastic sanctions to terrorists, so that our society may develop adequately, in a climate of peace and internal order." The Emergency Government dissolved the Congress and summarily removed numerous judges and prosecutors at all levels. After a violent wave of attacks carried out in Lima, President Fujimori addressed the country on July 24, 1992, and announced the adoption of drastic legal measures to address the situation. In that context, Decree-Law No. 25,475 was promulgated; it was aimed at pursuing, prosecuting, and punishing the persons responsible for the crime of terrorism, using civilian "faceless" judge courts, and Decree No. 25,659, aimed at pursuing, prosecuting, and punishing the persons responsible for the crime of traición a la patria, or treason, before "faceless" military courts.

65. The Commission has repeatedly recognized that the State is under a national and international obligation to adopt the measures necessary to investigate, prosecute, and punish persons or groups of persons who use violence. Article 8 of the American Convention establishes the due process standards to which persons being investigated and prosecuted have a right. These include the right of all persons to be heard with the due guarantees and within a reasonable time by an independent and impartial judge or court, with jurisdiction, that is previously established by law, to hear any criminal accusation, or to determine their civil, labor, tax-related, or other rights.

66. Despite the situation of extreme violence in Peru, the State was not and is not relieved of the obligations it assumed on ratifying the American Convention. In this regard, the Convention sets forth special standards for emergency situations such as those being faced there. Article 27 of the American Convention makes it possible, under certain conditions of war, public danger, or other emergency that threatens the independence or security of a State Party, for it to derogate from some of its international obligations. Article 27 of the Convention provides as follows:

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following Articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.

67. Pursuant to Article 27 and the guidelines indicated by the Inter-American Court, there is a fundamental presupposition with respect to the regime of representative democracy, and certain requirements for a State to validly declare a state of emergency.

68. With respect to the presupposition of respect for representative democracy, pursuant to Article 3(d) of the Charter of the OAS, one of the fundamental principles that governs the Organization of American States is the requirement that the States that constitute it should organize themselves politically pursuant to the postulates of representative democracy. At the same time, the American Convention, in its preamble, reaffirms " their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man."In the same spirit, Article 29 prohibits the interpretation of any of its provisions so as to preclude "other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government," while Articles 15, 16, 22, and 32 also make reference to the presupposition that the political organization of the States parties is democratic.

69. As regards the requirements for declaring a state of emergency, the Inter-American Court has indicated that a legal analysis of Article 27 of the Convention:

The starting point for any legally sound analysis of Article 27 and the function it performs is the fact that it is a provision for exceptional situations only. It applies solely "in time of war, public danger, or other emergency that threatens the independence or security of a State Party." And even then, it permits the suspension of certain rights and freedoms only "to the extent and for the period of time strictly required by the exigencies of the situation." Such measures must also not violate the State Party's other international legal obligations, nor may they involve "discrimination on the ground of race, color, sex, language, religion or social origin."[38]

70. The requirements for declaring a state of emergency are as follows:

· Need: Pursuant to Article 27 of the Convention, in order to consider that there is a real emergency, there must be an extremely grave situation, such as war, public danger, or other emergency that threatens the independence or security of the State party. The Commission has established that measures related to a state of emergency "can only find a justification in the face of real threats to public order or state security."[39]

· Time: This requirement refers to the duration of the suspension, which, as established in Article 27(1) of the Convention, should be only for the time strictly limited to the exigencies of the situation. The Commission has warned that it is even more serious to decree states of emergency for indefinite or prolonged periods, especially when they allow broad powers to be concentrated in the head of state, including the judicial branch abstaining with respect to the measures decreed by the Executive, which in certain cases may lead to the exact opposite of the rule of law.[40]

· Proportionality: Article 27(1) of the Convention provides that the suspension may only be effectuated to the extent strictly limited to the exigencies of the situation. This requirement refers to the prohibition on the unnecessary suspension of certain rights, imposing restrictions more severe than necessary, and unnecessarily extending the suspension to areas not affected by the emergency.

· Non-discrimination: As established in Article 27(1) of the Convention, consistent with Articles 1 and 24, the suspension of rights must not entail any kind of discrimination against any individual or group.

· Compatibility with other international obligations: The suspension of certain rights must be compatible with all other obligations established in other international instruments ratified by Peru.

· Reporting: Pursuant to Article 27(3) of the Convention, the declaration of a state of emergency should be reported immediately to all other States parties to the Convention, through the Secretary General of the OAS.[41]

Even where the aforementioned requirements are met, there are certain rights and guarantees enshrined in the Convention that the States cannot suspend.

a. Rights that cannot be suspended

71. With respect to the rights that can be suspended during the imposition of a state of emergency, the Inter-American Court has indicated that:

It is clear that no right guaranteed in the Convention may be suspended unless very strict conditions --those laid down in Article 27(1)-- are met.... [R]ather than adopting a philosophy that favors the suspension of rights, the Convention establishes the contrary principle, namely, that all rights are to be guaranteed and enforced unless very special circumstances justify the suspension of some, and that some rights may never be suspended, however serious the emergency.[42]

72. Most of the rights that the State cannot suspend, however grave the emergency, are mentioned in Article 27(2) of the Convention, and are those set forth at the following Articles of the American Convention: 3 (right to juridical personality); 4 (right to life); 5 (right to humane treatment); 6 (prohibition on slavery and servitude); 9 (principle of non-retroactivity of laws); 12 (freedom of conscience and religion); 17 (protection of the family); 18 (right to a name); 19 (rights of the child); 20 (right to nationality); and 23 (political rights) of the Convention. Under Article 27(1) of the Convention, the suspension of rights has to be compatible with all other obligations established in other international instruments ratified by the country. The Inter-American Court has indicated that the suspension of guarantees cannot include suspension of the rule of law or of the principle of legality:

The suspension of guarantees also constitutes an emergency situation in which it is lawful for a government to subject rights and freedoms to certain restrictive measures that, under normal circumstances, would be prohibited or more strictly controlled. This does not mean, however, that the suspension of guarantees implies a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times. When guarantees are suspended, some legal restraints applicable to the acts of public authorities may differ from those in effect under normal conditions. These restraints may not be considered to be non-existent, however, nor can the government be deemed thereby to have acquired absolute powers that go beyond the circumstances justifying the grant of such exceptional legal measures. The Court has already noted, in this connection, that there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law (The Word "Laws" in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, para. 32 ).[43]

73. Along these lines, "in serious emergency situations it is lawful to temporarily suspend certain rights and freedoms whose free exercise must, under normal circumstances, be respected and guaranteed by the State. However, since not all of these rights and freedoms may be suspended even temporarily, it is imperative that 'the judicial guarantees essential for (their) protection' remain in force."[44] In addition, it is essential that the judiciary be independent, given that such independence is a fundamental pillar of the rule of law and of human rights protection. In this regard, the Court has indicated that habeas corpus and amparo remedies are judicial guarantees that protect rights that cannot be suspended, and that those procedures are "essential to ensure the protection of those rights."[45] The purpose of the judiciary is to protect legality and the rule of law during a state of emergency.

b. Guarantees that cannot be suspended

74. The Inter-American Court of Human Rights has stated: "Guarantees are designed to protect, to ensure or to assert the entitlement to a right or the exercise thereof. The States Parties not only have the obligation to recognize and to respect the rights and freedoms of all persons, they also have the obligation to protect and ensure the exercise of such rights and freedoms by means of the respective guarantees (Art. 1.1), that is, through suitable measures that will in all circumstances ensure the effectiveness of these rights and freedoms."[46]

75. In this regard, in addition to the rights mentioned in the previous paragraph, according to the provision in the final part of Article 27(2) of the Convention, neither can there be suspension of the judicial guarantees essential for protecting those rights that cannot be suspended, for, as the Inter-American Court has said:

….it must also be understood that the declaration of a state of emergency --whatever its breadth or denomination in internal law-- cannot entail the suppression or ineffectiveness of the judicial guarantees that the Convention requires the States Parties to establish for the protection of the rights not subject to derogation or suspension by the state of emergency.[47]

76. The Inter-American Court of Human Rights has held that:

the judicial guarantees essential for the protection of the human rights not subject to derogation, according to Article 27(2) of the Convention, are those to which the Convention expressly refers in Articles 7(6) and 25(1), considered within the framework and the principles of Article 8, and also those necessary to the preservation of the rule of law, even during the state of exception that results from the suspension of guarantees.[48]

77. In conclusion, the writ of habeas corpus, the writ of amparo, the remedies aimed at preserving the rule of law, and all other remedies suitable for guaranteeing the exercise of rights not subject to suspension referred to in Article 27(2) of the Convention constitute judicial guarantees that may not be suspended during states of emergency. In its response, the Peruvian State makes reference to the progressive diminution of the percentage of the national territory under a state of emergency from 1991 to date. The Commission congratulates the State for the fact that so far in the year 2000 it has not declared a state of emergency in any part of the country. The Commission is also pleased to receive notification from the State of the full entry into force of Article 200 of the Peruvian Constitution, which guarantees habeas corpus and amparo actions.

78. In light of these considerations, the Commission moves on to analyze the compatibility of Decree-Law No. 25,475 on the crime of terrorism, Decree-Law No. 25,659 on the crime of treason, and related provisions, with the rights and guarantees enshrined in the American Convention on Human Rights.

c. Decree Law No. 25,475 on the crime of terrorism

79. Decree Law No. 25,475, of May 6, 1992, defines terrorism at its Article 2 as an act that "provokes, creates, or maintains a state of anxiety, alarm, or fear in the population or in a sector thereof, performs acts against life, the body, health, personal liberty and security, or against property, against the security of public buildings, roads, or means of communication or of transport of any type, energy or transmission towers, motorized facilities or any other good or service, using arms, explosive materials or artefacts, or any other means capable of causing damage or grave disturbance of the public peace, or affect the international relations or the security of society and the State." This Decree expressly derogated the provisions of the Criminal Code that had been applied to crimes related to terrorism since April 1991, and established, for those responsible, a minimum sentence of 20 years imprisonment and a maximum of life imprisonment.

80. The definition of the crime of terrorism set forth in the above-mentioned decree is abstract and vague, and thereby violates the basic principle of legality, which is a basic tenet of the criminal law, whose ultimate objective is the juridical security the individual needs to know precisely what acts and omissions may trigger his or her criminal liability. The International Commission of Jurists stated, in this respect, that:

Article 2 of this law also uses descriptive elements without semantic precision. Indeed, the criminal conduct proscribed by this provision need not be associated at all with terrorism. For example, an assault against an individual's life, health or freedom may be the work of a terrorist, but, if also could be perpetrated by a common criminal. Similarly, damage caused by explosives capable of seriously disturbing public tranquility could be the work of a dissident group, but it could also be perpetrated by drug traffickers. In both cases the activities are identical, and in both cases the end result might create anxiety, alarm or fear ni the public. However, in the former case, the perpetrator's ultimate intention is to undermine the state, while in the latter, his purpose may be to take revenge against or intimidate a private enemy. In fact, except for certain confederate offenses (conspiracy, subversive association, etc.), almost any crime may or may not be committed for terrorist purposes, such as the killing of a police officer or a magistrate, robbery, kidnapping, etc. By not linking the proscribed conduct to the subjective element of terrorist intent, this decree law can be interpreted to permit law enforcement officials to regard almost any act of violence as a crime of terrorism (or treason). A criminal statute susceptible to such interpretations invites grave errors that can result in serious miscarriages of justice.[49]

81. The Commission ratifies the considerations it set forth in its 1993 Report on the general human rights situation in Peru with respect to the lack of a clear definition of the conduct that constitutes terrorism, as the acts that constitute the crime of terrorism are defined and described in Article 2 of Decree Law No. 25,475 with notable imprecision, in very broad language, creating open-ended criminal definitions that rely on very vague terms, "contrary to one of the basic principles of modern criminal justice, which is that the language used to describe the prohibited conduct must be precise so as to leave as little discretionary latitude as possible to those whose function it is to enforce and interpret the law."[50] On that occasion the Commission reached the following conclusion, which it now ratifies: "This new body of law is contrary to universally accepted principles of legality, due process, judicial guarantees and the right of self-defense; under these laws, merely being suspected of a terrorist act or of in any way collaborating in terrorist acts is sufficient cause to hold someone in prison for long periods, regardless of whether that person actually committed an act classified as terrorism or treason. In the opinion of the Commission, this is a grave threat to the people's juridical security."[51]

82. The Inter-American Court of Human Rights has specified, in this respect, that the right to personal liberty, set forth at Article 7(2) of the American Convention, implies not being deprived of physical liberty other than for causes established beforehand by law, indicating that "no one may be subjected to arrest or imprisonment for reasons and by methods which, although classified as legal, could be deemed to be incompatible with the respect for the fundamental rights of the individual because, among other things, they are unreasonable, unforeseeable or lacking in proportionality."[52]

83. With respect to detention without prior judicial order and without flagrancy, the Commission is not unaware of the context in Peru when the counter-terrorism legislation was adopted, in which the continuous incursions of armed groups had provoked a state of permanent alarm in the population. For this reason, a state of exception had been declared in several departments, which found prima facie justification for fighting these armed groups in the crisis faced by the Peruvian State. In consideration of that state of emergency, in several departments Article 2(20)(g) of the 1979 Peruvian Constitution had been suspended,[53] and the police and military forces were authorized to detain persons without the order of a judge with jurisdiction and without flagrancy.

84. It should be noted, however, that despite the prima facie legitimacy of this measure, the power to detain is not an unlimited power of the security forces, by which they can proceed to detain citizens arbitrarily. Suspending the requirement that a judicial order be obtained as a condition to detain a person does not imply that public officials are not bound by the legal conditions necessary for legally decreeing such a measure, nor that judicial checks over the way in which arrests are carried out are voided.

85. The suspension of some of the attributes of the right to personal liberty, authorized by Article 27 of the American Convention for certain cases, is not absolute. There are principles underlying every democratic society that the security forces must observe in order to make a lawful arrest, even under a state of emergency. The legal conditions for an arrest are obligations that the state authorities must respect, pursuant to the international commitment to protect and respect human rights, acquired under the Convention.

86. In addition, based on the foregoing principles, the police or military detention, as a precautionary measure, should have as its sole purpose preventing the flight of a person suspected of a criminal act, and thereby ensuring his or her appearance before a competent judge, to be judged within a reasonable term or, as the case may be, released. No state may impose penalties without the guarantee of a previous trial.[54] In a state under the rule of law, in which the separation of powers is respected, every penalty established by law must be judicially imposed, after having established the guilt of an individual in a fair trial with full guarantees. The existence of an emergency situation does not authorize the state to disregard the principle of the presumption of innocence, nor does it confer on the security forces the right to exercise arbitrarily the criminal law.

87. Article 12 of Decree Law No. 25,475 provides that the National Police of Peru is in charge of investigating the crimes of terrorism, through the National Counterterrorism Division (DINCOTE: Dirección Nacional contra el Terrorismo), and DINCOTE is authorized to decide whether the evidence it collects is sufficient for an indictment. In addition, DINCOTE makes the determination as to the charges to be filed, and whether the detainee will go before a civilian or a military court. The UN Special Rapporteur on the independence of judges and lawyers notes in his Report that Decree No. 25,475 gave the police excessive powers:

enabling them to impose incommunicado detention unilaterally, without consulting with a judge, and the restrictions of the right of defence at both civil and military "faceless" tribunals are inconsistent with provisions of international human rights treaties to which Peru is a party, in particular those that provide for the right to due process and its components. Article 8 of the American Convention on Human Rights is of particular relevance because it provides for the right to due process and is regarded as a non-derogable right even during a state of emergency.[55]

88. Accordingly, pursuant to Article 12(c) of that Decree, the Police are authorized to detain persons allegedly implicated for 15 days, and are required only to notify the judge and Public Ministry within 24 hours following the arrest. Article 12(d) provides that during that period, the police may hold the detainees completely incommunicado, while Article 12(f) establishes that the attorney they designate may only intervene in their defense after the accused have made a statement in the presence of the Public Ministry.[56] Article 18 of that Decree established that defense counsel may not represent more than one accused in proceedings for the crime of terrorism; it makes an exception for attorneys appointed as public defenders.

89. Similarly, the Human Rights Committee of the United Nations, established pursuant to the provisions of the International Covenant on Civil and Political Rights, has expressed its concern over the provisions of Decree Law No. 25,475 that authorize the extension of preventive detention for a period of up to 15 days, and has stated that this raises serious problems with respect to Article 9 of the Covenant, concerning the right to personal liberty, whose content is similar to Article 7 of the American Convention.[57]

90. The Commission is of the view that the above-mentioned provisions of Decree No. 25,475 are incompatible with Articles 7 and 8 of the American Convention, as the power given the police to detain and hold a person incommunicado for up to 15 days is a breach of the provisions of Article 7(5) of the American Convention, according to which "Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power," as well as the provision in Article 8(2)(d), which establishes as a minimal guarantee of process the right of the accused "to communicate freely and privately with his counsel." In addition, the imposition by which defense counsel could represent only one person accused of terrorism at a time had a detrimental effect on the enjoyment of the right to choose freely one's defense counsel, set forth at Article 8(1)(d) of the American Convention.

91. The Commission has received several complaints indicating that during police detention and while held incommunicado, persons accused of terrorism have frequently been subjected to torture, for the purpose of obtaining a "confession." In 1993, the International Commission of Jurists stated that:

... during this critical period, the detainee is completely controlled by the police and is not subject to any effective judicial supervision. We have been told that a suspect when questioned normally is kept bound and blindfolded and never sees his interrogators. The entire police squad that made the arrest frequently takes part in the interrogations, which means that generally there are eight to ten police officers exerting tremendous pressure on the detainee. For the most part, the suspect is questioned during his first days in custody. These sessions can take place at any time, day or night, although, as a rule, they are conducted at night. A representative of the Public Prosecutor's Office is required to be present during the police interrogations. However, we have also been told that this is not always the case, and that when a prosecutor is present his attendance is merely a formality since he exercises no control over the interrogators. We believe that this period of prolonged incommunicado detention is prima facie incompatible with the guarantees stipulated in Articles 7 and 9 of the American Convention and the International Covenant, respectively.[58]

92. In addition, the Inter-American Court has established that since 1993 "there was a widespread practice in Peru of cruel, inhuman and degrading treatment during criminal investigations into the crimes of treason and terrorism."[59] The Human Rights Committee of the UN has noted that it:

is deeply concerned by persistent reports of torture or cruel, inhuman or degrading treatment of persons detained under suspicion of involvement in terrorist activities or other criminal activities.... It draws attention to the legislation which permits incommunicado detention in certain cases. In this connection, the Committee reiterates its view, as expressed in its general comment No. 20 (44), on Article 7 of the Covenant, that incommunicado detention is conducive to torture and that, consequently, the practice should be avoided.[60][61]

93. The Commission should emphasize that as established in Article 5 of the Inter-American Convention to Prevent and Punish Torture, ratified by Peru on March 28, 1991: "The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture."

94. The aforementioned Inter-American Convention to Prevent and Punish Torture also provides at its Article 10: "No statement that is verified as having been obtained through torture shall be admissible as evidence in a legal proceeding, except in a legal action taken against a person or persons accused of having elicited it through acts of torture, and only as evidence that the accused obtained such statement by such means."

95. The Commission considers that the authority given the Police by Decree Law No. 25,475, to hold a detainee incommunicado for up to 15 days, creates conditions that lend themselves to violations of physical integrity. The Commission has received numerous complaints consistently alleging acts of torture committed during this phase. Concretely, the complaints indicate that torture is used to obtain the signing of "confessions" that have later become the main evidentiary basis of the conviction. Such acts constitute violations of Article 5 of the American Convention, which sets forth the right of all persons not to be subjected to torture or to cruel, inhuman, or degrading treatment, and of all detainees to be treated with respect for the inherent dignity of the human person.

96. Aggravating the situation of defenselessness and incommunicado detention of the persons investigated for and accused of crimes of terrorism, Article 6 of Decree Law No. 25,659 established that at no stage in the police investigation and in the criminal proceedings could actions to guarantee rights be brought, not even the writ of habeas corpus, found at Articles 295 and 200 of the Peruvian constitutions of 1979 and 1993, respectively.[62] In this way, persons who were detained and held incommunicado were deprived of the only legal remedy available to them to challenge, before a judge, the legality and reasonableness of their arrest.

97. For the purposes of analyzing the consequences of said deprivation of the writ of habeas corpus in relation to the provisions of the American Convention, it should first be noted that Article 25 of the American Convention provides: "Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention...." Article 7(6) of the Convention, on personal liberty, provides that any person deprived of liberty has the right to go before a judge or court with jurisdiction for it to decide, without delay, on the legality of his or her arrest or detention, and to order his or her release if the arrest or detention are illegal. In addition, as analyzed in detail in the foregoing paragraphs, Article 27 of the Convention provides that there are certain rights that cannot be suspended, even in a state of emergency, and that the judicial rights essential for the protection of those rights may not be suspended.

98. In this regard, the Inter-American Court of Human Rights has stated: " Guarantees are designed to protect, to ensure or to assert the entitlement to a right or the exercise thereof. The States Parties not only have the obligation to recognize and to respect the rights and freedoms of all persons, they also have the obligation to protect and ensure the exercise of such rights and freedoms by means of the respective guarantees (Art. 1.1), that is, through suitable measures that will in all circumstances ensure the effectiveness of these rights and freedoms."[63]

99. The Court has established that habeas corpus is a fundamental guarantee that the States may not suspend, not even during a state of emergency, indicating in this regard that:

... the judicial guarantees essential for the protection of the human rights not subject to derogation, according to Article 27(2) of the Convention, are those to which the Convention expressly refers in Articles 7(6) and 25(1), considered within the framework and the principles of Article 8, and also those necessary to the preservation of the rule of law, even during the state of exception that results from the suspension of guarantees.[64]

100. Decree-Law No. 25,475 provides that DINCOTE must draw up a police report upon the conclusion of its investigation, and send it to the Public Ministry prosecutor, who, in theory, makes an independent evaluation and decides what charges he will set forth in his indictment to the respective criminal judge. Nonetheless, the ICJ has indicated that it has "been repeatedly told by knowledgeable persons both within and outside the government that, in actual practice, DINCOTE formalizes the charges which then are invariably endorsed by the prosecutor." Entonces la DINCOTE finalmente decide si el prisionero será juzgado por una corte civil por terrorismo o por un tribunal militar por traición a la patria”.[65] That situation is certainly an anomaly, as it implies that the police--not a judicial organ, and therefore neither independent or impartial--would de facto be exercising judicial functions.

101. The Public Ministry then presents and formalizes the complaint before a criminal judge, who must issue an order initiating the investigation (Auto Apertorio de Instrucción) within 24 hours, and issue an arrest warrant. Article 13(a) of Decree Law No. 25,475 provides that the criminal judge cannot rule on any prior issue, objection, or defense, nor can he decide to release the accused. Consequently, even if the judge is convinced of the accused's innocence, he could not order his release. This no doubt represented another violation, in this procedure, of the right to the presumption of innocence set forth at Article 8(2) of the Convention, according to which: "Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law." By Law No. 26,348 of November 25, 1993, the aforementioned provision was modified and it was established that the investigative judge, sua sponte or upon motion by a party, may order the accused released on bond, but that this decision must be forwarded to the superior court for its legal opinion, and cannot be carried out until the superior court affirms it.

102. According to Decree-Law No. 25,475, once the initial phase is concluded, the investigative judge must send the case file to the Office of the President of the corresponding Superior Court of Justice, which in turn must forward the proceedings to the Dean of Superior Prosecutors (Fiscal Superior Decano), to have a Superior Prosecutor designated, to make a formal accusation within three days. Once the indictment is handed down, the members of the Specialized Chamber in charge of trying the accused are designated, from among the judges of the judicial district. According to Article 15 of Decree-Law No. 25,475:

The identity of the judges and members of the Public Ministry, and of the justice auxiliaries who intervene in the trial of crimes of terrorism, shall be secret, to which end measures will be adopted to guarantee that measure. The judicial rulings shall not bear signatures or seals of the judges participating, nor of the justice auxiliaries. For this purpose, codes and keys will be used, which shall also be kept secret. [66]

103. The characteristics of this system of secret justice, already modified in part by Law No. 26,671, as analyzed infra, constitute a flagrant violation of the guarantee essential to due process, to be judged by an independent and impartial judge or court, enshrined in Article 8(1) of the American Convention, as well as the guarantee regarding publicity for criminal trials, enshrined in Article 8(2)(5). In this regard, the Commission stated in its 1993 Report on the Situation of Human Rights in Peru: "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."[67] In addition, pursuant to Article 13(h) of Decree Law No. 25,475, it is not legal in terrorism proceedings for judges or justice auxiliaries to recuse themselves. Certainly, this latest provision is somehow redundant, as the secret identity of these officials impeded the accused and their defense counsel from learning of the existence of any grounds for recusal in the first place.

104. The Human Rights Committee has criticized the fact that the accused do not have access to information on the identity of those they judged, and find that their right to a public trial is denied.[68] Certainly, the right to know who is sitting in judgment, to determine his or her subjective competence, i.e. to determine whether a judge is covered by one of the grounds of disqualification or recusal, is a basic guarantee. The anonymity of the judges strips the accused of that basic guarantee, and also violates his right to be judged by an impartial court, as it impedes him from recusing a judge to whom one of the grounds for recusal applies.

105. The establishment of this system of secret justice has been based on the need to protect judges, prosecutors, and other officials involved in the judging of alleged members or collaborators of dissident armed groups, in the face of possible reprisals. Nonetheless, the UN Special Rapporteur on the independence of judges and lawyers, has noted that:

The main argument presented by the Government for providing "faceless" judges was to protect the physical integrity of the judges, given the terrorist threat. Based upon the testimony received from the judges themselves, the general impression of the Special Rapporteur was that the judges and prosecutors who are supposed to benefit from the fact that they operate anonymously do not feel protected by the system. In their opinion, it is quite easy to discover who the judges and prosecutors are, in particular in the provinces or small towns; therefore, they consider that the system does not serve the purpose for which it was established (i.e. the protection of the judges and prosecutors), and the majority of those interviewed acknowledged that under this system there is a lack of guarantees for due process. In this respect, international standards provide that derogatory measures shall be implemented only if they are strictly necessary. According to the information received by the Special Rapporteur, from 1992 to 1997, judges were not targets of the terrorist-related violence. Therefore, the use of "faceless" tribunals does not meet the principle of strict necessity. Moreover, even if a real need existed to implement measures to protect the physical integrity of the judges and of judicial auxiliaries, these measures should be consistent with other international obligations of the Government and they should not impair the right of the accused to due process.[69]

106. As to the place of these trials, Article 16 of Decree No. 25,475 and its related provisions establish that trials for terrorism should be carried out in the respective prisons, in surroundings endowed with the necessary conditions so that judges, prosecutors, and justice auxiliaries could not be plainly seen or heard by the persons on trial or their defense counsel. The UN Special Rapporteur on the independence of judges and lawyers indicated, with respect to those trials, that:

The main characteristic of the proceedings before "faceless" courts, both civilian and military, is secrecy. Judges and prosecutors are identified by codes. When handling treason cases, Supreme Court judges also identify themselves by secret codes. The judges are at all times invisible to the defendants and their counsel, and trial proceedings are conducted in private. Hearings take place in specially equipped courtrooms inside high-security prisons or, in treason cases, at military bases. The courtrooms are small, with a single door and a large one-way mirror along one wall. In an adjoining room on the other side of the mirror, the judges, prosecutor and court secretaries have their seats. They communicate with the accused persons and their counsel through voice-distorting microphones. Since the sound system does not always function properly, it is sometimes impossible for the defendant or his or her counsel to understand what is being said, which has in many cases seriously obstructed the proceedings or affected the defence.[70]

107. For their part, Articles 13(c) and 2(b) of Decree Laws No. 25,475 and 25,744, respectively, prohibit the staff involved in the preparation of the police report or the members of the Armed Forces from arresting or detaining persons implicated in these crimes from being offered as witnesses in trials for terrorism or treason.

108. The Commission considers that this legal deprivation of the right of persons on trial to question those who detained them, and who, moreover, played a preponderant role in the gathering and even manipulation of the evidence used to convict them, is another violation of the due process guarantee set forth at Article 8(2)(f) of the American Convention, according to which the defense has the right to "examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts."

109. In addition to the restrictions on the right to defense derived from the impossibility of questioning the police in charge of collecting and producing the evidence in the accusation and the initial limitation according to which each lawyer may represent only one person accused of terrorism, the UN Special Rapporteur on the independence of judges and lawyers, among other sources, noted that:

In the civil "faceless" tribunals, defence attorneys claim that they have restricted access to evidence. Further, they are not allowed to cross-examine police or military witnesses whose identities are not revealed prior to, during or after the trial. In the military "faceless" tribunals, defence lawyers claim that they have serious difficulties in accessing trial documents.[71]

110. As a result of the various restrictions imposed during the proceedings, the defense of the persons accused of terrorism implies a virtual inversion of the burden of proof, to the extreme that, in practice, and independent of the evidence available, the guilt of the accused is presumed, not his or her innocence, in flagrant violation of Article 8(2) of the American Convention. Such circumstances render the defense counsel "a mere spectator to the proceedings."[72] The role of the defense used to be even less effective, when the defense counsel was provided by the Ministry of Justice and designated administratively, by the police, pursuant to Article 12(f) of Decree Law No. 25,475. During its 1998 on-site visit, the Commission collected testimony in the Ayacucho prison that suggests that the accused lacked the resources needed to hire attorneys, and, consequently, have been represented by State-appointed defense counsel, they have only been contacted with little lead time to prepare the defense, resulting in convictions in circumstances in which they are virtually defenseless.

111. In addition, under the provisions of Decree Law No. 25,475, the prisoners may present a challenge to the judgment or a motion for nullity before the Supreme Court of Justice, whose decision was also assigned to a specialized chamber of "faceless" judges. It has been noted that the defense attorneys faced practically the same difficulties in the Supreme Court of Justice as when before the superior courts. In addition is the provisional nature of these judges, which, as analyzed supra, has called into question their independence, and with this the possibility of such a motion prevailing, however well-founded.[73]

112. The testimony received, the direct contact with the detainees during the on-site visits, the numerous complaints presented and the general reports on the human rights situation in Peru from several sources, indicate that the actions of the police, prosecutors, judges, and justice auxiliaries have been geared mainly to convicting the accused, more than to ascertaining their guilt with certainty. This tendency would appear to result from the pressures to shorten the trial and therefore the struggle against alleged members of armed groups, to the detriment of the rules of due process, and, in particular, the principle of the presumption of innocence, in combination with the highly-questioned independence of judges and prosecutors who hold their positions on a provisional basis.

113. The Commission considers that this type of proceeding violates the fundamental right to due process of law, i.e., the right of every person to be heard, with proper guarantees, in any criminal accusation against him or her; to be presumed innocent until their guilt has been proven; to receive prior and detailed communication of the charges and to receive adequate time and resources for preparing the defense, all of which are guarantees expressly set forth at Article 8 of the American Convention. In this regard, during its on-site visit, mainly, the Commission received a large number of complaints concerning persons who were convicted of terrorism (either for "terrorism" itself or for "treason," analyzed infra), under the procedural norms studied above.

d. Modification of the anti-terrorist legislation

114. The reduction of the violence led to the modification of the anti-terrorist legislation. Law No. 26,248 derogated the provision of Decree Law No. 25,475, which made it impossible to seek release without bail while under investigation for the crime of terrorism. Accordingly, the criminal judge, whether sua sponte or on motion by the accused, has been authorized to order the release, without bail, pursuant to Article 201 of the Code of Criminal Procedure.

115. In addition, Article 2 of Law 26,447 established that persons accused of crimes of terrorism have the right to designate a defense counsel of their choosing, and to be advised by counsel from the outset of the police investigation; the defense counsel and the prosecutor must be present at the time the accused makes a statement. If no defense counsel is designated by the party, a public defender must be appointed. Article 4 of the same law went back to the original language of the Criminal Code, which provides that persons under 18 years of age are exempt from sentencing, thereby reversing what had been established by the emergency legislation, which had brought the age for being subject to criminal accusation down to 15 years. Finally, Law No. 26,671 has put a halt to proceedings before what have been called the "faceless" judge courts.

116. Notwithstanding the above-mentioned reforms, all other aspects of Decree-Laws Nos. 25,475 and 25,659 continue in full force, and the persons convicted under the reformed system continue suffering the deficiencies of the procedure. Despite the entry into force of the reforms, judgments handed down while the Decrees--now amended--were in force, have not been reviewed.

2. The Ad Hoc Commission and the Innocent Persons

117. The Commission considers it important to highlight that the Peruvian state itself has recognized that innocent persons, who had no links whatsoever with terrorist organizations or activities, were convicted under the anti-terrorism legislation. In effect, on August 15, 1996, Law No. 26,655 was promulgated in Peru. It provided for the establishment of an "Ad Hoc Commission entrusted with evaluating, characterizing, and proposing to the President of the Republic the granting of pardon ... for those who have been convicted of the crimes of terrorism or treason on the basis of insufficient evidence, enabling the Commission to presume reasonably that they did not have any links with terrorist elements, activities, or organizations."[74] According to the language of the law, the Ad Hoc Commission's mandate arises from the existence of cases decided "on the basis of insufficient evidentiary elements" and confirms clearly that many innocent people were convicted without due process.

118. That Commission, whose mandate culminated on December 31, 1999, was made up of three members: the Human Rights Ombudsman, Mr. Jorge Santistevan de Noriega, its chairperson; the representative of the President of the Republic, Fr. Hubert Lanssiers; and the Minister of Justice.[75] The Commission has received approximately three thousand two hundred twenty-five (3,225) requests, and as of December 30, 1999, President Alberto Fujimori had granted 481 pardons.[76]

119. The Special Rapporteur of the UN Human Rights Commission on the independence of judges and lawyers has stated that the existence of the Ad Hoc Commission is recognition of the lack of due process in cases of terrorism and treason:

The Special Rapporteur welcomes the establishment of the Ad Hoc Commission by the Government as an attempt to correct the wrong done to the innocent people who were tried and sentenced by "faceless" civil and military tribunals; however, the Special Rapporteur would like to point out that the establishment of the Commission is itself an acknowledgement by the Government of the serious irregularities that surrounded the procedures for trying cases of terrorism and treason, which amounted to a miscarriage of justice.[77]

120. Since May 1992, when the current anti-terrorist legislation came into force, until June 1998, the non-governmental human rights organizations have assumed the legal defense of 1,568 people accused of terrorism or treason, 1,019 of whom have been released by judicial means or through the Ad hoc Commission; the remaining 527 persons (318 being tried and 209 convicted) are in detention.

3. The Requisitoriados

121. Another problem related to the state's fight against organized violence is the situation of the persons referred to as the requisitoriados. Thousands of people in Peru, for several years now, have been accused of having participated in the activities related to the armed dissident groups; arrest warrants have issued for these persons, and they have been reported to the police authorities.[78] Many such arrest warrants were issued against persons who were forced to collaborate with armed dissident groups or who were accused by others, seeking a reduction in their sentences. In many of these cases, the arrest warrants have never been executed, and, given that these orders are not subject to any limitation, the police authorities are authorized to detain the requisitoriados at any time. Accordingly, these individuals are in a highly precarious legal situation that keeps them from developing their human and family potential normally. This being the case, the "requisitoriados" are constantly on the run.

122. The Human Rights Ombudsman has estimated that the situation affected 5,000 people[79]; non-governmental organizations estimate that the number was much higher.[80] For the most part, they are Andean peasants and inhabitants of the jungle.

123. In view of this situation, the courts issued many arrest warrants, which has been alleged to have been done indiscriminately, often with a massive impact on entire communities. The IACHR has received information that the rules of procedure enabled judges to issue arrest warrants despite generally insufficient indicia pointing to the liability of the persons affected. The Office of the Human Rights Ombudsman has indicated in this respect that the requisitorias, or criminal summonses come from areas declared to be under a state of emergency, that 72% of the alleged offenses took place from 1980 to 1991, and that 55% of the criminal summonses were also issued during this period.[81]

124. The Commission considers that the situation of the requisitoriados affects several human rights set forth in the American Convention. In this respect, the Commission is aware of the existence of three bills, prepared by the Office of the Human Rights Ombudsman, the Working Group on Displacement (Mesa de Desplazamiento) in Peru, and congresspersons Henry Pease and Graciela Fernández Baca, respectively, who sought to correct that situation. Given the imperative need to solve this problem, the Commission urges the Peruvian State to evaluate those bills, or others, aimed at regularizing the situation of the requisitoriados.

4. Failure to make full reparation and victims of the violence

125. Article 1(1) of the American Convention establishes the duty of States to ensure the free and full exercise of the human rights set forth in the American Convention. That obligation means that the States must prevent, investigate, and punish all violations of rights recognized in the Convention, and make reparation for the harm caused by such violations. In cases in which the violation concerns rights that can be restored, such as the right to physical liberty, the State must proceed to restore them.[82]

126. In this regard, the information received by the Commission indicates that the Peruvian State has carried out its obligation to make reparation to the victims or their families only in exceptional cases, considering the numerous violations of various human rights committed by the State through its agents in recent years.

127. The investigation into the violations and trial of the persons responsible have been impeded by the passage of amnesty laws, making it impossible to restore the right violated and to make reparation to the victims and their families.

128. In terms of compensation for the harm suffered, the Commission observes that the 1993 Peruvian Constitution established, at its Article 139(7), the institution of compensation for arbitrary detention and for judicial error in criminal proceedings, which was regulated by Law No. 24,973, promulgated in 1988 and still in force. Nonetheless, the National Compensation Fund, an institution created pursuant to the standards noted, is not operating and does not receive the corresponding budget, thus the persons affected by judicial errors are not compensated, and this failure to compensate constitutes a violation of their human rights.

129. Article 10 of the American Convention provides: "Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through a miscarriage of justice." The administration of justice is both a prerogative and an obligation of the State. The actions of the judges, as public servants in their capacity as state agents, may give rise to the domestic and international liability of the state. This is without prejudice to the domestic provisions on personal liability of judges vis-à-vis the victims for their judicial errors and vis-à-vis the state itself, arising from their judicial actions.

130. A related aspect of the matter under consideration is reparation for innocent persons who were convicted of terrorism. Even when those persons received some benefits under Law No. 26,994, they have not received any compensation for the material damages or pain and suffering inflicted on them and their families by the State.

131. For the purposes of trying to resolve the above-mentioned situations, the Commission considers that the State should begin by assuming its obligation to pay compensation to the victims of human rights violations committed by the State or its agents as a matter of policy. In this regard, among other measures aimed at implementing such an eventual policy, it is recommended that the National Compensation Fund be allocated the budget it needs to carry out its aims and adopt a simple and brief procedure for processing the requests it receives. It is also recommended, as another specific measure for addressing the problem under study, that legislation be passed providing for compensation for the victims of subversion, i.e. for the innocent persons who have been pardoned or given clemency.

132. From another perspective, the Commission considers it important to highlight that on November 11, 1992, Supreme Decree No. 077-92-DE was issued by which the Peruvian State established the payment of compensation to victims of subversion, i.e. to the members of the self-defense committees killed or wounded as they fought dissident groups. Along the same lines, Supreme Decree No. 068-DE-SG of December 27, 1998, set the amount of that compensation. The IACHR positively values this initiative of the Peruvian State, and attributes importance to its expeditious implementation.

5. Acts of persecution against judges and lawyers

133. The Commission and the member states of the OAS have recognized the important role of human rights defenders in fostering a greater awareness and observance of fundamental rights, and so in safeguarding democracy and the fundamental values of the inter-American system.[83] In addition, the General Assembly of the OAS has issued pronouncements, on several occasions, on the need to protect human rights defenders in the performance of their tasks.[84] The United Nations Commission on Human Rights has also recognized the importance of human rights defenders and has reaffirmed the right and the duty of individuals, groups, and institutions of society in fostering and protecting universally recognized human rights and fundamental freedoms.[85]

134. The Commission has found that human rights defenders are often victims of all types of attacks and harassment, including legal actions brought to intimidate them. In the case of Peru, the Commission has received information that indicates that some of these legal proceedings have not been initiated to determine rights and responsibilities pursuant to the purposes of the law, but as reprisal against defense counsel for persons accused of the crime of terrorism.

135. Many of the lawyers who defend persons accused of committing the crime of terrorism in Peru are subject to constant threats against their lives through phone calls, anonymous notes, and even physical violence. In some cases these threats have materialized.

136. In addition, the Commission has learned that after the promulgation of Law No. 25,475, the Anti-Terrorism Act, criminal proceedings have been brought against defense attorneys for the crimes of rebellion or forming illegal groups, leading to their detention. The Commission has received numerous complaints consistently indicating that far from being undertaken based on relevant evidence, such proceedings have apparently been sponsored by sectors of the security forces for the purpose of intimidating attorneys willing to defend persons accused of terrorism.

137. The Commission considers that the States must carry out their obligation to investigate and judge those who have violated the law, including acts in support of the armed dissident groups considered offenses under the legislation in force in the jurisdiction in question. Nonetheless, the legal defense of individuals accused of having supported the armed dissident groups can in no case be considered by the authorities as an offense, but as part of a process provided for in the American Convention, and presumably in domestic law, for judging those who are effectively accused of violating the law.

138. The Commission, as already mentioned, has received information that indicates that the criminal proceedings brought against defense attorneys generally begin based on reports of the specialized National Police called the DINCOTE (Dirección Nacional contra el Terrorismo). These police elements, according to the complaints, implicate innocent citizens in subversive criminal acts, then fabricate evidence, and subject the person to cruel, inhuman, and degrading torture to obtain self-incriminatory declarations.

139. For example, attorneys Alfredo Crespo and Jorge Cartagena were subjected to a clandestine trial and convicted by "faceless" military courts behind closed doors, in military quarters. They were sentenced to life imprisonment, for the crime of "treason" and "harm to the Intelligence Service of the Peruvian Army" based on "secret" documents in a trial in which they were subjected to the very summary procedure for trial in the theater of operations, in which the investigative judge must hand down a judgment within 10 days at most. During this trial before "faceless" judges, these two attorneys were kept from presenting evidence, testimony, experts, on-site inspections, review of documents, etc., for the purpose of refuting the charges. Their defense counsel were blocked from preparing the defense, meeting in private with their clients, or examining the "evidence" against them. The Supreme Resolution of July 6, 1993, issued by the Special Court of the Supreme Council of Military Justice, highlights that the only basis of the conviction was their "... status as leading members of the Asociación de Abogados Democráticos...." even though no evidence was presented indicating that the Association, properly registered at file No. 4,034 of the Public Registries of Lima, was in any way linked to unlawful acts or was clandestine. The State, in its response, considers that the IACHR cannot consider as clandestine procedures that have been regulated by law under the Constitution of Peru, especially when the investigations were transparent, open, including the presence of its respective defense counsel, the Public Ministry, and especially under the close watch of the majority of individuals and juridical persons, national and foreign, familiar with what happened. The State notes the "presence" of the defense counsel from the Public Ministry, etc., indirectly ceding on the point of its own lack of participation. One need not get into details on this point because the Inter-American Court of Human Rights, in the judgment in the case Castillo Petruzzi et al., already evaluated the nature of the right to defense in a treason case similar to the procedure to which Crespo and Cartagena were subjected, and found multiple violations of Article 8 of the American Convention.

140. At the same time, Mr. Luis A. Ramón Landaure--who was said to have graduated with the accused and decided to assume their defense--came to be subjected to harassment by the agents of the security forces, forcing him to seek guarantees from the Lima Bar Association. On November 20, 1997, Mr. Landaure was detained in his office by the Special Operative Group ("GEO": Grupo Especial Operativo), directed by a member of the Army Intelligence Service ("SIN"). Mr. Landaure was detained for 30 days in the cells of DIRCOTE even though the law provides for a maximum of 15 days detention.[86] The certificate of detention was delivered to him on November 21, 1997, for terrorism, and not treason. Later, the military jurisdiction convicted him and sentenced him to life imprisonment at trial and on appeal. The Supreme Council of Military Justice accepted his request for inhibition, and arrogated to itself the power to try him on charges of terrorism, even though under Law No. 25,475, it is DIRCOTE and the Office of the Public Prosecutor who have the power to do so. The complaint by the Office of the Public Prosecutor in the regular courts and the order to begin the investigation are dated October 5, 1998. On that same date, new proceedings on terrorism charges were brought, on the same facts, in the regular civilian courts.[87]

141. Not only have lawyers dedicated to defending persons accused of terrorism or treason been subject to harassment and accusations. Ms. Delia Revoredo Marsano de Mur, former member of the Constitutional Court, and former dean of the Bar Association, has also been the victim of a series of incidents after denouncing six judges of the Supreme Court of Justice to the National Council of the Judiciary for improper conduct in the Novotec case (supra).

142. Next, the Congress approved and the Executive promulgated Law No. 26,933, which took from the National Council of the Judiciary the power to remove judges and supreme prosecutors without the authorization of the Internal Oversight Organ and the Public Ministry. The seven members of the National Council of the Judiciary submitted their resignations in response to this limitation on their powers, and the cases were transferred immediately to the Internal Control Organ of the Judiciary, which decided not to hold the five judges accused liable.[88]

143. Ms. Delia Revoredo publicly voiced her disagreement with what she considered a new usurpation of the functions of an autonomous constitutional organ and the consequent harm to the rule of law, and stated that she would denounce these acts of the Congress and the Executive to the OAS. Some professional associations, municipalities, and workers' unions backed her complaint.

144. While sitting as a member of the Constitutional Court, Ms. Revoredo enjoyed immunity from trial. Despite this immunity, there were other ways to coerce her. Thus, a state customs agents allegedly falsified documentation relating to certain imported goods, two trucks and a car, in order to accuse her and her husband of the crime of contraband and thereby pressure her to refrain from making a pronouncement on the constitutionality of the law that would have allowed Alberto Fujimori a third presidential candidacy. Surprisingly, the State Customs Prosecutor turned a blind eye to the dozens of importers who had brought almost 600 vehicles into Peru on the same boat and in the same circumstances. According to Peruvian criminal law, contraband is constituted by the fact of: (a) importing merchandise into an unauthorized zone, and (b) evading taxes. In this case, there is unquestionable evidence that the corresponding taxes were paid at the time the three vehicles were brought into the customs area. During the proceeding, the Executive and Judicial Commissions of the Judiciary and of the Public Ministry changed the prosecutors and judges, created a totally new panel, entirely eliminated another panel, and indicted Revoredo and her husband, Mr. Mur, of acts that did not constitute a crime. As a result of this episode, Ms. Revoredo and her husband sought asylum from the Government of Costa Rica, which accepted their request.

145. Mr. Heriberto Benítez, President of the Human Rights Committee of the Lima Bar Association, has also been systematically and repeatedly persecuted for his activities on behalf of human rights. On several occasions, he has been impeded from exercising his profession, the law, for defending polemical clients, such as Mrs. Leonor La Rosa Bustamante, a former Army intelligence agent who told the Canal 2 television cameras that she was brutally tortured by her colleagues. In addition, Mr. Alberto Borea Odría, who defended General Salinas Sedó, and was president of the dissolved Senate of the Republic, had to seek asylum in the Costa Rican embassy and later leave Peru.[89] Mr. Borea returned to Peru and since then has been the victim of harassment for his defense of other clients such as (ret.) Col. Gustavo Cesti and Baruch Ivcher Bronstein.

146. The Commission has also received a complaint regarding the case of judges Sergio Salas, Elizabeth MacRae Rhays, and Juan Castillo Vásquez, all judges of the Public Law Chamber of the Superior Court of Lima who on June 26, 1997, were transferred from their posts by decision of a Supreme Court panel, apparently upon instructions from the Executive Commission of the Judiciary. The Commission had occasion to meet with those judges during its on-site visit to Lima. They are the three magistrates of the Public Law Chamber who ruled favorably on the writs of habeas corpus filed, among other former members of the Armed Forces, by former Gen. Rodolfo Robles and (ret.) Capt. Gustavo Cesti Hurtado, respectively, whose grievances were eventually examined by the Commission, and, in the case of Gustavo Cesti, by the Inter-American Court.[90] The Supreme Council of Military Justice accused these judges of "dangerous interference" in the military jurisdiction.

147. In July 1997, Ms. Elba Greta Minaya Calle, judge for the 37th Criminal Court of Lima, was accused of terrorism and other crimes for having granted a writ of habeas corpus in a well-known case. The Commission asked the Peruvian authorities to adopt precautionary measures on behalf of Judge Minaya Calle, to protect her personal integrity, after which it was reported that the charges had been withdrawn. In November 1999, the President of the Superior Court of Lima, Pedro Infantes Mandujano, lodged a complaint against former criminal law judge Elba Greta Minaya Calle for "grave misconduct of duties" ("grave inconducta funcional") before the District Office for Oversight of the Judiciary (Odicma). This Office initiated an administrative case against the former judge even though she had not been a judge since October 1999, when she resigned. She is accused of traveling to Costa Rica without the authorization of Infantes Mandujano, from September 18 to 22, 1999, to serve as a witness before the Inter-American Court of Human Rights in the Cantoral Benavides case. According to the Organic Law of the Judiciary, it is a grave violation that may be punished by the magistrate's removal. The former judge told the press that "yes she did seek permission to travel to Costa Rica, but that her request went by mistake to the Executive Commission of the Judiciary, instead of being forwarded to Infantes Mandujano."[91] She added that the principal judge of the Lima Court knew of the motives for her trip, and that "therefore, it is no grave violation. In addition, it is absurd that they are bringing a disciplinary proceeding against me when I am no longer a judge, and I don't know how they could punish me," she indicated. "It is very possible that this proceeding is in reprisal for having gone to the Court at San José to testify on behalf of Cantoral," she noted.

148. The Commission is profoundly concerned over the fact that the justice system itself is used to harass and intimidate defense attorneys and independent judges. In complaints lodged with the IACHR, it is indicated in many cases that there are state agents, especially from the security forces, involved in the conduct of these proceedings. The decision to initiate a case on charges of "terrorism" (supra) or "traición a la patria," i.e. treason (infra), for example, depends in many cases on "provisional" prosecutors, who are, therefore, susceptible to the influence of the Executive and to the extralegal considerations in the case. Insofar as these forms of conduct are violative of the American Convention, they trigger the State's international responsibility for the violation of rights set forth in the American Convention.

149. Whenever criminal proceedings are used as a tool to harass defense attorneys directly, the right of the victim to his or her mental and moral integrity is compromised, and with it respect for Article 5 of the American Convention. These proceedings may also be manipulated for the purpose of publicly accusing those attorneys who defend persons accused of "terrorism," who are considered "enemies of the State" by the security forces, which can place the physical security and even the life of these attorneys at risk.

D. THE MILITARY JURISDICTION: EXPANSION

150. The 1979 Constitution established a legal regime in which the military jurisdiction was limited to judging members of the military and police. Civilians were only subject to this jurisdiction if accused of treason in the event of an external war, or when seeking to evade compulsory military service. The 1993 Constitution provides for the military jurisdiction at Article 139, and expressly defines its scope over civilians at Article 173, expanding the military jurisdiction to include civilians in cases of "treason," in the following terms:

Article 173. In the case of a service-related offense on the part of members of the Armed Forces or National Police, they are subject to the respective jurisdiction and the Code of Military Justice. The provisions of this Code are not applicable to civilians, except in the case of crimes of Treason and Terrorism as provided by the law. The cassation referred to in Article 141 applies only when the death penalty is imposed.

151. Peru's system of military justice recognizes that there are two separate jurisdictions in the judicial system, the military courts and the regular or civilian jurisdiction. The Code of Military Justice establishes that offenses (regular) will be judged by the civilian courts, and offenses that pertain exclusively to military service (service-related offenses) committed by military, police, or civilian personnel employed by the military are to be heard by the military courts (courts of the Armed Forces and the Police). The Peruvian State notes in its response that the military courts have jurisdiction, in addition to what is spelled out in the Peruvian Constitution, to take cognizance of common crimes, pursuant to Article 324 of the Code of Military Justice, which provides that the military jurisdiction can be exercised over common crimes committed in service-related acts when the injured persons and accused are members of the military; the law applied is the Criminal Code that applies to civilians generally (Código Penal Común).

152. Even though no international treaty contains an express provision prohibiting the trial of civilians by military courts, there is international consensus that the jurisdiction of such courts needs to be restricted. The Human Rights Committee of the United Nations formulated the following General Comment (No. 13) on the application of military justice to civilians:

The provisions of Article 14 apply to all courts and tribunals within the scope of that Article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in Article 14. The Committee has noted a serious lack of information in this regard in the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of Article 14 which are essential for the effective protection of human rights. If States parties decide in circumstances of a public emergency as contemplated by Article 4 to derogate from normal procedures required under Article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation, and respect the other conditions in paragraph 1 of Article 14.[92]

153. The Special Rapporteur on the independence of judges and lawyers, in his report on Peru, cited General Comment No. 13 with the comment that he had certain "reservations on this particular general comment in the light of the current development of international law which is towards the prohibition of military tribunals trying civilians. "[93] (Emphasis added.)

154. In addition, principles 5 and 6 of the United Nations Basic Principles on the Independence of the Judiciary suggest that the transfer of the jurisdiction from the regular courts to the military courts destroys the independence of the judicial branch:

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

155. The Commission reiterates its doctrine that military justice can only be applied to members of the military who have committed service-related offenses, and that military courts do not have the necessary independence and impartiality for sitting in judgment of civilians.[94] The Inter-American Court has confirmed that the purpose of the military jurisdiction is to maintain order and discipline in the Armed Forces; in this regard, it is a functional jurisdiction whose application should be reserved to those members of the military who have committed offenses or violations in the performance of their duties, under certain circumstances.[95] In this regard, principle (5)(f) of the Singhvi principles provides that the jurisdiction of military courts should be circumscribed to offenses related to military service, and that one should have the right to appeal the decisions of those courts to a legally qualified appellate court or to pursue a remedy to move for annulment.[96] The State, in its response to the report, notes that "the American Convention on Human Rights does not prohibit exceptional jurisdictions" and that "the IACHR does not indicate its grounds" for establishing the doctrine that the military courts do not have the necessary independence and impartiality to try civilians. In response, the Commission refers to paragraph 129 of the Inter-American Court's judgment in the case Castillo Petruzzi et al., which indicates: "A basic principle of the independence of the judiciary is that every person has the right to be heard by regular courts, following procedures previously established by law. States are not to create '[t]ribunals that do not use the duly established procedures of the legal process [...] to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.'" In paragraph 130 of the same judgment, the Court notes: "In the case under study, the armed forces, fully engaged in the counter-insurgency struggle, are also prosecuting persons associated with insurgency groups. This considerably weakens the impartiality that every judge must have."

 

 

Notes__________________

[1] The American Convention reaffirms in its preamble the "intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man." In the same spirit, at Article 29, the Convention prohibits the interpretation of any of its provisions so as to preclude "other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government," while it also makes reference to democracy as the presumed form of political organization of the States parties at Articles 15, 16, 22, and 32.

[2] UN, Basic Principles on the Independence of the Judiciary, Seventh United Nations Conference on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985, Doc. A/CONF.121/22/Rev.1, p. 59 (1985).

[3] See "Requiem por el Estado de Derecho, Jorge Avendaño, Enrique Bernales y Marcial Tubio tres juristas auscultan el Poder Judicial que padecemos en los tiempos de Fujimori," by Mario Campos, in Somos.

[4] Constitutional law expert and professor Enrique Bernales noted "that this government has adhered closely to the script of all authoritarian governments, and it is important to recall that this script is based on one essential task: to do away with the institutions, for which the steamroller has been very useful. There are no institutions in Peru on the eve of the new millennium. The only institutions that work are chaos, uncertainty, poverty, corruption, fear of the future..., re-election?" Id.

[5] Article 2 of Decree-Law No. 25,418 (supra).

[6] Law No. 26,546 was adopted on November 21, 1995, and Law No. 26,933 on March 12, 1998. In its response, the State indicated that Law No. 27,009 provides that the Executive Commission of the Judiciary is to sit until December 31, 2000. It should be noted that the life of this Commission has been extended each year, so that by now it can be considered permanent.

[7] Not taking into account Justices of the Peace (Juzgados de Paz).

[8] The Government, in its response, notes that the National Council of the Judiciary cannot appoint judges and prosecutors if the candidates have not passed the training course at the Judicial Academy (which was expanded from six months to two years). Precisely the fact that the Congress, whose majority is pro-Government, has changed the duration of the course, has made it possible for the State to continue appointing a very large number of judges, going around the constitutional procedure.

[9] Article 2 of Law No. 26,898, "Law that spells out the duties and rights of magistrates of the Judiciary and the Public Ministry," provides: "The Provisional Magistrates that occupy a post in any of the judicial organs of the Judiciary provided for in Article 26 of the Single Ordered Text of the Organic Law on the Judiciary, have the same duties, rights, powers, prerogatives, prohibitions, and incompatibilities as the Permanent Magistrates in their respective categories so long as they remain in those posts. The Provisional Magistrates of the Supreme Court sit in the Plenary Chamber, with right to voice and vote, and they participate in running the institutional, administrative, and judicial affairs of the Judiciary, so long as their provisional status endures."

[10] "Jueces titulares en contra de ascenso de los provisionales," La República, November 5, 1999.

[11] The Commission met with Mr. Nelson Reyes Ríos, President of the Organ for Internal Control of the Judiciary (the Judiciary's internal oversight body).

[12] The four judges confessed that they had signed a judgment drafted by another judge--without reading it--who had nothing to do with their court, and who should not have had access to the case file. Those judges, ignoring the principle of res judicata, voided the judgment that "they hadn't read," but had issued eight months earlier, and issued a new ruling. That law provoked the resignation, on April 9, 1998, of the seven members of the National Council of the Judiciary, who explained that they had been deprived of their functions considering that the new laws issued by Congress prohibited them from appointing, confirming, or removing judges. In addition, the World Bank, which had announced a US$ 22.5 million loan for Peru, for judicial reform, suspended disbursement of the loan until the Council's powers are restored.

[13] The four jurists are Guillermo Figallo, Javier Neves, Marcial Rubio, and Francisco Eguiguren. See editorial, "Renuncia Comisión. Academia de la Magistratura en peligro," La República, April 10, 1998.

[14] The decision of the Plenary Chamber of the Supreme Court of Justice of Peru, of June 14, 1999, for example, declared it was impossible to comply with the Judgment on Reparations in the Loayza Tamayo case, issued by the Inter-American Court on November 27, 1998.

[15] By Decree-Law No. 25, 472, of April 30, 1992, Blanca Nélida Colán was appointed as Supreme Prosecutor for Criminal Matters.

[16] Interview with the Public Ministry, Miguel Aljovín, November 10, 1998, in Lima.

[17] Interview with Aljovín (supra).

[18] Id.

[19] See, "En el 2000 Colán no descarta ser de nuevo Fiscal de la Nación," Expreso, November 8, 1999.

[20] Id.

[21] The Chávez Peñaherrera and Cesti Hurtado cases were submitted to the inter-American human rights system. The Cesti Hurtado case is discussed infra.

[22] The legislative sub-committee took nine days to conclude that the appointments were in line with the Constitution and laws of Peru. See "Subcomisión Trelles exculpa a Blanca Nélida Colán," Gestión, April 25, 1998.

[23] See "Cambian a Adelaida Bolívar de la Fiscalía de Control Interno," Gestión, May 9, 1998.

[24] The new Executive Secretary (Pezúa) sought the resignation of 197 officials in positions of trust during the administration of José Dellepiane who maintained links with the Navy, and who owed their appointment to the previous Executive Secretary. See La República, May 15, 1998. Dellepiane resigned suddenly on May 5, 1998, "for personal reasons," as was reported in the press, after two years and four months in the post. David Pezúa, who took his place, served as an adviser to Francisco Acosta, the president of the Constitutional Court after the removal of three judges by the Congress, and as an adviser to General Guido Guevara, President of the Supreme Council of Military Justice.

[25] See Press Communique 20/98, Lima, Peru, November 13, 1998.

[26] The second is the Executive Commission of the Public Ministry (infra).

[27] The President of the Council also presides over the Executive Commission of the Judiciary.

[28] The justices of the peace are appointed through a popular election organized in accordance with the law.

[29] The representative selected by the Public Ministry to sit on the National Council of the Judiciary is Peruvian attorney Jorge Eugenio Castañeda Maldonado, known for his ties to Cambio 90. He was selected by the Executive Commission of the Public Ministry, which is presided over by Blanca Nélida Colán.

[30] The public universities also appoint one representative to the National Elections Board. The Congress, through a procedure similar to that used with the Judiciary and the Public Ministry, declared that the public universities are undergoing a reorganization, and from that date will appoint their own authorities. A fourth member fo the National Elections Board is chosen by the private universities. In 1998, the Congress approved the creation of new private universities nationwide. The fifth and final member is chosen by the Bar Association, and proposals have been made in Congress to abolish compulsory membership of lawyers in a bar association. The Congress submitted 121 reports against 58 judges and supreme prosecutors from 1995 to September 1998, most dismissed or declared to be unfounded, with the favorable vote by the legislators sympathetic to the government. "Parlamento archivó 121 denuncias contra 58 jueces y fiscales supremos," La República, September 12, 1998.

[31] See "El Origen del Proceso," El Comercio, May 20, 1998.

[32] Interview with Róger Rodríguez Iturry, "Cuestión de Principios," in IDEELE, No. 106 (1998).

[33] "Reforma judicial es indefendible e impuesta," Gestión, April 7, 1999.

[34] Mr. Dr. Acosta Sánchez was Vice-Minister of Labor in this administration, and Mr. García Marcelo ran for Congress with the slate for the governing party.

[35] See Mexico, "The Supreme Court of Justice may declare to be invalid laws which have been subject to challenge only if its decision is approved by a majority of at least eight out of its eleven members." IACHR, Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100, Doc. 7 rev.1, September 24, 1998, para. 107.

[36] Article 112 of the Constitution provides: "The presidential term is for five years. The President may be re-elected immediately for one additional term. After one constitutional term, at least, a former president may be a candidate again, subject to the same conditions."

[37] After a time she returned to Lima.

[38] Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations..., op. cit., para. 19.

[39] IACHR, Annual Report 1980-1981, p. 115.

[40] Id.

[41] See, in this regard, e.g., Grossman, Claudio: "Algunas consideraciones sobre el régimen de situaciones de excepción bajo la Convención Americana sobre Derechos Humanos," in IACHR, Derechos Humanos en las Américas, Homenaje a la Memoria de Carlos A. Dunshee de Abranches, Washington, 1984.

[42] Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations..., op. cit., para. 21.

[43] Id., para. 24.

[44] Id., para. 27.

[45] Id.

[46] Id., para. 25.

[47] OC-9, para. 25.

[48] Id., para. 38.

[49] International Commission of Jurists, Report on the Administration of Justice in Peru (published in Spanish by Instituto de Defensa Legal, Lima, 1993, p. 45).

[50] IACHR, Annual Report 1993, p. 507.

[51] Id.

[52] Inter-American Court of Human Rights, Case of Gangaram Panday, Judgment of January 21, 1994, Series C No. 16, para. 47.

[53] According to which: "Every person has the right: ... 2. To personal liberty and security. Accordingly: ... (g) No one may be detained other than by written and reasoned warrant issued by the Judge or by the police authorities in the case of flagrancy...."

[54] The Commission has established as follows: "The rationale behind this guarantee is that no person should be punished without a prior trial which includes a charge, the opportunity to defend oneself, and a sentence. All these stages must be completed within a reasonable time. The time limit is intended to protect the accused with respect to his or her fundamental right to personal liberty, as well as the accused's personal security against being the object of an unjustified procedural risk." IACHR, Report 12/96, Case 11.245, Argentina, Annual Report 1995, para. 76.

[55] United Nations, Commission on Human Rights, Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, Mission to Peru, Doc. E/CN.4/1998/39/Add.1 (1998), para. 71.

[56] A subsequent statute partially amended Decree-Law No. 25,475, and it was provided that persons accused of terrorism have the right to defense counsel from the outset of the police intervention.

[57] Human Rights Committee, Consideration of the Third Report submitted by Peru, Documents of the fifty-first regular session, Vol. I, Supplement No. 40 (A/51/40), para. 356.

[58] International Commission of Jurists, Report on the Administration of Justice in Peru, (published in Spanish by Instituto de Defensa Legal, Lima, 1993, p. 60).

[59] Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment of September 17, 1997, para. 46.

[60] Human Rights Committee, op. cit., para. 355.

[61] The Peruvian State, in its observations, contradicted the assertion of the Inter-American Court and the Human Rights Committee, arguing that "it is not true that there is a widespread practice of cruel treatment in investigations into crimes of treason and terrorism.... In any event, some excesses perpetrated by Peruvian National Police personnel, which were circumstantial, have been investigated and sanctioned administratively, in addition to being prosecuted criminally by the Peruvian National Police before the courts with jurisdiction."

[62] By Law No. 26,248, published November 23, 1993, the procedure of habeas corpus was restored to cases involving crimes of terrorism and treason.

[63] Inter-American Court of Human Rights, OC-9, para. 25.

[64] Id., para. 38.

[65] ICJ, op. cit., p. 62.

[66] On October 12, 1996, Law 26,671 was published, by which it was established that as of October 15, 1997, trials for the crime of terrorism would be held by the respective competent judges, thereby voiding the provisions providing for "faceless" judges.

[67] IACHR, Report on the Situation of Human Rights in Peru, 1993, para. 64.

[68] Human Rights Committee, op. cit., para. 355.

[69] UN, Rapporteur's Report, Mr. Param Cumaraswamy, op. cit., para. 74.

[70] Id., para. 73.

[71] Id., para. 72.

[72] IACHR, Annual Report 1993, p. 845.

[73] See, e.g., UN, Rapporteur's Report, Mr. Param Cumaraswamy, op. cit., para. 53.

[74] Law No. 26,655, of August 15, 1996. Article 1.

[75] According to a government announcement, as of the year 2000 "the National Council on Human Rights of the Ministry of Justice will take cognizance of, study, and propose the benefit of pardon for those innocent persons who were convicted on terrorism charges." Expreso, December 15, 1999.

[76] According to the Primer Informe del Defensor del Pueblo al Congreso (1996-1998) [First Report by the Human Rights Ombudsman to the Congress, 1996-1998], there were a total of 3,260 persons held for terrorism in the various places of detention in Peru. According to the Technical Secretariat of the Ad Hoc Commission, 602 people were absolved, and 1,726 applications remain to be analyzed by the National Council on Human Rights. The other applications were resolved or did not meet the requirements.

[77] UN, Rapporteur's Report, Mr. Param Cumarasawamy, op. cit., para. 85.

[78] See, in this regard, e.g., APRODEH and the International Federation of Human Rights, La Persecución Perpetua--Los Inocentes Requisitoriados, Lima, 1999.

[79] Office of the Human Rights Ombudsman, Preliminary report, Diagnóstico de los Injustamente Requisitoriados por Terrorismo, Lima, 1998.

[80] As of December 1999, the Human Rights Ombudsman estimates that approximately 200 of these 5,000 people were seeking review of their situation when the Ad Hoc Commission ceased to exist. "Consejo Nacional de Derechos Humanos no tendrá imparcialidad," Gestión, December 14, 1999.

[81] Id.

[82] Inter-American Court of Human Rights, Judgment of July 29, 1988, Series C No. 4, para. 166.

[83] IACHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, doc. 9 rev. 1, February 26, 1999, p. 245 (chapter VII).

[84] See AG/Res.1671 (XXIX-O/99).

[85] Id.

[86] DIRCOTE is the old name of DINCOTE.

[87] The Inter-American Court, in the Loayza Tamayo case, declared that the principle of non bis in idem is established in Article 8(4) of the American Convention in the following terms: "An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause." Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment of September 17, 1997, para. 68.

[88] Mr. César Tineo, who was the sixth judge, was removed from his position, and the Congress recommended that the other five, Pedro Ibérico, Lino Roncalla, Adalberto Seminario, Feliciano Almeida, and José Cerna be suspended for ten days, for negligence.

[89] See IACHR, Annual Report 1992-1993, p. 201.

[90] The decision on the merits in the case of Gen. Rodolfo Robles was published by the Commission in the Annual Report 1998, as Case 11.317, and the Court decided the case of Gustavo Cesti Hurtado, in its judgment dated September 29, 1999.

[91] "Infantes denuncia a ex-jueza Elba Greta Minaya," Expreso, November 12, 1999.

[92] General Comment No. 13 of the Human Rights Committee, on Article 14 of the International Covenant on Civil and Political Rights. General Comments Approved by the Human Rights Committee pursuant to Article 40(4) of the International Covenant on Civil and Political Rights, CCPR/C/21/Rev.1, December 8, 1997.

[93] UN, Report by the Special Rapporteur..., Mr. Param Cumaraswamy, op. cit., para. 78.

[94] See, in general, IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.34, October 5, 1974; Report on the Situation of Human Rights in Uruguay, OEA/Ser.L/V/II.43), January 31, 1978; Report on the Situation of Human Rights in Nicaragua, OEA/Ser.L/V/II.33, June 30, 1981; and Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.61), October 1983.

[95] Inter-American Court of Human Rights, Case of Castillo Petruzzi et al., Judgment of May 30, 1999, para. 128.

[96] Cited in United Nations, Commission on Human Rights, Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, Mission to Peru, Doc. E/CN.4/1998/39/Add.1 (1998), para. 79.

 

 

 



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