1. Inter-American legal doctrine, as it has evolved, has placed great emphasis on the existence of a direct relationship between the exercise of political rights and the concept of democracy as a way of organizing the state, which, in turn, presupposes the observance of other fundamental human rights. In effect, the concept of representative democracy is based on the principle that popular sovereignty vests in the people, and that it is in the exercise of that popular sovereignty that they elect their representatives to hold power. These representatives, moreover, are elected by the citizens to adopt certain measures that require political decisions, which implies, in turn, that there has been a wide-ranging debate on the nature of the rights to be expressed during that debate among organized political groups who have been able to exercise their right to public assembly. The effective observance of the rights to express oneself during this debate, to associate and to assemble, requires a legal and institutional order in which the laws come before the will of the rulers, and in which there are checks and balances among the various institutions for the purpose of preserving the pure expression of the popular will, i.e., it requires the effective observance of the rule of law.
2. The Santiago Declaration, adopted in 1959 by the Fifth Meeting of Consultation of Ministers of Foreign Relations of the OAS member states set forth as some of the attributes of the democratic system that "the governments of the American republics should be the result of free elections," that the "perpetuation in power, or the exercise of power without a fixed term and with manifest intent of perpetuation, is incompatible with the effective exercise of democracy," that "the systematic use of political proscription is contrary to American democratic order," and that "freedom of the press, radio, and television, and, in general, freedom of information and expression, are essential conditions for the existence of a democratic regime."
3. Both before, during, and after its on-site visit, the Commission has received numerous complaints about alleged human rights violations in Peru. Some of these complaints refer to the exercise of power by the President of the Republic and the President of the Congress, where the party in government holds the majority of seats. In this respect, it has been alleged that the Executive and Legislative branches have used their powers in order to adopt measures contrary to the Constitution and have interfered unduly with the functions of other autonomous constitutional organs to the detriment of citizens' human rights, for the apparent purpose of ensuring the re-election of President Fujimori.
4. The complaints received indicate that the security forces increasingly participate in the decisions of government. The repeated complaints about wiretaps on the telephones of prominent political opposition figures and journalists, the harassment of and threats against the media, and talk of expanding the military jurisdiction, suggest that the influence of the Armed Forces, far from diminishing with the successful dismantling of the armed dissident groups, has grown and even penetrated sectors traditionally free from such interference.
5. The complaints received by the Commission indicate that the 1992 institutional crisis was overcome thanks to the commitment by the President to call elections, submit the new Constitution to a referendum, and move the country towards democracy. The election of President Fujimori in 1995 occurred in the conditions and framework of the timeline provided for in the new Constitution.
6. In the late 1990s and the first months of the new millennium, the national emergency appears to have passed. Except for isolated incidents, the armed dissident groups have been brought under control. Nonetheless, the Executive and the majority in Congress appear to continue a process of concentrating power that has accentuated aspects of authoritarianism. Accordingly, several sectors of civil society with a legitimate interest in consolidating democratic institutions and bolstering the rule of law and respect for the human rights of all inhabitants of Peru have called the Commission's attention to the situation that affects the full exercise of the political rights protected in the American Convention.
7. In Peruvian constitutional law, the main function of the Constitutional Court is to oversee the constitutionality of the acts by the other branches of government. Nonetheless, the separation of powers has been gravely undermined due to the limitations imposed on the functioning of the Constitutional Court, which were already the subject to analysis in Chapter II of this Report.
8. The constraints on the Constitutional Court crippled checks on the arbitrary exercise of power by the other branches of government. In those cases in which it has been able to issue a judgment, the Court's decisions have been ignored by the political authorities. The most worrisome example is the failure to carry out the decision of the Court by declaring that the Law on Authentic Interpretation does not apply to the electoral situation of President Fujimori, and therefore is blocking him from seeking a third term in the 2000 elections.
9. As for political rights in particular, the American Convention provides at Article 23 that all citizens have the right to participate in the conduct of public affairs, directly or through freely chosen representatives; and the right to vote and to be elected by secret ballot, thereby guaranteeing the free expression of the will of the voters, and to have access, in general conditions of equality, to the public service of one's country. It should be noted that the State may regulate the exercise of these rights only for reasons of age, nationality, residence, language, educational level, civil or mental competence, or conviction, by a judge with jurisdiction, in criminal proceedings.
10. Article 31 of the Constitution of Peru establishes the right to vote and to freely choose one's representatives, pursuant to the conditions and procedures provided for in the corresponding organic law and that citizens have the prerogative to participate in public matters by referendum, legislative initiative, removal or revocation of authorities, and an action for accountability (demanda de rendición de cuentas). Article 32 of the Constitution provides that matters regarding the total or partial reform of the Constitution, the approval of norms with the rank of law, municipal ordinances, and issues relating to the process of decentralization may be submitted to a referendum.
11. In light of these standards, a series of problems regarding the enjoyment of political rights in Peru are particularly worrisome. This concern revolves primarily around the lack of effective constitutional review over legislative acts introduced and adopted by the governing party for the purpose of perpetuating itself in power; administrative and legislative acts aimed at impeding the exercise of citizens' rights to political participation; and the actions to harass the presidential candidates presented by the opposition, and other political figures.
B. CONSTITUTIONAL REVIEW v. RE-ELECTION
12. The 1979 Constitution prohibited the immediate re-election of an incumbent president. Mr. Fujimori was elected president for the first time in 1990, while the 1979 Constitution was in force. The 1993 Constitution, whose content the President and his political allies played a key role in framing, provides for one-time immediate re-election, which made possible Mr. Fujimori's first re-election for a second five-year term, in 1995. In 1996, the Congress passed Law No. 26,657--the Law on Authentic Interpretation--which allowed President Fujimori to run for election for a third consecutive term in the year 2000.
13. The Law on Authentic Interpretation provides that the election of Mr. Fujimori as President in 1990 was under the 1979 Constitution, and therefore should not be counted for the purposes of the one-time re-election provided for in the 1993 Constitution. Following this reasoning, the 1995 election, in which President Fujimori was elected for a second presidential term, should be understood as the first election, and therefore his possible re-election in the year 2000 would be his first and only re-election, which would be allowed by the new Constitution.
14. In May 1997, the Bar Association presented in the Constitutional Court a complaint regarding the unconstitutionality of said law. In its ruling, the Constitutional Court established that under the 1993 Constitution, President Fujimori could not be a presidential candidate in the 2000 elections. The response of Congress to the review of the constitutionality of this statute was to remove the three judges who signed it. Since then, the Court, for lack of quorum, has not been able to exercise its main function of reviewing the constitutionality of legislative acts emanating from the legislative and executive branches. As analyzed below, the constitutionality of this candidacy has also been the subject of debate in Peru.
15. In its observations to the draft of this report, the Peruvian State indicated that "the three judges removed, as the majority indicated in the Law, and in violation of due process, appeared to be applying diffuse control to review the constitutionality of laws, addressing not a specific case, but a hypothetical case... By this resolution, the three judges gave the label of concrete case to what was no more than a hypothetical at that time, January 3, 1997, in order to declare, in anticipation, that Law No. 26,657 did not apply to the President of the Republic." In this respect, the IACHR received a complaint on the removal of the judges of the Constitutional Court, and after processing the case issued a report under Article 50 of the American Convention, concluding that in removing the judges Peru had violated several human rights set forth in the American Convention. In its report, the IACHR made recommendations to the Peruvian State, and as the Peruvian State failed to comply with those recommendations, the Commission submitted the case to the Inter-American Court of Human Rights, where it is currently in the merits phase.
C. STATE INTERFERENCE IN THE EFFECTIVE EXERCISE OF THE RIGHT TO CITIZEN POLITICAL PARTICIPATION
16. As analyzed supra, the Peruvian Constitution grants citizens the right to express themselves politically, and to participate in organizing a referendum to make their will known. Law No. 26,300 (1994) regulated this process, establishing that the request for referendum should be made by at least 10% of the national electorate. Civil society undertook to organize a consultation on whether it was necessary to stick to the letter of the Constitution, or interpret it so as to allow a new re-election of the President. Once it was learned that this initiative was under way, the Congress adopted, and the Executive promulgated, Law No. 26,592, modifying the conditions for exercising this right, making them more burdensome. According to this law, the referendum is conditioned on a legislative initiative that must be approved by favorable vote of 38 of the 120 members (two-fifths) of the legislature. This law was challenged before the Constitutional Court; nonetheless, the initiative to have it declared unconstitutional was frustrated by the negative vote of just two of the judges.
17. The civic group Foro Democrático organized, under the above-noted Law No. 26,300, a campaign on behalf of the referendum to revoke Law No. 26,657 (the Law on Authentic Intepretation) that would enable President Fujimori to run for the third time in the year 2000. On September 3, 1996, the organizers asked the National Electoral Procedures Office (ONPE), to deliver to them a copy of the electoral records which would enable them to begin to obtain the number of votes required. The ONPE, through Resolution No. 69/96J/ONPE, of September 10, 1996, resolved that the organizers of the referendum should meet the requirements of Law No. 26,592, and denied them the copy of the electoral records. The organizers recurred to the National Elections Board, which is the highest-ranking organ on electoral matters. Through Resolution No. 491-96-JNE, the JNE voided the ONPE resolution and authorized the delivery of the electoral records to the petitioners, so they could begin to collect signatures.
18. On October 11, 1996, the parliamentary majority approved Law No. 26,670, aimed at modifying Law No. 26,300, which regulates the referendum. Through Law No. 26,670, the Congress eliminated the possibility of derogating laws by referendum, and the initiatives under consideration at the time were subject to the favorable vote of 38 members of the legislature. On October 18, 1996, through Resolution No. 111-96-J/ONPE, the ONPE indicated to the organizers that they should carry out Law No. 26,670. In addition, in this case the organizers recurred to the National Elections Board, which, through Resolution No. 630-96-JNE, of October 30, 1996, voided the ONPE resolution by which Law No. 26,670 does not apply to the popular consultation regarding the election of the president, which was being organized by the Foro Democrático. This decision is final and firm, i.e., not subject to any appeal.
19. Despite these obstacles, the organizers of the referendum dedicated 18 months to meeting the requirements imposed by Congress, and by July 16, 1998, they had collected 1,441,535 signatures of persons interested in a referendum to derogate Law No. 26,657, called the Law on Authentic Interpretation.
20. The review of the validity of the signatures should be performed by the ONPE, as stipulated in Law No. 26,300. Manuel La Torre Bardales, former legislator with the majority party, submitted a motion of opposition (recurso de oposición) to the ONPE, adducing that the referendum process had never been initiated, since the prior approval of 48 members of the legislature had not been obtained, ignoring the resolution of October 30, 1996, of the National Elections board, which was res judicata. On August 9, 1998, the ONPE found admissible the written submission of La Torre Bardales and suspended the referendum process until Congress completed its approval procedure. The Foro Democrático turned once again to the National Elections Board. The make-up of the JNE, however, had been modified as a result of manipulation by the organs in charge of electing the members of the Board. On August 20, 1998, by majority, the Board, in a decision not subject to appeal, affirmed the decision of the ONPE to refer the matter to the Congress, where there must be a favorable vote of at least 48 members for the referendum process to be able to continue, despite the above-noted decision of the Board, two years earlier, by which the matter had become res judicata.
21. On August 27, 1998, the legislative majority frustrated the referendum by just three votes: 45 votes in favor, and 67 against. The information concerning these acts was widely disseminated in the Peruvian press, and the leadership of the Foro Democrático lodged a complaint with the Commission, alleging that the Peruvian State, by means of the ONPE, had violated certain articles relating to the political rights enshrined in the American Convention.
D. ACTIONS TO HARASS OPPOSITION PRESIDENTIAL CANDIDATES AND OTHER POLITICAL FIGURES
22. The complaints received by the Commission indicate that the Intelligence Service (SIN) has been used to harass members of the opposition by wiretapping, espionage, and physical surveillance. In addition, reference has been made to arrest warrants issued by the military courts and apocryphal threats.
23. The Commission has been informed that the two most important opposition candidates, Alberto Andrade and Luis Castañeda Lossio, and their partisans, have suffered a series of attacks and incidents of harassment since the outset of their campaigns. On December 16, 1999, Alberto Andrade, the current mayor of Lima, denounced that his followers were being subjected to a sort of "terrorism by defamation" ("terrorismo de imagen") by the State. This is the case of Congresswoman Beatriz Merino, who is alleged to be the victim of "political persecution" for a supposed cut in the pay of a former worker. Candidate Andrade explained the harassment of the congresswoman to the press in the following terms:
Since she became a member of Congress, she has been subjected to physical surveillance, persecution, and slander. For more than one year my group has been facing a campaign to demolish its leaders and individuals, an action of political annihilation, because they are trying to discredit the individuals, they take aim at their honor in order to infuse fear and wage political terrorism through the pro-government press.
... the Government uses the same tactics used by the terrorists: following, total physical surveillance, the political annihilation of those who aspire to positions in the Government ... if Abimael Guzmán held that except for power, all else is an illusion, the present government said that except for the second re-election, the rest is an illusion.
24. As indicated to the Commission, the candidate to the presidency and leader of Solidaridad Nacional, Luis Castañeda Lossio, has also been the victim of attacks. On December 6, 1999, Mr. Lossio, in the presence of Rocío Villanueva, representative of the Office of the Human Rights Ombudsman, turned over an intelligence agent assigned to follow him and his family, at the police station at La Molina.
25. Castañeda Lossio improvised a press conference at the daily newspaper Liberación, in the presence of his wife, Rosario Pardo, and his two children, Luis (14) and Daría (9), while the intelligence agent, a member of the National Police dressed as a civilian, said nothing, refusing to talk with journalists and avoiding having his picture taken. Castañeda, visibly indignated, displayed a radio device, and turned it on for the press to verify that police technology was being used to track his movements.
26. The State's response was to designate Mr. Antenor Córdova Díaz, ad hoc prosecutor, to investigate whether Castañeda Lossio committed the crime of kidnapping when he held Peruvian National Police non-commissioned officer David Pinedo Torres , for almost three hours, thereby confirming the participation of a state agent in the physical surveillance of an opposition candidate. Córdoba Díaz, in charge of the 13th Provincial Criminal Prosecutor's Office of Lima, was appointed by the Executive Commission of the Public Ministry, presided over by Ms. Blanca Nélida Colán Maguiño, in a resolution published in the official daily El Peruano. It should be noted that the legislation in force in Peru penalizes the crime of kidnapping with penalties of 10 to 15 years in prison (Article 152 of the Criminal Code). The penalty increases to 25 years, it notes, in cases in which the person held is a public official, civil servant, or diplomatic representative.
27. Presidential candidate Luis Castañeda Lossio formally lodged a criminal complaint with the Public Ministry against PNP non-commissioned officer David Pïneda Torres and PNP lieutenant Juan Martín Ruiz for alleged offenses against individual liberty and privacy, abuse of authority, and offenses against the electoral process. It was argued that the two members of the police are part of the team assigned by the National Intelligence Service (SIN) to maintain physical surveillance of and harass him and his family members. The defense counsel has recused prosecutor Córdova Díaz, for having already given an opinion against Mr. Castañeda, "laying responsibility on him, before concluding the respective investigations, supposedly for kidnapping." The request was made "to the judge, so that, should he deem it appropriate, he might withdraw from the case" and to the Public Prosecutor, Miguel Aljovín Swayne.
28. On December 9, 1999, President Fujimori announced that the case was closed by decision of prosecutor Antenor Córdova Díaz, who archived the investigation against presidential candidate Luis Castañeda, considering that the person detained by the candidate's bodyguards did not present the corresponding criminal complaint. The candidate, Castañeda Lossio, lamented that the investigation into the holding of police officer Pinedo Torres was brought to a standstill, and declared:
If the proceeding was already begun with the appointment of the prosecutor, and it is assumed that the Office of the Public Prosecutor is an autonomous institution, how can the President, from one day to the next, set aside a proceeding? Neither my family or I want this matter to be set aside, because it would appear to be a courtesy, a virtuous and gratuitous act [on the part of Fujimori].
29. He added that he will not withdraw the complaint presented for the alleged violations of privacy, abuse of authority, and interference with the electoral process.
30. On February 2, 1995, Mrs. Susana Higuchi Miyagawa de Fujimori alleged before the Commission that the Republic of Peru, through the National Elections Board, had violated Article 23 of the American Convention on having impeded her, arbitrarily and illegally, from running as a candidate for the independent group "Armonía Frempol" for Peru's Democratic Constituent Assembly.
31. Mrs. Higuchi alleged that the JNE was not willing to register the list of candidates to Congress for the independent group "Armonía Frempol," her political party, due to discrimination against her, and that there was no simple and prompt remedy to which she could have recourse. According to Mrs. Higuchi, there is no "effective" judicial remedy in the Peruvian legal order that could have been pursued against the JNE resolution that rejected her application to register. Even though Article 200(2) of the 1993 Peruvian Constitution provides that the amparo action protects the right to political participation, Article 142 of the Constitution provides:
The rulings of the National Elections Board on electoral matters are not subject to judicial review, nor are those of the National Council of the Judiciary in respect of the evaluation and ratification of judges.
32. In addition, Article 181 of the Constitution provides:
The plenary of the National Elections Board weighs the facts with criteria of conscience, and rules pursuant to the written law and the general principles of law. In matters dealing with elections, referenda, or other types of popular consultations, its resolutions are final, definitive, and not subject to review. They are not subject to any appeal.
33. In view of these constitutional provisions, the Commission considered that Peru's legal order did not have any domestic judicial remedy that the petitioner could invoke, which is a per se violation of Article 25(1) of the American Convention, on depriving citizens of "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."
34. The Commission described the issue to be resolved in the following terms: "the issue raised in this case consists of establishing whether the National Elections Board, in failing to register the list of candidates for the National Congress, headed by Mrs. Susana Higuchi de Fujimori, due to defects of form, after having published said list, in accordance with Article 89 of the Organic Electoral Law, violated the rights set forth in Articles 23 and 24 of the American Convention."
35. The Commission noted: "With reference to the laws prohibiting review of the resolutions issued by the National Elections Board 'with respect to the political rights of citizens, for instance, to vote or be elected," the Commission is of the opinion that one essential aspect of due process is the right to have the legality of any decision that imposes an irreparable charge on a person examined or re-examined, as well as when that charge affects fundamental rights or freedoms, such as the right contemplated in Article 23 of the American Convention, in the instant case." Accordingly, the Commission reached the following conclusion: "In the present case, by virtue of the fact that JNE decisions are not subject to review or control of any kind, under Peruvian law, and in view of the non-judicial nature of that organ, the Commission finds that protection of political rights is not guaranteed."
36. The Commission recommended to the Peruvian State that it adopt the necessary measures to modify the provisions of the domestic legal order that impede political participation in Peru, granting "the right to simple and prompt recourse, or any other effective recourse ... against acts that violate [one's] fundamental rights" as provided for in Article 25 of the Convention, or at least an effective remedy before the electoral authority.
37. The State responded that it had drawn up proposed legislation to create within the National Elections Board a structure prior to its plenary to be entrusted with determining, in the first instance, the acceptance or rejection of the registration of the political organizations and candidates. The decisions of that entity would be subject to challenge before the plenary of the National Elections Board, which would render the final decision. The State added that the respective proposed legislation was drawn up by the Ministry of Justice and sent to the National Elections Board, for the JNE to submit it to the Congress, as it has competence to do so, pursuant to Article 138 of the Peruvian Constitution. The proposed legislation was submitted to the Peruvian Congress, but was not approved. Accordingly, the Commission approved its report on the case, which will be published in its Annual Report.
E. THE USE OF WIRETAPS
38. The Commission has learned of the systematic wiretapping of the telephones of opposition political figures and journalists critical of the present government. The wiretapping and transcription of phone conversations was alleged to have affected Ambassador Javier Pérez de Cuéllar, former Secretary-General of the United Nations, members of the opposition in Congress, such as Mrs. Anel Townsend, Mr. Jorge Avendaño, Mr. Fernando Olivera, and Mr. Jorge del Castillo, among others.
39. On July 13 and August 3, 1997, on the television show "Contrapunto," journalist Rossana Cuevas presented two agents of the National Intelligence Service (SIN) involved in the wiretapping plan. They described the plan in detail, and provided compelling evidence, such as tape recordings and transcripts of conversations.
40. Apparently, the SIN's objective on wiretapping the telephones of politicians and journalists was to obtain information on their general activities, private lives, and movements, etc., for the purpose of using it against them if necessary. It has been denounced that based on the information obtained, elements linked to the SIN threatened journalists with kidnapping or assassination if they disseminated information contrary to the interests of the government. In effect, the wiretaps were apparently used to determine the movements of journalists who were the victims of assaults, beatings, and robbery of their equipment by individuals linked to the SIN. The so-called "Plan Bermuda" also appears to have been prepared based on the information obtained in this manner; it apparently consists of planning assassinations of journalists not to the liking of the present government.
41. The Commission has been informed that notwithstanding the complaints made before the judicial authorities, the investigations have not yielded any results, and that at this time the SIN continues its wiretapping activities with impunity. It has also been noted that certain congressional committees have undertaken "investigations" on their own that have ended in accusations against those who denounced the wiretaps.
42. The well-known case of the assassination of Mariela Barreto Riofano could exemplify the problem of intimidation in Peru. Mariela Barreto Riofano, an agent with the Army Intelligence Service (SIE), was savagely murdered and quartered in 1997.
43. In Peru, public information circulated according to which former agent Barreto had provided information on the location of the remains of a professor and nine students from the Universidad Nacional "Enrique Guzmán y Valle," who had been assassinated in July 1992 in La Cantuta, Lima, to journalists from the magazine "Sí." The IACHR currently has a complaint before it regarding this matter, in the context of the individual case system.
44. Another notorious case in Peru has to do with Mrs. Leonor La Rosa Bustamante, former agent with the Army Intelligence Service (SIE). It has been alleged that Mrs. Rosa Bustamante was detained on February 11, 1997, and held in the cellars of the SIE located in the Army Headquarters (Cuartel General), where she was savagely tortured, apparently for having revealed certain operational plans of the SIE known as "Bermuda," "Narval," and "El Pino." These plans were allegedly aimed at intimidating and silencing journalists, media outlets, and opposition figures.
45. Another example of intimidation of persons whose activities are considered contrary to the interests of the Government is the well-known case of Mr. Baruch Ivcher Bronstein. Mr. Ivcher was born in Israel and acquired Peruvian citizenship in 1984. One of the advantages inherent in Peruvian nationality is the right to own shares of companies that hold concessions for operating television stations in Peru. Baruch Ivcher owns 53.95% of the capital of the Compañía Latinoamericana de Radiodifusión, which operates Channel 2 - "Frecuencia Latina." Mr. Ivcher was the president of that company, and in that capacity he was authorized to make editorial decisions regarding programming.
46. In April 1997, Channel 2 carried a series of newscasts on acts of torture alleged to have been perpetrated against Leonor La Rosa Bustamante by members of the SIE, the multi-million dollar income of Mr. Vladimiro Montesinos Torres, adviser to the Intelligence Service, and on alleged human rights violations by state agents.
47. Soon thereafter, in July 1997, a resolution was issued voiding Baruch Ivcher's nationality. In August 1997, a judge suspended Mr. Ivcher's property rights in respect of all his shares in the Compañía Latinoamericana de Radiodifusión, prohibited the transfer of those shares, in any form allowed by the legislation, and revoked his appointment as president of the company. Once Mr. Ivcher was separated from Channel 2, it changed its editorial line and ceased informing the public on events unfavorable to the government, such as human rights violations by state agents.
48. The State brought other judicial actions, both civil and criminal, not only against Mr. Ivcher, but also against his wife, daughters, and employees, attorneys, and other persons close to him. In response to this situation, Mr. Ivcher filed a complaint with the Inter-American Commission.
49. In December 1998, the Inter-American Commission issued a report on the merits of the case in which it determined that the Peruvian State had violated the rights to nationality, due process, freedom of expression, property, and effective judicial protection, enshrined in the American Convention, to the detriment of Mr. Ivcher, and made several recommendations to the Peruvian State. Next, the IACHR sponsored an effort to reach a friendly settlement in the matter, which ultimately failed.
50. On March 31, 1999, the Commission submitted the case to the Inter-American Court, asked that the State be ordered to re-establish and guarantee Mr. Ivcher Bronstein the full enjoyment of his rights, in particular the right to full and unconditional recognition of his Peruvian nationality, with all the corresponding rights and attributes; the restitution of his rights with respect to the company; cessation of acts of persecution and harassment against him and persons close to him; and compensation for the harm caused. As of the date this report was approved, the case was still pending before the Inter-American Court. As will be analyzed in the corresponding chapter, shortly after the submission of this case to the Inter-American Court, the State claimed to withdraw its recognition of the Inter-American Court's contentious jurisdiction with a political justification having to do with the treatment of the antiterrorist legislation. Nonetheless, the Ivcher case has never been linked directly or indirectly to terrorism, not even by the State. Consequently, the international community legitimately aspires to see the Government of Peru comply with its international commitments and at the same time display consistency with its own justifications.
G. SITUATION PRIOR TO THE 2000 ELECTIONS
51. In the draft report sent to the Peruvian State on March 13, 2000, the Commission set forth the following considerations and recommendations with respect to political rights in Peru, in the context of the elections called for April 9, 2000:
. The foregoing analysis indicates that notwithstanding the Government's statements aimed at laying the groundwork for a clean and transparent electoral process, in practice the opposition candidates are subject to harassment and intimidation, without having the guarantee of an effective remedy before the national courts.
. The elements analyzed suggest that this power has been visibly used to make it possible to perpetuate the current authorities in power and to deter other political actors from participating in the elections, or to diminish their chances of success.
. In effect, initiatives perceived as "threats" to the candidacy of Mr. Fujimori to a third term as the President of Peru have been thwarted. Specifically, the legality of President Fujimori's candidacy in the 2000 elections has been the subject of scrutiny and decisions by the oversight organ control provided for in the Constitution. Nonetheless, the Executive has used the means available to it to block any calling into question of the constitutionality of the candidacy [which was finally made official in December 1999]. For its part, the initiative from civil society, aimed at derogating the Law on Authentic Interpretation--the application of which makes possible Mr. Fujimori's candidacy in the presidential elections of 2000--was also rejected by the Congress.
. The Commission is extremely concerned about what it considers to be episodes constituting serious interference in the exercise and enjoyment of political rights in Peru. In this regard, the Commission notes that on December 7, 1999, former members of the National Elections Board (JNE) stated that there were no guarantees for the electoral process, nor clear and transparent conditions for the elections.
. By virtue of the foregoing analysis, the IACHR makes the following recommendations to the Peruvian State:
(1) That it adopt measures to make the electoral process more transparent.
(2) That it adopt measures so that the regulations of the right to vote and to be elected include the broadest and most participatory access possible to candidates in elections.
(3) That it adopt measures to guarantee the electoral organs the independence they need so that their decisions are respected.
(4) To cease the harassment of opposition candidates and to investigate and punish the persons responsible for it, including the authorities of the SIN, to guarantee the greatest possible transparency in the electoral process.
H. THE 2000 ELECTIONS
52. On November 22, 1999, President Alberto Fujimori issued Supreme Decree No. 40-99-PCM, and called general elections, to be held April 9, 2000, to elect the President of the Republic, Vice-Presidents, and members of Congress, for the 2000-2005 term. On December 27, 1999, as seemed predictable, the candidacy of President Alberto Fujimori was registered for a third presidential term, pursuant to the application submitted by an alliance of political parties (Peru 2000). As this candidacy was challenged before the National Elections Board (JNE), the JNE, with the judges and majorities that made the results equally predictable, handed down its judgment on December 31, 1999, and dismissed the challenges voiced to Alberto Fujimori's candidacy to the presidency.
53. With that decision of the National Elections Board, the Government sought and to a point, in certain sectors, succeeded in focusing the discussion on the legitimacy of his re-election on the results of the elections. The IACHR deems it important to note that an analysis of the legitimacy of President Fujimori's election for a third term that fails to take account of questions raised based on the Peruvian Constitution is incomplete. In this respect, the Human Rights Ombudsman of Peru has indicated that
The 1993 Constitution modified the 1979 Constitution, which established a five-year presidential term with no immediate re-election. Under the possibility allowed by the Constitution in force, the presidential term may extended to a maximum of 10 consecutive years, it being impossible for a citizen to run for the presidency three times in a row or more. In the view of the Office of the Human Rights Ombudsman, and in light of the Constitution, this provision cannot be eluded by any law that allows a presidential term of 15 years continuously....
The ruling of the JNE is final.... This does not, however, do away with the questioning derived from what has been called the factory defect with which this process has been born.
54. In that context of serious and well-grounded questioning of the legitimacy of the governing party candidate's quest for a third term, the election campaign was marked by abuses and arbitrary acts, which would lead to the legitimacy crisis provoked by the serious questioning of the election results by several countries and organizations--Peruvian and international--including the OAS, which played a very important observation role through the Electoral Observation Mission. In this respect, it is important to note that the Peruvian State had previously signed an agreement with the General Secretariat of the OAS to observe the elections. In carrying out that agreement, the Secretary General of the OAS designated Mr. Eduardo Stein, former Minister of Foreign Affairs of the Republic of Guatemala, as chief of the respective Electoral Observation Mission.
55. One of the aspects that notably affected the campaign was the opposition candidates' general lack of access to the communications media. The Office of the Human Rights Ombudsman explained in this respect that:
Unfortunately, this situation persisted through most of the electoral process, seriously prejudicing all the opposition candidates, and benefitting the candidate of the governing party, who in the weeks prior to April 9 kept up an intense presence on television, thanks not only to State publicity--which has made the State the largest investor since 1999--but also paid political advertising. This advantage, enjoyed by that candidate, could not be offset by the publicity spots that the state-owned and private television channels offered the other participants in the final weeks leading up to April 9.
56. On the same point, the IACHR approved a press release prepared by its Rapporteur for Freedom of Expression, which summarized the situation in the following terms:
The importance of respect for freedom of expression and information becomes extremely critical in times when citizens need information to elect the individuals who will be responsible for governing them. The State must guarantee, without discrimination, the right to transmit and receive information in order to allow the full exercise of the political rights of all citizens to participate in the electoral process, either as candidates or voters.
The Rapporteur informed the Commission about cases that involved tailing journalists and politicians; intercepting phone calls; conducting smear campaigns against media and individuals who had expressed opinions critical of authorities in office; using judicial powers to silence radio and television programs with critical content; and pressuring media owners to avoid broadcasting unfavorable programming, as well as many cases involving threats to and attacks on journalists and politicians.
According to the Rapporteur, "Peru lacks the necessary conditions to guarantee the complete exercise of the right to express political ideas that oppose or criticize the government through the mass media." The Rapporteur considers that the limitation to the right of freedom of expression in Peru "represents a serious obstacle for the normal development of the electoral process."
57. During the election campaign, several witnesses publicly stated that they had participated in the falsification of electoral documents (known as "planillones"), allegedly used later in relation to the electoral registration of the "Frente Independiente Perú 2000," a member of the electoral alliance that supported candidate Alberto Fujimori. On March 17, 2000, the IACHR called on the Peruvian State to adopt precautionary measures to protect the life and personal integrity of Erika Milagros Martínez Liñán and Carlos Armando Rodríguez Iglesias, two of the individuals who stated they had participated in the falsification. Notwithstanding the recommendations made by several individuals and institutions to the effect that those complaints should have been investigated immediately, it has been noted that as of June 1, 2000, there had been practically no progress in those investigations.
58. Another significant event during the campaign was the allegation by a former Peruvian cabinet member indicating that the Government maneuvered to keep him from being a candidate for a seat in the National Congress. It was noted that Mr. Jorge Mufarech had been Minister of Labor and Social Promotion from January to April 1999, and at that time publicly denounced acts of corruption in the National Superintendency of Customs. A few days after his resignation, Mr. Mufarech faced criminal accusations by the National Superintendency of Customs, alleging that he understated the value of a used vehicle imported in 1997 by a company he owned, with respect to which a court had already determined that there was no offense or irregularity whatsoever. On February 1, 2000, the opposition political movement "Somos Perú" announced that Mr. Mufarech was joining its ranks, and would be a candidate to the National Congress. In less than 10 days, the above-mentioned criminal proceedings were started up anew, which impeded Mr. Mufarech's candidacy, based on a law according to which no one facing accusations of fiscal wrongdoing may be a candidate to Congress.
59. The election campaign was also marked by other obstacles and problems, with respect to which the Human Rights Ombudsman, summarizing, noted:
We have witnessed that in addition to the calling into question of a candidacy at odds with the Constitution, which did not allow a second immediate re-election to the presidency, was added the lack of neutrality of several public officials; the unlawful and indiscriminate use of State resources--both material and human--which appears all the more serious in view of the person of the President-candidate; the lack of equitable access to the media; the harassment and smear campaigns directed against the opposition candidates; the limitations and sluggishness of the investigation by the competent institutions with respect to the serious allegations, as happened with the falsification of signatures of the lists of members of a political grouping, among other problems of special relevance. In this way, the basic standards for free and competitive elections that stem from the provisions on the right to political participation, recognized by Article 23 of the American Convention on Human Rights and Article 31 of the Constitution, have not been respected.
60. After the election campaign came election day, April 9, 2000. The April 9 voting, like the campaign that preceded it, was characterized by multiple problems. The Asociación Civil Transparencia, a Peruvian non-governmental organization with renowned experience in electoral observation in Peru, observed the April 9 elections with more than 19,000 volunteers. In this respect, it stated:
Twelve hours after the polling began, and overcoming the adversities faced by our organization, such as wiretapping of our phone lines, cut-offs of power, and external alterations that sought to annul our computer system.... Irregularities that arose during the voting: (1) Altering of results...; (2) Impeding the vote...; (3) Attacks on the free exercise of the vote...; (4) Attacks on the secrecy of the ballot...; (5) Participation of non-electoral officials and/or public servants...; (6) Electoral proselytizing...; (7) Election materials...; (8) use of State resources; (9) Substitution of voters...; (10) Problems with the voter rolls...; (11) Irregularities in the election materials...; (12) Partiality of electoral authorities...; (13) lack of knowledge of the electoral authorities...; (14) Harassment of candidates...; and (15) harassment of poll watchers.
61. For its part, the Office of the Human Rights Ombudsman noted it had detected, among others, the following problems on the day of the vote: electoral publicity at the polling places; irregularities in the ballots, some of which had been mutilated at the part corresponding to the opposition political grouping "Perú Posible"; irregularities in the security measures for transporting the electoral documents; irregularities in the performance of some of the personnel administering the polling places and the poll watchers; proselytizing by public officials, improper use of State resources, call to an armed strike by supposed subversive elements in the department of Ayacucho; detentions of citizens on their way to vote; improper information sought by the members of the Armed Forces from the poll watchers and persons administering the polling places; deficiencies in the voter rolls; and improper use of the right to vote.
62. In relation to events the day of the vote, the OAS Electoral Observation Mission noted, among other aspects, that:
The process of installing the voting stations unfolded slowly; most began their work after 9:00 a.m., possibly due to the delivery of electoral materials by the ONPE staff and the limited skills of the voting station personnel due to their inadequate training in the work they should perform....
Complaints were received from poll-watchers from political movements to the effect that some ONPE staff responsible for the voting centers hindered them from accrediting themselves in more than one voting station. The EOM verified this situation and took steps to clarify this point....
A massive presence of the Armed Forces and National Police could be observed outside and inside the locales; in addition to performing their mission of surveillance and maintaining public order, in some cases they performed acts that went beyond the scope of the duties entrusted to them by the electoral law....
It was learned that at some voting stations in the city of Lima voters were given defective ballots....
In Huiro, Cuzco, Colegio San Carlos Mariátegui, the EOM found that the voters are forced to deliver their ballot to the voting station personnel, who then place it in the ballot box, rather than doing so themselves.
63. The next stage of the elections, the vote count, was also characterized by a series of reported irregularities. The most serious problems had to do with the adding up of the votes, which provoked many doubts regarding the transparency of the count. The Human Rights Ombudsman noted in this regard that:
The limitations displayed by the electoral administration under the ONPE were accentuated by the deficiencies in its computer system and the slow process of tallying the vote count.
In addition was the technical impossibility of the poll watchers and observers accredited to the vote tally centers from exercising any effective monitoring that would make it possible to clear up doubts as to the possible manipulation of the results, as it was not possible to gain access to the inside of the vote count system, since the technical tools for doing so were not provided for on a timely basis. Furthermore, the analysis of the reports of results delivered during the counting process displayed visible discrepancies among the figures. Thus, for example, an incongruence was noted between the number of voters and the general number of votes counted. In effect, the report given by the ONPE at 86.77% indicated a difference of 1,367,328 votes, as the number of voters was much less than the number of votes.
In addition, imprecisions were reported with respect to the reports entitled "Avance de Resultado: Listas al Congreso." This situation, for example, arose in Cuzco.... In effect, the first report, when 87.952% of the votes were tallied, gave 17,202 votes to the group "Frente Independiente Moralizador." The second report, with 94.21% counted, gave that same group 16,935 votes, i.e. less than the previous one. Finally, the report with 97.573% of the votes counted showed 17,082 votes for the same group. Examining those reports from Cusco, we note that the ONPE systems team explained that based on the design of the program, there is no way for the number of votes to drop. As it is cumulative, every time the system collects data from the polling places, the new partial results may be greater or the same, but never less.
64. As is well-known by the international community, the official results of the vote count were provided very slowly, such that it was not until a few days after the elections, and after protests in several cities of Peru as well as international pronouncements, that the ONPE finally promulgated official results, according to which none of the candidates garnered enough votes to win the presidency in the first round.
65. The IACHR believes that with the attention that should logically be given to the results in the election for the presidency, the results of the congressional elections have received less attention than merited. This situation is especially grave considering the concerted way in which the Executive and the majority of the current Congress have operated, resulting in several laws whose compatibility with the American Convention on Human Rights is dubious. The situation is reaching the point that as of May 31, 2000, the Peruvian electoral authorities have still not proclaimed the final results of the April 9, 2000 congressional elections.
66. One very important example of that situation refers to the public reports made by Dr. Heriberto Benítez Rivas, attorney and candidate to the National Congress, who noted that on April 18, 2000, the ONPE revealed that with 99.972% of the votes to National Congress tallied, the political grouping Somos Perú had obtained 725,452 votes, for nine seats in the National Congress, and consequently the election of Mr. Benítez Rivas as a member of Congress. Nonetheless, on May 4, the ONPE reported that with 99.99% of the votes counted, the total number of votes for Somos Perú had dropped to 712,384, with which Mr. Benítez Rivas, an attorney and human rights defender who had pursued several allegations of human rights violations attributed to the armed forces, would no longer be elected.
67. Both prior to the first round of the elections, and afterwards, the Electoral Observation Mission made recommendations, among other things, with respect to the following critical points in the unfolding of the electoral process: "equitable access to the mass communications media, the juridical-logistical aspects of the organization of the election process, the need to train election workers and citizens in general, and the adequate operation of the computer system for processing the results."
68. For its part, on concluding the first round of the elections, the Human Rights Ombudsman outlined a series of conditions that would bolster the legitimacy and credibility of the second round, which were shared and supported by Peruvian and international organizations. These included: guarantees for the effective neutrality of the authorities, officials, and civil servants; the commitment to ethical campaigning, by the adoption of a Code of Conduct; equitable access to the media in relation to news coverage and electoral publicity, in both State-owned and private-owned media; the measures needed to dissipate doubts as to the authority and impartiality of the ONPE for the purpose of re-establishing credibility in the electoral process; and promoting citizen oversight, based on more effective public campaigns for training the administrative personnel at the polling places, the poll-watchers, and the voters.
69. These recommendations, made by the Electoral Observation Mission and the Human Rights Ombudsman, were not embraced in their entirety, and candidate Alejandro Toledo announced that he would not participate in the second round. In addition, the Electoral Observation Mission of the OAS refrained from observing that second round, held May 28, 2000, in which Alberto Fujimori was declared the winner, as did the Peruvian organization Transparencia and other well-known national and international organizations who had anticipated observing. In this respect, the OAS Electoral Observation Mission stated that it:
was unable on the basis of its observation to identify and confirm any substantive changes that might have overcome the problems recorded in the first round of elections, and which were duly reported in the Mission's successive bulletins. The overall assessment points to persistent inadequacies, irregularities, inconsistencies, and inequities, leading the Mission to qualify the entire electoral process as irregular....
Consequently, the EOM/OAS concluded that there were glaring shortcomings remaining from the first round of these general elections which compromised the holding of the second presidential round. As the EOM/OAS noted at the time, these shortcomings related to electoral logistics (problems, delays, and unexplained silences during the first round of elections); the vote-counting system (instability and problems in the preferential vote for Congress, for which the ONPE offered no convincing explanation, and a lack of familiarity with the new voting software, which was delivered to the mission, and in an incomplete form, only three days before the vote); the lack of training for voting station officials noted in the first round persisted into the second; the lack of equal access for candidates to the mass communications media; the use of public funds for campaign purposes; and the handling of complaints submitted to the electoral and judicial authorities, which cast doubt on the credibility of the body responsible for the elections, the National Elections Procedures Office (ONPE), and on the National Elections [Board] as the oversight body. 
70. The Commission agrees entirely with the final assessment of the OAS Electoral Observation Mission, that "by international standards, the Peruvian Election process falls far short of what could be called free and fair," as well as the statement by the Human Rights Ombudsman that "in a globalized word as well as today's world, representative democracy and respect for the right to political participation cannot be understood in terms that are at odds with the provisions of human rights treaties." For the Inter-American Commission, the elections that have been held in Peru clearly represent an irregular rupture in the democratic process such as that referred to in Resolution 1080, adopted in 1991 by the General Assembly of the OAS.
71. The IACHR observes that as a result, the election of Alberto Fujimori has not been held in keeping with the guarantees of fair and free elections required for the people of Peru to exercise their sovereign will. In view of the foregoing, the time period covered by the next presidential term will be characterized by the presidency having been obtained in violation of the right of the Peruvian people "to vote ... in genuine ... elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters," enshrined in Article 23 of the American Convention.
72. The Inter-American Commission on Human Rights believes that both the process leading up to and the results of the 2000 elections in Peru are the foreseeable outcome of several years in which the arbitrary will of the Government has prevailed over the law and over democratic institutions. Thereby, the legal and institutional order has been subordinated to the will of the Fujimori Administration, which in authoritarian fashion has manipulated its authority to thwart, often by illegal means, any act perceived as a threat to its clear purpose of perpetuating itself in power.
73. The IACHR is extremely concerned over this model of political organization, in which there is an appearance of democratic organization, but in practice the fundamental postulates of representative democracy and, therefore, the observance of the rights set forth in the American Convention, are totally violated. The Inter-American Commission, very much mindful of its long-standing defense of human rights and democracy, will continue to closely observe the human rights situation in Peru.
74. The Inter-American Commission on Human Rights calls for a return to the rule of law in Peru, and to the convocation, in a reasonable time, of free, sovereign, fair, and genuine elections that are up to the respective international standards. In those new elections, the rights of Peruvians "to vote ... in genuine ... elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters," set forth at Article 23 of the American Convention, should be guaranteed. The IACHR offers to cooperate with Peru in achieving this aim.
 IACHR, Annual Report 1990-1991, p. 521.
 One expression of the military interference perceived by public opinion is to be found in the statements by former president and retired general Francisco Morales Bermúdez, who on December 13, 1999 told a television station that the high command of the Army constitutes a "high command of military power that engages in group politics." See "Ejército rechaza declaraciones del general Morales Bermúdez," El Peruano, December 14, 1999.
 The National Elections Board, in 1994, handed down Resolution No. 172-94-JNE, which characterized Alberto Fujimori's candidacy in 1995 as a re-election.
 See, e.g., "Primer Ministro dice que Constitución permite reelección de Fujimori," Agence France Press, October 28, 1999.
 In its observations to the draft version of this report, Peru noted that "the pro-government majority in the Congress has attempted on several occasions to reconstitute the Constitutional Court, but the minority political groups have opposed this. Unfortunately, a special majority of two-thirds of the legal number of members of Congress is needed to appoint the replacements for the judges who were removed, yet the level of consensus needed to win that many votes is not to be found.
 Specifically, Articles 2(17) and 31 of the 1993 Constitution provide for the right to referendum.
 In its observations on the draft version of this report, the State noted that “those thwarting the referendum initiative were minority members, who abstained from voting or attending the meeting at which the initiative was to be approved. (…) Consequently, if the promoters of the initiative were members of the opposition, it was up to them to obtain the votes of at least 48 of the 53 congresspersons forming the opposition bloc in the Congress to take proper advantage of the fact that the minimum vote for submitting a legislative initiative to a referendum had been reduced under Act No. 26592 to only two-fifths of the statutory number of congresspersons.”
 The aggressive acts are also denounced against former presidents, see, e.g., "Gobierno intenta impedir ingreso de Alan García a Perú," La República, October 22, 1999.
 "Somos Perú reclama por persecución a miembros," El Comercio, December 16, 1999.
 "Nuevo sondeo favorece a Fujimori con 43%," Expreso, December 8, 1999. Previously, Mr. Castañeda Lossio had denounced acts of harassment and persecution against him alleged by members of the National Police. See, "Castañeda presentó videos que muestran hostilización en su contra," Gestión, October 9, 1999.
 "'Abusar no es de hombres' le dice Castañeda a Fujimori," La República, December 6, 1999.
 The Vice-President of Congress, Ricardo Marcenaro, of the party C-90-NM, commented that "Luis Castañeda Lossio should take better care of his nerves and not believe that every person passing through the door of his house is after him." See, "Castañeda debe cuidar mejor sus nervios," Expreso, December 9, 1999.
 Ad hoc prosecutor Córdoba Díaz received a complaint from the mayor of Lima a few weeks prior to this event to investigate a smear campaign against him by the sensationalist daily papers, but as soon as a Court of Public Law issued protective orders on behalf of the editors of those newspapers, the prosecutor archived his inquiries. See "Fiscal ordena investigar a Castañeda por secuestro de agente del SIN," by César Romero Calle, La República, December 8, 1999.
 "Formaliza denuncia contra policía secuestrado," Expreso, December 9, 1999.
 "Caso Castañeda totalmente cerrado," Expreso, December 9, 1999.
 "Castañeda: Fujimori no me hace ningún favor al detener investigación," Gestión, December 10, 1999.
 Susana Higuchi was the wife of President Alberto Fujimori.
 Report No. 119/99, Case 11.428, Susana Higuchi Miyagawa (Peru), IACHR, Annual Report 1999.
 The Parliamentary Committee for National Defense, Internal Order, and Intelligence, chaired by pro-government member of the legislature Martha Chávez, concluded, after months of investigation, that interference in the telephone communications of politicians, businesspersons, and journalists denounced by Channel 2 in 1997 had not been done by the National Intelligence Service. The legislative committee recommended that a judicial investigation be initiated against the journalists who had denounced these acts.
 "No hay medidas que brinden confianza a candidatos y ciudadanía en general," La República, December 8, 1999.
 Defensoría del Pueblo, Elecciones 2000, Informe de Supervisión de la Defensoría del Pueblo, Lima, April 2000, p. 21.
 IACHR, Press Release No. 2/00, March 8, 2000.
 Defensoría del Pueblo, Elecciones 2000, Informe de Supervisión de la Defensoría del Pueblo, Lima, April 2000, p. 21.
 Asociación Civil Transparencia, Press Release, April 9, 2000.
 Defensoría del Pueblo, Elecciones 2000, Informe de Supervisión de la Defensoría del Pueblo, Lima, April 2000, p. 40.
 Electoral Observation Mission, Report No. 1, Election Day, Lima, April 9, 2000.
 Defensoría del Pueblo, Elecciones 2000, Informe de Supervisión de la Defensoría del Pueblo, Lima, April 2000, p. 42.
 Electoral Observation Mission, Bulletin No. 9, Lima, May 12, 2000.
 Defensoría del Pueblo, Elecciones 2000, Informe de Supervisión de la Defensoría del Pueblo, Lima, April 2000, p. 47.
 Electoral Observation Mission. General elections, Republic of Peru, 2000, Executive Summary of the Final Report of the Chief of Mission, Washington, D.C., June 5, 2000.
 Electoral Observation Mission. General elections, Republic of Peru, 2000, Executive Summary of the Final Report of the Chief of Mission, Washington, D.C., June 5, 2000.
 Defensoría del Pueblo, Elecciones 2000, Informe de Supervisión de la Defensoría del Pueblo, Lima, April 2000, p. 8.
 The American Convention on Human Rights establishes, at Article 27, that political rights cannot be suspended even "in time of war, public danger, or other emergency that threatens the independence or security of a State Party."