OPINION No. 27/2000 (PERU)

Communication addressed to the Government on 21 June 1999

Concerning Marco Antonio Sánchez Narváez

The State is a party to the International Covenant on Civil and Political Rights

1. The Working Group on Arbitrary Detention was established by resolution 1991/42 of the Commission on Human Rights, which extended and clarified its mandate in resolution 1997/50 and reconfirmed it in resolution 2000/36. In accordance with its methods of work, the Working Group transmitted the above-mentioned communication to the Government.

2. The Working Group regrets that the Government did not reply within the 90-day time limit.

3. The Working Group regards deprivation of liberty as arbitrary in the following cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued detention after the sentence has been served or despite an applicable amnesty act) (category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and also, in respect of States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the international standards relating to a fair trial set forth in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned is of such gravity as to confer on the deprivation of liberty, of whatever kind, an arbitrary character (category III).

4. In the light of the allegations made, the Working Group would have welcomed the cooperation of the Government. In the absence of any information from the Government, the Working Group believes that it is in a position to render an opinion on the facts and circumstances of the case, especially since the facts and allegations contained in the communication have not been challenged by the Government.

5. Marco Antonio Sánchez Narváez, a bricklayer and shoemaker, was arrested at 1.30 a.m. on 18 June 1993, while attempting to steal two cases of carbonated beverages from a Lima apartment building owned by Máximo Luis Pérez Santos. On the morning of the same day, agents of the National Counterterrorism Directorate (DINCOTE), acting without a judicial warrant, raided the apartment building and detained three persons. In the search conducted, firearms, munitions and subversive propaganda were found. Although Mr. Sánchez indicated at the outset that he was an ordinary offender and had no connection with the other detainees, he was forced to sign the certificate of seizure of the objects in question.

6. Marco Antonio Sánchez Narváez remained in police custody for 26 days, although the 1979 Constitution, in force at the time, stipulated that a person could only be detained on the basis of a judicial warrant or if caught in the actual commission of a crime. It also set 15 days as the maximum period for police detention of individuals suspected of terrorism. During this time he was subjected to torture.

7. Based on the conclusions of the police investigation, Mr. Sánchez Narváez was tried in an ordinary court for the offence of terrorism. He was charged with being a member of Sendero Luminoso, a subversive group, and with collaborating on its behalf. The other detainees were referred to the military courts for the offence of treason.

8. On 5 September 1995, the Specialized Division of the Higher Court acquitted Marco Antonio Sánchez Narváez for lack of sufficient evidence, considering that he had no connection with the other detainees, and accordingly ordered him released. This judgement was subsequently upheld by the Supreme Court in an executory judgement dated 28 May 1997.

9. However, Marco Antonio Sánchez Narváez was called as a witness in the treason trial against the other individuals detained in the home of convicted individual Máximo Pérez Santos. He testified before a naval court, which, acting irregularly, ordered proceedings against him for treason, based on the same acts for which he had already been tried by an ordinary court. Thus
Mr. Sánchez Narváez was being tried twice for the same acts.

10. In an executory judgement dated 17 April 1995, the Supreme Council of Military Justice sentenced Mr. Sánchez Narváez to 20 years’ imprisonment for treason, in that he had been “storing subversive material”. Mr. Sánchez Narváez is serving his sentence at Castro-Castro Prison in Lima.

11. The charge brought by the Special Military Judge was based on self-incrimination and it is alleged that it was obtained under torture during police custody. Marco Antonio Sánchez Narváez subsequently retracted his statement.

12. Marco Antonio Sánchez Narváez was tried by military courts composed of “faceless” judges, hence his case was not heard by an impartial court.

13. In the absence of a reply from the Government, the Group must render an opinion based on the information in its possession.

14. In the report on its visit to Peru (E/CN.4/1999/63/Add.2, para. 51), the Group drew attention to the implications of the confusion between the offences of terrorism and treason, with the result that people could be tried twice for the same acts, in a serious violation of the principle non bis in idem. In the report the Group also noted, after an exhaustive analysis of the functioning of the “faceless” courts, which through October 1997 rendered their decisions on the basis of trials conducted with minimal guarantees, with such serious violations of the rules of due process that they automatically conferred an arbitrary character on the deprivations of liberty, in conformity with category III of the Group’s methods of work.

15. The Working Group notes that the conditions under which the second trial was conducted presented these features. It also notes that Marco Antonio Sánchez Narváez was tried for terrorism by an ordinary court and acquitted, and later tried by a military court for treason for basically the same acts, in violation of the non bis in idem rule set forth in article 14, paragraph 7, of the International Covenant on Civil and Political Rights.

16. In the light of the foregoing, the Working Group renders the following opinion: The deprivation of liberty of Marco Antonio Sánchez Narváez is arbitrary as being contrary to articles 9 and 10 of the Universal Declaration of Human Rights and articles 9
and 14 of the International Covenant on Civil and Political Rights, and falls within category III of the categories applicable to the consideration of cases submitted to the Working Group.

17. Having rendered this opinion, the Working Group requests the Government to take the necessary steps to remedy the situation, in conformity with the standards and principles set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Adopted on 14 September 2000
E/CN.4/2001/14/Add.1