The Inter-American Commission on Human Rights (IACHR) has been
observing the human rights situation in Peru with particular
attention, given the terrible violence that country has been
experiencing for many years now, and in response to the many petitions
the Commission has received concerning human rights violations
attributed to agents of the Peruvian government and violations of
international humanitarian law attributed to members of armed
The Inter-American Commission on Human Rights devoted an entire
chapter of its 1992-1993 Annual Report to an evaluation of the human
rights situation in Peru between October 1992 and February 1993.
At the Peruvian Government's invitation, a Special Committee of
the IACHR made an on-site visit to Peru from May 17 to 21, 1993, to
observe the human rights situation in that country.
That Special Committee consisted of the Chairman of the
Commission, Dr. Oscar Luján Fappiano, its First Vice Chairman,
Professor W. Michael Reisman, and Dr. Leo Valladares Lanza, a member
of the Commission. Assisting
the Commission were its Executive Secretary, Ambassador Edith Márquez
Rodríguez, the Assistant Executive Secretary, Dr. David Padilla, the
Special Advisor to the Commission, Dr. Domingo E. Acevedo, and Dr.
Sergio Apter, Mrs. Daisy Carmelino, Mrs. Gabriela Hageman and Mr.
Marcelo Montesino, an interpreter.
During the visit, the IACHR Special Committee met with: the President of Peru, the Honorable Alberto Fujimori; the
President of the Democratic Constitutional Congress (CCD), Mr. Jaime
Yoshiyama; Supreme Court Chief Justice Luis Serpa; Attorney General
Blanca Nélida Colán; the Minister of Foreign Affairs and Chairman of
the Council of Ministers, Dr. Oscar de la Puente Raygada; Justice
Minister Fernando Vega Santa Gadea; Defense Minister General Juan
Briones Dávila; the Director of the National Police, General
Guillermo Bovil Cevallos; the President of the Supreme Court of
Military Justice, Vice Admiral Roberto Duboc, and the Chairman of the
Armed Forces Joint Command, General Nicolás de Bari Hermoza Ríos,
who was accompanied by the Joint Command's other members, the General
Commandant of the Navy, Admiral Alfredo Arnaiz Ambrossiani, and Air
Force General José Nadal Paiva.
The Special Committee also met with members of the Human Rights
Commission of the Democratic Constitutional Congress, with the
Chairman and General Secretary of the Episcopal Conference, Monsignors
Augusto Vargas and José Irizar, with the head of delegation of the
International Committee of the Red Cross, Mr. George Comninos, and
with members of the National Center for Human Rights.
The Andean Commission of Jurists, the Peruvian Council of
International Law, the Democratic Forum and the Council for Peace also
conferred with the Special Committee, as did other individuals and
institutions representative of Peruvian society, such as the
Association and National Federation of Journalists, the Peruvian
Medical Federation, bar associations and media executives.
The Special Committee received relatives of detained or
disappeared persons, representatives of persons who had filed
petitions in accordance with the provisions of the American Convention
on Human Rights and the Commission's Regulations, and other persons
and organizations interested in the human rights situation in Peru.
The Special Committee visited the tomb of María Elena Moyano
at the Villa El Salvador cemetery to pay tribute to her courage, her
devotion to the poor and her selfless efforts to assist children.
In Lima, the Special Committee visited the Miguel Castro
Castro, Santa Mónica, Lurigancho and Real Felipe prisons and the
Maranga Juvenile Detention Center.
One delegation travelled to Puno, to look into conditions at
the Yanamayo and San Sebastián prisons.
There, it met with the Office of the Representative of the
Archdiocese of Puno, the Human Rights Office of the Catholic Church in
Juli (Vicaría de la Solidaridad de la Prelatura de Juli) and
the Puno Human Rights Commission.
II. THE HUMAN RIGHTS
PROBLEMS OBSERVED BY THE COMMISSION
Chief among the problems observed by the Special Committee were
The action of irregular armed groups
The Commission has repeatedly denounced - and will continue to
denounce - the activities of groups like the Peruvian Communist Party
(Sendero Luminoso) and the Tupac Amaru Revolutionary
Movement (Movimiento Revolucionario Tupac Amaru - MRTA) that
routinely use violence to terrorize the public.
While statistics show a substantial drop in the number of
assaults and other criminal activities by such groups, unfortunately the same
cannot be said of the brutality always associated with their
activities, particularly in the case of Sendero Luminoso.
For example, on July 11, 1993, a Sendero Luminoso column
of about 80 took the village of Matucana Alta in the province of La
Mar, department of Ayacucho. After
pillaging and burning all the homes in the village, they killed 12
people, among them six children, civil defense patrolmen and a
teacher, and stole the villagers' livestock and other possessions. During the attack, Marisa Coras Arancibia, age 9, had her
skull fractured by a member of the Sendero Luminoso column, who
also cut off two of her fingers using a machete.
Patrolman [rondero] Víctor Pomahuacre was gravely wounded when
he was shot in the chest.
The Special Committee's visit came precisely at a time when the
Sendero Luminoso had called for an "armed work
stoppage". This involved a series of attacks, some involving car-bombs,
to terrorize the citizenry. That
same week, Jairo Fernández Flores, a high-ranking official of the
Peruvian National Prison Institute (Instituto Nacional Penitenciario
del Perú - INPE), was assassinated by members of the Sendero
Luminoso who accused him of directly "collaborating"
with the Peruvian Government's present policy.
On July 26, one group attacked a local police station in the
San Borja district with rifle fire and a car-bomb.
One civilian was killed and several wounded.
Hours earlier, the Sendero Luminoso detonated a car-bomb
near Champagnat High School in the Miraflores section of Lima,
although the damage done was strictly material.
The most serious atrocity committed by Sendero Luminoso
forces in the first eight months of 1993 had to be the massacre of at
least 62 people - Women and children among them - from native Asháninka
communities and from colono settlements in the area.
The Asháninkas, better known as the "campas", live
in the Tambo, Perené, Oichis, Ene and Apurimac river basins in the
departments of Cuzco, Ayacucho, Junín, Huánuco and Pasco and,
numbering around 50,000, constitute the largest ethnic group in Peru.
The massacre of the outside settlers and Asháninkas took place
on August 19, 1993, in Satipo province in the department of Junín.
According to the petition that the Commission received from the
Center for Peace Studies and Action (Centro de Estudios y Acción para
la Paz - CEAPAZ), the Mazamari parish priest and nuns with the Sisters
of Mercy visited the area and spoke with survivors, who said that on
August 18, some 70 members of the Sendero Luminoso, pretending
to be members of the government-organized "civil defense"
forces, invaded 12 villages in Satipo province, carrying spears,
machetes and axes. According
to the information received by the Commission, in each of those 12
villages the assailants allegedly killed men, women and children, and
finally withdrew from the area on August 19.
According to a report prepared by CEAPAZ and the Amazon Center
of Anthropology and Practical Applications (Centro Amazónico de
Antropología y Aplicación Práctica - CAAAP), many of the victims
were horribly mutilated before they were killed.
In most of these cases, the purpose of the terrorist activities
was to "punish" the patrolmen and their communities.
The information supplied to the Commission indicates that
"in 1992 the Sendero Luminoso killed over 90 inhabitants
of the area, including native Asháninkas and mestizos."
The Inter-American Commission abhors this and any other murder
of innocent people and the mutilation of children.
These are heinous crimes for which there is no justification,
not now or ever.
In another attack, on September 24, 1993 members of the PCP-SL
toppled seven electric towers in the country's mid
region and in Lima, leaving the capital without power for 45 minutes.
Cities along the coast and in the highlands were without power
for several hours.
A car-bomb left three dead and over fifty wounded when it
exploded in downtown Lima, just after 7:00 p.m. on October 21, 1993. The car was parked within meters of the Crillón Hotel, where
a delegation of ambassadors was staying while attending a meeting of
the humanitarian association Ayuda con Amor. Another car-bomb exploded in Miraflores on November 17,
seriously injuring four passers-by and causing damage to a business
located at Avenida Petit Thovars 5253.
The anti-terrorist laws: introduction
This section was prepared largely from the data compiled by the
Special Committee during its on-site visit from May 17 through 21,
1993, and from reports received by the Commission subsequent thereto.
It builds upon the information supplied on Peru's
anti-terrorist laws in earlier reports, points up the principal
contradictions between the anti-terrorist laws and the American
Convention on Human Rights and examines the consequences that
enforcement of those laws has had.
In the special report on the situation of human rights in Peru
published in 1992, the Commission noted the changes that Decree Law
25418, called the Emergency and National Reconstruction Law, had
introduced in Peru's system of laws and institutions (paragraph 52).
Under that Decree Law, one of the objectives of the Government
that took over on April 5, 1992 was to create a "framework of
laws that will enforce the severest possible penalties for
terrorists" (Article 2 paragraph 4).
With that "framework of laws", the executive power
would govern through decree-laws issued by the president and approved
by a majority of the members of the Council of Ministers.
A considerable number of those decree-laws were intended to be
emergency counter-insurgency criminal laws.
The Government has managed to reduce the anti-subversive
activities of groups who employ violence and terror against the
population. The heightened sense of security and the relative decline in
terrorist violence are very real.
Nevertheless, the anti-subversive battle, waged through
decree-laws that infringe upon guarantees and universally recognized
rights, is an essentially repressive one that often carries over into
unwarranted abuses of authority by military and police charged with combating
The State must fulfill its obligation to combat terrorism and
subversion but must at the same time comply with its duty to respect
the fundamental rights to the fullest.
The new anti-terrorist laws do not even come close to
satisfying the minimum requirements set by international human rights
law to protect and guarantee those rights.
The injustices and excesses that these laws have engendered
bear out the Commission's observations in earlier reports on the
dangers that the anti-terrorist legislation poses.
Among the new Government's objectives spelled out in Decree Law
25418 was amendment of the Constitution and the reform of the
judiciary. Article 6 states that the Government shall ratify and respect
the treaties, agreements, pacts, covenants, contracts and other
international commitments signed by Peru and in effect for it.
Nevertheless, the IACHR has confirmed that several decree-laws
published since April 5, 1992
as key parts of an anti-subversive strategy, establish procedures that
are patently incompatible with many of those commitments. As will be shown later in this document, they violate
fundamental rights guaranteed by the American Convention and the
The predicament of the defendant is particularly disturbing.
Under the anti-terrorist laws, the police are given tremendous
latitude at the cost of judicial oversight.
This, combined with new limitations on the right of
self-defense, has led to abuses of authority.
The Commission also believes that with the anti-terrorist laws
being enforced by a judiciary that has been completely overhauled,
with new judges and procedures unlike anything used in the past, there
have been some miscarriages of justice; in some cases the
anti-terrorist laws have been invoked to arrest people who have
nothing whatsoever to do with the activities of the armed groups that
sow terror and violence,
thus warranting the Commission's condemnation.
Alvaro Villavicencio Wittembury, a Ph.D. in pedagogy and
education sciences, is an example of arbitrary arrests of this type.
Professor Villavicencio was unjustly charged with the crime of
terrorism. His case began
when a DINCOTE official included his name, without any other
specifics, on a list of persons suspected of being linked with
terrorist activities. This
was the pretext used by the prosecuting attorney with Lima's Tenth
Criminal Court to order his arrest and to request that proceedings be
instituted against him, without giving Dr. Villavicencio any
forewarning. On December
11, 1992, Dr. Villavicencio was arrested at Jorge Chávez Airport and
taken directly to one of the jails at the Palace of Justice.
Within a matter of days, the Prosecutor issued Ruling 226-9
whereby Dr. Villavicencio was charged, even though there was not a
shred of evidence against him. One
of the principal charges was that he had been a colleague of the Senderista
leader Abimael Guzmán at the University of Huamanga between 1961 and
1965. After preparing several negative reports on Dr.
Villavicencio's conduct, on December 30, 1992 DINCOTE sent a new brief
(No. 4917-D5) to the effect that "While some of his activities
could have had some association with terrorist activities, thus far
there is insufficient presumptive evidence to indicate that this
person had some role in terrorist activities."
Despite this clarification, the provincial prosecutor persisted
in charging Dr. Villavicencio and on February 3, 1993, the
"faceless" superior prosecutor formally indicted him on
charges of terrorism and requested a sentence of 20 years
imprisonment. After being
held in prison for one year, he was declared innocent by a court of
three faceless judges on December 10, 1993.
Their ruling was that Professor Villavicencio was undoubtedly
not a terrorist and should never have been jailed.
The situation of Professor Darnilda Pardavé Trujillo de Daza
(case 11, 094), which the Commission has discussed in previous
reports, is another example of arbitrary detention.
After being unjustly imprisoned for 392 days in the Chorrillos
Security Prison for Women, Professor Pardavé Trujillo was released.
The only reason for the arrest and the charges against her was
the fact that she was the sister of Yovanka Pardavé, a former member
of the Association of Democratic Attorneys.
Security Prison for Women, Professor Pardavé Trujillo was released.
The only reason for the arrest and the charges against her was
the fact that she was the sister of Yovanka Pardavé, a former member
of the Association of Democratic Attorneys.
A similar situation occurred in the case of the nine students
from the Law School at the University of San Marcos (Delia Dina Berrocal
Tito, Rosa Taboada, Lourdes Ocampo, Gerardo Juan Munárriz Ulloa, Carlos
Felipe Isla Litardo, Carlos Alfredo Delgado Altamirano, Angel Donet Pérez,
Oscar Salvatierra [a medical student], and Jorge Luis Evangelista Calderón
[a worker with the Costel Cooperative], Case 11,181).
Although a faceless tribunal found that the charges against them
were unfounded, these nine people were detained in prison for nine
months, falsely charged with the crime of terrorism.
During that time some of them were mistreated and tortured, and
they suffered public humiliation when, on December 1, 1992, the
anti-subversive police displayed them on television, wearing prison
stripes, claiming they were members of the Sendero Luminoso and
allegedly were found in possession of an arsenal of weapons and Sendero
Another case is that of Professor María Elena Loayza Tamayo
(Case 11,154), who was arrested by DINCOTE at her home, under
construction at that time, because a "repentant" subversive
whose thesis Professor Loayza was advising had told police authorities
that her mentor was a Sendero collaborator.
Professor Loayza's case raises another problem, because she was
raped by DINCOTE officers during her arrest.
She was also physically and morally coerced and forced to
incriminate herself for activities she did not commit and to admit to
false charges made against her during the period she was held incommunicado
on orders from the Military Judge.
She was denied her right to consult with an attorney of her
choosing, even though Professor Loayza declares that she has had nothing
to do with the activities of subversive groups.
Quite the contrary, like so many others unjustly accused, she has
publicly condemned the activities of the Sendero Luminoso.
The warden of the Chorrillos Maximum Security Prison for Women
told Commission staff that Professor Loayza has been a model prisoner.
There she continues to preach against terrorism and the violence
used by subversive groups. Originally
charged with terrorism as a treasonable offense and therefore under
military jurisdiction, she was acquitted of that crime.
Even though she has been cleared of the charges that the police
brought against her, she was ordered to stand trial in the regular
courts and is still imprisoned in the Chorrillos facility.
The Commission believes that an injustice is being done and that
it is a legal contradiction to assert that an individual who has been
tried for and cleared of the crime of treason could be forced to stand
trial again, this time for the crime of terrorism, using the same facts
and charges upon which the case heard by the military court was based
and of which she was exonerated.
The Commission is also disturbed by disproportionate and inhumane
sentences being meted out and by the fact that as of age 15, minors can
be tried as adults when charged with terrorism.
Since the time the anti-terrorist decree-laws that began on April
5, 1992, were first enforced, many people, minors among them, have been
sentenced to life imprisonment or to anywhere from 20 to 30 years in
prison. Others, though very
few, are eventually released after being held in custody for long
periods or have been tried in absentia.
The Commission believes that the Peruvian Government's drastic
suspension of the provisions of the Constitution in effect since 1979
cannot be justified. It
utterly ignores what the American Convention provides in its Article 27
(on states of emergency) concerning judicial guarantees that cannot be
suspended, such as habeas corpus, amparo, and other
fundamental rights and freedoms, such as the right to life, the right to
humane treatment, the right to participate
in government that, under the American Convention, cannot be suspended,
even in states of emergency. The
Inter-American Court of Human Rights has said that "amparo or any
other remedy filed with competent courts or judges that is effective in
guaranteeing respect for the rights and freedoms whose suspension is not
authorized by the Convention itself" should be regarded as
essential basic guarantees that cannot be suspended.
As part of the anti-subversive campaign, a body of law has been
decreed that broadens the definitions of terrorist and treasonable
offenses, establishes the penalties for those crimes and dictates the
respective police and judicial procedures to be followed.
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.
Numerous human rights organizations have levelled harsh criticism
at the laws decreed. The Coordinadora
Nacional de Derechos Humanos del Perú has submitted to Congress a
number of bills that would amend the anti-terrorist laws, the amparo
law, the habeas corpus law, etc.
3. Specific aspects of the
anti-terrorist laws that are disturbing to the Commission
Decree-laws 25475, 25569 and 25880 establish a number of criminal
offenses. The language used
to define and describe what constitutes terrorist offenses is so vague
and so broad, that the criminal types being created are open-ended.
For example, Article 2 of Decree Law 25475 makes terrorism a
crime. Articles 3 to 8
describe what behavior qualifies as criminal terrorism, including the
obtaining, gathering, storing or supplying any type of goods or means,
or performing acts of collaboration - of whatever kind - that aid and
abet the commission of the crimes covered in Decree-Law 25475, or serve
the purposes of a terrorist group; inciting - by whatever means - the
commission of any of act classified as the crime of terrorism; publicly
defending - by whatever means - terrorism or someone who has committed
an act of terrorism; obstructing, impairing or impeding -by whatever
means - court proceedings or investigations underway in connection with
the crime of terrorism.
The language used to describe what constitutes criminal conduct
is very vague and is therefore 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.
Decree Law 25659 defines what conduct constitutes criminal
treason, while decree laws 25708 and 25744 concern procedural matters in
treasonable offenses. Criminal
conduct classified as terrorism becomes a treasonable offense when other
means (use, storage and possession of explosives and arms) are used to
commit an act intended to cause damage to life and property or
"when, in any other way, the public is seriously imperiled."
The other treasonous behavior includes serving as the leader of a
terrorist group or being a member of its leadership, being a member of
an armed group charged with the physical elimination of persons, doing
intelligence work for terrorists or helping them gain entry to places to
accomplish the above objectives.
Decree law 25475 also sets forth the procedures that will be
followed to investigate and try individuals accused of crimes of
terrorism. Under the present system, military tribunals have
jurisdiction in cases involving treason.
The other conduct classified as terrorist offenses (membership,
collaboration, apologia, obstruction of justice, etc.) are the
jurisdiction of the regular courts.
a. The authorities of the
The police are responsible for preventing and investigating
crimes of terrorism. In the
Commission's view, the emergency situation in Peru is such that the
police are called upon to play a leading, active role, but, having
regard to their wide ranging powers, serious abuses can take place.
Under such powers, the police are allowed to hold people
incommunicado and interrogate them without a court order and to bring
charges and introduce evidence. This,
coupled with a restriction on the right of self-defense often leads to
serious abuses (including torture) and go well beyond the routine
functions of law enforcement agencies.
During preventive custody, the police have liberal discretionary
authority. They can order
that the individual detained be held incommunicado merely by notifying
the Office of the Public Prosecutor and the judge; they can order that
individuals be held longer than the 15 days allowed under the
Constitution and then extend that period still more; they can order that
the individual in custody be transferred to shed more light on the
Judges cannot tamper with these authorities (Decree-Laws 25475
and 25744). The procedures
permitted by law in police investigations of crimes of terrorism
severely impair fundamental rights and restrict the civilian
authorities' powers to control police activity.
The Commission has received information on the kinds of abuses
and arbitrary excesses that this kind of latitude causes.
Relatives of persons detained have no way to ascertain the
In a letter sent to the Commission during its on-site visit,
attorneys with the Campesino Defense and Legal Counsel Team (Equipo
de Defensa y Asesoría Campesina - EDAC) stated that countless peasant
farmers have been transferred to Lima to stand trial for crimes they did
not commit; they have been incarcerated for 4, 5 and even 6 years, only
to be released for lack of evidence (cases sponsored by EDAC).
These abuses of authority occur when vague police innuendo and
assertions end up becoming the basis for holding people in custody and
then bringing them to trial.
Another problem reported to the Commission is the confusion
caused by the fact that many people have the same surname.
"Quispe" and "Mamani", for example, are very
common surnames that can sometimes lead to mix-ups.
The police detain the individuals whose names appear on their
lists, without considering that there may be other people with the same
name and that they (the police) are actually looking for someone else.
Juana Clara Quispe Rojas has been held in the Chorrillos Maximum
Security Prison for Women since March 1993, precisely because
authorities confused her with someone having a similar name.
The individual's legal guarantees are seriously threatened in the
face of the police authority. Under
Article 12.f of Decree Law 25475, for example, the defense attorney may
not intervene in proceedings until the individual detained makes his
statement in the presence of the representative from the Office of the
Public Prosecutor. Although
a representative from the Office of the Public Prosecutor is required to
be present during interrogation, there is a period during which the
individual detained is utterly without protection, at the mercy of the
police and subject to psychological pressure and, in many cases, torture
and other forms of harassment. The
Commission has received many complaints about this, and the case of
Professor María Elena Loayza, mentioned earlier, is a prime example of
this kind of abuse of authority.
b. Actions seeking relief
From the approval of decree law 25659 in August 1992 to November
24, 1993, no action for relief was permitted when the charge was
terrorism. Even when the
defendant's innocence had been proven, judges were not allowed to grant
any form of conditional release, writ of amparo or habeas
corpus at any time. Decree Law 25659 provided that actions seeking relief for
individuals detained for, charged with or tried for the crime of
terrorism (Decree Law 25475) were not permitted at any stage in the
police investigation or criminal proceedings.
This provision, which was a violation of Article 7 (paragraph 6)
of the American Convention which provides that anyone deprived of his or
her liberty shall be entitled to recourse to a competent court to
challenge the lawfulness of his or her detention and to demand his or
her release, was amended by Law 26248, although the amendments still
contain some significant procedural restrictions.
Under Decree Law 25659, the writ of habeas corpus was not
permitted during a police or judicial inquiry, which in practice meant
that an individual detained was unable to ask a judge to examine whether
the measure whereby his or her detention was ordered was reasonable or
whether that individual had been ill-treated while in custody.
Peruvian law does not provide for the summary habeas corpus
proceeding to ensure that an individual lawfully detained or convicted
by a competent authority is held in the proper manner and conditions.
The purpose of this remedy is to protect lawfully detained
persons against abuses by State authorities.
c. Proceedings in cases
involving crimes of terrorism
Under Decree-Law 25744, the National Anti-Terrorism Bureau (Dirección
Nacional contra el Terrorismo - DINCOTE) is to prevent, investigate,
report and combat crimes of terrorism.
When the person is detained on suspicion of treason, the Police
merely have to report the detention to the military courts.
Because this decree-law does not specify how long an individual
can be held in custody, the police, in theory at least, can hold the
suspect in custody indefinitely and even incommunicado.
The proceedings in a case involving the crime of terrorism are in
three stages. The first
stage is conducted by the examining judge, the second by the superior
court and the third by the appeals court.
The maximum for each stage is 30 consecutive days, but that can
be extended by 20 days and then by another 15 days.
The trials generally take place after several months during which
time the defendant is held in prison until a ruling is handed down.
The identity of the prosecutors, judges and other officials who
take part in the hearings at each stage of the trial and in the appeal
are kept secret [the so-called "faceless judges" or
"faceless courts"] and the proceedings are conducted in
special rooms inside the prisons.
The criminal examining judge does not weigh the evidence provided
by the police and by the Public Prosecutor's Office or check for the
formalities needed to institute an investigation, as happened in the
cases of Segundo Torres Centurión and Lorenzo Izquierdo Regalado, both
agrarian leaders who were kept in prison unjustly on charges of
defending terrorism (apologia).
Patrol leader Jesús Ruiz Cubas was acquitted and released after
being detained on November 6, 1992, on charges of terrorism and after
being unjustly incarcerated in the Picsi prison for 10 months.
Like the Coordinadora Nacional de Derechos Humanos, the
Commission also finds other inconsistencies in the law, since it is
unclear whether the provisions of the Code of Criminal Procedure and the
Statute of the Public Prosecutor's Office are still in effect.
This creates confusion between judges and prosecutors.
Another subject of confusion is the close of the examining phase.
It has been said that the examining phase should end with the
final opinion of the provincial prosecutor and the Final Report of the
Criminal Judge. However,
the procedural laws lend themselves to several interpretations.
Since the freedom of those detained hangs in the balance, the
Commission believes that this matter should be straightened out
Judges and prosecutors are locked into cases, since the law is
designed in such a way that every case will invariably go to trial and
in most cases, end in conviction. Mindful
of the limitations that the law imposes, judges apply the law almost
mechanically. A judge can
never dismiss a case, even when there is insufficient evidence to
prosecute. Every disputed
point must be referred to the Supreme Court for settlement.
The Commission also takes issue with the fact that no form of
freedom, even conditional release, is permitted at any stage of the
legal process. This is
patently arbitrary in the case of defendants who have been proven
innocent but who must remain in custody until their case has been
reviewed, at a higher level, by the Special Criminal Court to decide
that oral proceedings will not be instituted.
The journalist Magno Sosa Rojas (case 11,089), for example, was
acquitted but had to remain in custody until the Special Criminal Court
ruled that oral proceedings would not be instituted in that case.
Just as objectionable is the delay that cases experience in the
The Commission visited the Miguel Castro Castro prison in Canto
Grande, where it witnessed a "faceless" trial and had an
opportunity to converse with a judge and hear the statements made by the
prosecution and the arguments made by the defense attorney.
The Commission was particularly struck by the fact that the
judges repeatedly insisted that the defense attorney be brief, alleging
that the proceedings had to move on to a swift conclusion.
A report presented by the Puno Committee for the Protection of
Human Rights (Comité de Defensa de los Derechos Humanos de Puno
- CODDEH-PUNO) during the
Commission's visit indicates that the Government's anti-terrorist
strategy in the Puno area is very different from its strategy elsewhere
in the country. In rural
areas, arrests are made primarily by the army, however, those arrested
are not immediately delivered into police custody.
Instead, they are taken to military bases, where they may remain
for 2 to 10 days. According
to the complaints, these people are routinely tortured and subjected to
other forms of inhuman treatment. During
the inquiry, statements are taken without the necessary guarantees; the
requirement that a prosecutor be present is ignored and those in custody
are often forced to confess to charges that the eventual police
investigation frequently disproves.
While it is true that known terrorists have sometimes been
arrested in that region, most of those being arrested are peasant
farmers who for years have been forced to coexist with the Sendero
Luminoso and the MRTA, only to be arrested for failing to report the
presence of terrorists in the region.
The CODDEH-PUNO has said how dangerous it is for peasant farmers
to report the presence of subversive groups because the latter have no
assurances that their safety will be protected and because no proper
channels have been established to report that kind of information.
The Lambayeque Bar Association (Chiclayo) told the Commission
during its visit that only one courtroom is operating in that region to
try alleged terrorists. It
asked that the necessary overtures be made to request at least one other
courtroom so that the many cases can be brought to trial.
d. Right of self-defense
During the on-site visit, the Commission received from the
Supreme Council of Military Justice a copy of Official Communique No.
005, the first paragraph of which reads as follows:
The Supreme Council of Military Justice is disturbed by the
disinterest shown by certain attorneys in the various courts of this
military jurisdiction, who do not actively defend their clients when the
latter are on trial for treason.
The Commission has received numerous reports about the serious
restrictions on the right of defense.
Every individual has a right to be assisted by counsel,
regardless of the crime with which he or she is charged.
While in theory those accused of terrorism have that right, in
practice the right to defend oneself is so seriously shackled, it is
virtually nonexistent. According
to Decree Laws 25475 and 25744, the attorney cannot take part in the
proceedings until the accused makes his or her statement in the presence
of the prosecutor. The police can hold persons suspected of terrorism in
preventive custody for 15 days but where the crimes of terrorism are
classified as treasonous, the period of preventive custody can be
extended even longer.
Article 18 of Decree Law 25475 provided that in proceedings
involving the crime of terrorism, the defense attorneys could represent
only one defendant at a time nationwide.
This was a very serious violation of one's right to be assisted
by an attorney of one's choosing, upheld in Article 8.2.d of the
26248, enacted on November 24, 1993, abrogated Article 18 of Decree Law
25475 effective that date.
The Commission has examined the problems that attorneys who
defend individuals accused of terrorism face.
These attorneys are demanding that they be given sufficient time
to acquaint themselves with the charges against their clients, to confer
with them and prepare their case and that they be notified of court
rulings, hearings and trials, etc., sufficiently in advance.
The case of Miguel Fernando Ruiz-Conejo Márquez points up the
kind of frequent procedural irregularities - such as late or incorrect
notifications - that are becoming commonplace and that are so
detrimental to the most elementary judicial guarantees and due process.
Attorneys often find that they have been prevented from being
present when the verdict is read.
The Lambayeque (Chiclayo) Bar Association asked the Commission to
intervene to ensure that attorneys be allowed to defend clients accused
of a crime of terrorism. The
Democratic Lawyers Association has complained that its members have been
persecuted by the government for defending terrorism cases involving
members of the Sendero Luminoso.
Since the threats and pressure that attorneys in general
experience have not been alleviated, the Commission reiterates to the
Government of Peru, the recommendation made in its report on Peru
(Chapter IV, paragraph 6 of the Commission's Annual Report for
the on-site visit, the Lambayeque Bar Association told the Commission
that four of the 536 persons in the Picsi Prison as of mid May 1993
either accused or convicted of a crime of terrorism were member
attorneys while the others had been taken to prison for security
As the Commission already reported, Dr. Alfredo Crespo, attorney
for Abimael Guzmán, and Jorge Cartagena, attorney for Osmán Morote and
Marta Huatay, were arrested on January 11, 1993 and convicted in a
summary proceeding to 30 years in prison.
This is another example of a gross violation of the right to
defense and the right to due process, and was clearly meant to set an
example for any attorney who dared to defend those charged with
As for the communique released by the Supreme Council of Military
Justice transcribed above, it is not at all surprising to the Commission
that attorneys are more and more reluctant to defend those accused of
terrorism because of the risk they run of being accused of defending
terrorism [apologia] or of some other type of conduct
criminalized by the new anti-terrorist laws.
The Puno Human Rights Defense Committee (CODDEH-PUNO) has
expressed concern over the difficulties it is having in helping dozens
of peasant farmers being held in Puno's San Sebastián Prison without
access to an attorney. Human
rights organizations have few attorneys, just as there are few public
defenders. Private attorneys
charge very high fees that peasant farmers cannot afford.
Decree Law 25475 stipulates the minimum sentences permissible
when certain circumstances obtain.
However, for those whose guilt has been reliably established
(articles 2, 3.b, 3.c, 4, 5, 9), there is no upper limit on the
punishment that can be imposed. Article 10 of that decree law provides
that "In cases involving the crime of terrorism, magistrates may
not apply the provisions of Article 22 of the Penal Code approved by
Legislative Decree No. 635." Basically, what this means is that anyone who was between the
ages of 18 and 21 or over age 65 at the time the crime was committed
cannot have his or her sentence reduced.
Thus, the discretion routinely exercised by judges in sentencing
is being curtailed, even though they should be free to apply the
provisions of common criminal law.
As a rule, the sentences are disproportionate (for example,
Articles 4 and 5 of Decree Law 25475 require no less than 20 years'
imprisonment for "actions of collaboration of any kind" or for
merely belonging to a terrorist organization).
The Commission believes such excesses must be corrected so that
the punishment matches the degree of guilt.
The punishment for a wide range of crimes of terrorism that are
obviously less serious than treason is the same - life imprisonment.
The Commission also takes issue with Article 7 et seq of Decree
Law 25475, whereby citizens who defend terrorism [apologia] while abroad
are stripped of their citizenship.
This is an obvious violation of Article 20.3 of the American
Convention, which states that no one may be arbitrarily deprived of
application of criminal law
The Commission has been informed that some judges are applying
the law retroactively in terrorism cases.
According to a report presented by the Peasant Legal Defense and
Counsel Team (Equipo de Defensa y Asesoría Campesina - EDAC), part of
the Peruvian Peasant Farmers Association, judges in the ordinary courts
are applying Decree Law 25475 retroactively.
According to EDAC, this happened in the case of Nora Gálvez
Cavero and María Teresa Huidobro Bermúdez, whose release was requested
based on the provisions of Decree Law 25842, whereby a judge shall order
the immediate release of any individual held for over 30 months on
charges of terrorism ("when there are circumstances that pose some
special difficulty or prolong the investigation beyond the usual and
that mean the accused may never be brought before the courts") if
no court has ever handed down a ruling.
The Special Criminal Chamber of the Lima Superior Court (a
"faceless" court) denied the petition on the basis of Decree
Law 25916, which preserves the ban on any kind of procedural or prison
concession, including the one provided for in Article 37 of the Code of
Criminal Procedure abrogated by Decree Law 25824, even though Decree Law
25916 invoked by the Court was published 26 days later.
Decree Law 25475 provides that the same procedures apply to all
terrorism cases, including those not yet solved and in which the accused
were arrested prior to May 7, 1992.
4. The climate of insecurity
and danger that enforcement of the anti-terrorist laws has engendered
The anti-terrorist laws allow group trials, which may involve a
number of persons whose cases are unrelated.
As a result, individuals accused of lesser crimes are
incarcerated for long periods with individuals accused of much more
serious crimes; some are even innocent.
Many believe their only avenue of escape is to invoke the
Persons who have no valuable information to barter for either
their freedom or a reduced sentence can benefit little, if at all, from
such a law.
Because of the Repentance Law, over the last 18 months hundreds
of persons involved in terrorist activities have turned themselves over
to Peruvian authorities. This
is unquestionably a positive development, particularly when one
considers that the Sendero Luminoso and, on a lesser scale, the Movimiento
Revolucionario Tupac Amaru (MRTA) continue to terrorize the
population with their brutality and violence.
On the other hand, the Commission has received several petitions
to the effect that the Repentance Law is being used (particularly by
members of the Sendero Luminoso and by people whom the security
forces have threatened, coerced and made false promises to) to accuse
innocent people who are frequently declared guilty by the Peruvian
police and court authorities solely on the basis of a statement made by
someone who has invoked the Repentance Law.
Mr. Santos Gilberto Robles Paredes, a young farmer kidnapped and
latter impressed by the Sendero Luminoso, managed to escape from
that subversive group and moved to Lima.
After spending a year in Lima, he returned to visit his mother in
Cajabamba and was arrested. Using torture and false promises, the police, under the
command of Colonel José Miguel Borja, got him to accuse 118 people.
Some 56 of those he accused were arrested and, after spending a
long period in the Picsi Prison, 27 were released and 29 were convicted.
Mr. Santos said later that some of those convicted were in fact
innocent and that police forced him to accuse most of those 118 people
by using the Repentance Law, by making false promises to him (that he
would be allowed to leave the country, for example) or by getting him
drunk so that he would sign the papers wherein he made charges against
people he did not even know.
Professor Francisco José Maria Barletti Pascuale, an historian
who also researches the social and economic life of the jungle tribes,
was living in Iquitos when he was arrested on August 17, 1993, while on
his way to the Plaza 28 de julio to meet with Professor Cayo Mori.
The latter had been detained some days earlier because of alleged
ties with the MRTA. According
to information received at the Commission's Secretariat, Professor Mori
had been pressured to implicate Professor Barletti in an alleged
collaboration with the MRTA, based on a telephone call that Mori made to
him from the place where he was being held, to ask whether they might
meet as he needed Professor Barletti's help.
The latter was eventually released several days later, after
being held in custody unjustly.
José Gustavo Rebolledo, confined in Piura prison since May of
1993, is serving 30 years for terrorism, even though the
"repentant" and the judge that was in charge of Rebolledo's
case acknowledged that a mistake was made.
The "repentant" admitted to making a mistake by having
confused Mr. Rebolledo (age 38) "with another subject by the name
of Juan Manuel Hernández Chiroque (alias `Lalo' or `Lolo') who was
arrested soon thereafter and confessed to being a member of the group
called Socorro Popular de Sendero Luminoso."
In Document 0650-93, the provisional criminal judge acknowledged
"the presence of an error in the police investigation."
The examples mentioned here, like so many others that the
Commission does not believe need be mentioned, illustrate that in
practice, innocent people are being arrested and held in custody for
long periods because of the Repentance Law.
Some of these innocent people are even being convicted.
High-ranking government officials with whom the Commission spoke
described intelligence work as an integral part of the anti-terrorist
campaign and of the Government's plan to end human rights abuses and the
slaughter of innocents. The
strategy also involves something known as rondas (round-ups) and
sweep operations. A typical sweep conducted by the Armed Forces is as follows:
troops surround a neighborhood or shanty town, generally after
midnight; they then conduct a house-to-house search looking for
terrorists. At the end of
the sweep, food is distributed and primary medical care provided.
In other words, police operations are combined with civic
operations in the form of primary care to Lima's neighborhoods and
shanty towns and in those areas that the Armed Forces classifies as
This gave the State some presence, albeit short-lived, in the
outlying shanty towns.
In recent months, however, the Government has tried to make it a
more lasting presence, through projects that the Compensation and
Development Fund (Fondo de Compensación y Desarrollo - FONCODES)
has been financing since late 1992.
But during its on-site visit, the Commission was told that when
searching people during these sweeps, the Armed Forces use violence
ranging anywhere from verbal aggression to unwarranted physical
The Commission was also told that the Government ignores leaders
of what few social organizations still exist in these shanty towns. It also disregards local government, political parties and
even members of religious organizations, particularly if they are
suspected of opposing government policy.
Representatives of social organizations who met with the
Commission expressed concern over what some perceive to be an attempt to
militarize the anti-terrorist campaign in the city.
As an example, they pointed out that the urban patrol in Huaycán,
one of the shanty towns just outside Lima, has been militarized to the
point that its members now wear uniforms.
In mid May of 1993, a former chairman of that patrol, Pascuala
Rosado, had to flee to Chile after receiving repeated death threats from
the Sendero Luminoso sent through El Diario (the Sendero's
mouthpiece) because she had cooperated with the Armed Forces in
creating the patrol. Despite
her militant anti-Sendero stance, Mrs. Pascual Rosado was left to
fend for herself when the Army took away her protection because she
refused to be a lackey of the Government and the Armed Forces.
5. Other issues concerning
the anti-terrorist laws
Another negative aspect of the anti-terrorist laws is that they
can be invoked to arrest anyone who criticizes the political system, the
Government, the security forces and other authorities.
During the Commission's on-site visit, associations of
journalists, physicians, human rights advocates, attorneys, political
activists and others told the Commission that they were victims of
In 1992, the Government began to hold press conferences, putting
so-called terrorists on public display, wearing prison stripes, all amid
a barrage of publicity. In
the Commission's view, this is a violation of an individual's personal
dignity. Often, as happened
in the case of the students from the Law School of the University of San
Marcos, these people are later released because the charges against them
Freedom of expression
In that section of the Commission's Annual Report for 1992-1993
that was devoted to the situation of human rights in Peru, the
Commission said that it was deeply concerned that the anti-terrorist
laws might be enforced against the press.
During the Commission's visit, the National Association of
Journalists of Peru and the National Federation of Media Workers
reported numerous human rights violations committed by agents of the
Peruvian State against journalists.
Apart from the complaint itself, in their statement the
petitioners alluded to the general situation, to the risks posed by the
anti-terrorist laws. As
examples they pointed to the arrests of José Ramírez García (Cuzco),
Danilo Quijano Silva (Lima) and Magno Sosa Rojas (Ayacucho), Gisel
Gutarra Sedano (Lima), human rights activists, intellectuals and
released when the charges against him were proven false, had by that
time spent four months in prison. Danilo
Quijano and Magno Sosa Rojas were also released, largely thanks to
international pressure. Unjustly
imprisoned on January 29, 1993, journalist Gisela Gutarro Sedano was
finally released on June 19, 1993, when a `faceless' judge with the Lima
Superior Court acquitted her.
a publication put out by the Legal Defense Institute (Instituto de
Defensa Legal) and that won the 1992 International Human Rights
Prize awarded by Canada's International Center for Human Rights and
Democratic Development (created by the Canadian Parliament), was
convicted of "contempt of the President of the Republic". In
August 1993 the IDL received the American Bar Association's
International Human Rights Award, in recognition of its extraordinary
contributions to the human rights cause and to the rule of law and of
its efforts to make justice available to all.
The Commission is disturbed by the case of Cecilia Valenzuela,
who was originally cleared in a defamation of character suit filed
against her by General Clemente Noel.
The suit was a result of a televised special she had done in
which an Ayacucho policeman told of the human rights violations
committed in that emergency zone when General Noel was Chief of that
Political-Military Command. The
judge of the Third Criminal Court of the Lima Court District had cleared
her of any wrongdoing, ruling that what she had done was legitimate
journalism and hence was in no way contrary to the law, but the Higher
Criminal Court however, overturned the lower court's decision, stating
that the judge "had improperly weighed the evidence" and
ordered that another judge hand down a new ruling which, as might have
been expected, went against her. The
Higher Criminal Court then upheld the conviction.
Mrs. Cecilia Valenzuela filed an appeal to have the new ruling
vacated and asked to present oral arguments before the Criminal Chamber
of the Supreme Court. Though
several months have passed, the file is still in the hands of the Office
of the Prosecutor for the Criminal Chamber of the Supreme Court.
Peruvian journalists have repeatedly said that freedom of the
press has been in constant jeopardy since April 5, 1992, because there
are no basic mechanisms to provide the legal guarantee that journalists
need to practice their profession freely, and because the Government
uses subtle tactics to curb freedom of the press.
Among the tactics most often cited are the economic pressure that
some firms experience and the fact that many journalists feel insecure
about practicing their profession because they have been intimidated and
Apart from the cases mentioned above, the Commission is also
disturbed by the trial of the directors of CARETAS and Sí, by the
assault and arrest of Francisco Reyes Foyano, a journalist with LA
REPUBLICA in the province of Yurimaguas, and the suppression of the
peaceful demonstration headed by the Peruvian Journalists Association
because of the inclusion of the remedy known as habeas data in
the new constitution.
b. Anti-terrorist laws and
regulation of the medical profession in Peruvian law
The medical profession in Peru is regulated by the following:
- The Medical Labor Law
(Legislative Decree No. 559)
- The Code of Ethics and
Deontology of the Peruvian Medical Association
- The Statutes of the
- The Regulations of the
The Code of Ethics and Deontology "... is a set of moral
principles to ensure that all members of the medical profession
practice their profession honestly and conduct themselves
The "Code of Ethics and Deontology is an organized body of
the enduring rules that govern the practice of medicine according to its
In this Code, medicine is defined as "a service profession;
anyone entering the profession is obligated to conduct himself according
to its ideals (...). Respect
for life and human dignity are the essence of those ideals and must be
honored in our daily practice. They
are the real contribution that our art and science make to culture and
As for the relationship between the physician and the patient,
the Code states that: "As
the human being's legitimate guardian against pain, suffering and death,
the physician must not make distinctions among the patients he treats,
whom he must always care for with respect, love, discretion and without
The Code defines the fundamental objective of the medical
profession as "assisting and protecting the human being against
anything that is or could be detrimental to his health and endanger his
The following are the guidelines that every physician must
consider when treating a patient:
The physician is not required to provide professional services if
doing so would be contrary to morality and the law or could be
detrimental to the patient's physical and mental health.
In emergency cases, when the physician is required to treat a
patient whose medical problem is the consequence of or directly or
indirectly associated with a criminal act, the health professional's
obligations presuppose the physician's obligation to report this to the
proper authorities, stating that he or she has delivered this medical
treatment because it was his or her professional duty and shall be
exempt from any form of harassment or harm that the police investigation
Medical treatment is protected under Article 5 of the Medical
Labor Law, as follows:
Medical treatment shall be governed strictly according to the
Code of Ethics and Deontology of the Peruvian Medical Association and
international provisions ratified by the Peruvian Government.
A surgeon cannot be deprived of his freedom for having exercised
his profession, whatever his circumstance, except by a court order or if
caught in the commission of a crime.
(i) International protection
for the practice of medicine
- Principles of medical
ethics that apply to health personnel, especially physicians, for
protecting prisoners and detainees from torture and other cruel, inhuman
or degrading treatment or punishment (approved by the United Nations
General Assembly in resolution 37-194, December 18, 1982).
- Article 3 common to all
the Geneva Conventions and their Protocols.
(ii) The status of certain
physicians who have been deprived of their freedom with enforcement of
the anti-terrorist laws.
During the on-site visit, the Peruvian Medical Federation told
the Commission that with the anti-terrorist repression, DINCOTE has
detained several members of the medical profession, who have been
unjustly accused of unlawful association or unlawful collaboration with
Most of the arrests
were made either in Lima or areas in which a state of emergency has been
According to information the Commission has received, when
arresting these physicians, DINCOTE has made no distinction between
situations in which a physician was legitimately practicing his
profession and those cases in which the physician may have been a member
or collaborator of the Sendero Luminoso or MRTA.
When making these arrests, the police do not take into account
that under Peruvian criminal law, there is no criminal responsibility
when physicians are forced by these terrorist groups to treat their
members lest they or their families be killed.
The degree of criminal participation is not properly established
to determine the physician
with ties to a terrorist group and the physician with no ties - for
example, one who may have treated a wounded man not knowing that he was
a member of a subversive organization, or one who provided treatment
because of threats or coercion - were all charged with the same degree
of involvement. The
Anti-Terrorist Police have prepared reports (Atestados) that have
been copied verbatim by the Public Prosecutor's Office and the
Judiciary. With this,
distinguished medical professionals who were practicing their profession
legally or who were forced to provide treatment or be killed, have been
arrested and arbitrarily deprived of their liberty, often for more than
10 months, not to speak of the irreparable moral damages they have
suffered. In a number of
cases, physicians are still in custody awaiting trial.
1. Dr. Ricardo Bautista
Palomino (age 54)
- Departmental General
Secretary of the Popular Action Party, headquartered in Chachapoyas,
department of Amazonas, for two terms:
1979 to 1982 and from September 1990 to the present.
- Chairman of the Amazonas
Development Corporation (Corporación de Desarrollo de Amazonas - CORDE)
from August 1980 to March 1983.
- Director of the
Chachapoyas Hospital in 1984.
- Chairman of the
Chachapoyas Medical Corps at the time of his arrest.
On May 22, 1992, an MRTA column attacked Luya and Lamud, which
are a distance of an hour and a half by car from Chachapoyas.
Among those wounded in the clash was Edison Mori, a member of the
MRTA. His brother Joseph
Mori and other subversives who took him to Chachapoyas, where they
arrived at around 9:00 a.m.
One of the subversives went to the office of Rómulo Mori, an
employee of SENAPA (Empresa de Agua Potable) and the Mori
brothers' uncle. He was told that one of his nephews was wounded and ordered
to get a doctor.
Romulo Mori said that he had not seen his nephew since 1991 and
that at first he refused to help him.
When the subversive threatened to kill him, he decided to call
Dr. Ricardo Bautista Palomino, whom he asked to treat his wounded
Dr. Bautista went to the appointment at around midday. After examining the patient, he realized what the situation
was and refused to treat him.
The subversives held him at gunpoint and ordered him to take the
wounded man to his private clinic.
Faced with the threat of being killed if he refused to treat the
wounded man, Dr. Bautista took the man to his clinic.
Once there he decided to delay the operation because there was no
electric power and went home. The subversives allowed him to go home,
but warned him that they would be watching his every move and that if he
reported them, his life and the lives of those in his family would be in
The surgery was conducted between 4:30 and 7:00 p.m. The wounded man remained at the clinic while Dr. Bautista
went home, where he was arrested by the authorities at approximately
9:00 p.m. Romulo Mori and
the wounded subversive were also arrested.
Dr. Bautista told police that he had not reported the facts
because of the threats made against him and his family.
It should be noted that this was not the first time this
physician had been threatened. On
several occasions, members of the same terrorist group had asked him for
"spoils of war", indicating the degree of involuntary contact
that the civilian population had with members of these groups because of
the internal violence.
As soon as the Police sent the report against Dr. Bautista to the
Provincial Prosecutor, the latter filed charges against him, initially
for the crime of obstructing justice.
This led to the preliminary investigation and the summons was
The Superior Prosecutor, however, ordered the Provincial
Prosecutor to add other charges, "dictated by law".
The Examining Judge had the indictment changed to add another
charge against Dr. Bautista: violating domestic tranquility-terrorism as
voluntary terrorist collaboration.
When the examining phase ended, both the Provincial Prosecutor
and the Examining Judge declared that Dr. Bautista was criminally
The Examining Judge argued that both Romulo Mori and Dr. Bautista
bore the same degree of criminal responsibility:
"Their participation was not confined to mere knowledge of
the crime; they actually helped save the life of the subversive.
It did not matter to either of them how and under what
circumstances the man was wounded..." (sic)
The `faceless' Superior Court also found that Dr. Bautista was
guilty of a criminal act and sentenced him to 20 years in prison.
Finally, after Dr. Bautista had spent over eleven months in the
Picsi Prison in Chiclayo, the faceless Tribunal of that court district
This case demonstrates how the Police, the Public Prosecutor's
Office and the Judiciary -at least in the examining phase- all failed to
draw any distinction between a purely medical act, where the medical
professional was threatened with his own death and the death of his
loved ones should he refuse treatment, from a criminal act wherein the
guilty party participates in terrorist acts.
Dr. Nixon Heredia Carreasa (age 36)
- Provincial Mayor of
Utcubamba, Department of Amazonas; the APRA candidate, he was elected to
two consecutive terms as that province's mayor.
- Director of the Bagua
Territorial Health Unit
- Director of the Support-IPSS
Hospital of Bagua Grande in Amazonas.
- Ran in the last elections
as a candidate for the Bagua Grande District Mayor's Office.
A subversive by the name of Segundo López Saboya, alias `Wenceslao',
was struck by a bullet during a clash between the Peruvian Army and the
MRTA in May 1992, in Cerro Azul in Amazonas.
Two other members of his organization went to his aid immediately
and took him to the village of El Ron, where he was treated on three
occasions - according to what he told Police - by Dr. Nixon Heredia.
In that same statement to the police, López Saboya said that
although Dr. Heredia had his face covered with a ski mask, López Saboya
identified him because as his comrades were leaving, "they called
him by name, i.e., Dr. Nixon." He added that he knew that Dr.
Heredia had treated other MRTA members at his office and that he
collaborated with the subversive group by giving it medicines.
On January 17, 1993, Dr. Heredia was arrested by Army soldiers as
he was treating patients at his private office.
The Army turned him over to the Police.
According to the Police, Dr. Heredia's arrest was solely based on
the confession of the subversive López Saboya.
In this case both the Provincial Prosecutor and the Examining
Judge felt that the evidence of Dr. Heredia's collaboration with the
subversive group was insufficient.
Dr. Heredia denied that he had consciously and voluntarily
collaborated with the MRTA or with any other subversive organization. He said that he was innocent of the charges against him and
that he had been in Lima between April 7 and May 19, 1992.
The Superior Prosecutor, however, did see criminal conduct on Dr.
Heredia's part and decided to indict him, seeking a sentence of 20 years
in prison. After being held
in the Picsi prison awaiting trial by a special tribunal of faceless
judges, Dr. Heredia was finally released.
3. Dr. Luis Polo Rivera
- Specialist in trauma,
Hospital Dos de Mayo, Lima
Dr. Polo Rivera was arrested because of a confession made by
terrorist Blas Ccori Bustamante, to the effect that the doctor had
operated on him --a leg amputation-- when Ccori Bustamante was wounded
after a terrorist attack.
Although DINCOTE investigated Dr. Polo Rivera, he was tried by a
special military tribunal on charges of treason.
Apparently, the only evidence of his guilt was the confession
made by Ccori Bustamante, who, in the pretrial phase, stated that he had
said Dr. Polo operated on him because he was trying to profit by the
Repentance Law. He
retracted his statement about Dr. Polo Rivera having operated on him.
Ccori never profited by the Repentance law and was also tried and
convicted; he, like Dr. Polo Rivera, is in the Yanamayo prison in Puno.
Dr. Polo Rivera was sentenced to life imprisonment by a Special
Military Tribunal (Superior Court Martial).
His attorney, however, filed a petition to have the ruling
overturned by a higher court and Dr. Rivera is hoping his conviction
will be overturned by the Supreme Council of Military Justice.
Dr. Alberto Figueroa Gutarra
Surgeon specializing in hand surgery (trauma specialist)
- Dr. Figueroa Gutarra did
graduate work in Belgium and at the time of his arrest was working in
the Tessa Clinic. He had a
private practice and worked for a State hospital as well.
Dr. Figueroa was arrested by DINCOTE in February 1993. The Police said that Dr. Figueroa was part of a network
providing medical treatment to the Sendero Luminoso. Among the evidence against him was a list of physicians (all
named by pseudonyms, except for Dr. Figueroa, who appears with his own
name). Most of those on the
list are listed as part of an organized medical support team for the Sendero
Luminoso (but Dr. Figueroa's name is listed as part of an
"unorganized" medical support team).
The Police obtained this document when it captured a group of Senderistas.
When Dr. Figueroa was arrested, he argued that he had been
threatened that if he refused to cooperate with the Sendero Luminoso,
he and his family (his wife and two daughters, who are now in Europe)
would be killed. He
therefore confessed to Police that between 1985 and 1987,
he had secretly performed three operations on members of the Sendero
Luminoso. To make
contact with Dr. Figueroa, the Senderistas kidnapped
him and took him blindfolded to the places where these operations were
When the police investigation was completed, Dr. Figueroa was the
only one of those arrested (at least five more physicians, nurses and
operating room aides had been arrested) who was not displayed publicly
in prison garb. The
Prosecutor of the 14th Special Provincial Prosecutor's Office for
Terrorism in the Lima Court District charged Dr. Figueroa with the crime
of terrorism, in the form of unlawful collaboration with terrorists.
At the end of the inquiry, the Prosecutor who charged Dr.
Figueroa concluded that he had collaborated under duress and was
therefore not criminally liable.
III. THE JUDICIARY AND
THE ENFORCEMENT OF THE ANTI-TERRORIST LAWS
One issue closely related to the anti-terrorist laws is that of
the reorganization of the judiciary.
In the Commission's opinion, the lack of an independent judiciary
is one of the main reasons for the decline in the enjoyment and exercise
of human rights in Peru. In
past reports, the Commission has underscored the fact that judges,
prosecutors and other officials of the judiciary were dismissed and new
officials appointed. In the Commission's opinion, this has exacerbated the dangers
created by the anti-terrorist laws.
Because the definitions of the offenses those laws create are so
vaguely worded and open to interpretation, judges can manipulate them
with a free hand, which is always dangerous in criminal law.
The Commission has received information indicating that many
officials in the judicial branch of government abuse their authority.
Officials with the executive branch of government sometimes
interfere in cases by making public statements about the guilt or
innocence of individuals arrested on charges of terrorism, as happened
in the case of journalist Danilo Quijano.
Up until April 5, 1992, there were special, public courts and
tribunals to investigate and try the crimes of terrorism. Those courts
and tribunals were part of the regular structure of the judiciary.
In May 1992, Decree Law 25474 changed penalties and the structure
of the court system. Punishments of at least 20 to 30 years'
imprisonment were established. The
sentence of life imprisonment was added to the Penal Code for
those convicted of leading or being members of the "death
proceedings are in two stages: the public inquiry conduced by the
criminal judge and the trial conducted by the so-called faceless judges.
The identity of the members of the Correctional Court and of the
Superior Prosecutor is kept secret.
Under Decree Law 25659, being a leader of a terrorist
organization or a member of death squads or participating in planting
car bombs and similar acts would be treason and therefore falls under
military jurisdiction. All judges at every stage of the process - the
examining judge, the judges on the Court Martial and those on the
Supreme Military Council - are faceless.
IV. THE CRIME OF TREASON
AND THE MILITARY COURTS
The Treason Law, Decree Law 25659, provides that individuals
accused of treason are to be tried by military judges.
By placing civilians under the jurisdiction of the military
courts, this law is patently contrary to the rights and guarantees
protected under articles 8 and 25 of the American Convention,
specifically the right to a hearing by a competent, independent and
impartial tribunal. The
military court is a special and purely functional court designed to
maintain discipline in the military and police and ought therefore to
apply exclusively to those forces.
The Commission believes that civilians tried in military courts
are being denied their right to be heard by an independent and impartial
judge, a right required under Article 8.1 of the Convention.
It is the job of the Armed Forces to combat the terrorists by
engaging the irregular armed groups militarily, as is their primary role
in the campaign against subversion.
The armed forces, however, overstep their natural role when they
prosecute civilians accused of belonging to subversive groups, as this
function is the proper purview of the judiciary.
Furthermore, there are some serious and legitimate doubts about
the impartiality of a military court in such cases, as the court would
be both judge and prosecutor. As
for the claim that the summary proceedings conducted by military
tribunals supposedly guarantee a swift, more reliable and effective
trial, the Commission believes that the solution is not to have military
courts try civilians, but rather, to increase the efficiency,
qualifications, probity and independence of civilian judges.
Being tried by a military court can sometimes mean spending
months in prison awaiting trial. In
other cases, the trials are conducted within so short a space of time
(some in just one day) that the defense attorney becomes a mere
spectator to the proceedings. The procedural irregularities reported to the Commission in
connection with trials by military courts are many: proceedings instituted on the basis of evidence obtained
under unlawful duress, obstruction of the attorneys' access to their
clients on trial and to the cases files, obviously late notifications,
The procedural deadlines are extremely short in the military
courts. Because of the
tight time frame, there may be virtually no investigation, meaning that
convictions will be based on the findings of police reports.
In cases where the charge is treason, military judges use the
same procedures as civilian judges use.
However, the pretrial and trial phases may be as much as two
thirds shorter in military courts and are heard by the same court, which
means that these two phases of the process can be completed in as little
as ten days, and the appeal to the Superior Military Court in five.
Decree Law 25708 further abbreviated the time frame for
proceedings in cases involving treason, since the military courts must
reach a verdict within ten consecutive days.
An appeal to the Supreme Court of Military Justice to have a
verdict overturned is allowed only when the individual has been
sentenced to 30 years of more; convictions cannot be overturned by the
As with trials in the regular courts, the identity of the judges,
prosecutors and other court officials who take part in the proceedings
is kept secret.
In the Commission's opinion, the Peruvian Government, out of a
legitimate desire to punish terrorist activities severely, has altered
the judicial structure of the State and in so doing has created a system
that can not be justified even in emergency situations.
It does not protect the innocent from possible abuses by agents
of the State, with the result that many people have been imprisoned
unjustly for long periods of time.
During the on-site visit, the Commission visited the Castro
Castro, Santa Monica, Lurigancho and Real Felipe prisons and Maranga
Juvenile Detention Center in Lima.
One delegation went to Puno to examine conditions at the Yanamayo
and San Sebastián prisons.
High-ranking Peruvian government officials told the Commission
that prior to June 5, 1992,
prisons were training camps for subversives and `sieves' from which
terrorists could easily escape.
In press communique 12/93, the Commission, recalling its
observations from at some of the prisons visited and after studying
information obtained from a variety of sources, declared the Government
of Peru's prison policy to be a positive one, which it ought to pursue
in order to overcome problems found at some of the prison facilities.
The Commission would like to point out that the reorganization of
the prison system is one of the most important Government measures to
improve the situation of individuals being held for terrorist
activities. As journalist Cecilia Valenzuela observes:
"at present the prisons are in order and each subversive has
his assigned place and is strictly guarded."
Notwithstanding the press communique mentioned above, the
Commission has also established that the prisons are housing not just
the guilty but dozens of innocent people as well.
During the on-site visit, the Commission spoke with President
Fujimori and expressed concern over what it regards as the different
(and discriminatory) treatment that prisoners in some Peruvian prison
facilities receive vis-a-vis prisoners in other facilities. For example,
in the Chorrillos Maximum Security Prison for Women, newspapers,
magazines, radios, etc., were not allowed.
On the other hand, at the Lurigancho prison for men inmates have
access to newspapers, magazines and other publications and are allowed
to listen to the radio.
The Commission told the President that it was disturbed by the
terrible hardships that the vast majority of the prisoners in Puno's
Yanamayo Prison have to endure, even though many have never been
In its conversation with the Chief Executive and the President of
the Democratic Constitutional Congress concerning the observance of the
American Convention and the obligations that the State undertook, and on
the possibility of reviewing the verdicts and sentences in trials that
were patently unjust, the Commission told President Fujimori that a
presidential pardon is one way to correct the mistakes and miscarriages
of justice committed.
Article 20 of Decree-Law 25745 provides that in the first year of
imprisonment the convict is to be kept in total isolation; the first
year is followed by forced labor. It
also creates the maximum security prisons.
The Commission is of the view that the practice of keeping
prisoners in continual isolation for the first year of imprisonment and
the restrictions on visiting privileges imposed by the anti-terrorist
laws (particularly Supreme Resolution 114-92-JUS) constitute cruel and
degrading punishment in violation of Article 5 paragraphs 1 and 2 of the
American Convention. Enforcement
of Decree Law 25475 and of Supreme Resolution 114-92-JUS violates
Article 5 paragraph 4 of the Convention in that inmates accused but not
yet convicted of terrorism are given the same treatment given those
already convicted of treason or terrorism.
Authorities of the National Penitentiary Institute (Instituto
Nacional Penitenciario - INPE) told the Commission that in May 1993,
the three rations that each received each day cost a total of one sol
and ten cents. While the
Commission is fully aware that the Peruvian State is experiencing
financial difficulties, it nevertheless believes that the per capita
amount expended for the rations of inmates in prison facilities is
insufficient. It urges the
Peruvian Government to allocate more funds so as to improve the inmates'
VI. THE RIGHT TO LIFE AND
THE DEATH PENALTY
The right to life
The Commission has received reports to the effect that during the
first eight months of 1993 and by comparison with the same periods in
the two previous years, there has been a decline in complaints on
violations of the right to life -particularly forced disappearances- and
of the right to humane treatment. A
recent report by the Pro Human Rights Association (Asociación Pro
Derechos Humanos - APRODEH) states that from July 1992 to July 1993 there
were 53 cases reported of persons detained and disappeared that were
alleged to be the work of agents of the Peruvian State.
While this is significantly less than the 222 cases denounced
between July 1991 and July 1992, the Commission considers that the
present figure of 53 disappeared is still high.
2. The death penalty
The Democratic Constitutional Congress of Peru decided to add to
the new Constitution in force since December 31, 1993, a provision that
amends the 1979 Constitution to add crimes of terrorism to those that
carry the death penalty:
Article 140 of the new Constitution provides that:
The death penalty may only be applied for the crime of treason in
case of foreign war and for the crime of terrorism, in accordance with
the laws and treaties to which Peru is party and by which it is bound.
The Commission is deeply disturbed by this addition to the
Peruvian Constitution. It
believes the new provision is directly contrary to Article 4 of the
American Convention on Human Rights, which states, inter alia,
- The death penalty shall
not be re-established in states that have abolished it.
- In no case shall capital
punishment be inflicted for political offenses or related common crimes.
- Capital punishment shall
not be imposed upon persons who, at the time the crime was committed,
were under 18 years of age or over 70 years of age; nor shall it be
applied to pregnant women.
The final clause of the new article states that the death penalty
shall be applied in accordance with "treaties to which Peru is
party and by which it is bound."
For the Commission, that clause cannot possibly be reconciled
with the terms of Article 4 of the American Convention on Human Rights.
Under Article 1 of the American Convention on Human Rights, Peru,
as a State Party, is obliged to respect the rights and freedoms
recognized therein and "to ensure to all persons subject to [its]
jurisdiction the free and full exercise of those rights and
Article 27 of the Convention, the right to life cannot be suspended
under any circumstances.
Under Article 29, no provision of the American Convention on
Human Rights can be interpreted as:
permitting any State Party, group, or person to suppress the
enjoyment or exercise of the rights and freedoms recognized in this
Convention or to restrict them to a greater extent than is provided for
In Advisory Opinion OC-4/84, of January 19, 1984, the
Inter-American Court of Human Rights stated that the interpretation must
be done in such a way that it does not in any way weaken the system, and
must always take into account that the object and purpose of the
Convention is to protect the person's fundamental rights (paragraph 24).
In Advisory Opinion OC-3/83, of September 3, 1983, the
Inter-American Court of Human Rights found that the Convention does
forbid extending the death penalty "to crimes for which it was not
provided previously under domestic law."
Obviously, now that terrorism is being criminalized, the purpose
of this amendment is to extend the death penalty to a crime for which it
was not provided in the 1979 Constitution.
This is a violation of Article 4 paragraphs 2 and 3 of the
Article 140 of Peru's new Constitution is also in violation of
Article 2 of the American Convention because it does not comply with the
obligation to adopt the measures necessary to give effect to the rights
and guarantees recognized in the Convention.
In Advisory Opinion OC-13/93, of July 16, 1993, the
Inter-American Court of Human Rights found that "There are many
ways a State can violate an international treaty.
In the specific case of the Convention, for example, the State
can violate it by failing to enact the laws that it is obliged to enact
under Article 2. Of course
it can also violate the Convention by enacting provisions that are
contrary to what its obligations under the Convention require of
it." (Paragraph 26)
The situation takes on even more serious implications when one
considers that in many cases involving crimes of terrorism and treason,
the court proceedings are conducted in such haste that there is room for
error that could lead to a gross miscarriage of justice in which an
innocent person is sentenced to death.
For the Inter-American Commission on Human Rights, there is no
premium that can be placed upon human life.
The death penalty is a grievous affront to human dignity and its
application constitutes cruel, inhuman and degrading treatment of the
individual sentenced to death.
It is understandable that in an emotional reaction to the
violence and terror now gripping the nation, the majority of the members
of the Democratic Constitutional Congress should find it reasonable to
enforce the death penalty in cases involving terrorism. However, the
Inter-American Commission would submit that its effect as a deterrent to
terrorism is highly debatable.
When the Democratic Constitutional Congress passed and the
President promulgated the new Constitution that extended the death
penalty to cases of terrorism, the Inter-American Commission on Human
Rights requested an advisory opinion of the Inter-American Court of
VII. THE RIGHT TO HUMANE
TREATMENT AND THE RIGHT TO PERSONAL LIBERTY
As stated in Section II of this report, the liberal authorities
that the anti-terrorist laws give to the Police, to the detriment of the
control exercised by the judiciary, coupled with the restrictions on the
right to defend oneself and the absence of such relief measures as habeas
corpus and amparo, not only violate fundamental rights
recognized in the American Convention on Human Rights, but have also
been the cause of numerous arbitrary arrests of individuals falsely
accused of being terrorists.
According to the Commission's information, as of the end of 1993,
over 5,000 people were being held in custody for crimes of terrorism.
More than 2,400 of these have been arrested since April 1992.
Most are still awaiting trial, although many have already been convicted
in summary proceedings.
As for the right to personal liberty, the Commission is of the
view that the case of the officers still being held in Real Felipe
prison should be reviewed and, if necessary, a new trial ordered.
The summary proceeding conducted against them for having mounted
a military movement in November 1992 did not respect the fundamental
guarantees of due process; moreover, according to information the
Commission has obtained, some of the convictions were based on
confessions made under torture. Where
this specific case is concerned, the Commission is particularly troubled
by the uneven treatment accorded to the officers allegedly involved and
convicted: some have been
pardoned, others released, while General Jaime Salinas Sedo and eight
other officers remain in prison.
The disappearance of nine students and one professor from the
Universidad La Cantuta on July 18, 1992 (Case 11045) and the proof that
the remains found at Cieneguilla in early July 1993 are those of the
individuals who disappeared from that university, have
again raised the issue of impunity vis-a-vis human rights
violations committed by the forces of law and order and armed forces in
Peru. Tanks and armed
military personnel took to the streets of Lima, frightening the
citizenry, when a committee of the Democratic Constitutional Congress
tried to further the investigation into the military allegedly involved
in the kidnapping and disappearance of Professor Hugo Muñóz and the
The Commander General of the Army stated that he "was not
going tolerate" that kind of insolence from Congressmen
"working in collusion with the enemy within."
The question of which jurisdiction is competent to try and punish
those responsible has often come up in the cases involving human rights
violations allegedly committed by members of the National Police and the
Armed Forces. The military
courts have always claimed the authority to try military and police
personnel arguing that the actions in question were committed in the
performance of their duties. As
a result, it is rare for the identity of those responsible to be
established and rarer still for military and police personnel whom the
military courts have identified as the guilty parties to actually be
An example is the case of Captain Telmo Hurtado, chief of the
military patrol responsible for slaughtering 69 peasant farmers in
Accomarca, Ayacucho, on August 14, 1985, who was sentenced by the
Supreme Council of Military Justice to six years in prison for the crime
of "abuse of authority".
There are two objectionable points here:
first, that he was charged with and convicted of "abuse of
authority" rather than homicide, based on the argument that the
crime of "homicide" per se was not contemplated in the Code of
Military Justice; second, that the sentence Captain Hurtado received was
in no way proportional to the crime.
Another example is that of Peruvian Army Lieutenant Javier Bendezú
Vargas, who stood trial for killing 15 peasants (among them 6 children)
in Santa Barbara, Huancavelica, on June 4, 1991.
The Military Court acknowledged the seriousness of the crime and
determined that the sentence should be calculated to set "an
example." And so, the
Military Tribunal sentenced Lieutenant Bendezú Vargas to ten years in
Nevertheless, the majority of human rights violations attributed
to police and military personnel go unpunished.
For example, the case of the 28 peasants killed in the community
of Cayara on May 14, 1988, was dismissed on the grounds that they had
died in an engagement. Nine
eye-witnesses to the massacre were subsequently killed and the
prosecutor in charge of the case, Carlos Escobar, was repeatedly
threatened and eventually had to leave Peru.
The Commission is greatly disturbed by the fact that a provision
has been included in Article 173 of the new Constitution approved by the
Democratic Constitutional Congress to the effect that "When members
of the Armed Forces and National Police commit crimes while on duty they
shall be tried by their own courts and according to the Military Code of
Justice. The provisions of
the latter shall not apply to civilians unless the crimes with which
they are charged are crimes of treason or terrorism, as defined by the
law ..." The fact that a provision of this nature has made its way
into the Constitution is, in the Commission's opinion, indicative of an
interest in continuing to cover for members of the armed forces and
police who commit abuses and human rights violations and to allow them
to go unpunished.
Apart from the recommendations made in the body of this report,
the Commission recommends to the Government of Peru:
That it adapt the anti-terrorist legislation to conform to the
principles and norms of the American Convention on Human Rights.
That, more specifically, crimes of treason and of terrorism and
other cases of human rights violations be tried by judges in the
judicial branch of government - even in those cases where the alleged
authors are members of the armed forces.
That it restores to the courts the authority to order prisoners
held incommunicado and their transfer, and that it guarantee all
prisoners their right to be assisted by an attorney from the time of
That defendants be permitted to question witnesses in order to
refute and take issue with the statements they make.
That laws be amended so as to permit judges to act with greater
independence, without having to abide strictly by police recommendations
on incriminating evidence, and that the utter lack of court control over
the police during the pretrial phase be thereby corrected.
That the law on loss of citizenship be repealed.
That the ban prohibiting attorneys from defending more than one
case at a time be lifted and that they be given sufficient time to
apprise themselves of the charges against their clients and to prepare
and present arguments in their clients' defense.
That given the number of people held in custody for long periods
without trial, conditional release be granted in at least some cases
where the crime alleged is terrorism.
That the crime of defending terrorism [apologia] should be
amended and more clearly defined.
As for the general prison conditions and treatment of those being
held, that cellular incarceration be eliminated and a less rigorous
visiting system adopted.
For a more detailed account of the reports on individual cases and
of the on-site visits the Commission made between 1988 and 1992, see
SITUATION OF HUMAN RIGHTS IN PERU: a summary as of April 5, 1992. (OEA/Ser.L/II.82, doc.13 rev., 21 September 1992).
The Peruvian State included the full text of the 1948
Universal Declaration of Human Rights in its 1979 Constitution and
has ratified the International Covenant on Civil and Political
Rights, the United Nations Convention against Torture and other
forms of cruel, inhuman or degrading punishment, and the American
Convention on Human Rights. The
American Convention is ranked as constitutional law under Article
105 of the Constitution, which was in force from 1979 to December
Among others, Decree Law 25475, April 6, 1992, on crimes of
terrorism and the procedures for their investigation, prosecution
and trial; 25499, May 16, 1992, on amendment of the concessions for
those who confess to their crimes; 25564, June 20, 1992, which
authorizes minors 15 years of age and older to be tried as adults if
they are the alleged authors of crimes classified as terrorism or
participated therein; 25643, July 25, 1992, which prohibits
unrestricted importation of ammonium nitrate and places those
accused of illegal possession of ammonium nitrate and of using
ammonium nitrate in the commission of terrorist attacks under the
jurisdiction of the military courts; 25659, August 13, 1992, which
classifies all of the following as treasonable offenses:
being the leader of a terrorist group, forming death squads,
participating in attacks wherein people are killed or providing or
storing explosives; 25660, August 13, 1992, to eliminate the statute
of limitations on bench warrants issued for the crimes of terrorism
and drug trafficking; 25708, September 2, 1992, on proceedings in
trials for treason; 25728, September 10, 1992, on convictions in
absentia in trials for crimes of terrorism and treason
(abrogated by law 26248); 25744, September 27, 1992, allowing
DINCOTE to request authorization to extend investigations into
crimes of treason by as much as 30 days; 25824, November 6, 1992, on
amendment of Article 137 of the Penal Code to make 30 days the
maximum period an individual can be held in custody in terrorism
cases; 25880, November 26, 1992, expanding the scope of Decree Law
25659 to make apologia for terrorism by teachers a
treasonable offense; 25916,
November 27, 1992, making it unlawful to give procedural and prison
concessions to inmates in prison for terrorism; Supreme Resolution
114-92-JUS, August 14, 1992, which approves the rules to govern
visits for terrorist prisoners; Supreme Decree 015-93-JUS, May 7,
1993, which approves the regulations governing the Repentance Law (ley
Concerning Mrs. Darnilda Pardavé de Daza, Mr. Miguel Fernando Ruiz-Conejo
(case 11,087), Professor María Elena Loayza Tamayo (case 11,154)
and others, during its visit the Special Committee asked Peruvian
government authorities to release these peoples, since it believed
that their arrest and prosecution was a serious miscarriage of
justice. The Chairman
and First Vice Chairman of the Commission subsequently reiterated
that request to the Peruvian authorities.
Mr. Ruiz-Conejo was released on January 7, 1994, after 14
months incarceration in the Yanamayo Prison in Puno, having been
accused of participating in subversive activities, a charge that was
The Court has held "That the `essential' judicial guarantees which are not
subject to suspension, include those judicial procedures, inherent
to representative democracy as a form of government (Art.29(c)),
provided for in the laws of the States Parties as suitable for
guaranteeing the full exercise of the rights referred to in Article
27(2) of the Convention and whose suppression or restriction entails
the lack of protection of such rights."
[Advisory Opinion OC-9/87 of October 6, 1987, paragraph
For example, at the Chorrillos Maximum Security Prison for Women,
some 343 women were reportedly being held as of September 27, 1993.
Of that figure, 270 were "charged" and only 73
convicted (15 of them to life imprisonment).
The Commission has in its possession a statement made by Mr. Santos
Robles Paredes on April 22, 1993, part of which reads as follows:
Every time the Colonel (José Miguel Borja Vera) went to
apprehend someone, they took me to the site of the arrest or to
forced me to make charges against people and paid me money and
provisions; they would get me drunk and have me sign a paper which
they pretended was my own release paper.
Some of the testimony given by Mr. Santos Gilberto Robles
Paredes, which was originally sent to Amnesty International, has
been reproduced in an article by journalist Christian Vallejo,
titled "From Innocent to Self-confessed Criminal", LA
REPUBLICA, August 29, 1993, pp. 22-23.
From candidates all over the world, Mrs. Cecilia Valenzuela was one
of three journalists selected to receive
the Prize for Bravery in Journalism that the International
Women's Media Foundation will award in New York in October 1993, in
consideration of her outstanding work in journalism, given the
dangerous circumstances under which she practices her profession.
See, for example, the statement made by Dr. Francisco Miro Quesada
in the Lima Bar Association on August
20, 1993, published in Diario La Republica, Saturday,
August 21, 1993, Local News Section, p. 13.