PERU

 

 

          I.        THE  GENERAL BACKGROUND

 

          1.       Peru continued, in 1997, to make positive progress in decreasing certain serious human rights violations, and is included in this section of the Annual Report, as it was last year, fundamentally by virtue of its continued imposition of a state of emergency in parts of peruvian territory. ^[1]   In view of the fact that the Peruvian Government has invited the Commission to carry out an on site visit to Peru during 1998, this report will deal with information which has been presented to the Commission, which the Commission will investigate during its on site visit. ^[2]   Therefore, in distinction from previous reports in this chapter, this report will not contain conclusions and recommendations.  On March 6, 1998, the Commission, pursuant to Article 63 h of its Regulations, sent a copy of the report to the Government of Peru requesting it to provide whatever observations it deemed convenient within the period of one month.  By Note dated April 6, 1998, the Government of Peru presented its "Observations and Commentaries" on the present report. ^[3]   This information was considered by the members of the Commission on April 7, 1998, when it approved the present report.

 

          2.       The National Human Rights Coordinating Committee (Coordinadora Nacional de Derechos Humanos), in its Report for 1997, states that for the first time in many years it has not registered one case of forced disappearance in Peru.  As regards extrajudicial executions, two cases were denounced during 1997, that of Fortunato Chipana Ccahuana on February 24, 1997 and Mariela Luz Barreto Riofano, on March 22, 1997, which is discussed in this report. ^[4]

 

          A.      Conditions of detention

 

          3.       One area of concern that the Commission will examine in its forthcoming visit to Peru is prison conditions, particularly those in maximum security prisons.

 

          4.       The Commission has received information that prison conditions, in general, are deplorable throughout Peru when compared with international standards in this area, and the Commission has been informed that they are particularly severe for persons incarcerated for "terrorism" or "treason against the fatherland."

 

          5.       The Commission has received information that the prisoners sentenced for "treason against the fatherland" spend 23 and a half hours a day locked in small cells of 3 meters by 3 meters.  Prisoners must endure temperatures as low as 10 degrees below zero; the prisoners' diet is reportedly deficient, and they are subjected to a strict disciplinary regime.  In spite of the fact that family members are expected to provide their relatives with food, the Commission has received complaints that prison officials impose arbitrary restrictions on the entry of this food.  For a family member in Lima to visit a prisoner in Yanamayo implies a substantial cost  in terms of time and money, and this is even more true if the prisoner is not a Peruvian national.  In connection with the seizure of the Japanese Ambassador's residence, the Peruvian Government imposed a ban on visits to  MRTA prisoners. ^[5]    Both consular officials as well as members of the International Committee of the Red Cross (ICRC) were prohibited, from December 17, 1996, the date of the assault, from visiting the approximately 4,000 persons accused or convicted of terrorism. ^[6]   On December 8, 1997, President Fujimori announced that the ICRC would be permitted to renew its visits to these prisoners.  On  January 12, 1998, a team of delegates, including a doctor, conducted a surprise visit to the women's prison of Santa Monica de Chorrillos, the women's prison.  From January through March 1998, the ICRC delegates visited 1,380 detainees (about 60 of them for the first time) in places of detention under the responsibility of the Ministry of Justice.  They also saw some 80 people (20 of them for the first time) held in facilities run by the Ministry of the Interior. ^[7]   

          6.       Mr. Jorge Santistevan, the Human Rights Ombudsman, issued a press communique on June 6, 1997, requesting the National Penitentiary Institute to reconsider its decision to reopen Challapalca prison, which at an altitude 4,600 meters above sea level is considered uninhabitable.  According to information received, two delegations of the National Human Rights Coordinating Committee attempted to visit this prison during 1997, the first time on July 2, 1997 and the second, on September 16, 1997; they were denied access each time.

 

          7.       The Inter-American Court of Human Rights, in its Judgment in the Loayza Tamayo case, found that the conditions under which Maria Elena Loayza had been held constituted cruel, inhuman and degrading treatment within the terms of Article 5.2 of the American Convention.  Similarly, the other allegations, such as "being held in incommunicado detention, being publicly exhibited in a prison uniform to the communications media, being held in isolation in a small cell without ventilation or natural light, being beaten and suffering other mistreatment such as having one's head held underwater, being intimidated  by threats and other violent acts, and having  visits restricted (...) constitute forms of cruel, inhuman and degrading treatment within the terms of Article 5.2 of the American Convention." ^[8]

 

          8.       In June 1997, the Peruvian State introduced new prison regulations for prisoners accused and convicted of terrorist crimes. ^[9]   The new regulations increased the number of visits--from monthly to weekly--by prisoner's families, including children.  A system of privileges was instituted by which the prisoners would be rewarded for good conduct.  The harshest aspect of the prison regime was maintained, however, in that prisoners convicted of terrorism were placed in incommunicado detention during their first year of incarceration.  However, access by prisoners to the patio increased from half an hour to one hour per day.  The Government of Peru affirms that in the Maximum Security Penal Establishment Yanamayo - Puno, "no case of tuberculosis or acute bronchial illness has been detected among the inmates, be they members of the MRTA terrorist group or any other inmate."

 

          B.       Torture

 

          9.       Another area of concern for the IACHR involves the numerous complaints concerning the practice of torture by State agents.  In Peru, torture is not defined and sanctioned by the Criminal Code.  The Commission, in its Annual Report for 1996, recommended that "the Peruvian State adopt legislative or other measures to eradicate the practice of torture and the practice of admitting evidence obtained under torture." ^[10]  

 

          10.     The Peruvian State informed the Commission that on February 21, 1998, Law Nº 26926 entered into force, which modifies several articles of the Criminal Code and incorporates Title XIV-A, which refers to crimes against humanity, including the crimes of Genocide (Art. 319º), Forced Disappearance (Art. 320º), and Torture (Arts. 321º and 322º).  In this context, regarding the Crime of Torture, Article 321º of the Criminal Code defines torture as an autonomous crime:

 

          The official or public servant, or any person who, with the consent or acquiescence of the former, inflicts serious pain or suffering upon others, whether physical or mental, even though no physical or psychic pain is caused, for the purpose of obtaining a confession or information from the victim or a third person, or for the purpose of punishing the victim for whatever act may have been committed or it is suspected has been committed, or for the purpose of intimidating or coercing the victim, will be sanctioned by a punishment of deprivation of liberty for not less than five, nor more than 10 years.  If the torture causes the death of the victim or produces serious injury and the state agent could have foreseen this result, the deprivation of liberty will be, respectively, not less than eight nor more than 20 years, nor less than six nor more than 12 years.

 

Article 322º of the Criminal Code states that "the physician or any other health professional who cooperates in the perpetration of the crime set forth in the previous article, will be punished with the same punishment as the perpetrators." ^[11]

 

          11.     Information presented to the United Nations Committee against Torture (CAT) pointed out that in the cities, torture is used by units of the Antiterrorist Police (DINCOTE).  In the countryside, according to this source, the armed forces, during a state of emergency, commit similar abuses:

 

          The fact of maintaining a State of Emergency in a fifth of the national territory in a quasi permanent manner without solving the problem of subversive violence indicates that the methods employed are not capable of resolving it and that denunciations of torture continue. ^[12]

 

          This source also pointed out that the use of torture has been extended to dealing with common crimes and delinquency.

 

          12.     The Commission received the case of Leonor La Rosa Bustamante, a 36 year old former army intelligence official ("Servicio de Inteligencia del Ejército" -SIE), who had denounced on peruvian television that she had been tortured and arbitrarily detained. ^[13]    In December 1996, the Peruvian press published information about the alleged existence of three plans which had been developed by the Peruvian Intelligence Service, for the purpose of attacking well known journalists and human rights defenders; Leonor La Rosa was accused by her colleagues of having leaked this information to the press. 

 

          13.     The Commission received information that on March 23, 1997, the body of another female SIE agent, Mariela Barreto, who was allegedly the former mistress of Capt. Martín Santiago Rivas, the reported head of the Colina Group, was found in plastic bags on a roadside north of Lima with her head and hands cut off, apparently to frustrate any attempt to identify her.  According to this source, she too had been accused of filtering information to the press about secret intelligence plans to intimidate journalists and members of the opposition.  To date no one has been charged with responsibility for her death. ^[14]

 

          II.       ATTACKS AGAINST FREEDOM OF EXPRESSION

 

          14.     One issue of particular importance to the IACHR is the scrupulous observance by OAS member states of freedom of expression.  In this regard, the Commission has received numerous complaints regarding attacks on freedom of expression and against representatives of opposition political parties.

 

          15.     The case of Baruch Ivcher, for example, which has received widespread press coverage in Peru, has been presented to the IACHR against the Peruvian State alleging that he had been deprived of his peruvian nationality and divested arbitrarily of his shares in Channel 2, allegedly as a reprisal for the editorial line of the television station of which he was the majority shareholder.  The Ivcher case is currently being processed by the IACHR under case No. 11.762.

 

          16.     The Commission received a report issued by the National Association of Peruvian Journalists (la Asociación Nacional de Periodistas del Perú -ANP), stating that there had been 89 attacks against the freedom of the press, the exercise of the profession of journalism and the free circulation of information in Peru during 1997. ^[15]   This report pointed out that the case of Baruch Ivcher had received the greatest amount of international attention, but important to note were also that the editor of the newspaper, La República, Blanca Rosales Valencia, had been kidnapped, and that there had been death threats against the journalist César Hildebrandt. ^[16]

 

          17.     The Commission has also received complaints from the major nongovernmental human rights organizations in Peru alleging that attacks against journalists and opposition politicians in Peru were attributable to army intelligence.  The Commission received a complaint which is currently being processed in which the petitioners allege that:  On March 19, unidentified gunmen kidnapped and beat up three persons in a jeep owned by a peruvian Congressman, Javier Diez Canseco, who is a prominent human rights defender.  Diez Canseco was not in the jeep, but Patricia Valdés, an Argentine citizen and human rights worker, and Diez Canseco's driver and bodyguard were.  The three were taken from the car and beaten.  The jeep was later found incinerated by the side of a road.

 

          18.     However, the Peruvian Government points out that: "there exist sufficient mechanisms to guarantee freedom of expression; such is the case of Law Nº 26773, which enables the parties to a judicial proceeding to make use of the communications media without any restriction and to refer to any of the parties and the subject matter of the litigation;  Law Nº 26775 provides that any person who considers himself adversely affected by the publication of any statements by the communications media has the right to rectification thereof, without charge, immediately and proportionally, without prejudice to responsibilities under law; and lastly, on March 30, 1998, Law Nº16937 was promulgated, which provides for the free exercise of the profession of journalism, establishing that the right recognized in paragraph 4) of Article 2º of the Peruvian Constitution, guarantees the full exercise of the free expression of thought, the same which can be freely exercised by all persons, without having to be a member of a journalists' association in order to practice the profession of journalism."

 

          III.      THE STATES OF EMERGENCY AND DUE PROCESS

 

          19.     Despite the general decrease in violence, in 1997 both the states of emergency and the anti-terrorist legislation have been maintained.  This legislation was described and analyzed at length in the Commission's Annual Report for 1993. 

 

          20.     The Peruvian State took an important step in not extending the "faceless" tribunals after October 15, 1997.  In its 1996 Annual Report, the Commission recommended that "the `faceless' courts be replaced by regular criminal courts that offer the accused the minimal guarantees of due process, including right to a defense.  As a result of the lapsing of the Decree Law that instituted "faceless" courts, those accused of the crime of "terrorism" will now be tried by regular judges in civilian courts with the guarantees of due process.  Although those accused of "treason," i.e. aggravated terrorism, also will no longer be tried in "faceless" military courts, they will continue, however, to be tried in military courts.

 

          21.     The Commission expresses its satisfaction that the institution of "faceless" courts has been abolished.  Nonetheless, the Commission remains concerned that those individuals who have been convicted by these courts for the crimes of "terrorism" and "treason" and are now serving sentences, some as long as life imprisonment, were not provided in a timely fashion with the minimum guarantees required by the norms of due process, set forth in Article 8 of the American Convention on Human Rights.

 

          22.     In addition, as regards military tribunals, the Commission pointed out, in its 1993 Annual Report, "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." ^[17]

 

          A.      Rule of Law

 

          23.     In its previous reports, the Commission has expressed its concerns over the events of April 1992, which profoundly affected the constitutional order and the rule of law in Peru.

 

          24.     On November 20, 1995, the Executive Commission of the Judiciary was created which was charged with the process of the Modernization and Reform of the Judiciary.  In this context, six years after the events of 1992, the situation of the judiciary is such that 84% of the judges still have "provisional" status, which means that they lack tenure and, thus can be removed from their positions.  The Commission, in its previous reports, has pointed out that this situation undermines the Judiciary's independence and impartiality.

 

          25.     The Commission continues to receive complaints concerning undue interference by the armed forces and the military judicial system in the decisions of the civilian judiciary.  Conflicts between military and civilian jurisdiction were resolved in 1997 in favor of the military courts.

 

          26.     In this regard, the Commission processed the case of Mr. Gustavo Cesti, which has been presented to the Inter-American Court as a contentious case. ^[18]   Mr. Cesti, a retired military officer working as a civilian for the military at the time of his detention, was tried and sentenced by a military court despite the granting of a habeas corpus, which ordered his liberation, by a civilian court.  The Commission requested the Court to adopt provisional measures on Mr. Cesti's behalf to honor the habeas corpus decision of the civilian court.  This case is now on the Court's docket.

 

          27.     In July 1997, another judge, Elva Greta Minaya Calle, was charged with terrorism and other crimes for having granted a habeas corpus writ in another case.  The Commission requested the Peruvian authorities to adopt precautionary measures on behalf of Judge Minaya Calle.  The Commission was advised that the terrorism charges against her were dropped.

 

          IV.      THE CONSTITUTIONAL COURT

 

          28.     In the light of the Commission's interest in the incorporation into domestic law of the human rights standards set forth in the American Convention, the Commission notes that the Peruvian Constitution of 1979 provided that international treaties were incorporated into domestic law, and that human rights treaties have the status of constitutional law and that the procedure applied to amending the Constitution applies to these treaties. ^[19]   The Peruvian Constitution of 1993, on the other hand, provides that international treaties are incorporated into domestic law, but that they no longer prevail over national law or have the status of constitutional law. ^[20]

 

          29.     The Commission expressed its special interest in the resumption of operations of the Constitutional Court in its Annual Report for 1996.  Articles 201 through 204 of the 1993 Constitution restored the Constitutional Court.  Its principal function is to serve as a court of constitutional review.  An autonomous and independent organ, it is made up of seven members who are elected for five-year terms by Congress, by vote of two-thirds of the legal number of its members.  The Constitutional Court reviews the constitutionality of laws issued by the legislative branch and executive actions, including decree laws, resolutions and rules, as well as decisions which deny Habeas Corpus, "Amparo," Habeas Data, and Actions for Compliance, involving fundamental human rights.  In its 1996 Annual Report, the Commission expressed its concern that by requiring a vote of six of its seven members to declare a law unconstitutional, the review power granted the Court was practically nullified. ^[21]

 

          30.     In May 1997, the majority in Congress dismissed three of the seven members of the Constitutional Court, which prompted the Court's President, Ricardo Nugent, to resign also. ^[22]   The background to their dismissals involve their decisions in the judicial review of legislation which would enable President Fujimori to be a candidate for a new presidential term.  By virtue of the dismissal of the three judges from the Constitutional Court, the Commission understands that this organ has remained without the necessary quorum to hear and decide matters involving the constitutionality of laws.

 

          31.     The Peruvian State, in its "Observations and Commentaries" dated April 6, 1998, added in this connection that: "... the present situation of the Constitutional Tribunal, with its current number of members, does not affect in its entirety the right to present an action for judicial review of the constitutionality of laws, as the President of this body has explained, the right to present a writ of this kind has not been limited.  Further, it has been pointed out that in conformity with Article 1994, paragraph 8 of the Peruvian Civil Code, the statute of limitations is tolled while it is impossible to present a claim regarding one's right before the peruvian court.  For this reason, as long as the Tribunal does not have its requisite number of members it is not possible for it to process and resolve actions dealing with constitutional challenges, thereby having suspended the statute of limitations for the presentation of these actions."  The State affirms that: "The Constitutional Tribunal continues examining and resolving matters within its competence, apart from those dealing with constitutionality."

 

          V.      IMPUNITY

 

          32.     The lack of sanctions for serious human rights violations was discussed at length in the Commission's 1996 Annual Report, in the section dealing with Amnesty Laws.  

          33.     In this context, the Commission has received information alleging that State agents continue to enjoy impunity for violations of human rights.  The Government of Peru has pointed out that Article 58 of the Code of Military Justice states that one can continue to pursue civil reparation in spite of the amnesty and pardon laws.  Consequently, a victim can pursue civilian damages against the authors of human rights violations.  This issue will be analyzed in depth during the Commission's forthcoming on site visit.

 

 

          VI.      THE OMBUDSMAN (DEFENDER OF THE PEOPLE) AND THE AD HOC COMMISSION

 

          34.     Peru's anti-terrorist legislation, discussed in the Commission's 1993 and 1996 Annual Reports, provides for summary trials devoid of the most fundamental guarantees of due process, and has resulted in the imprisonment of many innocent people.  The Ad Hoc Commission, which was created to review the cases of those persons who considered themselves innocent of the charges for which they were convicted by these tribunals, started to function in September 1996.  The Ad Hoc Commission's functions were interrupted during the crisis of the seizure of the Japanese Ambassador's residence.

 

          35.     Of a total penal population of 24,408 prisoners, some 3,515 are incarcerated for crimes of "terrorism" and "treason against the fatherland."  Of these 3,515, the Ad Hoc Commission has received 2,541 requests for pardon and clemency (derecho de gracia).  As of December 31, 1997, the Commission had reviewed 1,085 requests and had 1,004 pending; another 452 were "under study" ^[23] .  Although the mandate of the Commission was to expire, Congress, by means of Law No. 26895, renewed the Commission's mandate on December 12, 1997 for another six months, beginning on March 1, 1998, and now scheduled to expire in September 1998.

 

          36.     Of the more than 1,000 requests that the Ad Hoc Commission has reviewed to date, it has recommended to the President that he pardon 362 individuals whom it considered to be totally innocent of the charges against them.  The President granted pardons to 360 of them (316 indultos and 44 derechos de gracia).  It is reported that one of the two individuals whom President Fujimori refused to grant a pardon to is Alejandro Astorga Valdés, a chilean national, tried for treason against the fatherland.  His case, and the case of three other chileans, who have been sentenced to life imprisonment by a military "faceless" court, have been presented by the Commission to the Inter-American Court as a contentious case.

 

          37.     It should be noted in this connection that of the total 1,085 cases which were reviewed, 816 involved persons convicted of "terrorism," of which 342 cases were granted "pardon," and of the 318 persons convicted for the crime of "treason against the fatherland" only 18 were granted "mercy." ^[24]

 

          38.     In the Cantoral Benavides case which is currently before the Inter-American Court, Mr. Cantoral was one of the "innocents" pardoned this year by President Fujimori, and has been released from prison.  The Peruvian Government has pointed out that "the benefit  of pardon or mercy, has among its characteristics that of extinguishing the criminal proceedings, the sentence and its concomitant effects.  In this respect, the immediate consequence of the pardon is the annulment of any criminal and judicial record.  In particular, by means of a Resolution of January 12, 1998, the Executive Committee of the Judiciary, pursuant to Report Nº 535-JUS/DM of the Ministry of Justice, ordered the Presidents of the Superior Courts throughout the country to assume responsibility for the adoption of the pertinent measures so that the competent jurisdictional organs in their Judicial Districts strictly comply with the provisions of Article 69 of the Criminal Code, regarding the rehabilitation of one who has completed his sentence, or the security measure imposed, in those cases where the individual has benefitted from a granting of mercy or pardon." ^[25]  

 

          VII.     THE QUESTION OF COMPLIANCE OF THE PERUVIAN STATE WITH THE DECISIONS OF THE INTER-AMERICAN COMMISSION AND COURT OF HUMAN RIGHTS

 

          39.     The Inter-American Court of Human Rights, in the judgment handed down in the Neira Alegría case, which was discussed in the Commission's 1996 Annual Report, ordered the Peruvian State to pay compensation to the relatives of the three victims in the case of US $154,040.74.  As of the date of approval of this Report, the Peruvian State has still not complied with the Court's judgment and its non-compliance continues to pose a serious problem for the victims' relatives.  Regarding this case, the Peruvian Government informed that: "...to date the case is at the stage of the execution of judgment which provided for reparations.  The problem is the lack of knowledge of the whereabouts of some of the beneficiaries, a situation which the IACHR is not aware of, as it manifested in 1995, in writing, to the Inter-American Court."

 

          40.     In the Loayza Tamayo case, discussed above, the Court in its Judgment of September 17, 1997, ordered the Peruvian State to release Maria Elena Loayza "within a reasonable time."  The Peruvian State has requested an interpretation of judgment in this case, but the Minister of Justice stated that the Government of Peru accepts the jurisdiction of the Court and would comply with the judgment.  The Commission was informed that Maria Elena Loayza was released from prison within a month of this judgment, on October 16, 1997; nevertheless, the reparations stage of this case has yet to take place.

 

          41.     In the Castillo Páez case, the Court in its Judgment of November 10, 1997 found that the Peruvian State had violated Articles 7, 5,4 and 25 of the American Convention, to the detriment of Mr. Páez and stated that the State is obligated to make reparations for the consequences of these violations and to compensate the families of the victim and to indemnify the expenses which they have incurred in bringing suit both at the domestic and international level.  The reparations stage of this case is still pending.

 

          42.     The Commission will also be looking at the question of compliance with recommendations of the Commission's reports.