REPORT
of the National Coordinator for Human Rights
HUMAN RIGHTS SITUATION IN PERU
IN 1997
TABLE OF CONTENTS
1. General Analysis
2. Political violence. Activities of Subversive Groups
2.1. Tupac Amaru Revolutionary Movement (MRTA)
2.2. Shining Path.3. The Aftermath of War
3.1. Amnesty Law and Impunity
3.2. States of Emergency
3.3. Displaced Persons4. The State and Human Rights Violations
4.1. Democracy and Institutionality
4.2. The Right to Life
4.3. Right to Liberty and Humane Treatment
4.4. Judicial Guarantees, Judicial Protection, Right to Compensation.
4.5. Right to Privacy
4.6. Freedom of Thought and Expression
4.7. Political Rights
4.8. Equality under Law5. Economic, Social and Cultural Rights
5.1. Adoption of Measures to Achieve Respect and Protection for Economic, Social and Cultural Rights
5.2. The Right of Men and Women to the Enjoyment of all Economic, Social, and Cultural Rights
5.3. Rights Related to Work, Social Security, and Trade Unions
5.4. Right to Protection of the Family, Rights of Mothers Before and After Giving Birth, Rights of the Child
5.5. Right to an Adequate Standard of Living: Food, Clothing, Housing and the Continuing Improvement of Standards of Living
5.6. Right to Physical and Mental Health
5.7. Rights Related to Education
5.8. Concerns and Recommendations of the Committee on Economic, Social and Cultural Rights of the United Nations6. International Environment
6.1. Statements of Institutions that Form Part of the International and Regional Human Rights System and International NGOs
6.2. Failure to Comply with International Commitments Assumed
6.3. International Human Rights Instruments Awaiting Signing or Ratification7. Recommendations
Appendix 1: Statistics on Political Violence
Appendix 2: Obligatory Military Service and Forced Recruitment
Appendix 3: Organizations that Form Part of the National Coordinator for Human Rights
There is currently a high level of government authoritarianism in Peru. Basic democratic institutions are regularly interfered with by the executive branch of government. The Armed Forces have a notorious influence in the political life of the country. Since the arbitrary removal of three justices from the Constitutional Tribunal, constitutional control does not exist. The National Intelligence Service (SIN) has acquired a degree of power that is incompatible with democracy. The desire of the President to be reelected for the second time -- despite constitutional limitations to the contrary -- complicates an already delicate situation and perspectives for the future.
The first months of 1997 were marked by events related to the attack on the residence of the ambassador of Japan by the Tupac Amaru Revolutionary Movement (MRTA).(1) Diverse organizations expressed their solidarity with the hostages and asked for a peaceful solution. Nevertheless, the government decided to mount a military attack and, while it was able to free 71 hostages, the attack cost the lives of 17 individuals. The National Coordinator for Human Rights (CNDDHH) sustained at the time and continues to sustain that peaceful solutions and dialogue are always better than military solutions.
While political violence has diminished significantly in Peru, it has not yet disappeared. Areas of endemic violence have come into existence in some parts of the country.
Pacification continues to be a pending task. There are lingering after effects of the war that need to be dealt with. Among these is antiterrorism legislation that violates due process. In addition, it is urgent to set free all of the innocent persons that are still in jail. For this reason, it is very important that the Ad Hoc Pardon Commission (Comisión Ad Hoc de Indulto) continue its work. It is also necessary to provide compensation to those who receive pardons for the harm they have suffered. The situations of displaced persons and those who have outstanding warrants are two other problems that need to be resolved.
We give particular importance to the problem of impunity -- which in itself constitutes a violation of human rights -- in thousands of cases of forced disappearances, hundreds of extrajudicial executions, torture, and other abuses.
Torture continues to be the subject of particular concern as illustrated graphically by the case of Army Intelligence Service (SIE) agent Leonor La Rosa Bustamante who was tortured by SIE agents and is now a quadriplegic. Throughout the year, there have also been other cases of abuses, mistreatment and torture in various parts of the country which constitute evidence that the practice of torture is widespread. In addition, the political will to investigate these violations and to bring to justice those responsible does not exist. As a result, punishments have not been stipulated by law or are too mild and a series of mechanisms have been put into place to maintain impunity. The Peruvian government has not met its obligation to adopt measures to prevent and punish torture.
Prison conditions continue to be a constant concern. According to National Penitentiary Institute (INPE) statistics, there are 24,357 prisoners (22,423 men and 1,934 women) in Peruvian prisons. Sixty-eight percent have not yet been tried and 31.9% have been sentenced. Many are held in conditions that violate their basic rights to health and only about $.70 a day are spent on food for each prisoner. During the year, there were a number of prison rebellions resulting in fatalities in the Lurigancho Penitentiary. Also of concern, is the new "double punishment" prison of Challapalca built in a desolate area on the border of the departments of Tacna and Puno. A particularly worrisome case is the transfer of 37 adolescents from the Juvenile Center of Lima (formerly Maranga) to Quencoro Maximum Security Prison in Cusco. This transfer was arbitrary in that it violated national and international norms that regulate the situation of prisoners who are minors.
Freedom of the press in Peru is threatened and there have been numerous incidents during the year that have affected this freedom. Attacks and threats against journalists, the leaking of plans to silence the independent press (among them, the "Narval," "El Pino," and "Bermuda" plans of the National Intelligence Service), television ads produced for the ministries of Defense and the Interior dealing with the daily "La República" and the weekly magazine "Caretas," the communique issue by the Joint Command of the Armed Forces about Channel 2, and the sentence imposed on journalist Rubén William Zurita Vilela for the supposed illegal exercise of journalism are a few of many incidents. The most high profile case was that of Channel 2 television which was the object reprisals as a result of denunciations that it broadcast. The government went so far as to annul the citizenship of its owner.
The Judiciary and the Public Prosecutor's Office lack independence and autonomy and are administrated by executive commissions. This has created a delicate institutional situation that affects the system of protection of human rights and weakens democracy in Peru.
In the case of economic, social, and cultural rights, the CNDDHH together with diverse human rights and development NGOs presented an alternative report to the U.N. Committee on Economic, Social and Cultural Rights which, in its session of May 1997, analyzed the situation in Peru. This Committee issued a report expressing a series of concerns and made 14 recommendations to the Peruvian government. Chapter 5 below briefly discusses this issue.
2. POLITICAL VIOLENCE
ACTIVITIES OF SUBVERSIVE GROUPSPolitical violence has significantly diminished since the capture of the principal leader of the Shining Path, Abimael Guzmán Reynoso, in 1992, but it has not yet disappeared. One faction of this organization has reorganized and continues to carry out subversive activities. Areas of endemic violence have appeared in various parts of the country, especially in the Alto Huallaga (between the departments of Huánuco and San Martín), in the north of Ayacucho (in the Province of La Mar) and in the central jungle area (Department of Junín).
The first months of 1997 were marked by the dramatic and tension-filled hostage situation in the residence of the ambassador of Japan in Peru, Morihisa Aoki. The Tupac Amaru Revolutionary Movement held 72 hostages captive until April 22 when the military stormed the residence. During the hostage crisis, there was considerable discussion about whether political violence in Peru had really ended, about the role of the Armed Forces in preventing this types of actions, and about the measures necessary to achieve real peace.
In 1997, a total of 184 people lost their lives and 69 were injured as a result of political violence. Of those who died, 74 were civilians, 55 members of the Armed Forces, and 51 subversives.(2) Ninety-five people died in selective attacks, of which 84 were killed by the Shining Path, 9 by unidentified subversives and 2 by unidentified assailants. Seventy-two people were killed in armed confrontations and 28 were injured; 8 died in dynamite attacks and 28 were injured.
2.1. Tupac Amaru Revolutionary Movement (MRTA)
During the months of hostage crisis in the residence of the ambassador of Japan, attention was centered on the negotiations between the government - whose representative was the Minister of Education, Domingo Palermo - and the MRTA. A "Commission of Guarantors" was formed made up of: the ambassador of Canada to Peru, Anthony Vincent; the Bishop of Ayacucho, Juan Luis Cipriani; and the Head of the Delegation of the International Red Cross in Peru, Michel Minning. In addition, the special envoy of the Japanese government, Terusuke Terada, participated as an observer. The negotiations were always tense. Diverse social organizations, among them human rights organizations, organized public demonstrations to express their support for the hostages and to demand a peaceful solution to the crisis.
Finally, on April 22, elite commandos of the Armed Forces and the Peruvian National Police assaulted the residence of the ambassador of Japan and were able to rescue 71 hostages. One hostage died, Judge Carlos Giusti Acuña. In this operation, called "Chavín de Huantar," two members of the military, Army Lieutenant Raúl Jiménez and Army Commander Juan Valer Sandoval and the 14 members of the MRTA commando also died.
After these events, the National Coordinator for Human Rights issued a press release which read, in part:
"The National Coordinator for Human Rights shares the joy of Peruvian and foreign citizens who have been reunited with their families after 126 days of anguish and uncertainty generated by the deplorable captivity in which they were held by Néstor Cerpa Cartolini and the MRTA commando. But we cannot celebrate. The military operation that rescued 71 of the captives cost the lives of Carlos Giusti Acuña, an exemplary judge, of valiant Peruvian Army officers Juan Valer and Raúl Jiménez, and of the 14 members of the MRTA commando, causing mourning in Peruvian homes. The National Coordinator for Human Rights sustained and continues to sustain today, after this outcome, that a peaceful solution and dialogue are always better than the most perfect military solution. A nonviolent solution saves all lives and opens the possibility that arms will not always constitute the last word in Peru...."
For the rest of the year, the actions of the MRTA were limited to propaganda. On the other hand, although the right to burial belongs to all families, authorities did not give the families of most of the MRTA members the possibility to give their loved ones appropriate funerals. If in the cases of Cerpa Cartolini and Rolly Rojas, their families could be present at their funerals, the 12 remaining MRTA members were buried in clandestine cemeteries and without the presence of their relatives.
2.2. The Shining Path
If in the first months of the year, the hostage crisis in the residence of the ambassador of Japan concentrated public attention, during the rest of the year, it is the Shining Path that was the most active and that committed the largest number of violations of the fundamental rights of civilians and members of the Armed Forces. Of the 95 people who were killed in selective attacks during the year, 84 deaths were the responsibility of the Shining Path.
The Shining Path concentrated its activities in remote areas of the country such as the Alto Huallaga, the central jungle area, and in areas at high altitudes in provinces of Huanta and La Mar in Ayacucho.
It also should be kept in mind that during 1997, this organization continued its strategy of "demonstrating its presence through political and not military activities." Thus, propaganda and incursions for the purpose of proselytism have become its principal activities.(3)
On August 15, a column of Shining Path guerrillas reached a camp belonging to the Compañía General Geofísica (CGG), which had a contract with the ELF oil company, and forced 29 workers to stay there until the company gave the guerrillas food, clothing, medicine, and radio equipment. The place where the incursion took place is called Pichiquia and is located on the left bank of the Ene River, in the District of Río Tambo, Province of Satipo, Department of Junín. The workers were liberated after two days when the company gave the Shining Path members what they had asked for. The workers reported that the subversives had been planning to steal a helicopter belonging to the company.(4)
One of the biggest actions was carried out on October 1 when a column of 100 Shining Path guerrillas took the town of San Miguel, capital of the Province of La Mar. They attacked the police station -- leaving one police officer dead and three injured -- and carried out widespread looting.
In addition, in the month of October, information was received that in previous days the Shining Path had assassinated at least 12 peasant leaders, 5 of whom were members of peasant defense patrols (rondas) and the rest held different administrative responsibilities in the Department of Huánuco.(5)
An analysis of Shining Path activities over the year indicates that this group was the most active in the area of the Alto Huallaga (between the departments of Huánuco and San Martín).
3.1. Amnesty Law and Impunity
Since the promulgation of Laws Nos. 26479 and 26492 that granted total amnesty to the violators of human rights between 1980 and 1995, Peru has faced a serious situation of impunity. One of the direct effects of the legalization of impunity is that it has encouraged the perpetration of new human rights violations. The Working Group on Forced or Involuntary Disappearances of the United Nations warns that these laws foment "a climate of impunity that promotes new disappearances and other similar violations of human rights."(6)
National and international public opinion has criticized Amnesty Laws Nos. 26479 and 26492. Experts from the United Nations spoke out against them in August 1995 and the U.N. Commission on Human Rights issued recommendations to the Peruvian government in its 57th Session and reiterated them in its 58th Session. The government, however, has not acted on them.(7)
The Inter-American Commission on Human Rights, in its Annual Report for 1996 approved during the XXVII General Assembly of the Organization of American States held in Lima in June 1997 also recommended:
...to the Peruvian Government that it repeal the amnesty law (No 26.479) and the law of judicial interpretation (No 26.492) because they are incompatible with the American Convention and proceed to investigate, bring to trial and sanction the state agents accused of human rights violations, especially those violations that imply international crimes.(8)
Despite the international condemnation, these laws have been ratified by the Constitutional Tribunal. In its ruling of April 28, 1997, the tribunal declared "inadmissable" the suit claiming that Laws Nos. 26479 and 26492 were unconstitutional because "their purposes had been accomplished." The ruling of the Constitutional Tribunal ignored the provisions of international human rights law and reaffirmed the impossibility of using the Peruvian judicial system to achieve justice, truth, and compensation.
The victims of human rights violations have nowhere to turn. The government has not promulgated a law providing them with integral compensation, despite the explicit recommendation of the Inter-American Commission on Human Rights to remedy the unacceptable consequences of the amnesty laws, "among other things, establishing an efficient system to provide indemnization to the victims of human rights violations and adopting the measures necessary to assure that the authors of these violations do not continue in official positions."(9)
At the end of 1997, neither human rights violations from past years nor the recent ones had been dealt with fully, perpetuating and reinforcing a climate of legalized impunity. The fact that the Peruvian government ignored the ruling of the Inter-American Court of Human Rights regarding compensation in the case of Neira Alegría (El Frontón) that should have been obeyed in March 1997, reveals the evasive attitude of state authorities and their disinclination to protect citizens.
3.2. States of Emergency
States of emergency cover 15.9% of Peru's territory and 20.5% of its population lives in these zones, according to the Commission on Human Rights, COMISEDH.(10) The 4,548,476 people who live in these areas have their rights cut back. Nevertheless, in 1997 there has been an important reduction in the population living in emergency zones (at the end of 1996, 42.1% of the population of Peru lived under states of emergency that covered 18.5% of its territory).
In 1997, in the area of Lima and Callao, states of emergency were lifted in the Constitutional Province of Callao and in the Department of Lima and were maintained in other areas: on February 21, the government lifted the states of emergency in the Constitutional Province of Callao and almost all the provinces of the Department of Lima, except for 13 districts in the Province of Lima; on June 16, the state of emergency was lifted in the District of San Isidro, Province of Lima; and on December 16, the states of emergency were lifted in 4 additional districts of the Province of Lima: Carabayllo, El Agustino, Independencia y Lurigancho.
At the end of the year, states of emergency continued in 34 provinces and 11 departments: in the Department of Apurímac, the Province of Chincheros; in the Department of Ayacucho, the provinces of Huamanga, Cangallo and La Mar; in the Department of Cusco, the districts of Quimbiri and Pichari in the Province of La Convención; in the Department of Huancavelica, the provinces of Castrovirreyna, Huancavelica and Huaytará; in the Department of Huánuco, the provinces of Huánuco, Ambo, Huacaybamba, Huamalíes, Leoncio Prado, Marañón (except the District of Huacrachuco), Pachitea, Puerto Inca and Lauricocha; in the Department of Junín, the provinces of Chanchamayo and Satipo; in the Department of Lima, 8 districts in the Province of Lima (Ate-Vitarte, San Juan de Lurigancho, San Juan de Miraflores, San Luis, San Martín de Porres, Villa El Salvador, Villa María del Triunfo and Los Olivos); in the Department of Loreto, the District of Yurimaguas in the Province of Alto Amazonas; in the Department of Pasco, the Province of Oxapampa; in the Department of San Martín, all of its 10 provinces; in the Department of Ucayali, the provinces of Coronel Portillo and Padre Abad.(11)
It should be noted that in various of the areas that are under states of emergency, no serious subversive activities have been registered during the year, for example in: the Province of Coronel Portillo, in the Department of Ucayali, and the Province of Pachitea, in the Department of Huánuco, among others.
In some of the zones under states of emergency, civilian authorities are subordinate to Politico-Military Commands, creating a anomalous situation in which local institutions are limited as to what they can do and residents cannot be sure whether they are fully protected against violations of their fundamental rights. Peruvian legislation gives the Politico-Military Commands substantial powers, including putting them in charge of the socio-economic development of the zones for which they are responsible.
3.3. Displaced Persons(12)
According to recent statistics from the National Round Table on Displacement in Peru, it is estimated that there are 530,075 displaced persons in the country, mostly from rural areas, primarily the departments of Ayacucho, Huancavelica, Apurímac, and Junín. The case of the central jungle region presents a special situation due to the presence of ethnic minorities that have been strongly affected by the armed conflict. This is the case, for example, of the Ashaninkas who were subject to captivity or mass assassination or fled out of fear. There are approximately 15,000 displaced Ashaninkas.
The problem of internal displacement is now in the stage of resolution in the medium or long term (given the magnitude of the harm done), although in some areas such as the Department of Huánuco and the central jungle region, serious emergencies continue to arise as result of localized violence and people continue to be displaced.
The options that the displaced people chose include insertion into life of the places where they took refugee or return to their places of origins. The National Round Table on Displacement in Peru states that, according to their studies, only about 17% of the total number of displaced persons have returned to their homes.
The Peruvian Government recognized -- although with some delay -- the existence of the problem of displacement and of a population affected by violence. It is now giving this problem its attention though as long as there is no integral approach to this problem, the measures taken will be insufficient. Direct attention to the problem is provided by the Program for the Support of Repopulation (PAR) which is a decentralized institution that is part of the Ministry for the Promotion of the Woman and Human Development. The PAR only works with some segments of the displaced population -- those that have returned home and those that resisted the violence in their home areas -- ignoring more than the 80% of displaced persons: those who decided to stay in their zones of refuge.
The Law to Regulate and Restructure PAR has not solved the problems of helping the population that has decided to stay in the places where they had started new lives, those who need special help because of mental health problems or a sense of rootlessness, and those who have various types of legal problems. At the same time, despite the fact that PAR's regulations mandate the inclusion of gender issues, these issues need to be handled more successfully. There are some programs for women such as the credit program that is being implemented in Ayacucho but these are insufficient and/or isolated efforts since there are no plans for integral programs to support women which effectively incorporate gender perspectives. This is very serious when one considers that among the displaced, there are a great many widows, female heads of household, or women who are taking care of relatives by themselves.
The Program of Attention to Displaced Persons and Those Affected by Violence created by the Ombudsman's Office, with its main office in Ayacucho, is another institution that can establish more effective channels for dialogue with civil society, non-governmental organizations, and popular sector organizations, despite the fact that its mandate does not permit it to take dictate obligatory measures.
The actions taken thus far for the benefit of the displaced persons continue to be only partial. There continues to be a need for an integral proposal to deal with the problems of the population that has been affected by political violence. The proposal for a Law of Integral Attention prepared by the National Round Table on Displacement in Peru, organizations that work with displaced persons, and mayors from rural zones and submitted to the executive branch in 1996 was only partially taken into account by the government. It therefore continues to be necessary to pass laws that guarantee that there will be mechanisms that provide for prevention, protection and compensation for displaced persons.
An important factor that should be taken into account is the question of security since there continue to be violent incidents in the places to which displaced persons are returning despite the fact that analysts consider that the Shining Path will not regain the strength it had before. There have even been death threats against the president of the National Coordinator for Displaced Persons and Communities in Reconstruction (a national organization of displaced persons), Sr. Teófilo Orosco Tinco.
Another important issue are the implications of the extreme poverty of the Andean and native communities that have been the scene of armed conflict. Poverty programs need to give priority to the variable of political violence in their policies and plans. The high level of destruction of economic and social infrastructure in areas affected by political violence makes these areas different from those that did not suffer political violence.
In general, in 1997, there was a tendency on the part of the government to assume that the problem of displaced persons was now taken care of and to diminish its importance within PAR in order to give more attention to fighting poverty or to other issues in which the perspective of rights was absent.
One problem shared by many displaced persons -- the lack of identity documents -- led to the creation of the Program for Provisional Identity. The identity document it provides, despite the fact that it is free, has not reached as many people as hoped and, just as importantly, has not gained the recognition of other state agencies, military or judicial authorities. The document is also not accepted by private entities such as banks. Displaced persons thus suffer double discrimination as a result of a law that was supposed to protect those who did not have documents. This is evidence of the necessity to publicize this program more widely so that its benefits will become available to the majority of displaced persons and particularly to those living in the most remote rural areas. To reach this goal, it is necessary to open specific channels for participation by the civilian population and, particularly, to assure that peasant communities, local government, the churches, and NGOs participate in this effort.
4. THE STATE AND HUMAN RIGHTS VIOLATIONS
4.1. Democracy and Institutionality
The progressive weakening of democratic institutionality in Peru has continued with the on-going interference of the executive branch in the other branches of government and constant and serious violations of the constitution of 1993. The separation of powers established as a principle for the democratic organization of government(13) has been affected. The legislative branch has not fulfilled its role in assuring accountability and, in some cases, has responded to party interests in approving irregular measures such as the removal of three justices from the Constitutional Tribunal.
As far as the judicial branch is concerned, there have continued to be cases in which the executive branch has interfered in various levels of this branch of government, violating the constitutional mandate that establishes the independence of judges.(14) Due process has been affected by changes in the responsibilities of judges familiar with specific cases or by their rotation.(15) Executive Commissions established in both the Public Prosecutor's Office and the judicial branch have an excessive influence in jurisdictional functions through their activities in the areas of organization, administration, etc., infringing articles 158 and 144 of the Constitution of Peru.(16) This situation has been aggravated by the fact that there are still a large number of judges with provisional status. Law No. 26898 gave this judges the same attributions and faculties that permanent judges possess. Political or conjunctural criteria predominated over the principle of neutrality and equal access to due process and mechanisms for the defense of rights.
The Constitutional Tribunal was affected when three of its seven judges were dismissed for having approved a resolution that declared inapplicable a law permitting the re-election of the current president. The rule of law was altered by this dismissal because the Tribunal can no longer rule on the constitutionality of laws,(17) leaving open the possibility that the Congress and the Executive can approve laws that violate the constitution and that citizens will be left without protection against unconstitutional laws.
The interference of the executive branch was also evident in the electoral system. Law No. 26898 made it possible for judges with provisional status to vote for members of the National Electoral Board (JNE) and to Provincial Electoral Boards and be elected to them. There were also denunciations of the infiltration of National Intelligence Service (SIN) agents in the National Identity and Legal Status Registry (RENIEC). In regards to the process of verification of signatures for political parties and movements carried out by the National Office of Electoral Processes (ONPE), there have been complaints by some political groups questioning the transparency of the verification process. Another matter that caused concern was the Electoral Law approved in 1997 (Law No. 26859) which provides for a single national electoral district for congressional elections. This will make it difficult for the Congress to have national representativeness. This whole panorama undermined the confidence of citizens that the next elections will be honest.
A democratic state promotes mechanisms for political participation and should not limit them as has occurred with the referendum mechanism which now requires a previous legal measure by the Congress and with the high number of signatures (10% of the national electorate) now required for the registration of political parties.
The Armed Forces have a notorious influence on national public life and the military justice system interferes and does not respect the decisions of the judicial branch. The Supreme Council of Military Justice has sometimes taken over the functions of the civilian court system, defacto becoming a parallel jurisdiction in some very controversial cases.(18)
Given this situation of institutional instability, we believe that everyone, from modest citizens to important financial investors, feels a sense of insecurity vis à vis the judicial system.
One of the most important institutions for political participation is local government. Unfortunately, during 1997, the power and prerogatives of municipalities were cut back thus weakening them. Among the measures adopted was the General Law of Urban Habilitaciones(19) that transferred some of the prerogatives of municipalities to the Ministry of the Presidency. This institution which is part of the executive branch has grown disproportionately, concentrating a variety of government functions. It now receives almost 25% of the national budget. The Ministry of the Presidency is run in an authoritarian and centralized manner, something that affects the development of local governments and has created tensions between many Peruvian mayors and the executive branch.
One positive factor is the Ombudsman's Office (Defensoria del Pueblo), an institution which opened its offices in 1996. It has been defending civil and human rights and, in 1997, it took significant measures with regard to abuses of power and made diverse pronouncements and recommendations intended to solve problems in relation to the violations of a variety of rights. Nevertheless, a number of its recommendations have gone unheard. This was the case, for example, with the case of the dismissal of judges from the Constitutional Tribunal, the cancellation of the citizenship of Baruch Ivcher, the issue of forced recruitment and Obligatory Military Service, the transfer of minors to the Quencoro-Cusco Maximum Security Prison, and the inauguration of the Challapalca Penitentiary located in a desolate region on the border of the departments of Puno and Tacna.
4.2. The Right to Life
4.2.1. Detention-disappearances and extrajudicial executions
During 1997, these types of human rights violations continued to decrease. Nevertheless, other types of violations of the right to life were committed by security forces and the Peruvian government has the responsibility to investigate them.
There continue to be thousands of cases of forced disappearances and hundreds of cases of extrajudicial executions which have not been officially investigated and whose authors have not been punished. This in itself constitutes a violations of human rights.
- Extrajudicial executions
The National Coordinator for Human Rights has received two denunciations of extrajudicial executions which led us to continue to be concerned about this problem given the seriousness of the incidents.
- Fortunato Chipana Ccahuana
One of the cases of extrajudicial executions took place on February 24, at approximately 1:00am, when an Army patrol from Counter-Subversive Base No. 79 in Alto Comaina, arrived at Alto Nagazú (District of Villa Rica, Province of Oxapampa, Department of Pasco) and went to the house of Fortunato ChipanaCcahuana. The soldiers beat on the door and shouted for him to come out.(20) Mr. Chipana stuck his head out the window and was pulled out by the hair by the soldiers who dragged him for ten meters. It should be pointed out that this detention took place without the presence of a fiscal (prosecutor), in a totally arbitrary matter. Later, the soldiers shot him twice, killing him.
At the time, the Armed Forces led the public to believe that there had been an armed confrontation with the MRTA in Villa Rica and that "Comrade Arias" who was alleged to be Fortunato Chipana had died in the confrontation. This incident, according the military version, took place as part of a military operation carried out in the areas of Villa Rica and Alto Yurinaki and which had the purpose of disarticulating a MRTA column. It took place at the time that the MRTA was holding 72 hostages in the residence of the Japanese ambassador in Lima.
An investigation was begun in the Oxapampa Mixed Court of Army Sub-Lieutenant Antonio Quispe Yucra for the homicide of Fortunato Chipana Ccahuana and, at the same time, another investigation was opened in the Fifth Permanent Military Court of Huancayo, Second Judicial Zone of the Army. The Supreme Court of Justice ruled on December 12, 1997, that the investigation belonged to the military court.
- Mariela Luz Barreto Riofano
Army Intelligence Service (SIE) agent, Mariela Luz Barreto Riofano, was found murdered and cut to pieces at the end of March. She was the mother of two children, the first of which was the product of a romantic relationship with Army Major Santiago Martín Rivas, member of the paramilitary "Colina" group, who, in 1994, was sentenced to 20 years in prison for kidnapping, disappearing individuals, and aggravated homicide in the case of the "La Cantuta" massacre and later was freed as a result of the Amnesty Law of June 1995 (Law No. 26479).
On morning of Saturday, March 22, the victim left her home on the way the Military Hospital. Mariela Barreto never returned home and her family started to look for her the next day. They went to the Military Hospital where they were told that she had arrived and noted that her time of arrival was registered. On March 25, a national daily(21) reported that the body of a woman, approximately 25 years old, thin, with long straight hair and an aquiline nose, had been found cut to pieces. The body was found in two plastic bags on a farm in the Caserío of Punchauca, District of Carabayllo, north of Lima.
Barreto's body had its arms cut off at the shoulders. The head, hands, and feet had also been cut off. The body also showed various lesions around the neck, both sides of the abdomen, and one of the feet which indicated that she had been physically abused before she was killed. This was confirmed by the autopsy and an examination by a forensic anthropologist. The first report noted that there were bruises, ecchymosis, and cuts on various parts of the body (neck, abdomen, and arms). The second noted that there were "traumatic lesions" on the body.
According to information broadcast during the television news programs "Contrapunto" (Frecuencia Latina, Channel 2, Lima) and "Revista Dominical" (América Televisión, Channel 4, Lima) on Sunday, April 6, those responsible for the murder were allegedly members of the Army Intelligence Service. On April 8, the newspaper "La República" informed that Mariela Barreto had been a member of a special operations group commanded by Army Major Santiago Martín Rivas and that in January 1997, she, along with Leonor La Rosa, the Army Intelligence agent who was tortured, had been the object of an investigation for alleged disloyalty.
At the end of December, the crime continued under investigation by the Homicide Division under the supervision of Dr. Alberto Pajares of the Fourth Prosecutor's Office for Penal Matters of the Northern Cone (Lima).
- Detention-disappearances
During 1997, no denunciations were registered of forced disappearances. Nevertheless, the subject of forced disappearances made news when mass graves were found in the Department of Ancash. In the month of September, the news media reported that mass graves with skeletons had been found in various part of the Department of Ancash. Initially, the graves were found in two areas: in the Ulta ravine on the border between the provinces of Carhuaz and Asunción (whose capital is Chacas) and in Punta Chonta, in the Province of Ocros.
These discoveries led the families of people who had disappeared in the Department of Ancash to demand an exhaustive investigation. The Public Prosecutor's Office ordered the provincial prosecutors in Carhuaz and Ocros to carry out investigations. However, as of December, these had not yet been concluded. At the same time, in the Congress, the Human Rights Commission named an Investigative sub-commission, headed by congressman Anselmo Revilla (Cambio 90/Nueva Mayoría), which thus far has not reached any conclusions. In addition, the Ombudsman's Office also started its own investigation.
In the case of the remains found in the Ulta ravine, the National Institute of Culture, Ancash Branch, released a report that stated that this was "a pre-Columbian tomb that had been sacked."(22) Nevertheless, this report was issued when the local prosecutor's office had just began its pre-judicial investigation and the remains had been sent to the Institute for Legal Medicine in Lima for analysis and to determine their age.
In the case of the remains found in Punto Chonta, Province of Ocros, it was Deacon Idelfonso Espinoza Cano de Huaraz who informed the authorities and journalists about their existence. According to the information available, in the mid-1980s, this area was a regular route for Shining Path columns and there were frequent engagements with security forces. In addition, at this time denunciations of detentions-disappearances in the area began to be received.(23)
On September 26, a Peruvian National Police (PNP) team, in coordination with the provincial prosecutor of Recuay, took away the remains even though the investigations were later assigned to the provincial prosecutor of Ocros. Nevertheless, some of the remains that had been shown to the press days earlier had already disappeared from the area, among them, the skeleton of a head that showed bullet wounds. This head had been shown on the television program "Revista Dominical" on América Televisión (Channel 4).
Later, the press reported that another mass grave had been found in an abandoned mine in the area of Llipa, Province of Ocros. The investigation of this grave was also assigned to the provincial prosecutor of Ocros.
A delegation from the National Coordinator for Human Rights (CNDDHH) traveled to the area on September 30-October 1 and talked with local officials and with witnesses to the discoveries of the remains in order to collect information on these events.
It is important to keep in mind that in 1996, the denunciations of forced disappearances that were in the hands of the Special Prosecutors' Offices for Human Rights which were being deactivated were transferred to the Ombudsman's Office. When these were handed over by the Attorney General's Office to the Ombudsman's Office, there were 6,277 denunciations for forced disappearances, of which 4,424 were still under investigation. Since this is a pending matter of great importance, it is expected that the Ombudsman's Office will carry out an exhaustive investigation of these thousands of cases. With this objective in mind, the National Association of the Relatives of the Kidnapped, Detained, and Disappeared in Emergency Zones (ANFASEP) of Ayacucho, on September 8, 1997, presented a petition to the Ombudsman's Office asking it to intervene in the investigation of cases of forced disappearances that occurred primarily in the departments of Ayacucho, Apurímac y Huancavelica between 1983 and 1992. A list of the corresponding cases was attached: 715 in 1983, 457 in 1984, 316 in 1985, 107 in 1986, 22 in 1987, 236 in 1988, 77 in 1989, 124 in 1990, 19 in 1991 and 19 in 1992, for a total of 2,092 disappeared persons.
4.2.2. Other deaths at the hands of members of the security forces
During the year, there were a number of assassinations committed by members of the security forces. We summarize four cases that received considerable publicity below.
- Japanese students Takahiro Miyashita and Chiaki Ito
Two Japanese students from Waseda University in Japan were assassinated by soldiers from the Army Military Base in El Pijuayal (Department of Loreto). The motive was robbery.
At the beginning of the October, Japanese students Takahiro Miyashita, 23, and Chiaki Ito, 22, arrived to the city of Iquitos to begin their journey down the Amazon to the city of Manaos in Brazil. On October 17, while they were on their way down river they were stopped by a patrol from the Army Military Base in El Pijuayal. The head of the patrol, Sub-Officer Third Class, Milton Trigoso Rodríguez, apparently ordered his men to attack the Japanese students in order to rob and kill them. Fifteen other military men were involved in this ghastly crime. The case is currently under investigation in the civilian courts.
The Executive Commission of the Public Prosecutor's Office named Dr. Tony Washington García as the ad-hoc prosecutor to investigate this case.(24) On December 29, a penal process for the crime of murder and aggravated larcency of Chiaki Ito and Takashiro Miyashito was begun against Milton Trigoso Rodríguez (Army Sub-Officer SO3), Avelino Chávez Vidurrizaga (Army Sergeant), Denis Saboya Mangio, Wilmer Pacaya Cahuaza, Marcelino Pacaya Mozombite, Javier Guerra Ramírez, Wilson Tamani Coral, Joel Marichi Tapullima, Leandro Mori Pérez and Juan Sinuiri Amasifuen as authors of the crime, José Maricahua Yaicate, Julio Navarro Grandez, Segundo Arcentales Ruiz, Nicanor Palla Yaicate and Raúl Hemerith Murayavi as accomplices. Later, the judge issued a resolution (Resolution No. 4) to start an investigation of Sub-Officer Milton Trigoso Rodríguez for the crime of kidnapping and of the rest of those incriminated for aggravated larceny. The judicial investigation is in the Fourth Penal Court of Maynas.(25) There are five minors among those implicated. The investigations of their cases will be stopped and they will be placed at the disposition of the Family Court judge.
In addition, the General Headquarters of the Fifth Military Region gave dishonorable discharges to the soldiers charged with this crime.(26) Army Sub-Officer Milton Trigoso, who was a nursing technician, had his service contract cancelled.(27)
- Pedro Rafael Marino Núñez
Pedro Rafael Marino Núñez, 24, was the victim of torture by police officers who detained him and later held him under water until he drowned. On Friday, October 31, at 9:00am, Pedro Marino was near his home located in San Juan de Miraflores, Lima, with his friends José Antonio López Alvarado and Juan Carlos Martínez Morán. In these circumstances, a car approached and various persons got out and attacked Pedro Marino, hitting and kicking him. According to the information of relatives, these individuals did not identify themselves and acted violently, beating both Pedro Marino and his friends when they tried to defend him.
After they were all captured and handcuffed, they were taken to the office of the Division of Criminal Investigation-East (DIVINCRI-Este) located in the PNP Radio Patrol police station (La Victoria). Marino Nuñez was later taken by the same police officers to one of the beaches in the District of Ventanilla. According to the version of the police implicated in the case, Marina supposedly had confessed that he had hidden arms and explosives on the beach and this was the reason that the police officers, under the command of PNP Captain Jhonny Chang, decided to go there. According to the same version, after they arrived at the beach, the police officers started to dig in the place that Marino had indicated and it was at this point that Marino tried to escape, running toward the ocean. It should be kept in mind that Marino was handcuffed at the time.
The testimony of some of the police involved, especially PNP Captain Jaime Salazar, indicate that when they arrived at the Clinic of the Peruvian Institute of Social Security (IPSS) in Ventanilla, Marino Nuñez was supposedly still alive. Nevertheless, according to the version of the Clinic guard, the nurse, and the doctor in charge of the IPSS Clinic who was present at the time, the body of Marino arrived without any sign of life and, in addition, he had on only his underwear and the body was covered with earth and sand. At the same time, the Clinic guard declared that the people who brought in the body did not identify themselves as police officers and that when they were asked about the identity of the body they answered that this was fisherman who had drowned.
The autopsy showed various lesions and bruises, especially on the wrists, and the stomach of Marino Núñez contained water with sand. Marino Núñez had been held under water until he drowned by the police officers who detained him and took him to the beach in Ventanilla with the purpose of torturing him and getting him to incriminate himself.
In November, 1997, an investigation was begun of PNP Captains Johnny Chang Flores and Jaime Salazar Alayza and Sub-Officers Javier Sedano Senco, Javier Lamas Borga, Humberto Alfaro Rodríguez and Dora Cavero Gallegos, for the crimes of aggravated homicide and abuse of authority as well as "a crime against the administration of justice." All of the police officers, with the exception of Dora Cavero Gallegos, are detained in Callao Prison. The case is currently in the stage of judicial investigation in the 28th Penal Court of Lima.
- Ricardo Solano Asto
Almost at the end of the year, there was another case of torture that led to death. On December 27, between 10:30 and 11:00pm, Ricardo Solano Asto was detained by police officers from the Chaupimarca Police Station in the city of Cerro de Pasco, in the Department of Pasco, under the command of PNP Captain Wilber Chirinos Tellez, and accused of the crime of rape. When he was taken to the police station, he was put in the so-called "meditation room" in which he was physically attacked. As a result, according to the autopsy, his testicles were very swollen. He died of septicemia as result of peritonitis and perforation of the small intestine. Ricardo Solano was taken from the police station to Daniel Alcides Carrión Hospital after he died. An investigation was begun in the Mixed Provincial Prosecutor's Office in Pasco.
4.2.3. Death penalty
The debate about the death penalty reappeared in Peru as a result of a number of cases of rape that lead to the death of minors. The natural emotional reaction of the relatives and neighbors of the victims led some congresspersons to propose modifying the death penalty legislation to include these cases. These proposals led to nothing and the article of the Peruvian constitution that establishes the death penalty for the crime of treason in the case of war and terrorism (Article 140 of the constitution of 1993) was not modified. In November 1994, a legislative proposal to eliminate the death penalty which was signed by 45,000 people was presented to the Congress but thus far the Congress has not acted on it.
4.3. Right to Liberty and Humane Treatment
4.3.1. Illegal or arbitrary detentions
Over and over again, human rights organizations have stated that the application of the special legislation on terrorism and treason has led to arbitrary detentions. There have been a great many such detentions and we will mention only a few representative cases.
On May 17, five peasants from the Huaura-Sayán Valley (Jesús García Olórtegui, Toribio Sais Teodoro, Juimi Martínez Gonzales, Hugo Medina Pacheco and Robert Hidalgo Roca) were detained and charged with the crime of terrorism. They were detained after only one person implicated them after being mistreated. They were tortured while being held.
In another case, on January 4, 1997, Denis Taminchi Saavedra arrived at the offices of the Peruvian Social Security Institute in Pucallpa in order to find out about a possible job. In these circumstances, the body guard of the chief administrator accused him of having stolen a video camera and took him to the guardhouse. At approximately 11:30am a four wheel drive vehicle arrived with three individuals dressed in civilian clothing. These individuals told Taminchi Saavedra to get into the vehicle and took him to an undisclosed location. On the way, they beat him and asked him about the camera. Later, they forced him to keep his head down and took him to the Navy Base in Pucallpa. There, they had him get out of the vehicle and, while he got a glimpse of two Navy men, took him to a cell. After an hour and a half, they let him go telling him that he had not been mistreated and that he should not make a denunciation. On April 15, 1997, the First Provincial Mixed Prosecutor's Office in Coronel Portillo issued a penal denunciation against Alonso Delgado Castillo and Luis Quiroz Echevarría for the crime of "functional jurisdiction" (taking justice into their own hands).
As result of the large number of cases it has received, the Working Group on Arbitrary Detention of the United Nationshas programmed a visit to Peru during January 1998.
4.3.2. Abuses and torture
During the year, the issue of torture received considerable publicity due to the case of Leonor La Rosa Bustamante, an agent of the Army Intelligence Service (SIE), who was tortured by SIE agents and left a quadriplegic. There also have been many other cases of abuses, mistreatment, and torture in various parts of the country which indicate that this is a generalized practice. In addition, it is clear that the political will does not exist to investigate these cases and to punish those responsible. For this reason sanctions have not been established or they are too mild and a series of mechanisms to maintain impunity in such cases have been created. The Peruvian government has not met its obligation to adopt measures to prevent and sanction torture.(28) All this indicates that abuse, mistreatment, and torture are institutionalized practices.(29)
Torture was not expressly regulated as a crime until December, despite the numerous proposed laws on the subject. In December, the Justice Commission of the Congress presented a proposal for a law dealing with this issue which remained pending for discussion in the plenum of the Congress.(30) For this reason, those that have incurred in these practices, in the few cases that have gone to court, were accused of producing lesions or of abuse of authority and received mild sentences or had to pay civil compensations which were very small in comparison to the damage caused. This led members of the security forces to continue employing torture as a method of interrogating detainees.
- Leonor La Rosa Bustamante
Army Intelligence agent Leonor La Rosa Bustamante was tortured in January and February 1997 in the basements of the Army Intelligence Service (SIE) located in the building of the General Headquarters of the Army. She was accused of providing information to the media about plans to threaten the press and the opposition.
After her case was made public, a military tribunal condemned 4 Army officers to 8 years in jail and compensation of 5,000 soles (about US $1,900). These officers are Colonel Carlos Sánchez Noriega, Lieutenant Colonel José Salinas Zuzunaga, and Army majors Percy Salcedo Sandoval and Ricardo Anderson Kohatsu. Leonor La Rosa is now a quadriplegic and has a cervical infart. According to specialists, after long treatment, she will only recover 50% of her previous mobility. The sentence that the officers received was modified by the Court of Revisions of the Supreme Council of Military Justice through a ruling on November 24 (the victim's lawyer was notified a month later) absolving Colonel Carlos Sánchez Noriega and Major Richard Anderson Kohatsu and confirming the sentence of 8 years for the rest of the officers charged. What is most unfortunate is that this ruling leaves pending the indictment of Leonor La Rosa for allegedly divulging official secretsand for disobedience until she recovers.
After various months in the Military Hospital, La Rosa finally was able to get a transfer to a private clinic after pressure from her family, her lawyer, congresspersons, and human rights organizations. When she was in the clinic, the Minister of Women and Human Development went to visit her and offered her help for her rehabilitation. On August 27, 1997, Supreme Resolution 069-97-PROMUDEH was promulgated authorizing neurological physical therapy for the rehabilitation of Leonor La Rosa. She will receive this treatment and rehabilitation in the National Institute of Orthopedics in Mexico for five months. The Resolution also granted $18,900 to cover the costs of the trip and the treatment. Nevertheless, at the end of December, La Rosa had not yet received this money.
Leonor La Rosa made another grave accusation: that those accused of terrorism are tortured in the basements of the SIE.
- Saúl Robinson Tello Muñoz
Other cases of torture were denounced in various parts of the country. In the evening of March 12, 1997, Saúl Robinson Tello Muñoz was intercepted near his home in Jr. Ramón Castilla Mz. 159, lote 8, Yarinacocha, Province of Coronel Portillo, Department of Ucayali, by PNP Sub-Officer Watson Grandez Paredes who without any motive, attacked him physically, detained him, and took him to his house. According to the victim, he was accused of stealing a television set.
There were various people in the house, among them a woman who accused Tello Muñoz of the robbery. Later, the Sub-Officer tied his arms and neck with a rope, pulled him by it and dragged him again along the street and into a "mototaxi" which took them to the police station in Yarinacocha where Tello Muñoz continued to be tortured physically and psychologically. The police officer who had him tied by a rope around the neck, pulled the rope several times trying to strangle him. Signs of the mistreatment he received are evident on the body of Tello Muñoz.
On May 6, the provincial prosecutor from the First Mixed Provincial Prosecutor's Office of Coronel Portillo formulated a penal accusation against Watson Grandez Paredes for the crime of abuse of authority and attempted aggravated homicide of Saúl Robinson Tello Muñoz. The investigation is underway in the First Penal Court of Coronel Portillo, file No. 225-97.
- Eva Dinora Rodríguez Paredes
On November 10, at approximately 2:30pm, four men arrived at the restaurant of Eva Dinora Rodríguez Paredes at 160 Avenida 10 de Julio, Huamachuco, Province of Sánchez Carrión, Department of La Libertad, and asked to be served food. Ten minutes later, two uniformed police officers entered violently, kicking the doors and the furniture. Each had an AKM. Hearing the noise, Eva Dinora Rodríguez, came out and saw that the police officers were beating the four customers and dragging them into the street. She immediately went up to one of the police officers and told him that the customers should pay for their food before they were taken away. For no other reason than this question, PNP Technical Sub-Officer Nelson Alfonso Cotrina Jave hit Eva Dinora in the head with the butt of his AKM. As a result, she fell to the floor in a semiconscious state and started to bleed profusely. As she lay on the ground, the police officer began to kick her in different parts of her body and, finally, threatened to kill her. Legal Medical Report No. 597 concludes that she had: "multiple contusions, 7cm circular profound contusion in the left parieto-occipital region." She required hospitalization and rest for 30 x 30 days.
On December 4, the Human Rights Committee of Sánchez Carrión, Huamachuco, presented a denunciation to the Mixed Prosecutor's Office of Sánchez Carrión. At the end of December, the investigation was still underway. Nevertheless, the police officer involved in this case continued to work in the city of Huamachuco.
- Rosendo Linares Chávez
Between 1:30 and 2:00am, on December 6, Rosendo Linares Chávez was at a party organized by the police in the city of Huamachuco. There was a scuffle at the party and Rosendo Linares -- a well-known local merchant -- was taken away by PNP Sub-Officer, Second Class Effio Vásquez Barboza. Outside there were two more police officers, PNP Second Lieutenant Armando Benito Rodríguez Sánchez and PNP Lieutenant Carlos Enrique Quiroz Merino.
The three police officers supposedly were to take Rosendo Linares to his home. However, in nearby Sucre Plaza, they hit and kicked him. They forced him to open his store which fronted on the plaza and when he could not find his key, they continued to mistreat him. They decided to take him to the police station and when he resisted, they hit him with a baton and dragged him across the ground. In the police station, they had him sit on a bench and hit him with a blunt object on the head, causing him to faint. They also took away his valuables including jewelry and money. Later, they took out of the police station in a semiconscious state and left him in front of the door of his store.
The Medical Certificate issued on December 10 by Dr. Juana Meri Rodríguez Marino from Leoncio Prado Hospital found: "deviation of the bridge of the nose, multiple contusions II with a deformation of the bridge of the nose." She also states that he requires treatment and rest for 12 days for each condition (12 x 12). At the end of December, an official investigation was initiated.
- Situation of persons detained for terrorism
In the case of persons detained and accused of terrorism, the practice of torture is generalized. The results of a survey administered by the Instituto de Defensa Legal (Legal Defense Institute - IDL)(31) to 1,250 prisoners in high security prisons revealed that 77% had suffered some type of mistreatment or torture during the police investigation and 87% said that a prosecutor (fiscal) was not present during their detention.
-The Alto Yurinaki Incidents
The practice of torture is more serious in the emergency zones. In the village of Alto Yurinaki, Province of La Merced, Department of Junín, 38 residents were detained by the Army between February 24 and March 11 and taken to the Pichanaki Military Base. The victims, among them, eight minors, were beaten, strung up, had their heads forced underwater, and were tortured by the application of electricity. They were accused of being members of the "Juan Santos Atahualpa" column of the MRTA. During this action called "Operation Victory" which was put into action to diminish the impact of the MRTA's hostage-taking in the residence of the Japanese ambassador in Lima, Fortunato Chipana Ccahuana was also killed.(32)
On February 24, Aurelio Leiva Barboza was detained while he was returning from Alto Yurinaki to Villa Rica where he lived and ran a small business. He was taken to the Pichanaki Military Base where he was tortured as soon as he arrived. It was only when he was later taken to the police station in Pichanaki that he found out that he had been implicated by an arrepentido,(33) Edwin Vásquez Entrega. The same man also implicated other innocent people in Alto Yurinaki and nearby peasant communities.
Starting on February 28, Army patrols from Pichanaki under the command of Captain "Atila," a deputy of Army Major Juan Loayza Miranda from the Pichanaki Military Base who was also involved in serious abuses, carried out raids in various peasant communities and smaller localities in La Merced. On Saturday, March 1, the "Atila" patrol detained merchant Arturo Villaizán Contreras when he was waiting for a vehicle to take him to the town of Villa Rica. Later, this patrol went to various other localities -- principal among them, Alto Yurinaki -- and detained another 36 peasants including men, women, and minors.(34) Some of those detained were taken to the Pachacútec 31 Military Base in Pichanaki, where, under physical and psychological torture, sexual aggression, verbal threats, and degrading treatment, they were forced to confess to crimes and actions that they never committed. A smaller group "accompanied" the soldiers on long patrols to find a "war arsenal" which, according to the soldiers, they had hidden. On the way, they were subjected to torture and mistreatment.(35)
Because of the dramatic nature of these events, a delegation from the National Coordinator for Human Rights visited the area on April 1-4. Finally, the 38 people that had been detained were freed during a prosecutor's investigation because no proof whatsoever was found of their guilt. Nevertheless, no measures were taken against the members of the military who committed the abuses and arbitrary actions described above.
- William Teodorico Olivera Espinoza
William Teodorico Olivera Espinoza, a resident of the locality of Nuevo Horizonte, District of Pólvora, Province of Tocache, Department of San Martín, was the Lieutenant Governor of his locality until November 10, 1997, when he resigned. In September 1997, he received a grenade from another resident, Teófila Caballero, who had found it in her field while she was working. In the same month, an Army patrol entered Nuevo Horizonte and went to the house of William Olivera Espinoza because he was the Lieutenant Governor and, when they did not find him, they entered his house and searched it, finding the grenade.
On September 23, he went to the Tocache Military Base to explain how he came to have the grenade and was detained. During six days, he was tortured (his head was forced underwater, he was beaten on the soles of his feet, etc.) and was forced to sign a confession stating that he was a member of the Shining Path. He was not turned over to the police until October 3. The police investigation concluded that William Olivera Espinoza was not a Shining Path member and did not have links with this organization and only an affidavit was prepared for illegal possession of arms. The Legal Medical Certificate states that Olivera Espinoza was diagnosed as having a contusion on the soles of his feet.(36)
On November 7, the Mixed Court of the First Instance of Tocache gave him provisional liberty. When the military found out about this, they once again went to the house of William Olivera on November 24 and once more accused him of being a terrorist and of having participated in an ambush against military personnel on November 23. As a result of these abuses, William Olivera petitioned the Sub-Prefecture of Tocache for Personal Guarantees. On December 6, he was once again detained in Puerto Pizana and accused of trying to buy munitions from a sub-officer from this military base. During his detention, he was once again tortured to try to get him to confess to being a terrorist and only after ten days of detention was he turned over to the police. The police investigation concluded that there was no evidence of his being responsible of the crime of which he was accused(37) and consequently, the Mixed Provincial Prosecutor's Office of Tocache ordered that he be freed.
- Nancy Patruska Del Campo Cáceres
Sexual violence against detained women is often part of the practice of torture. A survey carried out by the Instituto de Defensa Legal indicates that of 165 women accused of terrorism and who claim that they are innocent, 118 say that they have been tortured (71.5%). Of these 118 victims, 15.4% say they were raped by members of the security forces.(38)
Nancy Patruska Del Campo Cáceres, 23, was detained on May 7, 1997, by police officers from the National Command Against Terrorism (DINCOTE) of the Peruvian National Police in Lima and was raped by several of her captors. During her detention, she was held incommunicado and was never permitted visits from her relatives. Only a police sub-officer has been denounced in the courts. What is truly unfortunate, is that the investigation for rape that was begun in the 28th Penal Court in Lima was archived in December.
4.3.3. The innocent, Ad Hoc Pardon Commission
As a result of the existence of the problem of innocent individuals unjustly accused of terrorism(39) and the pressure exerted by national and international human rights organizations, in 1996, the Peruvian government promulgated a law that created the Ad Hoc Pardon Commission. It was given the responsibility of evaluating cases and proposing pardons for those who had been unjustly condemned for the crimes of terrorism or treason or presidential pardon (derecho de gracia) for those who had not yet been sentenced to the President. Although pardoning someone who has not committed a crime is not a correct judicial remedy, this mechanism has permitted innocent individuals to gain their liberty. Human rights organizations had proposed that an extraordinary mechanism be established to review sentences on the basis of judicial error.
From May 1992 when the current antiterrorism legislation was established until December 1997, Peruvian human rights organizations have taken on the legal defense of 1,582 individuals accused of terrorism or treason. Of these, 981 have been freed, either as a result of a judicial decision or through the efforts of the Ad Hoc Commission. There are still 572 individuals detained (359 who have not been sentenced and 213 with sentences) and 29 who have not been captured.
As of December 1997, 360 people have been freed through the efforts of the Ad Hoc Commission, of which 316 received pardons and 44 received presidential pardons (derecho de gracia).(40) Of these, 342 were tried in civilian courts and 18 in military courts. In addition, there was one case in which a pardon was given on humanitarian grounds. There are still a large number of individuals whose cases have to be dealt with. According to the statistics from the Ad Hoc Commission, as of December 31, 1997, they had received 2,541 petitions of which 452 (18%) were under review, 1,004 (40%) were pending, and 1,085 (42%) were resolved.(41)
The people who have benefited from pardons or presidential pardons (derecho de gracia) face a series of difficulties and for this reason it is necessary to pass a complementary law.(42) For example, it is necessary to eliminate all criminal records, be they penal or judicial, to exonerate those who were sentenced from having to pay civil fines, and to close the investigations that are still underway. In addition, these individuals need to receive just compensation for the economic and moral damage they suffered. In December, the National Coordinator for Human Rights presented a proposal for a law to deal with these issues to the Congress.
4.3.4. Individuals with outstanding arrest warrants
Another worrisome situation is the existence of many individuals with outstanding arrest warrants, among them many Andean peasants and lowland indigenous people. In some cases, these are people who were forced to help subversive groups and then had cases brought against them despite the fact that their actions had been involuntary. There are also cases of individuals who were implicated by false information provided by arrepentidos (see Footnote 33) or by people that were unjustly accused by security forces. These individuals had detention orders issued for them despite the fact that they had no links whatsoever with subversive groups and sometimes had even received threats from these groups.
During the period of political violence, subversive groups subordinated diverse peasant and indigenous communities to their political and military power. Many members of peasant communities were used arbitrarily by subversive groups to replace legal authorities. These peasants were named to invented offices and supervised by the Shining Path political apparatus. Individuals who did not accept this control were sanctioned by death, their own or of their family members. These kinds of situations also occurred in lowland, jungle areas where the territories of indigenous communities became part of the war zone in the mid 1980s.
In this period, the Shining Path and the MRTA were able to control territory and often called areas they controlled "liberated zones" or the "bases of the new state." The population in these areas had to take orders from subversive groups. This led to their being investigated for acts of terrorism or treason. As a result, there continue to be several hundred to people with outstanding arrest warrants. There are even communities all of whose members have arrest warrants out for them.
These individuals cannot exercise all of their rights since they can be detained at any time. For instance, they cannot travel freely and they are often the objects of extorsion by unscrupulous police officials who attempt to take advantage of their situation.
4.3.5. Prison conditions
According to statistics from the National Penitentiary Institute (INPE),(43) as of December 1997, there were 24,357 prisoners in Peru (22,423 men and 1,934 women). Of these, 68.1% were still awaiting trial and 31.9% were sentenced. Their basic health rights are violated and about US$ 0.70 is assigned daily for their food. Almost half of the prison population is concentrated in Lima: 11,902 prisoners (10,851 men and 1,051 women), of which the majority (10,183 prisoners) are awaiting trial and only 1,719 have been sentenced.
- Special regimen for prisoners considered "difficult to rehabilitate"
The special regimen for prisoners considered "difficult to rehabilitate" was approved by Supreme Decree No. 003-96-JUS, promulgated on July 24, 1996, and is applicable to those jailed for common crimes.
This law states that one of its underlying principles is the necessity to "maintain the principle of authority as well as national security" and creates two regimens: the closed maximum security stage and the stage of promotion to a regimen of medium security. According to article 21 of the law, the maximum security stage is a "period of isolation in which the prisoner's social contacts and freedom are reduced to a minimum." Prisoners must remain in this stage for a year, subject to evaluation every six months. If the prisoner does not pass this evaluation, he/she must remain in this stage. In addition, according to article 32, those prisoners who have "behavioral problems" can return to the maximum security stage. Demands made by prisoners for improvements in prison conditions, for more benefits or for speedy judicial proceedings (these can currently last for three or four years) could be considered as "behavioral problems." This system also can be a source of corruption since prisoners are sometimes forced to pay prison authorities to move from one regimen to the other.
- Challapalca Penitentiary
The Challapalca Penitentiary located between the departments of Tacna and Puno is considered a "double punishment prison." The prisoners sent there are those to whom Supreme Decree No. 003-96-JUS is being applied. Challapalca does not provide the minimum conditions necessary for human survival. The prison is located in a desolated area, at 4,600 meters above sea level, where temperatures go down below 0oC. It is inside the Fort Inclán Military Base.
Between the evening of the 8th and the morning of the 9th of August 1997, 49 prisoners were transferred to Challapalca Penitentiary, mainly from Lima. Previously, in the month of July, these same prisoners had been transferred to the Yanamayo Prison in the city of Puno and to the La Capilla Prison in the city of Juliaca. In December 1997, another 50 prisoners were transferred to Challapalca Penitentiary. Transferred prisoners who were awaiting trial and under investigation had their cases interrupted.
Conditions in the Penitentiary and in the area in where it is located violate several of the rules for the treatment of prisoners established in international human rights instruments (Minimum Rules for the Treatment of Prisoners, Principles for the Protection of all Persons Serving Any Type of Detention or Imprisonment, and the Basic Principles for the Treatment of Prisoners) and also violate Peru's 1993 constitution and the 1991 Penal Code.(44)
On June 6, 1997, the Ombudsman's Office issued a statement to the press expressing its objections to the opening of the Challapalca Penitentiary and asking the National Penitentiary Institute to reconsider its decision.
A delegation from the National Coordinator for Human Rights visited the prison on July 2, 1997, but the Commander of the Fort Inclán Military Base did not allow them to enter. On September 16, a delegation of lawyers from human rights organizations that form part of National Coordinator for Human Rights tried to visit the prison but were turned away. This time, INPE officials did not permit them to enter.
Relatives of the prisoners asked for a prompt judicial determination of the legality of detention (habeas corpus) to safeguard the prisoners' personal integrity and health, but this was denied by the courts. The case is pending in the Constitutional Tribunal.
The National Coordinator for Human Rights considers that the Challapalca Penitentiary should be closed to safeguard the integrity and health of the prisoners as well as INPE and military personnel.
- Situation of prisoners accused of terrorism and treason
Prisoners accused of terrorism and treason find themselves in a similar situation. According to statistics compiled by the Ad Hoc Pardon Commission, as of December 1997, there were 3,515 such prisoners to whom a special prison regimen was being applied.
According to Decree Law No. 25475, prisoners accused of terrorism and treason must serve their time in a maximum security prison and be kept in solitary confinement during the first year. They must carry out obligatory labor beginning in the second year and continuing until they finish their terms. According to Supreme Decree No. 114-92-JUS, prisoners had the right to only one, thirty minute monthly visit from two relatives. This regimen was modified by Supreme Decree No. 005-97-JUS on June 25, 1997. This Supreme Decree provides for a regimen of stages, much like the regimen for those considered "difficult to rehabilitate": maximum security, promotion to medium security, medium security, and minimum security. According to article 31, the maximum security stage consists of one year of "continuous solitary confinement in which the freedom of the prisoner is reduced to a minimum." This stage can be prolonged if the prisoner does not pass the half year evaluation or as a result of bad behavior. This violates the U.N.'s Minimum Rules for the Treatment of Prisoners as well as Decree Law No. 25475 which provides a maximum of one year for solitary confinement.
Supreme Decree No. 005-97-JUS also provides for improvements in family visits. Prisoners can now be visited weekly by up to three immediate family members for one hour and provisions are made for conjugal visits. Nevertheless, in practice, the effects of these improvements are diminished due to the system of transferring prisoners to prisons located far away from their homes.
- Lurigancho Penitentiary
Lurigancho Closed Ordinary Regimen Penitentiary is one of Peru's main prisons and presents serious problems. Among these, are the serious acts of violence that have taken place there. For example, on June 20, 1997, a riot started when the prisoners designated as the Legal Delegates of their pavilions were ending a meeting. The Chief Delegate of the prisoners, Carlos Olaya Dunny, was taken away to be transferred to another prison. This led to protests by the prisoners which were violently repressed by the National Police using pellet guns, firearms, and tear gas. One prisoner, Marcos Malca Toledo (Pavilion 1) died. On the morning of September 4, 1997, a fight occurred among the prisoners in Pavilion 12-B due to disagreements between groups of prisoners. The pavilion's Discipline Delegate, Augusto Morales Llerena, was mortally wounded while trying to stop the fight. This led the rest of the prisoners to attack those who had originally caused the problem, creating general havoc in which fire arms and knives were used. It lasted approximately one hour and led to the death of seven prisoners and left another ten wounded. Four revolvers, one pistol, and ammunition were later found, indicating the level of corruption that exists in a prison into which arms can be smuggled.
As result of these incidents, the Ombudsman's Office issued a report(45) on this penitentiary. Among its conclusions, the report refers to the prison's overpopulation and overcrowding. The prison has the capacity for between 1,800 and 2,000 prisoners but the actual prisoner population is around 6,100. The report states that this situation "results in the inadequate functioning of health, legal, social, psychological, labor, and basic educational services," and that "this is a detonating factor for violence." Among its other conclusions, the report points out that the high percentage of prisoners who have not been sentenced generates a climate of uncertainty, that prisoners have not been adequately classified with a view to implementing a penitentiary system based on work and education, and that there is a duality in the functions of the National Penitentiary Institute and the National Police which does not favor appropriate prison conditions.(46)
- Situation of minors held in prisons for adults (Quencoro-Cusco)
On October 29, 1996, Legislative Decree No. 866 was promulgated to regulate the organization and functions of the Ministry for the Promotion of Women and Human Development. The law established that functions related to rehabilitation for reinsertion into society of adolescent violators of the law were to be transferred to the Executive Secretariat of the Executive Commission of the Judiciary. Thus, the administration of all Juvenile Centers in Peru went over to the jurisdiction of the judiciary.
On December 18, 1996, retired Peruvian Navy Commander Jorge Cusianovich was named Director of the Center for Juvenile Diagnosis and Rehabilitation of Lima (previously known as the Maranga Juvenile Center). The new director established measures which -- according to him -- were oriented "toward recuperating authority over the detained minors." The application of these measures resulted in the suspension of a series of activities intended to rehabilitate and educate as well as the implementation of threatening measures against the interned minors.
On January 27 and 28, the minors interned in this Center rioted and presented the following demands to prison authorities: the firing of the Director of the Center, the closing of the punishment cell, the reinstatement of radio and television privileges, visits from the International Committee of the Red Cross, the reinitiation of productive and recreational workshops, better treatment for visitors, and that civilians be named prison supervisors and not police officers or military personnel. The riot was halted and an agreement was signed by the authorities and the detained minors which the prison authorities promised to honor.
On March 12, 1997, the Directorate of the Center for Juvenile Diagnosis and Rehabilitation of Lima made public the existence of a tunnel through which the minors imprisoned in Patios 3 and 4 were apparently going to escape. The Juvenile Center was declared in a state of emergency and 37 teenagers were transferred to the Quencoro Maximum Security Prison in the Department of Cusco. Relatives and lawyers of the prisoners transferred to Cusco were not informed of the transfer and of where the minors were being sent.
Due to the arbitrary transfer of these minors, a petition for prompt judicial determination of the legality of the detention (habeas corpus)was filed, based on the following:
a) That the transfer and internment of 37 minors in Quencoro Prison is an arbitrary measure because it was not mandated by a resolution by competent judicial authorities, in this case, since they are minors, the Family Court Judge.
b) That the Quencoro Prison, located in the Department of Cusco, is not a specialized center nor is it adequate for the treatment or rehabilitation of minors because it does not have neither the infrastructure nor adequate programs for the rehabilitation of minor violators of the law and because it is a maximum security prison for sentenced adult criminals.
c) That the socio-educational measures for minor violators of the law must have as their purpose reeducation and the strengthening of family ties. The transfer of the minors, when they were removed from their previous place of internment, besides separating them from their families, cuts short the process of reeducation and resocialization and, thus, the minors' rehabilitation.
On March 26, 1997, the judge from the Sixth Penal Court of Cusco declared inadmissable the requested habeas corpus petition. On April 14, the Penal Court of the Superior Court of Cusco confirmed the ruling. The Constitutional Tribunal, in a ruling on October 9, 1997, upheld the Supreme Court ruling declaring the inadmissability of the habeas corpus petition.
A delegation from the National Coordinator for Human Rights visited the minors at the Quencoro Prison on November 10, 1997, and talked to all of them and to the Director of the Quencoro Juvenile Diagnosis and Rehabilitation Center. The delegation was able to establish that the minors' transfer and the prison regimen to which they are subject "violates the basic rights set forth in the constitution, the Convention on the Rights of the Child, the United Nation's Regulations for the Treatment of Minors Deprived of their Liberty, and the Children's and Adolescents' Code (Peruvian)."(47)
Of the minors transferred to the Quencoro Prison, only fifteen now remain. Unfortunately, this transfer caused the death of one minor and suicide attempts by two others. Twenty-one minors were freed after completing their jail terms or by rulings issued by Family Courts absolving them. Nine of the minors need medical attention due to parasites, tuberculosis, cataracts, asthma, and acute depression.
On November 22, 1997, the Ombudsman's Office, in Ombudsman's Resolution No. 060-97-DP, issued a statement on the situation of the adolescents interned in the Quencoro Prison. It states that after investigating the living conditions in the prison, the Ombudsman's Office concludes that national and international norms on adolescents are not being respected and recommends, among other things, that the Quencoro Diagnosis and Rehabilitation Center be closed and that the minors be immediately transferred to other jails exclusively for adolescents.
4.3.7. Forced recruitment (illegality, discrimination, and mistreatment) and abuses during Obligatory Military Service(48)
Obligatory Military Service (OMS) is regulated by Legislative Decree No. 264 of November 8, 1983, and Supreme Decree No. 072-84-ICM of November 16, 1984. Both laws establish the age of military service as 18 to 50 for men and 18 to 45 for women. They also state that men can enter the military at 16 if they have the permission of their parents or guardians.
The Law on Obligatory Military Service (OMS) states that "OMS is the unavoidable duty that all Peruvians have to participate in national defense" (Art. 2). One of its major objectives is "That Peruvians of military age carry out civic activities that contribute to the development of the country" (Art. 4, clause c). This objective makes clear that the spirit of this law is to provide integral training to the youth that are selected for military service, not just military training but the kind of training that will permit them to contribute to the development of the country.
Nevertheless, this objective is not fulfilled. The OMS is discriminatory: those selected for this service inevitably come from rural or poor urban areas. In addition, abuse, punishment, and physical and psychological mistreatment of recruits is institutionalized as demonstrated by the cases of Oscar Chucho Henostroza and Carlos Polanco Ramírez.
Army Sergeant Oscar Chucho Henostroza (22) was serving his Obligatory Military Service in the Motorized Infantry Battalion (BIM) No. 6 "Juan Hoyle Palacios," in the District of Independencia, Huaraz. On June 2, he was accused of having stolen 5,000 soles from a room on the military base where he was stationed. Army Sergeant Oscar Chucho was tortured in order to get him to confess to stealing the money. He was apparently beaten, had electric current applied to his body, his head was held under water until he almost drowned, and he even had a stick stuck into his anus. Judicial investigations of these incidents were begun in both civilian and military courts, charging Army Captain Luis Echandía Loa and two Army sub-officers in the case. According to unofficial information, the Third Provincial Prosecutor's Office for Penal Matters of Huaraz has transferred the case to military tribunals.
Carlos Polanco Ramírez worked as an OMS conscript in the Pichanaki Military Base, Province of Chanchamayo, Department of Junín. On February 28, he was detained by officers from his base, beaten and forced to sign a document he was not allowed to read regarding the seizure of arms. Apparently, he had been accused of being an MRTA member by an arrepentido. He was also forced to implicate other individuals as members of the MRTA. Later he was placed at the disposal of the Special Company of Commandos Pachacútec No. 31 where he was tortured. He was tossed into the Perené River with a bag over his head and with his hands and feet tied. When he was drowning, he was fished out of the river and taken to a remote place where he was beaten with a stick which broke into three pieces as a result. He was then turned over to the National Command Against Terrorism of the National Police which found him to be innocent. Since he was a soldier, he was taken back to his unit.
For years, the military has been carrying out forced recruitment operations or "batidas" throughout the country, forcing adolescents into the OMS. These operations usually result in the forced recruitment of young people between the ages of 15 and 18 and sometimes even younger, with or without identity documents, and mostly from poor families. This forced recruitment is not only illegal but constitutes an arbitrary and abusive practice that not only affects the individual freedom of the young people who are "recruited" but also, in the majority of cases, causes them physical and psychological harm.
A dramatic case of forced recruitment took place in the city of Tacna, in southern Peru on July 30, 1997. That evening, military personnel led by Army Technician, Third Class Ernesto Rivera Gonzales stopped Tony Gustavo Aduvire Condori and some other young people with the purpose of recruiting civilians for the OMS. The young people were taken to the Tarapaca Military Base. Sometime later, the body of Tony Aduvire was found in a nearby area. The body showed evidence of having been beaten. There was a series of demonstrations in Tacna protesting this killing. Nevertheless, on August 6, the prosecutor from the First Mixed Provincial Prosecutor's Office of Tacna only charged the military personnel involved with the crime of abandoning someone who was in danger.
There has been a series of developments during the investigation. One had to do with which court had jurisdiction in the case and the nine others concerned bail. In the first incident, the military personnel charged requested that the court decline jurisdiction in the case, that the judge disqualify himself, and that the case be transferred to the Penal Court of the Superior Court of Tacna and later to the Supreme Court. This matter was not resolved as of the end of December. The requests to get out of jail on bail were all granted and the military personnel charged in the case are currently out on bail.
There is also an ongoing investigation in military courts. The case is currently in the Permanent War Council of the Third Army Judicial Zone in the city of Tacna which has carried out its investigation but not yet handed down a sentence.
Another problem related to forced recruitment is the anguish to which families are subjected when they do not know the whereabouts of one of their members. The young people that are "recruited" in this way are generally high school students, college students or workers from poor families in urban or rural areas. Middle and upper class young people are never subject to this kind of recruitment and in actual fact, for them military service is not obligatory.
In the case of young people from peasant or native communities, forced recruitment specifically goes against Legislative Decree No. 741 which makes provision for service in Self- Defense Committees. Article 6 of this decree states that "Self-Defense Committees, in coordination with their respective Military Commands, select youth of military age to serve in Committees for a period of one year; this service is considered as fulfillment of Obligatory Military Service." Thus, in this case, the Peruvian government is not complying with its own legislative decree.
Corruption and extorsion are common in all the areas where forced recruitment is carried out. Military personnel regularly ask "recruits" for bribes in exchange for letting them go free.
On August 25, 1997, the Minister of Defense, General César Saucedo Sánchez announced before the Commission of Defense and Public Order of the Congress that forced recruitment for the OMS is forbidden. Meanwhile, the Ombudsman's Office analyzed the situation and made a number of recommendations.(49)
For example, it recommended that the national officials in charge of recruitment offices should take all the measures in their power to eliminate forced recruitment, should regularize all the procedures for evaluating and selecting recruits for the OMS, that treatment of OMS recruits respect their constitutional rights, and that the type of OMS served and the place where it is served correspond to the age, physical and psychological condition, basic education and military training of recruits.
The National Coordinator for Human Rights recognizes the importance of citizen participation in public service, be it military or civilian, and considers that it is necessary to democratize and modernize the Obligatory Military Service. At a time when this subject is debated in Congress, alternatives should be suggested for young people to freely select the most appropriate way to serve their country. The abuses and arbitrary measures that currently take place in connection with the Obligatory Military Service should be punished.
Organizations that are members of the Coordinator each year receive various denunciations of problems related to fixed recruitment and abuses during military service. Currently, there are also diverse social, parish, and human rights organizations that are working to protect the rights of victims of abuses related to forced recruitment and Obligatory Military Service.
4.3.8. Threats against human rights activists
This year, threats against human rights activists continued to occur. For example, on the night of May 4, 1997, unknown individuals entered the office of the Human Rights Commission of Ica. In the morning, staff members found all of the papers and files from file cabinets and desk drawers strewn on the floor. Fax and telephone cables had been yanked out of the walls. Evidence indicates that the intruders entered and left through windows which are at a height of 4.20m above ground. Objects of value which were in visible places were not taken. An investigation was begun by the First Provincial Prosecutor's Office for Penal Matters in Ica. In Resolution No. 210-97-1ra.FPPI of June 16, 1997, this prosecutor's office decided to provisionally close the case because "the author or authors of the crime that was denounced were not identified."
In another case, Nilda Tincopa Calle and Diana García Onorbe, members of the Peasant Defense and Advisement Team (EDAC) in Lima, received a variety of threats. In March 1997, when Nilda Tincopa was returning in her car from the high security prison, Miguel Castro y Castro, unknown individuals in a vehicle that was going in the opposite direction headed directly at her car though she was able to avoid a crash. The Sixteenth Prosecutor's Office for Penal Matters of Lima is in charge of the investigation of this incident. At the end of December, it had not yet reached any conclusions.(50)
The Executive Secretary of the National Coordinator for Human Rights, Sofía Macher, and the Director of the Association for Human Rights (APRODEH), Francisco Soberón, received telephone calls in which the life of María Jesús García Sáenz was threatened. Mrs. García Sáenz is the wife of Police Captain Julio Salas Cáceres who was pressured to participate in crimes against the owner of Channel 2, Baruch Ivcher. In addition, on September 4, Francisco Soberón received a written threat for having advised Captain Salas. On September 5, a press conference was organized in the offices of the National Coordinator for Human Rights to denounce these incidents and in the afternoon both Francisco Soberón and Sofia Macher received telephone calls in which the caller threatened to kill Mrs. García Sáenz.
Luis Zambrano Morales, President of the Peruvian Organization for Education and Defense of Human Rights (OPEDEH-Alto Huallaga) was the object of intimidation by the Commandant of the Tocache Military Base, Contra-Subversive Battalion No. 26, Army Infantry Lieutenant Colonel Miguel Fernández Valdez. In a communication on November 1, 1997, Lieutenant Colonel Valdez told Zambrano that his institution was not officially recognized in the city and that therefore he should not use the name of the organization in written documents.
4.4. Judicial Guarantees, Judicial Protection, Right to Compensation
4.4.1. Antiterrorism legislation
Despite the recommendations of Peruvian human rights organizations and OAS and U.N. human rights bodies and despite the changes in antiterrorism legislation made this year, substantial parts of this legislation continue in force and continue to lead to the arrest of innocent persons. Examples of provisions that violate the minimum rules established in international human rights instruments include the use of vague terms in the description of crimes, the violation of the principle of proportionality in punishments, the incorrect definition of aggravated forms of terrorism such crimes of treason, the exaggerated powers granted to the police without provisions for judicial control, the trials of civilians by military tribunals, and a special penal regimen that establishes restrictive measures.
In addition to the recommendations made by the U.N. Human Rights Committee in 1996 that questioned the procedures established in Decree Laws Nos. 25475 and 25659, the Inter-American Commission on Human Rights, in its 1996 Annual Report approved in March 1997, recommends "that all of the antiterrorism legislation and concordant regulations be brought into line with the American Convention"(51) and proposed a series of measures to modify this legislation (Recommendations 1-5).(52)
On September 17, 1997, the Inter-American Court of Human Rights, in a significant sentence, ruled against the Peruvian government in the case of María Elena Loayza Tamayo. She had been sentenced first for the crime of treason in military tribunals and later for the crime of terrorism in civilian courts. The Court stated that the Peruvian government had violated Loayza Tamayo's right to freedom, right to humane treatment, and judicial guarantees and ruled that she should be freed and be paid just compensation. In its ruling, the Court stated that:
...the crime of treason...is closely related to the crime of terrorism, as can be deduced from a comparative reading of article 2, clauses a, b, and c of Decree-Law No. 25659 (crime of treason) and articles 2 and 4 of Decree-Law No. 25475 (crime of terrorism)....Both decree laws refer to conduct that is not strictly defined and for that reason could be indistinguishably included in either crime, according to the criteria employed by the Public Prosecutor's Office or particular judges and, as in the case examined, by the 'police itself (DINCOTE)'. For this reason, the referred to decree-laws are in this aspect incompatible with article 8.4 of the American Convention.(53)
One positive step by the Peruvian government, long demanded by the human rights community, was the elimination of the "faceless tribunals." When, in October 1997, the law that created the "faceless tribunals" came up for renewal, the government let it lapse and instead, created a system of ordinary civilian tribunals to try cases of terrorism.(54) Nevertheless, Administrative Resolution No. 521-CME-PJ, promulgated on November 20,1997, mandates the creation of Superior Courts and Special Courts throughout the country to judge crimes of terrorism and the creation of one Central Reception Office in Lima where all the files of cases currently under investigation must be presented. This will result in diverse procedures that will delay speedy justice with respect for the rights of detainees. Administrative Resolution No. 001-97-SPPCS-T-PJ, promulgated on December 12, 1997, tried to diminish these problems. It stipulated that the Superior Corporative Penal Court is to be composed of judges from the Superior Court of Lima and from the First Penal Courts of the Superior Courts of Ancash, Arequipa, Callao, Cusco, Ica, Junín, La Libertad, Lambayeque, and Puno; and, in order to set up the Central Reception Office, the existing judicial load should be registered in each Superior Court without having to transfer the files.
Provisions that have to do with prison regimens for those jailed for the crimes of terrorism or treason are discussed in the section on prison conditions in the chapter on the right to personal liberty and humane treatment.
4.4.2. Compensation to victims: innocent persons and victims of political violence
In our previous annual report, we noted that it is "the abandonment of victims of human rights violations committed by security forces and of persons affected by terrorist actions is worrisome" and that it was urgent to promulgate a law that provides integral compensation to the victims of violence. Nevertheless, no law dealing with this matter was passed this year.
The Constitutional Tribunal --which unfortunately ruled against the suit brought to declare the Amnesty Laws (Nos. 26479 y 26492) unconstitutional -- in its ruling published on May 9, 1997, did declare that still in effect was the right of victims of human rights violations "to due civil compensation by those guilty of these crimes or by the State, which is obliged as a result of its subsidiary responsibility since it is the Congress that approved the amnesty" (Seventeenth substantiation). However, it must be said that it is almost impossible to enforce the right to compensation since to decide on compensation it is necessary to have a judicial proceeding to determine the facts of the case but this cannot be done due to the prohibition on investigations stipulated in the Amnesty Laws.
Persons that have been found innocent of charges of terrorism or treason also have not received any compensation. In 1988, Law No. 24973 was promulgated to regulate compensation for judicial error and arbitrary detention. Nevertheless, it has never been applied since the National Compensation Fund it mandates was never established. People who have received pardons for having been unjustly jailed or condemned for terrorism or treason and were freed did not receive compensation for economic and psychological damages.
4.4.3. The judiciary, Public Prosecutor's Office, and access to justice
A delicate institutional situation affects the system of protection of human rights, weakening democracy in Peru. In effect, the judiciary and the Public Prosecutor's Office lack independence and autonomy and are run by executive commissions, as stipulated in Laws Nos. 26546, 26623, 26695 and 26738, that have assumed powers that according to the constitution belong to the governing bodies of these branches of government.
The President of the Supreme Court and its Plenum have had the following of their functions eliminated: management functions, preparation of the budget, election of the President of the Supreme Court, administrative sanctioning of magistrates, redistribution of the judicial load, and the evaluation of the conduct and competence of all magistrates and judicial aides.
The administrative reform currently being implemented by the Executive Commission of the Judiciary has had negative effects on jurisdictional matters. Magistrates have been removed using extremely debatable criteria, in violation of the corresponding legal dispositions, and affecting judicial guarantees, among them, the principle of a preestablished judge for specific types of cases.
The composition of different types of courts has been modified with the clear intention of influencing decisions related to delicate cases that involve high government officials. An example of this is the modification of the composition of the Court of Public Law of the Superior Court of Lima around mid year (the correct procedure is to modify the courts at the beginning of each judicial year) just when these courts were to review controversial petitions for protection (acciones de amparo). Some examples of petitions that led to such modifications include the petition presented by congresspersons and journalists as a result of alleged wiretapping by Intelligence Service agents, the petition of Baruch Ivcher, main shareholder of Channel 2, regarding the administrative resolution that revoked his Peruvian citizenship,(55) and the petition of the minority shareholders of Channel 2, brothers Samuel and Mendel Winter, to gain administrative control of the channel. Yet another example is the modification of the composition of Civil Court of the Superior Court of Lima when it was about to rule on the case presented by Susana Higuchi against her ex-husband, President Alberto Fujimori.
The judicial reform has made some positive improvements in infrastructure, the decentralization of courts and other functional matters, but has not solved the essential matters and, not only that, has worsened some aspects of the judicial system, such as the autonomy of the judiciary and access to justice.
In the Public Prosecutor's Office, various powers of the Attorney General were taken away and given to the Executive Commission of the Public Prosecutor's Office. These functions included administration, management, policy-making, and control of the Public Prosecutor's Office. These changes are contained in Law No. 26738, promulgated on January 7, 1997.
Among other responsibilities, the Executive Commission of the Public Prosecutor's Office now is in charge of approving plans for the restructuring and reform of this institution, preparing the Regulations for the Organization and Functioning of the Public Prosecutor's Office, approving its Organic law and the legal norms necessary to implement it, deciding upon penal actions against second and first instance judges and prosecutors for crimes committed in the exercise of their judicial activities, the determination of specialties at all levels, determining the number of superior and provincial prosecutors in each Judicial District, designating ad hoc prosecutors, issuing licenses, applying sanctions and exercising authority over all Public Prosecutor's Office officials, assigning provisional provincial, superior and supreme prosecutors to vacancies; and assigning provincial, superior and supreme public prosecutors to special posts.
A final measure that has motivated legitimate concern is Law No. 26898, promulgated on December 15, 1997, that gives provisional judges the same rights, attributions and prerogatives as permanent judges. This has made it possible for provisional judges to elect or be elected to various offices including as representatives of the judiciary in the National Electoral Board and in Provincial Electoral Boards. Many analysts have expressed their concern that this will make it possible to elect individuals who do not have the impartiality required for a transparent presidential election process.
4.4.4. Repression against judges that affects their independence
Another matter that caused concern during 1997 is repression carried out against judges, affecting their independence. In various circumstances, repressive measures have been taken against judges as a result of the rulings they have made.
- Elba Greta Minaya Calle
One such case that led to a public outcry involved arbitrary actions against Judge Elba Greta Minaya Calle who was in charge of the 37th Court for Penal Matters in Lima. On August 13, 1997, Ministerial Resolution No. 0595-97-IN-010101000000 was promulgated authorizing the Public Prosecutor in charge of special matters relating to terrorism "to, in representation and defense of the State, proceed to formulate the corresponding charges against....Dr. Elba Greta MINAYA CALLE for the alleged crimes of Violence and Resistance of Authority, Abuse of Authority, Against the Judicial Function, and Terrorism." The argument given in the ministerial resolution in regard to this measure is that Elba Greta Minaya issued a petition for prompt judicial determination of the legality of detention (habeas corpus) for a woman detained on charges of terrorism.
As a judge in charge of the investigation of various cases of human rights violations, Elba Greta Minaya demonstrated an exemplary attitude. For example, she was in charge of evaluating the petition for prompt judicial determination of the legality of detention (habeas corpus) presented by the family of Ernesto Rafael Castillo Páez who was disappeared by security forces. She approved this petition. The Inter-American Court of Human Rights ruled on this detention-disappearance on November 3, 1997, condemning the Peruvian government.
Human rights organizations held a press conference to denounce this outrage against Judge Minaya. On August 15, 1997, Ministerial Resolution No. 0703-97-IN-010101000000 was promulgating annulling the previous resolution and giving the Public Prosecutor the authority to proceed with the complaint against Judge Minaya for the same matters in the Control Organ of the Magistracy, In a resolution on September 22, 1997, the District Control Office of the Magistracy of the Supreme Court of Lima ruled to "acquit Dr. Elba Greta Minaya Calle of the charges in the present investigation having to do with her actions as a judge of the Penal Court on Permanent Shift of Lima."
- Judges from the Public Law Court
There was also indignation about what happened to the members of the Public Law Court of the Superior Court of Lima, Sergio Salas Villalobos, Elizabeth MacRae Thays y Juan Cancio Castillo Vásquez, who, at mid year, were removed from their posts after having ruled in favor of various suits (acciones de garantía) of people whose rights had been infringed upon by government institutions, including military courts. Army Brigadier General and President of the War Court of the Supreme Council of Military Justice, Carlos Espinoza Flores, presented a suit against these judges from the Public Law Court for alleged irregularities they had committed in ruling on a series of acciones de garantía with the alleged "illegal purposes of attacking the autonomy and independence of the jurisdiction of military courts."
The Office of Control of the Magistracy of the Judiciary, in a resolution issued on July 25, 1997, decided that "SERGIO SALAS VILLALOBOS, ELIZABETH MAC RAE THAYS Y JUAN CANCIO CASTILLO VASQUEZ, for their actions as judges in the Specialized Court of Public Law, [be given] the disciplinary sanction of a FINE equivalent to 10 percent of their total monthly salary." In its decision, the Office argues that "any kind of subjectivity in the disguise of criteria of conscience is an arbitrary act that involves a danger to society and therefore has disciplinary consequences; thus, these judges, for having ordered an end to the trial of Gustavo Adolfo Cesti Hurtado, have been negligent in carrying out their duties." It is really deplorable that in addition to being removed from their jobs, they were also disciplined.
- Rubén Mansilla Novela
Dr. Rubén Mansilla Novela, superior judge of the Second Civil Court of the Superior Court of Lima, who handled the civil case involving President Alberto Fujimori and his ex-wife, Susan Higuchi, was removed from his post when he was working on the case. This case started in January 1997 when Susana Higuchi asked the Thirty-Second Court Specialized in Civil Matters to verify the signature and fingerprint of President Fujimori on four documents in which he acknowledged that he owed her $1,200,000.
The case was appealed in the Second Civil Court and, on June 17, one day before the scheduled presentations of the lawyers, Administrative Resolution No. 391-CME-PJ was promulgated in the official gazette, "El Peruano." This resolution created a sub-commission to help the commission charged with compiling and selecting the resolutions emitted by the specialized courts of the Supreme Court. Among the judges designated to this commission, was Víctor Raúl Mansilla Novela who in this way was transferred to the Second Civil Court.
In a report that he sent to the Control Office of the Magistracy on June 25, Judge Mansilla Novela declared that he had been pressured by the lawyer of President Fujimori to vote in the President's favor.(56)
4.4.5. Constitutional Tribunal
A very delicate situation for the rule of law in Peru developed in May, when three judges from the Constitutional Tribunal, Manuel Aguirre Roca, Guillermo Rey Terry, and Delia Revoredo Marsano de Mur, were arbitrarily removed from office.
This arbitrary measure was taken by the government majority in the Congress as a reprisal against the decision taken by these judges in declaring unconstitutional the so-called "law of authentic interpretation" that would have made it possible for President Fujimori to run for reelection for the second time.(57) In addition, other rulings favoring claims of retired people against the government also caused irritation in government circles.(58) In this way, the rule of law was altered in Peru with the end of constitutional control.
Despite the wide ranging national and international protest -- there were large demonstrations in various parts of the country and by university students in Lima -- these measures have not been overturned and the Constitutional Tribunal, reduced to four members, only decides on matters that have to do with guarantees. In an attempt to temporarily take care of the situation, the Congress passed Law No. 26801 (promulgated on May 29, 1997) which reduced the quorum to permit the functioning of a now diminished Tribunal.
The President of the Constitutional Tribunal resigned from his position in solidarity with the judges who had been discharged. Nevertheless, he has had to stay on because according to the Organic Law of the Constitutional Tribunal (Law No. 26435) the "Justice who resigns continues to carry out his duties until the person who succeeds him takes over."
This situation led the Inter-American Commission on Human Rights to issue a press release in which it noted that it had been "able to verify that different sectors of Peruvian society have spoken out, noting the seriousness of these developments and the negative effects that they have had on democracy and on the rule of law." In addition, the Commission stressed the "importance of the Peruvian Constitutional Tribunal for the protection of human rights" and expressed its hope "that it will resume its regular functioning as soon as possible, guarantee the due respect for its independence, impartiality and autonomy by the institutions of public power in order to achieve its consolidation as the highest authority for the interpretation of the constitution and human rights."
4.4.6. Increase in the jurisdiction of military courts
During 1997, military courts have continued to expand their field of action to areas beyond their jurisdiction thereby diminishing the jurisdiction of civilian courts. Extremely worrisome situations have occurred which have put in question the character of the judiciary.
Military courts have continued to try cases of human rights violations committed by members of the Armed Forces (the Leonor La Rosa case, the case of the mistreatment of Army Sergeant Oscar Chucho Henostroza in the Motorized Infantry Battalion (BIM) "Juan Hoyle Palacios" in Huaraz, among others) and also continued to judge civilians.
Decisions of the judiciary regarding guarantees have been ignored by military courts (for example, petitions for prompt judicial determination of the legality of detention [habeas corpus] in the case of Gustavo Adolfo Cesti Hurtado asking that he be freed by the military courts and be put at the disposition of civilian courts, in the case of retired General Rodolfo Robles Espinoza asking that he be freed by military courts, and in the case drug trafficker Demetrio Chávez Peñaherrera, alias "Vaticano", asking that he be able to consult his lawyer). Things went so far that officers from these military courts threatened to denounce the judicial authorities that tried to apply these rulings.
Judges from the Court Specialized in Public Law of the Supreme Court of Lima, which constituted the last phase of the judicial process in the execution of the habeas corpus rulings, were later subjected to judicial investigations for supposedly interfering in the decisions of military courts as described in the previous section on judges whose rights have been violated.
4.5. Right to Privacy
4.5.1. Wiretapping(59)
Denunciations broadcast on Frecuencia Latina -- Channel 2 -- demonstrated the practice of wiretapping by government institutions. Javier Pérez de Cuéllar, former Secretary General of the United Nations and former candidate for President of Peru, congresspersons, directors of media outlets, political leaders, businessmen, journalists, among others, have been the objects of wiretapping.
The Congress decided not to set up an investigating commission to look into this denunciation and delegated the investigation to the Commission on Defense, Internal Order, and Intelligence. Meanwhile, the government stated that no state institutions were involved in these practices and that, on the contrary, the wiretapping could have been carried out by private individuals.
A later television report provided evidence that government institutions were indeed carrying out wiretapping when it revealed information about the acquisition of wiretapping equipment by the Peruvian Air Force and the training of personnel in wiretapping techniques.
The journalists whose phones were tapped filed a petition for protection (acción de amparo) that was not accept by the courts. This is now before the Constitutional Tribunal.
The Executive Commission of the Public Prosecutor's Office designated an ad hoc prosecutor to investigate the wiretapping allegations despite the fact that the Attorney General assigned the case to the appropriate prosecutor on duty. The ad hoc prosecutor has not yet finished his investigation.
4.6. Freedom of Thought and Expression
4.6.1. Attacks on the press
Freedom of thought and expression is threatened in Peru. International organizations dedicated to the defense of journalists have spoken out on this issue. For example, the International Federation of Journalists, in its annual report issued on December 22, 1997, stated that in the last year in Peru, there were 4 assassinations of people who worked for the news media and 15 attacks and 21 threats against journalists. Sixteen journalists were in jail (sentenced or awaiting trial) for reasons directly connected with their work.
For its part, the National Association of Journalists of Peru (ANP) recorded 89 incidents considered to be attacks against freedom of the press, the professional exercise of journalism, and the free circulation of information in 1997. Of this total, "23 involved physical aggression, 21 threats, 19 impediments to the national circulation of information, 16 incidents of judicial pressure, 5 arrests, 3 impediments to the international circulation of information and 2 assassinations...The responsibility for these attacks was adjudged to 32 government officials, 17 police and military officials, 16 unidentified persons, 9 identified civilians and 1 paramilitary...The total attacks against journalists and communications media in 1997 is higher than the number in 1996 which was 19."(60)
Some of the numerous incidents that affected freedom of the press in 1997 include: attacks and threats against journalists, leaking of information about plans to silence the independent press ("Narval," "El Pino," and "Bermuda" plans of the National Intelligence Service), the television spots prepared by the ministries of Defense and the Interior regarding the newspaper "La República" and the magazine "Caretas," the communique of the Joint Command of the Armed Forces regarding Channel 2, and the court ruling against journalist Rubén William Zurita Vilela for the alleged exercise of his profession.
The best known case was that of Channel 2 in Lima which, as a result of the denunciations made by the program "Contrapunto," was the object of reprisals leading to the decision to revoke, in what was an arbitrary resolution, the citizenship of Baruch Ivcher, the major shareholder of this channel. Directorial Resolution No. 117-97-IN-050100000000 annulled the previous resolution granting Ivcher citizenship. This resolution violated rights specified in the Peruvian constitution according to which no one can have his citizenship taken away and that an individual loses his/her citizenship only by giving it up before the appropriate government authority.(61)
After this resolution was issued, Ivcher's channel was virtually taken away from him by a judicial ruling that gave the administration of the channel to the minority shareholders.
During this entire process, the measures taken by the government affected the right to a nationality, the right of freedom of speech, and property rights.
The denunciations broadcast by "Contrapunto" included the torture of Army Intelligence agent, Leonor La Rosa, and the death of and cutting to pieces of SIE agent Mariela Barreto, the sources of the income of controversial presidential advisor Vladimiro Montesinos, the wiretapping of various politicians and well-known individuals and information indicating that this wiretapping was being carried out by one of the branches of the Armed Forces. Since these denunciations have not been disproved, the government has the responsibility to investigate them in detail and to sanction those responsible once they are identified. However, the government has opted for the opposite -- to silence this critical voice.
Television spots paid for by government institutions tried to damage the prestige and credibility of some independent and critical media outlets by declaring that the information they published was false. The Ministry of Interior produced a spot accusing Gustavo Mohme, director of the daily "La República" and congressman Javier Diez Canseco of having lied about attacks against "La República" journalists and the congressman's staff. The news magazine "Caretas" was also attacked in a spot paid for by the Ministry of Defense.
The Joint Command of the Armed Forces issued a communique on May 23, 1997, with a groundless attack on the majority shareholder of Channel 2 for allegedly carrying out a campaign to damage the reputation and image of the Armed Forces.
Journalist Rubén William Zurita Vilela was the victim of a very serious violation which leaves a dangerous precedent for the exercise of freedom of the press in Peru. He was tried for the alleged illegal exercise of his profession and was sentenced by the Penal Court of the Supreme Court of the Republic, in a December 10 ruling, to one year in prison,(62) in violation of the constitution and international human rights instruments.(63)
Another worrisome matter was the way in which the trial of those accused of having participated in the attack against the branch of Global Television in Puno on October 17, 1996, is being carried out. The trial, in which seven following individuals are accused of terrorism (Ethel Guido Mendoza Bernardo, Angel Felipe Sauñi Pomaya, Favio Javier Urquizo Ayma, Luis Felipe Barrantes Yañez, Víctor Sulluchuco de la Cruz, Miguel Guzmán Castillo and Enrique Guzmán Tanta), will apparently end with their acquittal, something that is of grave concern.(64)
4.6.2. Right to information(65)
During 1997, the right to information was infringed upon in cases in which high government officials or agencies were involved. One of these cases had to do with the real responsibilities and the source of the income of Vladimiro Montesinos, advisor of the National Intelligence Service. As a result of information broadcast on Frecuencia Latina (Channel 2) regarding the very high income of this advisor, various congresspersons ask that there be investigation. There was none and, in an appearance before the Congress, the Prime Minister refused to provide the information asked for and tried to obscure the real duties of this advisor.
In addition, it has not been possible to find out about the size and destination of government expenditures under the Emergency Decrees (which were not promulgated in the official gazette "El Peruano"). The argument given was that this could affect national security.
4.7. Political Rights
4.7.1. Referendum
In our 1996 annual report, we discussed the promulgation of Laws Nos. 26592 and 26670 that limit the use of the referendum and pervert it by conditioning its use on a previous legislative initiative which has to receive "the favorable vote of not less than two fifths of the votes of the legal number of members of Congress" (article 1 of Law No. 26592, modified by article 16 on Law No. 26300).(66) Unfortunately, these laws have not been repealed and the limitations on referendums continue in force. The fact that there were no new referendum initiatives in 1997 confirms our view that these legal modifications of referendum procedures do constitute an obstacle to the exercise of this political right.
The referendum initiatives that began before the promulgation of Laws Nos. 26592 and 26670 have continued including the referendum on the "law of authentic interpretation" that permits the second reelection of President Fujimori. It should be recalled that this initiative continued because the National Electoral Board (JNE) ruled in 1996 that the above-mentioned laws are not applicable to this referendum.(67) During 1997, the organizers of this initiative carried out a national campaign to get the number of signatures required by law -- no less than 10% of the national electorate (art. 38 of Law No. 26300).(68)
4.7.2. The electoral system (JNE, ONPE y RENIEC)
In 1997, various of the laws promulgated in relation to the electoral system were questioned and criticized. At the same, a series of irregularities in this system were denounced.
In October 1, 1997, the Organic Law of Elections, Law No. 26859, which provides for the election of the president, vice-presidents, and members of congress in a single electoral district was promulgated. This law has been criticized on the grounds that a single electoral district makes it very difficult for there to be real representation of all the departments of Peru in the Congress, that it consolidates centralism, and that it makes it possible for political parties or movements to obtain a majority in Congress without national representativity.
On October 14, 1997, the Law of Municipal Elections (Law No. 26864) was promulgated in the official gazette, "El Peruano."
Another law that caused controversy was Law No. 26898 (discussed above in the section on the judiciary). It gives provisional judges the same prerogatives as permanent judges thus making it possible for them to be elected and to elect representatives of the judiciary in the National Electoral Board (JNE) and the Provincial Electoral Boards.(69) This law has been called "the law of electoral fraud" and its passage led to serious altercations in the Congress and Congress recessed early, before finishing its session in December.
In addition, it was discovered that members of the National Intelligence Service had infiltrated the institutions that are part of the electoral system, especially the National Identity and Legal Status Registry (RENIEC). At the same time, there were denunciations that members of the security forces were included on voting lists and apparently had even voted in the last elections (Peruvian law forbids members of the security forces from voting).
The head of the RENIEC, Julio Vargas Prada, denied these accusations, questioning the veracity of the information provided by congressperson Anel Townsend. This led a group of congresspersons to present a legal action against Vargas Prada in the National Council of the Magistracy on November 20 for serious faults "connected with the irregularities that are occurring inside the RENIEC, whose authorization would mean the nonfulfillment of constitutional and legal responsibilities, of carrying out the functions entrusted for the benefit of society as a whole." This legal action refers to the infiltration of secret agents Patricia Talavera Fuentes, Luis Avelino Guerrero Gálvez, Carlos del Carpio Ganoza, Daniel Ocampo Reyes, and María Cecilia Zúñiga Toribio who apparently tried to alter the Electoral Registry, affecting the transparency of future presidential elections.
In November, in response to the denunciations of congressperson Anel Townsend, two of the people she denounced filed a constitutional accusation against her in the Congress. This accusation was totally unfounded and was rejected on procedural grounds.
4.7.3. Recall elections
The recall election mechanism was introduced in Peru in the 1993 constitution (articles 2.17 and 31, regulated by Law No. 26300 of 1994). Nevertheless, it was only in 1997 that the first recall election was held.
Article 20 of Law No. 26300 states that "recall elections are the right that citizens have to dismiss from office: a) Mayors and Councilpersons; b) Regional authorities that are elected; and c) Judges that are elected." Article 21 stipulates that "citizens have the right to recall elected authorities. Recall elections cannot be held during the first and last years in office except in the case of judges."
On November 23, recall elections were held in 61 localities with the following results: 42 mayors (including one provincial mayor) and 77 district councilpersons and 8 provincial councilpersons were recalled; 20 district mayors and 44 councilpersons kept their positions.
Unfortunately, recall elections were not held for other elected authorities such as members of Congress, something that led to considerable debate.
4.7.4. Political participation
The right to political participation was seriously affected when Congress approved the Organic Law of Elections No. 26859 which stipulates that in order for political groups to register they needed to present "a list of adherents including no less than 4% of citizens eligible to vote in national elections" (article 88). This high quota for the registration of political parties or independent political groups -- approximately 500,000 voters -- constitutes a serious restriction on the political participation of voters.
4.8. Equality Under the Law
4.8.1. Discrimination
The problem of discrimination in Peru is something that people have tried to hide or ignore. Nevertheless, in many areas of Peruvian life there is palpable evidence of discrimination based on social, economic, ethnic, racial, and gender criteria as well as by sexual preference, physical disabilities, and illness -- especially AIDS.
Law No. 26772 promulgated in April 1997 stipulates that "hiring criteria for jobs and requirements for access to education cannot contain requisites that constitute discrimination, nullification or alteration of equality of opportunities or treatment" (article 1). While the promulgation of this law was a positive step, it does not address all aspects of the problem of discrimination which require the adoption of different types of government policies.(70)
A proposal for the law regulating Law No. 26772 was published on September 4, 1997. As of December 1997, it had not yet been approved.(71)
As a result of its concern about this issue, the National Coordinator for Human Rights has created a Round Table for Non-Discrimination with the participation of a variety of interested organizations. The Round Table is preparing a report on discrimination with an evaluation of the problem and recommendations.(72)
4.8.2. Indigenous Peoples(73)
While the ethnic and cultural diversity of Peru is recognized in the constitution (article 2, clause 19), in fact measures are not taken to protect this diversity as mandated by the constitution. In this section, we will analyze primarily the situation of the indigenous population of the Amazon basin.
The indigenous population of the Amazon region of Peru consists of approximately 300,000 people belonging to 65 different peoples -- ethnolinguistic groups -- that correspond to twelve large linguistic families. The size of these groups is highly variable; the largest group are the Ashaninka which numbers about 50,000.
The current situation of the indigenous people of the Peruvian Amazon region has worsened as a result of two substantial problems: threats against their right to land and the impact of oil drilling. Other problems in the area have undergone transformations: drug trafficking has expanded and subversive violence has diminished though it has not disappeared.
The 1993 constitution drastically cut back the most important right of indigenous and peasant communities: their right to land. The protection of communal lands that once existed has disappeared since the constitution says nothing about the inalienability of these lands or that they cannot be seized or embargoed. Instead, it declares that they may be freely disposed of. In addition, although these lands are imprescriptible, they are legally subject to confiscation if not worked (see below).
This situation worsened with the promulgation, on July 1995, of Law No. 26505 entitled "The Law of Private Investment in the Development of Economic Activities on the Lands of the National Territory and of Peasant and Native Communities," more popularly know as the "Land Law."
With this new law, the lands of indigenous groups can be transferred with the understanding that the grantees, acting individually or collectively, are simply trustees of a patrimonial right just like any one of the parties that act in relations regulated by the norms of private law. Thus, indigenous people can sell their lands, can mortgage them to pay contractual obligations, and can also lose their lands if they abandon them in the sense stipulated in the law (automatically, if they are lands granted by the state, as is the case with forest lands).
The Land Law thus creates serious disadvantages for the Native Communities of the Amazon since these communities will frequently be the objects of deceitful negotiations to get them to sell their land. For these indigenous people, land is the fountain of life, of well being, and of their survival and cultural identity, but it has no monetary value. In addition, a series of land conflicts could occur in which these communities would become involved unnecessarily.
On June 13, 1997, Supreme Decree No. 011-97-AG was promulgated, regulating Law No. 26505. In Section V of this decree, there is a brief reference to the lands of the indigenous communities of the Amazon, stating that the "property of the lands of the Native Communities is imprescriptible" (art. 24).
There are 1,400 Native Communities of which 1,297 had been officially recognized up to last year. Of these, 1,297 (80%) have received titles to their lands 23 years after the Law of Native Communities was promulgated. That is to say, in 23 years, 1,038 have received land titles which in real terms represents 74.14% of the estimated total Native Communities which exist in Peru.
The majority of Native Communities which have received land titles do not have sufficient lands, that is, they have less land than is necessary to carry out their traditional activities. This is the case of the Shipibo-Conibo, Huitoto, Piro, Ashaninka, and other peoples.
The substantial increase in oil drilling activities in the Peruvian Amazon region has led to the creation of 25 drilling fields covering 15 million hectares, for the most part put at the disposition of or granted to transnational corporations. These concessions affect the fundamental rights of Indigenous Peoples as well as leading to environmental damage.
Hundreds of indigenous families were kidnaped by subversive groups, forcing many communities to seek refuge in other areas. It is for this reason that the lands of these communities are now abandoned. However, the displaced communities do intend to return to their lands once the violence has definitively ended.
A limited presence of subversive groups and of the Armed Forces on indigenous territories continues. The hostage taking in the residence of the Japanese ambassador in Peru by an MRTA commando had repercussions in the area Alto Yurinaki which is part of the territory of the Yanesha People. The security forces thought that the commando had come from this area and as a result repressive actions were carried out in the area and dozens of residents were detained and tortured, including Yaneshas.(74)
Also worrisome, is the announcement of an agreement between the Ministry for the Promotion of Women and Human Development and the Joint Command of the Armed Forces for literacy campaigns in Native Communities since this measure could lead to serious cultural clashes. Literacy workers are likely to be soldiers with no teacher training and no knowledge of the indigenous languages of the people they will be working with.
5. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS(75)
The situation of economic, social, and cultural rights in Peru can be analyzed from two complementary points of view: the current legal framework and the current situation of the Peruvian population.
Despite the fact that Peru has signed and ratified various international agreements for the protection and promotion of economic, social, and cultural rights, the 1993 constitution not only was not a step forward in protecting these rights but negated the most basic principles they entail. In addition, in the last years, a series of laws have been promulgated that contravene juridical principles and laws that have already been established.
As far as the conditions in which the population currently lives are concerned, we find very complex structural problems which require not only legal solutions but also the creation of mechanisms whose implementation depends on the political will of the society as a whole. This implies a long and difficult road ahead.
5.1. Adoption of Measures to Achieve Respect and Protection for Economic, Social, and Cultural Rights
Peru has gone backwards in terms of the protection of many economic, social, and cultural rights. This already occurred with promulgation of the 1993 constitution which diminishes the hierarchical rank of international human rights instruments, eliminating the provision on this matter in the 1979 constitution,(76) and introduces provisions that attempt to make these treaties equal to national laws or other norms of the same level.(77)
In addition, in the current constitution, some articles have been removed including those providing for: the right to a dignified life that permits individuals to assure the well being of themselves and their families; the obligation of the state to give preferential attention to the basic necessities of individuals and their families in terms of food, housing, and recreation; and union and labor rights established in various international instruments of the World Labor Organization.
The U.N. Committee on Economic, Social, and Cultural Rights expressed its concerns about this situation in its "Final Observations" of May 20, 1997, after analyzing the periodic report of the Peruvian government.(78)
Finally, the government has not paid attention to the repeated appeals of national and international organizations and bodies to revise its legislation.
5.2. The Right of Men and Women to the Enjoyment of all Economic, Social, and Cultural Rights
Even though laws have been approved that provide a more appropriate framework for equal opportunities for men and women to enjoy all economic, social, and cultural rights and institutions have been modified (an Ombudsman's Office Specialized in Women was created in the Ombudsman's Office, a Committee on Women was established in the Congress, and the Ministry of the Woman and Human Development was created), there continue to be legal and defacto mechanisms that obstruct this equality.
The 1993 constitution eliminated the explicit recognition of equal opportunities that existed in the previous constitution: "Men and women have equal opportunities and responsibilities. The law grants women no fewer rights than it does men."
In general, there is confusion regarding powers and jurisdictions and insufficient policies for concrete action to eliminate the problems of violence and discrimination against women.
5.3. Rights Related to Work, Social Security, and Trade Unions
Since the promulgation of the current constitution, the principal institutions whose work relates to the right to work have undergone drastic changes. The logic that underlies these changes is that deregulation and radical flexibilization of the labor market will permit investment and more business competition. The changes have been carried out through legislative decrees handed down by the executive branch and have not included adequate compensation measures.
The informal sector has grown. In practice, this means an increase in underemployment and self-employment and has led the quality of work, wages, productivity, and protection of workers to deteriorate enormously. The minimum legal salary is US $128 a month while the cost of the basic basket of family needs is US $500.
Young people find themselves in a very difficult situation both because of insufficient jobs and the low level of salaries and are victims of discrimination such as those that exist in the Juvenile Job Employment and Training Programs (apprenticeship programs) which deny youth the most elemental workers' rights.
The female economically active population in the informal sector has grown and is now 52%. Sexual harassment is legally recognized as a hostile act by the employer but the procedures established do not make it easy to prove harassment or obtain adequate compensation.
Forty-five percent of the economically active urban population works in small or micro-businesses. These businesses generate 50% of the GDP, but only 2% are considered eligible for credit by private banks. The government banks that formerly promoted development by providing loans have disappeared. All this, combined with excessive taxation, encourages employment off the books.
Trade union rights considerably declined as a result of the Law of Collective Labor Relations which openly violates Conventions Nos. 87 and 98 of the International Labor Organization (ILO). The government has ignored the request of organizations that are members of the ILO to change this law.
The National Pension System (SNP) has been modified to favor private pension plans, weakening the SNP and damaging the interests of contributors in areas such as the minimum number of years that payments have to be made in order to receive a pension, the way the base salary for pensions is calculated, and the high monthly percentages that have to be paid. A retroactive procedure to "reclassify rights" of pensioners according to new criteria was implemented in Law No. 20530, violating the constitutional principle of hierarchy of norms.
5.4. The Right to Protection of the Family, the Rights of Mothers Before and After Giving Birth, the Rights of the Child
The protection afforded by the constitution for the family is insufficient and most seriously affects the sectors of the population that live in the greatest poverty or that have suffered the effects of political violence. Nationally, 36.8% homes are single-parent or without parents.
The government repealed the laws that provided subsidies for maternity and lactation for 90 days but it later was forced to partially reestablish them.
Abandonment, orphanhood, drug addiction, teenage pregnancy, clandestine abortions associated with teenage pregnancy, labor exploitation, child prostitution, mistreatment of children, sexual violence against children and adolescents, and problems of children with disabilities are all problems that are growing and for which there are no effective state policies.
5.5. The Right to an Adequate Standard of Living: Food, Clothing, Housing, and the Continuing Improvement of Standards of Living
Explicit mention of these rights was eliminated from the current constitution. The actual situation is serious. Forty-nine percent of households in Peru live below the poverty line. The majority of these households are in rural areas in the mountains and the jungle.
Chronic malnutrition affects 27.2% of children under 5. Among children between 6 and 9 years of age, 48% suffer from chronic malnutrition. In the poorest departments of the country, this percentage is as high as 70%. There are some problems in the relationship between the government and the popular sector organizations that provide food to the poor. The National Program to Support Alimentary Work has not been created and PRONAA (National Food Support Program) has noted transferred the resources budgeted to popular sector organizations that distribute food.
The national housing deficit is currently 1,888,000 housing units. There is no housing law. Only 24% of what the government collects in FONAVI taxes (National Housing Fund) is used for housing construction. The executive branch, ignoring the provisions of the National Action Plan on Habitat (prepared for the United Nations), has promulgated laws that tend to diminish the authority of municipal governments in regards to housing.
5.6. The Right to Physical and Mental Health
Contagious diseases have not disappeared. Quite on the contrary, there have been outbreaks of diseases such as cholera, malaria, and dengue fever.
The principles of equity, efficiency, and quality are stressed in speeches of government officials while, at the same time, priority is given to measures whose purpose is the eventual privatization of medical services now provided by the Social Security system and the health services provided by the Ministry of Health.
The Basic Health Program for Everyone has been able to increase primary health services almost 100% over what existed in 1991. While the overall vision of the program is more integral, pressures to meet quantitative goals have led to the neglect of the educational and cultural needs of the population.
Mental health problems related to marginalization and poverty, excessive work, and stress have increased but, despite this, there are no government policies regarding mental health. Drug addiction has increased and so has family violence whose main victims are women and children.
Planned parenthood policies have often turned into the imposition of forms of sterilization. Government programs do not deal with planned parenthood in the general context of living conditions and health. The reproductive rights of women are not taken in account in all their aspects.
One matter that has caused concern is the fact that government planned parenthood programs are principally oriented toward surgical contraceptive measures and that these are applied in such a way as to violate the rights of individuals, especially in rural zones and poor urban neighborhoods. Testimonies gathered by organizations that work on women's rights directly from women affected by these measures, from women's groups, and from health service workers "provide evidence of practices contrary to the right to choose (informed consent) and of deficiencies in family planning services in various parts of the country, which primarily affect poor and very poor women in rural and urban areas."(79)
Various cases of sterilizations carried out as result of economic pressures, threats, or deceptions have occurred among popular sectors in rural areas or in isolated towns. Testimonies that have appeared in the press describe cases of operations resulting in death which were caused by inadequate medical training and the lack of the most elemental hygiene. The pressure to meet quotas and the absence of an integral conception of the right to life and health of everyone, and especially mothers of reproductive age, have led to results that point to the responsibility of the Ministry of Health in the violation of these rights.
Abortion is the second cause of the death of mothers. Peru is one of the countries with the highest incidence of induced abortions.
Acute respiratory infections are the first cause of infant death. In second place, are diseases causing acute diarrhea.
5.7. Rights Related to Education
An important study carried out by the Ministry of Education in 1993 with the cooperation of the World Bank, the UN Development Program (UNDP), UNESCO, and the German technical cooperation agency, GTZ, demonstrated that the quality of education in Peru is very low and that the benefits of education are distributed unequally. Regional differences are very pronounced in terms of coverage and quality of education.
Of the total population, 12.8% are illiterate. Female illiteracy constitutes 73% of this total and is concentrated in rural areas of extreme poverty and among women who do not speak Spanish. Government literacy policies are insufficient, all the more so when it comes to female illiteracy.
The government has not adopted measures intended to extend a level of education to indigenous people that is equivalent to that received by other sectors of society. Bilingual education is not given priority in educational policies. Although public education is formally free, there are more and more obligatory fees that parents have to pay.
Government investment in the educational sector gives priority to infrastructure over the salaries of public school teachers which are now insultingly low. As a result, teachers are obliged to take two or three jobs. It also means that qualified teachers are beginning to leave to take other jobs and are being replaced by teachers who are not qualified, something that has serious consequences in terms of the deterioration of the quality of education.
5.8. Concerns and Recommendations of the Committee on Economic, Social, and Cultural Rights of the United Nations
At the beginning of May 1997, the Committee on Economic, Social, and Cultural Rights analyzed the first report of the Peruvian government on the situation of economic, social, and cultural rights in Peru, using as a reference the U.N.'s International Covenant of Economic, Social, and Cultural Rights.
After noting a series of reasons for concern, the Committee made a number of recommendations to the Peruvian government, including:(80)
- That it take effective action to eliminate all forms of discrimination and marginalization that afflict indigenous populations in the enjoyment of their economic, social and cultural rights.
- That it guarantee equality between men and women in all fields.
- That it make the necessary efforts to ensure compliance with the legislation on the minimum wage, safety and health in the workplace, equal pay for equal work for men and women and the legal recognition of young people from 16 to 25 years of age as workers.
- That, in cooperation with UNICEF and the ILO, it launch a program to combat the exploitation of child labor and the abandonment and exploitation of street children.
- That it improve the working conditions of domestic employees.
- That it improve the health care system and extend it to all sectors of the population.
- That it Increase its investments in education. That it guarantee compulsory and free primary education to all children in Peru, with a view to reducing the illiteracy rate.
6.1. Statements of Institutions that Form Part of the International and Regional Human Rights System and International NGOs
Human rights issues in Peru have merited the attention of a variety of institutions that form part of the international and regional human rights system and international NGOs. One of the most important statements from intergovernmental organizations came from the United Nations Committee on Economic, Social and Cultural Rights in May 1997. After reviewing the first report submitted by the Peruvian government, the Committee expressed its concern about a number of issues and made recommendations.(81) Details about this statement can be found above in the chapter on economic, social, and cultural rights.
During the session of the U.N. Sub-Commission on the Prevention of Discrimination and Protection of Minorities in August 1997, representatives of diverse international NGOs with consultative status referred to the situation in Peru in their comments. The most interesting, were the comments of David Weissbrodt, a member of the Sub-Commission. He expressed his concern about the human rights situation in Peru, stating, among other things, that:
For the Latin American region, I would draw your attention to the human rights situation in Peru. Although I acknowledge the recent improvements in the human rights situation, there continue to be some areas of concern. For example, I find troubling the reports of pervasive governmental surveillance, arbitrary detention, prolonged pretrial detention, and attacks on the judiciary.
Recently, a tele-journalist (sic) was summarily deprived of Peruvian nationality because of his report on widespread eavesdropping of legislators, business people, and journalists by the Peruvian intelligence agency...
There continue to be reports of prolonged pretrial detention. In addition, other detention issues remain problematic despite the establishment of a special commission to review cases of accused terrorists and to recommend presidential pardon for those unjustly detained....nonetheless, two problems persist. First, the improper imprisonment of so many people indicates that fair trial procedures are lacking. Second, some people are still inappropriately detained....
A further concern relates to the independence of the judiciary....
Another concern has been the amnesty laws whereby all military, police and civilian agents of the State are absolved of criminal liability for charges or convictions related to "war against terrorism" from May 1980 and June 1995....Not only do such laws prevent adequate and appropriate investigation into human rights violations, they also reduce the opportunities for victims of human rights abuses to receive just compensation...
The Special Rapporteur on Torture of the United Nations, in his annual report presented January 10, 1997,(82) to the U.N. Commission on Human Rights, expressed his concern about the denunciations of torture in Peru.
In the European Community, the European Parliament passed a very important resolution on Peru on July 17, 1997, in which it expressed its concern about the situation in the country and asked the Peruvian government to adopt a series of measures:
1. Asks the Peruvian government and Congress to reinstate the three judges dismissed from the Constitutional Tribunal;
2. Believes that it is essential that the independence of the judicial branch be respected in order to avoid all abuses of power by the executive branch which would undermine democratic institutions in Peru;
3. Asks the government of Peru to guarantee freedom of expression and the communications media and urges that there be an investigation of the abuses and attacks directed against independent journalists;
4. Urges the Peruvian government to guarantee that an independent investigation be carried out of the alleged attacks against members of the opposition;
5. Asks insistently that the [Peruvian] government take steps to put an end to torture and that any statement or evidence obtained under physical or psychological torture be declared inadmissable.
6. Urges Peruvian authorities to approve all the necessary measures to safeguard the integrity and lives of defenders of human rights, witnesses to or victims of human rights violations and to an end to the system of "faceless tribunals," the amnesty laws and the use of the military justice system for cases of violations of human rights;
7. Exhorts the authorities of the Peruvian state to adopt and implement all of the recommendations of the 1996 report on Peru by the Inter-American Commission on Human Rights.
8. Asks the Commission that it link any future cooperation with Peru to an improvement in the human rights situation in that country;
9. Charge its President that the present resolution be transmitted to the Council, the Commission, the Government, the President and the Congress of Peru and to the Commission on Human Rights of the United Nations.(83)
This resolution made headlines in Peru. A similar impact was caused by a resolution approved by the Spanish parliament authorizing the government of Spain to promote a common position in the European Union regarding the human rights situation in Peru, conditioning economic aid on respect for human rights. The Ministry of Foreign Affairs of Peru even summoned the Spanish ambassador in regard to this matter and in Spain, Luis Yañez, the deputy from the Spanish Socialist party (PSOE) that proposed this resolution received a death threat from a previously unknown group called the "5th of April" Commandos.(84)
The Inter-American Commission on Human Rights, in its 1996 Annual Report approved in its session of March 14, 1997, refers to several worrisome aspects of the situation in Peru and makes the following recommendations:
The Commission recommends that all of the antiterrorism legislation and the corresponding regulations be brought into line with the American Convention. In this connection, Article 27 of the American Convention, which regulates situations of emergency in regard to the absolute respect for those rights that cannot be abolished and regulates the guarantees essential to protect such rights, should be fully complied with.
The Commission recommends that the "faceless" courts be replaced by regular criminal courts that offer the accused the minimum guarantees required by due process and the right to a defense.
The Commission recommends that the Peruvian State adopt legislative or other measures to eradicate the practice of torture and the practice of admitting evidence obtained under torture.
The Commission recommends that Articles 140, 173, and 2.24 (g) and (f) of the constitution be amended to bring them into line with the provisions, inter alia, established at Articles 4, 7, and 8 of the American Convention on Human Rights.
The Commission recommends ending solitary confinement for persons declared to be guilty of terrorism and treason as well as a review of prison conditions generally, for this group of inmates.
The Commission recommends that the Peruvian State define the conduct it wishes to criminalize as terrorism, detailing the specific forms of conduct that may constitute terrorism, so as to not extend legal incrimination by analogy and to make it possible for the accused to exercise the right to a defense provided for in Article 8 of the American Convention. The definition of a type of criminal offense based on mere suspicion or association shifts the burden of proof and violates the fundamental presumption of innocence of the accused and should be eliminated.
The Commission considers that there have been major strides in the protection of human rights in Peru, not only because of the major reduction in the type and number of violations, but also in the creation of the post of Ombudsman and the National Registry of Detainees. As regards the Ad hoc Commission, which the Ombudsman chairs, the Commission takes note of the Government's real intention to review the convictions of those who were unjustly convicted of crimes of terrorism and treason and the release, to date, of 110 individuals who have been pardoned under this procedure. The Commission recommends that any record of their convictions be expurgated from their personal or police records.
The Commission recommends that the Peruvian State repeal the amnesty law (Nº 26,479) and the law on judicial interpretation (Nº 26,492) because they are incompatible with the American Convention and investigate, try, and punish the state agents accused of human rights violations, especially violations that constitute international crimes.
The Commission recommends that the Peruvian authorities take measures to prevent reprisals against human rights defenders and to protect witnesses and lawyers of the victims in order to guarantee the right to justice and effective legal protection.(85)
During the General Assembly of the Organization of American States, held in Lima in June 1997, there was concern about the dismissal of three judges from the Constitutional Tribunal. The Inter-American Commission on Human Rights held a press conference and in a press release, stressed the importance of the Constitutional Tribunal for the protection of human rights and stated that it expected that the Tribunal would begin to function normally again as soon as possible.
For its part, the Inter-American Court of Human Rights ruled in 1997 in two cases against the Peruvian government, one regarding María Elena Loayza Tamayo and the other regarding Ernesto Rafael Castillo Páez.
On September 17, 1997, the Inter-American Court ruled in the case of María Elena Loayza Tamayo which began in May 6, 1993, when the Inter-American Commission on Human Rights received denunciation No. 11.154. In its sentence, the Court considered that the following facts, among others, had been demonstrated:
That in the military court there existed a practice that affected the right of detainees charged with treason to pick a lawyer of their choice...that during the trial in the civilian courts for the crime of terrorism, despite the fact that she could pick a lawyer of her choice, access to her files and her right to exercise her defense in a full and free manner was interfered with.(86)
That during the period of the detention of Mrs. María Elena Loayza Tamayo, there existed in Peru a generalized practice of cruel, inhuman and degrading treatment in criminal investigations of crimes of treason and terrorism.(87)
In another part of its ruling, the Inter-American court noted that article 8.4 of the American Convention on Human Rights recognizes the principle of non bis in idem, the judicial guarantee that prohibits being tried twice for the same crime and that, in this case, "when María Elena Loayza Tamayo was tried in civilian courts for the same crimes for which she had been absolved in military courts, the Peruvian state violated article 8.4."(88)
In this ruling, the Court decided that in the case of María Elena Loayza Tamayo, the Peruvian government violated the right to personal liberty recognized in article 7 of the American Convention on Human Rights, the right to humane treatment established in article 5 of the American Convention, and the judicial guarantees established in articles 8.1, 8.2, and 8.4 of the American Convention.
A significant aspect of the ruling is that it orders the Peruvian government to free María Elena Loayza and pay her and her family members just compensation. This is the first time that the Inter-American Court ordered a government to free someone from jail. The Peruvian government finally set her free on October 16, 1997, a month after the ruling, but the compensation has not yet been paid.
On November 3, 1997, the Inter-American Court ruled in the case of Ernesto Rafael Castillo Páez that began when denunciation No. 10.733 was filed with the Inter-American Commission on November 16, 1990. This young college student was detained and disappeared by security forces on October 21, 1990, when he was walking in the Lima district of Villa El Salvador. On June 15, 1991, during the judicial investigation of his disappearance, there was an attempt on the life of his family's lawyer, Augusto Zúñiga Paz. Zúñiga received a letter bomb when he was at his job at the Human Rights Commission (COMISEDH). He lost his left arm when the bomb exploded and there was serious damage to COMISEDH's offices.
In its ruling, the Inter-American Court stated that it:
...considers that it has been demonstrated that during the period referred to, there existed in Peru, as widely documented by the press, a practice by security forces that consisted in forced disappearances of individuals considered to be members of subversive groups. In addition, these disappearances were also carried out against students and that, at the beginning of the 1990s, the security forces sometimes forced detainees into the trucks of police patrol cars, as occurred in this case.(89)
The Inter-American Court added that "it has been demonstrated that the detention and disappearance of Ernesto Rafael Castillo Páez are attributable to Peru for having been carried out by members of its National Police."(90)
Finally, the Inter-American Court ruled that in this case, the Peruvian government violated Castillo Páez' right to personal liberty recognized in article 7 of the American Convention, the right to humane treatment recognized in article 5 of the American Convention, and the right to an effective remedy in the appropriate national courts established in article 25 of the American Convention, ruling that "the Peruvian state is obligated to redress the consequences of these violations and to make reparations to the family of the victim and compensate them for the expenses that they incurred in their legal actions against Peruvian authorities in this case."(91)
In addition, there are two other cases currently before the Inter-American Court: Roberto Durand Ugarte and Gabriel Ugarte Rivera (violation of the right to life and humane treatment -- No. 10009), and Luis A. Cantoral Benavides (violation of the right to personal liberty and humane treatment -- No. 11337).
International human rights organizations have continued to express their concern about the situation in Peru. For example, Amnesty International, in its 1997 Annual Report, notes that: "Thousands of prisoners accused of terrorism-related offences awaited trial or were serving sentences under procedures which failed to guarantee international fair trial standards....Amnesty International continued to receive numerous reports of torture and death under torture."(92)
Human Rights Watch/Americas issued a special report on Peru entitled Torture and Political Persecution in Peru. In this report, they note, among other things, that "serious human rights violations continue to take place, prominent among them the use of torture,"(93) adding that "the media which, at the beginning of 1997, played a fundamental role in the denunciation of human rights violations, among them torture, were the victim of a series of repressive measures by the government in the following months."(94) This report makes a series of recommendations to different institutions of the Peruvian government.(95) In addition, in its annual report on the human rights situation around the world, Human Rights Watch dedicates a chapter to the situation in Peru in which it expresses a series of human rights concerns.(96)
6.2. Failure to Comply with International Commitments Assumed
Between 1993 and 1997, the Inter-American Commission on Human Rights made a series of recommendations to the Peruvian government, the great majority of which were not implemented.
These recommendations referred to four main issues: antiterrorism legislation; human rights violations, amnesty laws and impunity; defenders of human rights; and the Constitutional Tribunal.
a. The Peruvian government has not yet brought all of the legislation and respective norms into line with the American Convention on Human Rights. Military courts continue to try civilians accused of treason (an aggravated form of the crime of terrorism) and the government still has not established judicial control over measures such as holding prisoners incommunicado and the transfer of prisoners.
The defense is not permitted to questions witnesses, especially the police officers who prepared the affidavit; jurisdictional control over police during the prejudicial phase has not been regulated by law; the loss of Peruvian citizenship is maintained as a punishment for those found to have "defended terrorism."
In military courts, there continue to be limitations on the accused's right to a defense; the absolute prohibition on bail also continues in effect; solitary confinement and some other restrictions on prison regimens is maintained though there has been some flexibilization of visits to prisoners. Article 13 of Decree Law No. 25475 has not been repealed nor modified in order to guarantee fair trials.
A number of constitutional provisions have not been modified: the provision on the extension of the death penalty to the crimes of terrorism and treason (art. 140 of the 1993 constitution); the provision granting military courts the competence to try civilians suspected of terrorism or treason (art. 173); the provision that allows police to detain those accused of the crimes of terrorism, espionage, and drug trafficking for 15 days and to hold them incommunicado if "this is indispensable to clearing up the crime" (art. 2, clause 24, paragraphs "g" and "f" of the constitution).
Antiterrorism legislation has not been modified to provide adequate definitions of the crimes of terrorism and vague terms remain.
The law providing for the destruction of the personal and police records of innocent persons who were charged or sentenced for the crime of terrorism or treason and received presidential pardons has not been approved.
Thus, the Peruvian government has not followed the recommendations of the Inter-American Commission in its 1993 and 1996 annual reports about the situation in Peru and in its 1995 Annual Report about Case No. 10,970 (Fernando Mejía E. and Raquel Martín de Mejía).
b. In the area of human rights violations, amnesty laws, and impunity, the Peruvian government continues to try Armed Forces personnel accused of human rights violations in military courts; the practice of torture continues; Amnesty Law No. 26479 and "Interpretative Law" No. 26492 have not been repealed; and those responsible for human rights violation are not investigated, brought to trial or punished.
Thus, the government has not adopted the recommendations made by the Inter-American Commission in its 1993 and 1996 annual reports about the situation in Peru nor the recommendations made in relation to Case No. 10.559 (a massacre in Chumbivilcas in which 13 persons were victims of extrajudicial executions and 8 other persons were detained and disappeared).
c. Effective measures have not been taken to protect defenders of human rights in spite of the recommendations made by the Inter-American Commission in its 1996 Annual Report about the situation in Peru.
d. The Constitutional Tribunal has not begun to function again in a normal manner. Since the three judges who were dismissed have not been reinstated or replaced, the court only has four of the seven judges that the constitution calls for. Therefore, it cannot carry out its main function of deciding on the constitutionality of laws. In this sense, the Peruvian government has not implemented the recommendation made by the Inter-American Commission during the Twenty-Seventh General Assembly of the OAS in Lima in June 1997.
The Inter-American Court has ruled three times to provide compensation to victims of human rights violations and their families but these rulings have not been obeyed by the Peruvian government. The rulings relate to the cases of María Elena Loayza Tamayo, Ernesto Rafael Castillo Páez, and Neira Alegría and Others. The delay in the Neira Alegría and Others case is particularly disturbing since the first ruling of the Inter-American Court was on January 19, 1995, and, in addition, on September 19, 1996, the Court ruled that compensation should be provided but date set for compliance with this resolution has also passed.
The Peruvian state also still has not implemented the recommendations of United Nations human rights bodies: the recommendations of the Committee on Human Rights in 1996,(97) the recommendations of the Committee on Economic, Social and Cultural Rights in 1997,(98) and some of the recommendations of the Committee Against Torture.(99)
6.3. International Human Rights Instruments Awaiting to be Signed or Ratified
As we have noted in previous annual reports, there are still international human rights instruments that have not been signed or ratified by Peru. For example, the following instruments have not been signed:
- Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty
- The Inter-American Convention on Forced Disappearances of Persons
- The Protocol to the American Convention on Human Rights to Abolish the Death Penalty
In addition, we think that the Peruvian government should recognize the competence of the Committee Against Torture of the United Nations to receive and examine denunciations of such human rights violations, as provided for in articles 21 and 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
1. Those responsible for extrajudicial executions and other homicides carried out by state agents and for the thousands of forced disappearances that have not yet been explained should be investigated and punished. The Amnesty Laws should be repealed and a truth commission should be established to investigate human rights violations committed during the period of political violence. In addition, a law should be passed providing integral attention to the victims of political violence.
2. The Peruvian constitution should be reformed, eliminating the death penalty.
3. Measures should be taken to put an end to arbitrary detentions.
4. Cases of abuses and torture should be investigated and that those responsible should be punished in accordance with the seriousness of the crimes.
5. Security forces should be trained in the rights of citizens and the specific situations in which they are authorized to arrest individuals according to international human rights treaties, the Peruvian constitution, and the appropriate laws. In addition, police should be trained in investigative techniques to avoid the use of torture as a method of questioning. Members of the Armed Forces cannot detain or interrogate civilians accused of any crime. Legal doctors should be trained and should be given the means to carry out adequate examinations of the victims of torture.
6. The Ad Hoc Pardon Commission should continue its work until all the innocent persons who are still in prison unjustly accused of terrorism or treason are released.
7. Legislation that resolves the situation of persons with outstanding arrest warrants should be approved, respecting their particular situation and ending the threats against their freedom.
8. Prisoners who have not been tried should receive speedy trials.
9. Measures should be taken to improve the infrastructure of prisons and to augment the money allotted for food for prisoners; overcrowding in the Lurigancho Penitentiary should be eliminated and health conditions in this prison should be improved; Supreme Decree No. 003-96-JUS which provides for a special regime for prisoners considered "difficult to rehabilitate" should be modified and brought into line with the rules and principles established in international instruments on the treatment of prisoners. The "period of solitary confinement" should be eliminated.
10. The Challapalca Penitentiary should be closed and its prisoners should be transferred to penitentiaries that are designed to facilitate their reintegration into society.
11. The legislation that regulates the prison regimem of prisoners jailed for terrorism and treason should be modified, eliminating solitary confinement and making prison regulations more flexible.
12. Juvenile offenders should be held in Juvenile Centers specifically designed for them in which they participate in workshops and other activities designed to facilitate their reintegration into society. They should not be transferred to prisons for adults. Minors in the Quencoro-Cusco Prison should be transferred to the Juvenile Centers where they were previously held.
13. The illegal practice of forced recruitment should be eliminated. Members of security forces involved in this practice should be tried and punished by civilian courts. Abuses and mistreatment of youth carrying out Obligatory Military Service should be avoided; those responsible for such abuses should be investigated and punished.
14. Human rights activists should be given guarantees to carry out their work and those who threaten them should be investigated and punished.
15. The antiterrorism legislation should be repealed because it violates the minimum rules stipulated in international human rights instruments regarding due process. Laws that are in accordance with these instruments should be enacted. In particular, military courts should not be able to try civilians and should be limited in their jurisdiction to infractions of military laws by members of the military.
16. The legislation regarding the administration and management of the Public Prosecutor's Office should be modified, returning the appropriate functions to the Attorney General.
17. The three justices who were arbitrarily dismissed from the Constitutional Tribunal should be reinstated in their positions.
18. The right to freedom of expression should be respected and those responsible for aggression against the press should be punished.
19. Limitations on the exercise of political rights should be eliminated, including the laws that impose restrictions on referendums and set a high number of signatures for the inscription of political movements and parties.
20. Recommendations and sentences issued by the human rights bodies of the United Nations and the OAS should be complied with.
21. The Peruvian government should sign and ratify pending international human rights instruments such as the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, the Inter-American Convention on Forced Disappearances of Persons, and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. In addition, support should be given to the approval of the declaration on human rights monitors (Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity.
22. The adoption of the By-Laws of an International Penal Court which is permanent and universal should be supported to prevent and sanction very serious international crimes. This court should be impartial and independent, complementary to national legal systems, but not subordinate to them nor to any other national or international political body as has been stated by the spokesman of the Rio Group to which Peru belongs.
23. The family planning program should be restructured, especially the Voluntary Surgical Contraception program (Anticoncepción Quirúrgica Voluntaria --AQV), respecting the rights of individuals to choose freely and responsibly the number of children they want to have, with access to adequate information and the means to this end, without being submitted to any type of coercion or violence, since this is a human right. It is not acceptable to set goals or quotas, to use coercive practices against users of the program, putting in jeopardy their rights to health and to life. In addition, channels for community participation in these services should be established.
1. The MRTA assaulted the residence on December 17, 1996. The military action to free the hostages took place on April 22, 1997.
2. Statistics from the National Coordinator for Human Rights. See Appendix 1.
3. Reporte Especial No. 77, monthly report of the Banco de Datos y Documentación of DESCO, September 1997, p. 3.
4. Reporte Especial No. 76, monthly report of the Banco de Datos y Documentación of DESCO, August 1997, p. 9.
5. Source: DESCO.
6. UN Document E/CN.4/1997/34, paragraph 281. Translation ours.
7. UN Documents CCPR/C/79/Add.67, July 25, 1996, and CCPR/C/79/Add.72 , November 8, 1996.
8. Recommendation 6 -, p. 781-. Translation ours.
9. UN Document CCPR/C/79/Add.67, July 25, 1996, paragraph 20.
10. Zonas en Estado de Emergencia en el Perú, Comisión de Derechos Humanos (COMISEDH), December 1997.
11. Idem. COMISEDH, in its report, notes that in the 8 districts of the Province of Lima in which there continue to be states of emergency, the corresponding decree was published on December 16 but was retroactive until the 13th of December.
12. This section has been prepared with the help of the National Round Table on Displacement in Peru.
13. Article 43 of the 1993 constitution reads as follows:
The Republic of Peru is democratic, social, independent and sovereign.
The State is one and indivisible.
The government is unitary, representative and decentralized, and is organized on the principle of separation of powers.
14. Article 146, clause 1 of the 1993 constitution.
15. Article 146, clause 2 of the 1993 constitution stipulates that "the State guarantees judges: 2. That they cannot be removed from their positions. They cannot be transferred without their consent."
16. Article 144 of the 1993 constitution stipulates that the "President of the Supreme Court is also President of the Judicial Branch. The Plenum of the Supreme Court is the highest deliberative body of the Judicial Branch." Article 158 of the Constitution states that the "Public Ministry is autonomous. It is presided by the Attorney General...."
17. Article 201 of the 1993 constitution states that: "The Constitutional Tribunal is the body that interprets the constitution. It is autonomous. It is made up of seven members elected for five years...."
18. More details on this subject can be found in section 4.4.6., "The Excessive Expansion of Military Tribunals."
19. The General Law of Urban Habilitaciones, Law No. 26878, was published in official publication "El Peruano" on November 20, 1997.
20. Tan cerca de la muerte, reportaje a un grave atropello a los derechos humanos en el Perú, Asociación Pro Derechos Humanos (APRODEH), Lima, 1997, pp. 61-63.
21. "La República," Lima, March 25, 1997, p. 26.
22. Report No. 018-97-INC-A/D, of September 29, 1997. This report also states that in the same area there were also "remnants that could be identified as belong culturally and chronologically to a local culture known as 'Aquilpo' from the Late Intermediate Period which survived until the end of the pre-Columbian period, between the years 1100 and 1532."
23. According to the documentation sent by the Special Prosecutor's Office to the Ombudsman's Office, 107 denunciations of forced disappearances were received in the Judicial District of Ancash and 28 in the Judicial District of Huaura.
24. Resolution No. 1319-97-MP-CEMP of December 29, 1997.
25. File Exp. No. 97-0275-191601-JP01.
26. Resolution No. 61/DEPER/02.32.03 of December 26, 1997.
27. Resolution No. 3332/CGE/CP-JAPE of December 27, 1997.
28. Article 6 of the Inter-American Convention to Prevent and Punish Torture declares that: "In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish torture within their jurisdiction." Article 2.1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of the United Nations establishes that: "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." Both conventions have been signed and ratified by Peru.
29. The Conclusions of the Report presented by the National Coordinator for Human Rights to the Committee against Torture of the United Nations in March 1997, state that:
"a) Torture in Peru is Increasing. There is evidence that torture is increasing, especially as other types of serious violations of human rights such as forced disappearances and arbitrary executions have decreased. In many of these cases, the victims were also tortured. At the same time, there is evidence that the practice of torture has been transferred from the battle against subversion to efforts to fight common crime.
b) Torture is Practiced with Impunity. The legalization of impunity to include security forces that use torture in fighting terrorism produced two immediate effects. It covered up its use in the previous period and encouraged its current use, as the continuing denunciations of torture suggest. Another of the effects of amnesty law 26472 is the closing of the few cases opened for torture.
c) Torture is Practiced in the Whole Country. The diversity of areas in which torture has been denounced exceeds the areas under states of emergency and, thus, the problem also has a national dimension and is not only linked to combating terrorism but also appears in the battle against common crime. As examples, we present cases from at least 9 departments which reflect similar attitudes and problems.
d) Torture Methods are Identical. Testimonies indicate that there are similar practices in various places and by various agents. This suggests that the techniques employed are taught and, mainly, that the motivation is to obtain confessions from those detained.
Among the methods used are: blindfolding the victim, the use of pseudonyms for torturers, asphyxiation in water, application of electric current, twisting of arms, beating, burning with cigarettes.
e) There is an "Institutionalization" of Torture. There are mechanisms of "institutionalization" that permit: defacto limits to access of those detained to a lawyer or to the prosecutor on duty, partial or non-independent work of legal doctors, a culture of violence and punishment that is more or less accepted by citizens and authorities, a sickness that is not being eradicated but, to the contrary, is tolerated.
f) Torture in Peru is Systematic. The lack of investigations and sanctions, penal or civil, reveals that the effort to solve the problem has not been assumed by government functionaries as a group. Torture is an uncontrolled practice subject to impunity, whether or not current laws are positive or deficient.
Nevertheless, the persistence in maintaining antiterrorism legislation that restricts the right to a defense, that violates due process, and the legalization of impunity, shows that there is a government policy to give priority to the apparent security of the state to the detriment of the rights of citizens.
This fact, combined with the events described and despite the good intentions declared by Peruvian government authorities, lead us to conclude that torture is a systematic practice in this country."
30. At the publication deadline for this report, the Congress had approved a law that adds to the Penal Code, Section XIV-A titled "Crimes Against Humanity" that regulates, in Chapter III, the crime of torture (arts. 321 y 322). The date of the law is January 30, 1998. On the same day, it was sent to the President for its promulgation. The law finally was published in the official gazette "El Peruano" on February 21, 1998, Law No. 26926.
31. ¿Quienes son los inocentes?, Instituto de Defensa Legal, Lima, August 1997, p. 23, 26.
32. The case of Fortunato Chipana Ccahuana is described under "extrajudicial executions" above.
33. Arrepentidos refer to people who were involved with subversive groups and who later decided to give information to the police in exchange for the reduction of their sentences or not being sentenced to jail. To this end, special legislation was promulgated: Decree Law No. 25499 and modifying and complementary laws. This legislation was in effect from May 1992 until November 1, 1994. The irregular application of these legal measures led to the detention of many innocent people.
34. The 36 peasants detained were: Félix Jorge Romero, Lauro Aquesi Lizana, Martín Marcelo Morales, Jacobo Véliz Chaquin, Fermín Corahua Orihuela, Inés Marilú Gálvez, Javier Aguilar Mansilla, Teófilo José Huamán Navarro, Augusto Elguera Machari, Paulino Solís Taype, Carlos González Pérez, Alfonso Rojas Jollja, Feliciano Melgarejo Acosta, Ever Alcides Wistrecher Cánepa, Henry Wilson Wistrecher Cánepa, Dario Vargas Martínez, Juan Vargar Martínez, Reynaldo Rivas Naveros, Guido Pedraza Machaga, César Mallma Casas, Oscar Mallma Casas, Roberto Huamán Cañare, Félix Ascencio Quinchuria, Richard Ramírez Sullca, Verónica Castro Quinto, Bruno Izurraga Soto, Oscar Orbegoso Melgarejo, Josías Pascual López, Emerson Wistrecher Cánepa, Jhonny Izurreaga Soto, Mauro Palomino Hoyos, Marlene Nieves Cusi Pérez, Rosa Bernardo López, Ana Valerio Machari, Egla Dionisio Antazu and Loida Zoline Dionicio Antazu.
35. Details about this incident can be found in Tan cerca de la muerte, reportaje a un grave atropello a los derechos humanos en el Perú, APRODEH, pp. 19-41.
36. Legal Medical Certificate No. 284-97-UBASS-T/D issued on October 9, 1997.
37. Police Parte No. 033-97-JP-PNP-SECOTE-T.
38. ¿Quienes son los inocentes?, Instituto de Defensa Legal, pp. 29-30. IDL states in this report that "in the case of women, there is a larger percentage of cases of torture by rape" (p. 30). (Translation ours.)
39. On June 30, 1996, the Technical Secretary of the Ad Hoc Pardon Commission estimated that the number of individuals imprisoned for terrorism and treason at 3,876. Up to December 6, 1996, the Commission had received 1,528 petitions for pardon or presidential pardon (derecho de gracia). As of December 1996, human rights organizations had taken on the legal defense of 654 detained innocent individuals (412 awaiting sentence, 242 sentenced) and 29 that had not been captured (see Report on the Human Rights Situation in Peru in 1996, CNDDHH, p. 31).
40. The resolutions that granted pardons or presidential pardons (derecho de gracia) were published on the following dates: October 1, 1996 (3), October 4, 1996 (28), October 19, 1996 (14), October 29, 1996 (17), November 13, 1996 (12), December 7, 1996 (36), June 25, 1997 (116), November 28, 1997 (83), and December 24, 1997 (51).
41. Statistical report from the Ad Hoc Commission, Recommendations for Pardons under Law No. 26655, prepared for the Executive Secretary of the CNDDHH, Lima, January 1998.
42. On January 21, 1998, when this report was being finished, a Resolution of the Executive Commission of the Judiciary was published in the official gazette "El Peruano" which states that "jurisdictional entities must comply with that which has been disposed regarding rehabilitation in the cases of those benefited by presidential pardons [derecho de gracia] or pardons." It is resolved to "send a Circular Communication to the presidents of the Superior Courts of Justice of the Republic, indicating that they are responsible for adopting the pertinent measures in order that the competent jurisdictional organs in their Judicial Districts strictly comply with what is disposed in Article Sixty-Nine of the Penal Code, in the cases of those who have received the benefit of a presidential pardon [derecho de gracia] or pardon." Article 69 of the Penal Code of 1991 regulates rehabilitation and, among other things, disposes the "cancellation of penal, judicial, and police criminal records." (Translations of all Peruvian documents are ours).
43. Ministerio de Justicia, Instituto Nacional Penitenciario, Informe estadístico mensual, Oficina General de Informática, December 1997.
44. See the "Report of the Mission of the National Coordinator for Human Rights to Challapalca, July 2, 1997."
45. "Informe sobre la situación del Establecimiento Penitenciario de Régimen Cerrado Ordinario Lurigancho," Defensoría del Pueblo, Serie Informes Defensoriales, Informe No. 5, Lima, October 1997.
46. Ob. Cit., pp. 8-9.
47. Breve Informe: Situación de los menores en el Centro de Rehabilitación de Quencoro-Cusco, Coordinadora Nacional de Derechos Humanos, Cusco, November 12, 1997.
48. For more information see Appendix 2.
49. On August 28, 1997, the Ombudsman's Office issued a report on forced recruitment and Obligatory Military Service and on September 12 it published a communique on the subject in the official gazette "El Peruano."
50. The General Secretary of the Attorney General's Office, in Communication No. 1245-97-MP-SEGFIN of July 24, 1997, informed the National Coordinator for Human Rights that it had sent this case to the Sixteenth Prosecutor's Office for Penal Matters of Lima. In a later communication, the Ombudsman's Office informed the National Coordinator for Human Rights that on August 4, the Sixteenth Prosecutor's Office started this investigation, No. 477-97.
51. See the Informe Annual de la Comisión Interamericana de Derechos Humanos 1996, Organization of American States, Washington, D.C., 1997, pp. 780. Translation ours.
52. Idem, pp. 780-781.
53. Inter-American Court of Human Rights, Loayza Tamayo Case, Ruling of September 17, 1997, page 32, paragraphs 67 and 68. Translation ours. Article 8.4. of the American Convention on Human Rights states: "An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause." According to the Inter-American Court of Human Rights this provision includes the principle of non bis in idem, the judicial guarantee that prohibits being tried twice for the same crime (see paragraph 66 of this ruling).
54. Law No. 26671 promulgated on October 12 states the following: "beginning on October 15, 1997, crimes of terrorism will be tried by the specified judges according to current organic and procedural laws" Since this disposition was not modified, the system of ordinary penal tribunals came into existence on the date indicated.
55. More information about this case can be found in the chapter on freedom of thought and expression.
56. "La defensa de Orezzoli," "La República" (Revista Dominical), Lima, August 31, 1997, pp. 8-9.
57. In its decision of January 3, promulgated on January 17, the Constitutional Tribunal ruled "INAPPLICABLE, by unanimous vote, with the abstentions indicated, and exercising its powers of diffuse control, the interpretative law No. 26657, for the concrete case of a new candidacy for the presidency of the Republic, in the year 2000, of the current Chief of State." The official gazette "El Peruano" tried to distort the meaning of this ruling by publishing the decision using a different wording and with the imprudent headline: "The Suit of Unconstitutionality Against Law No. 26657 was Rejected and Thus It Maintains its Constitutionality." This led to a complaint by the President of the Constitutional Tribunal who demanded that the decision be published again, accurately. It was published again on January 18 with the correct wording but with the misleading headline cited above.
The newspaper "El Comercio," in its editorial of May 7, 1997, entitled "The Constitutional Tribunal and Political Tenacity" stated that "Things have to be said openly. The future plans of the current government which include staying in power between the year 2000 and 2005 have run into an unsurmountable obstacle in the decision by the Constitutional Tribunal. Given that this institution refuses to change this honest decision, in the political logic of this regime, the only alternative is to terminate the existence of this institution." Translation ours.
58. See the rulings of the Constitutional Tribunal in cases Nos. 007-96-I/TC y 008-96-I/TC, published on April 16, 1997 in the official gazette, "El Peruano."
59. Article 2, clause 10 of the 1993 constitution establishes the right to privacy of individuals and the inviolability of their communications and private documents and explicitly states that "communications, telecommunications and their instruments only can be opened, seized, intercepted or intervened by order of a judge, with the guarantees established by law. Matters that have nothing to do with the subject of the investigation are kept secret."
60. The National Association of Journalists of Peru press release was entitled: "1997, a difficult year, EIGHTY-NINE ATTACKS AGAINST JOURNALISTS," January 14, 1988. This press release also reported that "In Lima there were 59 cases, 5 in Huaraz, 2 in Arequipa, 2 in Chepén, 2 in Juliaca, 1 in Tarapoto, 1 in Sullana, 1 in Huánuco, 1 in Pucallpa, 1 in Paita, 1 in Pisco, 1 in Chimbote, 1 in Rioja, 1 in Bagua Chica, 1 in Junín, 1 in Puno, 1 in Quillabamba, 1 in Yurimaguas, 1 in Satipo, 1 in San Pedro de Lloc, 1 in Tacna, 1 in Puerto Maldonado and 1 in Huancayo… Television journalists, with 34 cases, were the most affected; the press, with 33 cases, was in second place, and radio journalists, with 22, in third place." Translation ours.
61. Directorial Resolution No. 117-97-IN-050100000000, promulgated on July 13, 1997, ruled to "Annul Certificate of Peruvian Citizenship No. 004644 issued December 7, 1984, in the name of Mr. Baruch Ivcher Bronstein, because of there having been substantial infractions which invalidate it ipso jure, for the reason of not having vouched for the timely and previous renunciation of his nationality before the competent Peruvian authorities, nor demonstrated instrumentally that he also had done it before the authorities of his country of origin" (art. 1). According to the 1993 Peruvian constitution, the "law regulates the ways in which citizenship is acquired or recuperated...Peruvian citizenship cannot be lost, except by express renunciation before Peruvian authorities" (art. 53). At the same time, the constitution recognizes the right of every individual to his/her "citizenship. No one can be stripped of it" (art. 2, clause 21).
62. December 10, 1997, ruling of the Penal Court of the Supreme Court (R.N. No. 5634-97) which upholds the ruling of the Decentralized Mixed and Itinerant Court of Puerto Maldonado of October 21, 1977.
63. The 1993 constitution stipulates in article 2, clause 4, that everyone has the right to "freedom of information, opinion, expression and diffusion of thought through the spoken or written word or image, in any communications medium, without previous authorization nor censure nor any other impediment, under the responsibility of the law." See also article 13 of the American Convention on Human Rights.
64. By the deadline for this report, information was received that a majority ruling (two votes in favor and one against) on January 3, 1998, by the judges of the First Penal Court of Puno who are members of the Corporative Penal Court for Cases of Terrorism acquitted the accused of the crime of terrorism despite the fact that they admitted their participation in the attack against the offices of Global Television-Puno branch.
65. Article 2, clause 5 of the 1993 constitution establishes the right of everyone to "ask for, without having to give a reason, the information that they need and to receive it from any public institution, within the legally established period of time, paying the costs that the request entails."
66. Informe sobre la situación de los derechos humanos en el Perú en 1996, Coordinadora Nacional de Derechos Humanos, Lima, 1997, pp. 73-74.
67. See Resolution No. 491-96-JNE, of September 27, 1996, and Resolution No. 630-96-JNE, of November 1, 1996.
68. We commented on this percentage in our 1996 annual report stating that it constituted "an excessively high barrier whose purpose is to limit this right" (Ob. Cit., p. 73).
69. According to art. 179 of the 1993 constitution, the National Electoral Board is made up of five members: one elected by the judges of the Supreme Court, another elected by the Council of Supreme Prosecutors, a third elected by the Lima Bar Association, and the rest by the deans of the laws schools of public and private universities. Art. 178 of the constitution gives the National Electoral Board the following responsibilities, among others: to supervise the legality of the voting process and the organization of elections, referendums and other consultations of the populace.
70. The Francisco Congo Black Movement notes that "the importance of this law [lies in the fact] that it recognizes that in this country there exists discrimination on the basis of race" (Racismo en la sociedad peruana y la ley antidiscriminatoria, Movimiento Negro Francisco Congo, 1997, Lima, p. 9). Nevertheless, they note that there is inconsistency in this law in that it makes reference to differentiated treatment "which does not have an objective and reasonable justification" (art. 2) since this "tells us that discrimination exists when there are certain motives but discrimination does not exist when there is some objective and reasonable justification" (Ob. cit., p. 10). In addition, they add that "the racial problem is not taken care of with law 26772 in its real magnitude that this issues merits in our country (Ob. cit., p. 11). In another publication, this organization discusses the limitations of this law in taking on racial discrimination (Bongó, Boletín del Movimiento Negro Francisco Congo, Year 1, No. 1, November 30, 1997, p. 9).
71. When this report was being prepared for publication, the regulations were promulgated in Supreme Decree No. 002-98-TR on February 1, 1998.
72. See Carta Circular No. 41, Coordinadora Nacional de Derechos Humanos, Lima, October, 1997, pp. 20-22.
73. This section has been prepared on the basis of information provided by the Amazon Center for Anthropology and Applied Practice (CAAAP).
74. Details about the incidents in Alto Yurinaki are described in the section on torture and abuses.
75. This chapter is based on a document prepared by the Round Table on the Economic, Social, and Cultural Rights created through the auspices of the CNDDHH and made up of various organizations that work on development issues and human rights.
76. Article 105 of the 1979 constitution states "The precepts contained in international human rights treaties have constitutional rank. They cannot be modified except by the procedures that are in effect for the reform of the constitution."
77. In article 200, clause 4, of the 1993 constitution which regulates suits of unconstitutionality, reference is made to "norms that have the level of law: laws, legislative decrees, emergency decrees, treaties, congressional regulations, regional norms that have a general character and municipal ordinances." This situation has led to judicial rulings that prefer laws over treaties (see the ruling of the Eleventh Penal Court of Lima on July 14, 1995, that permitted the application of the Amnesty Laws in the case of the Barrios Altos massacre).
78. "Concluding Observations of the Committee on Economic, Social and Cultural Rights, United Nations Document E/C.12/1/Add.14 of May 20, 1997, paragraphs 13 and 14, pp. 3-4. Among other things, "The Committee notes with concern that the 1993 constitution has not incorporated the provisions of the Covenant, which consequently do not constitute a part of domestic law and therefore cannot be invoked before Peruvian courts" and "...that, under the 1993 constitution, international human rights instruments are on the same level as domestic laws and that, according to a recent decision by the Supreme Court of Justice, the provisions of these instruments do not have constitutional rank" (paragraph 14). Translation ours.
79. Research carried out between September 1996 and December 1997 by Flora Tristán, Center of the Peruvian Woman. This document states that they learned "of the existence of quotas for voluntary surgical contraception which health services personal are obliged to meet." In addition, it notes that among a total of 258 testimonies gathered, "36 of the women interviewed stated that they had not given their authorization for surgical sterilization, 89 were pressured to be operated in different ways, 27 were told that the operation was reversible, 44 were operated after they had given their consent in a difficult moment such as during labor, 35 had complications after being operated. Of the 258 women, 132 said that none had any kind of medical evaluation in relation to their pregnancy."
80. United Nations Document E/C.12/1/Add.14 of May 20, 1997, paragraphs 27-40, pp. 6-7. Translation ours.
81. "Observaciones finales del Comité de Derechos Económicos, Sociales y Culturales sobre Perú", UN Doc. E/C.12/1/Add.14, May 20, 1997.
82. Document E/CN.4/1997/7.
83. Resolution on Peru of the European Parliament on July 17, 1997, Doc. B4-0598, B4-0615, B4-0656 y B4-0679/97. Translation ours.
84. See "El Comercio" (Lima), September 18, 1997.
85. Annual Report 1996, Inter-American Commission on Human Rights, Washington, D.C., March 14, 1997. Translation ours.
86. Inter-American Court of Human Rights, Loayza Tamayo Case, ruling of September 17, 1997, paragraph 46."j", p. 26. Translation ours.
87. Doc. Cit., paragraph 46."l", p. 27. Translation ours.
88. Doc. Cit., paragraph 77, p. 34. Translation ours.
89. Inter-American Court of Human Rights, Castillo Páez case, ruling of November 3, 1997, paragraph 42, p. 13. Translation ours.
90. Doc. Cit., paragraph 46, p. 15. Translation ours.
91. Doc. Cit., p. 26. Translation ours.
92. Amnesty International Report 1997: http://www.amnesty.org/ailib/aireport/ar97/AMR46.htm.
93. Tortura y Persecución Política en el Perú, Human Rights Watch / Americas, 1997, p. 2.
94. Ob. Cit., p. 4. Translation ours.
95. Ob. Cit., pp. 5-6.
96. Informe Anual sobre la Situación de los Derechos Humanos en el Mundo 1998, Human Rights Watch, 1997, pp. 52-58.
97. See "Observaciones preliminares del Comité de Derechos Humanos", U.N. Document CCPR/C/79/Add.67, July 25, 1996; "Observaciones finales del Comité de Derechos Humanos", U.N. Document CCPR/C/79/Add.72, November 8, 1996.
98. See "Observaciones finales del Comité de Derechos Económicos, Sociales y Culturales", U.N. Document E/C.12/1/Add.14, May 20, 1997.
99. See the United Nations document on the meetings of this Committee on November 9, 1994: CAT/C/SR.193 y 194.
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