Report No. 110 (2011) IACHR. Petition No. 801-98 (Perú)

• Year: 2011
• Report Number: 110
• Petition Number: 801-98
• Court: Inter-American Comission of Human Rights
• Respondent State: Perú
• Case Type: Admissibility
• Alleged Victim: Carlos Braulio Arana Franco

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REPORT NO. 110/11

PETITION 801-98

CARLOS BRAULIO ARANA FRANCO

ADMISSIBILITY

PERU

July 22, 2011

I. SUMMARY

1. On November 11, 1998, the Inter-American Commission on Human Rights (hereinafter also "the Inter-American Commission", "the Commission", or "the IACHR") received a petition presented in his own name by C.B.A.F. (hereinafter also "the petitioner" or "the alleged victim"), alleging violations by the Republic of Peru (hereinafter also "Peru", "the S., or "the S. of Peru") of rights enshrined in the American Convention on Human Rights (hereinafter also "the American Convention" or "the Convention"). The petitioner complained about being arbitrarily detained and forced into signing seizure records in which he admitted possessing subversive material. He stated that he was convicted of the crime of terrorism, in a trial conducted by faceless judges and without the guarantees of due process. He indicated that although he was pardoned and released in December 2000, the S. did not compensate him for the moral and material damages caused by his detention.

2. The S. maintained that the allegations in the petition have substantially changed, by reason of the fact that Mr. C.B.A.F. regained his freedom in December 2000 after obtaining a presidential pardon. It emphasized that the alleged victim has not presented a request before the domestic legal authorities demanding compensation for damages sustained due to his detention. In this regard, it argued that the petition does not comply with the requirement set out in Article 46(1)(a) of the Convention. F., it argued that the events set out in the petition do not characterize a violation of rights protected in the Convention and requested that the IACHR declare the complaint inadmissible by virtue of Article 47(b) of the same instrument.

3. After examining the position of the parties, in the light of the requirements for admissibility set out in A. 46 and 47 of the Convention, the Commission concluded that it was competent to examine the petition and that it was admissible with regard to the alleged violation of the rights enshrined in A. 5, 7, 9, 10, 13, 8 and 25 of the American Convention, in relation to A. 1(1) and 2 of the same instrument. The Commission decided to notify the present Admissibility R. to the parties, to publish it and to include it in its Annual R..

II. PROCEEDINGS BEFORE THE COMMISSION

4. On November 11, 1998, the petition was received and registered under number 801-98. On May 1, 2006, the petitioner presented additional information. On December 11, 2008, this documentation was sent to the S., with a time limit of two months to present its response, in conformity with the IACHR's Rules. On March 13, 2009, the S. presented its response, and on September 7, 2010, it sent an additional brief. The petitioner sent additional information on J. 28, 2010 and on May 17, 2011.

III. POSITION OF THE PARTIES

Preliminary Question

5. In the proceedings of the present complaint the petitioner and S. described the criminal trial undertaken against the alleged victim and held in accordance with the terrorism legislation adopted from the beginning of May 2002 and remaining in force until January 2003. Before outlining the position of the parties, the IACHR considers it necessary to refer to the above legislative framework applicable to the events referred to in the claims.

Legislative framework in which the criminal proceedings against the alleged victim were held

6. D.L. No. 25475, dealing with different forms of the crime of terrorism, was enacted in May 1992. In August of that year, D.L.N. 25659 was enacted, criminalizing the offense of treason against the fatherland and giving the military justice system competence over the prosecution of that crime. T. decrees, along with decrees Nos. 25708, 25744, 25880, and other complementary provisions, equipped the P. legal system with new exceptional procedures for investigating, examining, and prosecuting individuals accused of terrorism or treason against the fatherland.

7. The decrees that made up what was known as the “antiterrorist legislation” had the stated purpose of reining in the escalation of targeted killings against officers of the judiciary, elected officials, and members of the security forces, as well as of disappearances, bombings, kidnappings and other indiscriminate acts of violence against the civilian population in different regions of Peru, attributed to outlawed insurgent groups.

8. Among other changes, these decrees allowed the holding of suspects incommunicado for specified lengths of time,¹ holding closed hearings, solitary confinement during the first year of prison terms,² and summary deadlines for presenting charges and issuing judgments in the case of the crime of treason against the fatherland.³ In addition, these decrees denied suspects the assistance of a legal representative prior to their first statement to an agent of the Public Prosecution Service⁴ and restricted the attorney’s participation in the criminal proceedings, disallowed the recusal of judges or other judicial officers,⁵ established concealed identities for judges and prosecutors (“faceless courts”),⁶ prevented the summoning, as witnesses, of state agents who had participated in preparing the police arrest report.⁷

9. As for their provisions of material law, these decrees allowed for the possibility of applying more than one criminal offense to actions of a similar or identical nature; they did not differentiate between different levels of mens rea;⁸ and they only indicated minimum prison terms, without setting maximum penalties.⁹

10. On May 12, 1992, the E.B. passed Decree-Law 25499, also called the Repentance Law, which regulated the reduction, exemption, remission or mitigation of imprisonment sentences for persons charged or convicted for the crime of terrorism who provided information leading to the capture of chiefs, heads, leaders or principal members of terrorist organizations.¹⁰ By means of Supreme Decree No. 015-93-JUS of May 8, 1993, the E.B. adopted the Regulations for the Repentance Law, which provided, among other measures, the secrecy or change of identity for the repentant persons making the statement.¹¹ The Repentance Law expired on October 31, 1994.¹²

1. Petitioner's Position

11. He alleged that on J. 22, 1992 his brother, R.A.F decided to get rid of some documents belonging to his other younger brother, L.A.A.F., who had been accused of being a leader of the Communist Party of Peru - Shining Path. He indicated that after placing the material in the trash on a public road, R.A.F. was arrested by officers of the National Police who were on patrol in the area. He stated that when he realized his brother had been arrested, he tried to intervene on his behalf, but was also arrested by the police officers.

12. The petitioner submitted that when he arrived at the police station he was forced to sign a seizure record admitting that he was the owner of letters relating to Shining Path and other documents classified by the police officers as having "a subversive content" It...