Report No. 111 (2011) IACHR. Petition No. 240-00 y otras (Perú)

• Report Number: 111
• Petition Number: 240-00 y otras
• Year: 2011
• Respondent State: Perú
• Alleged Victim: José Félix Arce Apaza y Luis Enrique Quispe Vega
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights

11

REPORT No. 111/11

PETITIONS 240-00 – JOSÉ FÉLIX ARCE APAZA

4582-02 – LUIS ENRIQUE QUISPE VEGA

ADMISSIBILITY

PERU

July 22, 2011

I. SUMMARY

1. This report refers to two petitions, one filed on behalf of J. Félix A.A. (P 240-00)¹ and the other on behalf of L.E.Q.V. (P 4582-02)² [hereinafter also “the alleged victims”] in which it is alleged that the Republic of Peru (hereinafter also “Peru,” “the S.,” or “the P. S.") violated rights enshrined in the American Convention on Human Rights (hereinafter also “the American Convention” or “the Convention”) and in the Inter-American Convention to Prevent and Punish Torture. The petitions argue that the alleged victims were detained and convicted under decree-laws on terrorism adopted during the government of A.F.. It is said that those decrees, as well as the criminal proceedings that stemmed from them, are contrary to a series of provisions of the American Convention. It is indicated that the alleged victims were convicted based on evidence fabricated by the National Police of Peru, witness statements, and representations of co-defendants made without guarantees of due process.

2. The S. argued that the proceedings brought against the alleged victims were substantiated in keeping with the provisions pre-established in the domestic law, and that they were convicted by impartial and competent courts, with strict observance of due process guarantees. It stated that in early 2003 a new legislative framework was adopted on terrorism that is in line with the American Convention and the Constitution of Peru. It argued that the facts narrated in the complaints do not tend to establish violations of provisions of the Convention and asked that the IACHR find them inadmissible under Article 47(b) of the Convention.

3. A. examining the parties’ positions in light of the admissibility requirements set forth in Articles 46 and 47 of the Convention, the Commission concluded that it is competent to examine the petitions and that they are admissible for the alleged violation of the rights enshrined in Articles 5, 7, 9, 11, 8, and 25, as related to Articles 1(1) and 2 of the American Convention, as well as Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture. The Commission decided to join the petitions and process them together in the merits stage, as case number 12.826. F., it decided to notify the parties of this Admissibility R., make it public, and include it in its Annual R. to the OAS General Assembly.

II. PROCESSING BEFORE THE COMMISSION

4. P. 240-00 was filed on May 18, 2000, and the petitioner submitted additional information on July 18, 2000, and April 3, 2006. On November 19, 2008, that documentation was forwarded to the S., which was given two months to file its response. On February 24, 2009, the S. sent its response, and on October 15 and November 2, 2009, it forwarded additional briefs. The petitioner sent additional information on May 7 and 27, 2009 and J.8., 2010.

5. P. 4582-02 was received on December 3, 2002, and on May 9, 2006, the petitioners submitted additional information. On November 19, 2008, that documentation was forwarded to the S., which was given two months to submit its response. On February 24, 2009, the P. S. filed its response, and on March 13 and November 2, 2009, it sent additional communications.

III. THE PARTIES’ POSITIONS

Preliminary Issue

6. In the complaints considered in the instant report, the petitioners and the S. described criminal proceedings under decree-laws on terrorism promulgated during the government of former President Alberto F.. Those decrees were in force until the adoption of a new legislative framework on terrorism in January and February 2003. B. describing the position of the parties, the IACHR deems that it is necessary to refer to the regulatory frameworks mentioned by the parties.

A. legislation in force from May 1992 to January 2003

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

8. 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.

9. Among other changes, these decrees allowed the holding of suspects incommunicado for specified lengths of time,³ holding closed hearings, solitary confinement during the first year of prison terms,⁴ and summary deadlines for presenting charges and issuing judgments in the case of the crime of treason against the fatherland.⁵ In addition, these decrees denied suspects the assistance of a legal representative prior to their first statement to an agent of the Public Prosecution Service⁶ and restricted the attorney’s participation in the criminal proceedings, disallowed the recusal of judges or other judicial officers,⁷ established concealed identities for judges and prosecutors (“faceless courts”),⁸ prevented the summoning, as witnesses, of state agents who had participated in preparing the police arrest report.⁹

10. 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;¹⁰ and they only indicated minimum prison terms, without setting maximum penalties.¹¹

11. On May 12, 1992, the E.B. of Government passed D.-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.¹² By means of Supreme D. 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.¹³ The Repentance Law expired on October 31, 1994.¹⁴

A. legislation in force as of January 2003

12. On January 3, 2003, a series of provisions contained in the terrorism decree-laws enacted during the F. administration were ruled unconstitutional by the Constitutional Court.¹⁵ That decision ruled D. Law 25659 unconstitutional and ordered accusations for the crime of treason against the fatherland as defined therein to be tried as terrorism, as provided for in D. Law 25475. In addition, it annulled the provisions that prevented the recusal of judges and the subpoena of officers involved in the police arrest report as witnesses and the provisions that allowed civilians to be tried by military courts. At the same time, absolute incommunicado detention and solitary confinement during the first year of prison terms were also ruled unconstitutional.

13. With reference to the crime of terrorism, the Constitutional Court upheld the legality of Article 2 of D. Law...