Report No. 74 (2010) IACHR. Petition No. 574-98 (Perú)

• Report Number: 74
• Petition Number: 574-98
• Year: 2010
• Respondent State: Perú
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Alleged Victim: Luis A. Miranda Moscol

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REPORT No. 74/10

PETITIONS 574-98 – LUIS ALEJANDRO MIRANDA MOSCOL

1067-03 – JORGE EDUARDO OLIVARES DEL CARPIO

766-04 – AURELIO AQUINO PARI

863-04 – BORIS MIJAIL TAYPE CASTILLO

ADMISSIBILITY

PERU

July 12, 2010

I. SUMMARY

1. This report deals with petitions lodged on behalf of Luis Alejandro Miranda Moscol (P 574-98)¹, Jorge Eduardo Olivares del Carpio (P 1067-03)², Aurelio Aquino Pari (P 766-04)³ and Boris Mijail Taype Castillo (P 863-04)⁴ (“the alleged victims”), which allege the violation, by the Republic of Peru (“Peru,” “the State” or “the Peruvian State”), of rights enshrined in the American Convention on Human Rights (“the American Convention” or “the Convention”). The petitions claim that between 1992 and 1995, the alleged victims were arrested, prosecuted, and convicted under decree laws applicable to the crimes of terrorism and treason against the fatherland. They maintain that those decrees, and the criminal proceedings based on them, were in breach of a series of provisions contained in the American Convention. They also claimed that the alleged victims were tortured, kept in isolation for long periods, and held in subhuman conditions. The petitioners affirmed that after being convicted by military courts the alleged victims were retried before ordinary courts under legislative decrees enacted after January of 2003, which they claimed were also incompatible with the American Convention.

2. The State maintained that the facts set out initially in the petitions have altered substantially following the adoption of the new legislative framework governing terrorism in early 2003. It stated that this new framework and the criminal trials conducted under it are in line with the rights and guarantees set forth in the American Convention and the Constitution of Peru. Finally, it claimed that the facts described in the petitions do not tend to establish violations of any of the Convention’s provisions and asked the IACHR to rule them inadmissible in accordance with Article 47(b) thereof.

3. After examining the parties’ positions in light of the admissibility requirements set out in Articles 46 and 47 of the American Convention, the Commission concluded that it is competent to hear the four petitions and that they are admissible as regards the alleged violation of the rights enshrined in Articles 5, 7, 9, 11, 8 and 25 of the American Convention, in conjunction with Articles 1(1) and 2 thereof, and of the rights contained in Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture. Furthermore, the IACHR decided to join the four petitions and to process them together in the merits stage under the number 12.765. Finally, the Commission decided to notify the parties of this Report on Admissibility, to make it public, and to include it in its Annual Report.

II. PROCESSING BY THE COMMISSION

4. Petition 574-98 was received on November 9, 1998, and the petitioners submitted additional information on December 7, 1998, July 3, 2000, May 7 and December 19, 2001, October 29, 2007, and July 22, 2008. The relevant parts of these documents were sent to the State on April 13, 2009, with a time limit of two months to respond. On June 15, 2009, the State presented its response and on November 2 and December 18, 2009 submitted additional briefs. The petitioners presented additional information on August 14, 2009.

5. Petition 1067-03 was received on December 8, 2003 and in briefs of November 10, 2004, January 18, and October 25, 2005, August 11, 2006, March 5 and May 8, 2007, May 13, June 4 and August 26, 2008 and January 29, 2009 the petitioners presented additional information. The relevant parts of these documents were sent to the State on April 13, 2009 with a time limit of two months to present a response. On July 21, 2009, the State presented its reply and on September 26, November 2, and December 2, 2009, January 19, May 17 and June 11, 2010 submitted additional briefs. The petitioners presented additional information on August 25, September 8 and 22, November 6 and December 23, 2009, March 30 and May 3, 2010.

6. Petition 766-04 was received on August 26, 2004, and on April 17, 2006 the petitioner presented additional information. The relevant parts of these documents were sent to the State on August 19, 2008, setting a time limit of two months to submit a response. On December 9, 2008, the State presented its response and on January 6, May 1, August 24 and November 2, 2009 submitted additional information. The petitioner submitted additional information on February 23 and July 13, 2009.

7. Petition 863-04 was received on September 13, 2004 and on July 12, 2005, March 23, 2006, July 22, 2008 the petitioner submitted additional information. On August 20, 2008, the relevant parts of these documents were sent to the State, with a time limit of two months to present a response. On April 29, 2009, the State sent its response and on September 4 and 24, November 24 and December 8, 2009, submitted additional information. The petitioner supplied additional information on July 1, 2009, January 8 and March 16, 2010.

III. POSITIONS OF THE PARTIES

Preliminary considerations

8. In the petitions dealt with by this report, the State and the applicants described a first series of criminal trials, conducted during the 1990s, and a second set following the voiding of the earlier trials. The former criminal proceedings were held under decree laws applicable to terrorism, enacted during the administration of President Alberto Fujimori. In January 2003, the Peruvian State adopted a new legislative framework that caused the voiding of a number of trials conducted for the crimes of terrorism and treason against the fatherland. Before setting out the positions of the parties, the IACHR deems it to be appropriate addressing the two legal frameworks in which the incidents described by the parties took place.

Antiterrorist legislation in force from May 1992 to January 2003

9. Decree Law No. 25475, dealing with different forms of the crime of terrorism, was enacted in May 1992. In August of that year, Decree 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 Peruvian legal system with exceptional procedures for investigating, examining, and prosecuting individuals accused of terrorism or treason against the fatherland.

10. 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.

11. Among other changes, these decrees allowed the holding of suspects incommunicado for specified lengths of time,⁵ holding closed hearings, solitary confinement during the first year of prison terms,⁶ and summary deadlines for presenting charges and issuing judgments in the case of the crime of treason against the fatherland.⁷ In addition, these decrees denied suspects the assistance of a legal representative prior to their first statement to an agent of the Public Prosecution Service⁸ and restricted the attorney’s participation in the criminal proceedings, disallowed the recusal of judges or other judicial officers,⁹ established concealed identities for judges and...