Report No. 75 (2010) IACHR. Petition No. 1064-98 (Perú)

• Petition Number: 1064-98
• Report Number: 75
• Year: 2010
• Court: Inter-American Comission of Human Rights
• Respondent State: Perú
• Alleged Victim: Esteban Juan Martínez Pérez
• Case Type: Admissibility

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REPORT No. 75/10

PETITION 1064-98

ADMISSIBILITY

ESTEBAN JUAN MARTÍNEZ PÉREZ

PERU

July 12, 2010

I. SUMMARY

1. On November 10, 1998, the Inter-American Commission on Human Rights (hereinafter either "the Inter-American Commission", "the Commission", or "the IACHR") received a petition presented by E.J.M.P. in his own behalf (hereinafter either "the petitioner" or "the alleged victim") alleging the violation by the Republic of Peru (hereinafter either "Peru", "the S." or "the S. of Peru") of the rights enshrined in Articles 7, 8, 13, 24 and 25 of the American Convention on Human Rights (hereinafter either "the American Convention" or "the Convention"). The petitioner stated that he was prosecuted for the crimes of terrorism, aggravated robbery and the violation of financial and monetary regulations based on evidence allegedly fabricated by agents of the National Division Against Terrorism (DINCOTE as in its Spanish acronym) at the end of 1994. He stated that the charges were processed by secret identity judges, who acquitted him of the crimes of terrorism, but convicted him in relation to the remaining charges. He stressed that the members of the judiciary that intervened in the criminal procedure had no jurisdiction to rule on ordinary crimes such as aggravated robbery and crimes against financial and monetary regulations.

2. The S. detailed the judicial steps taken in the proceedings against Mr. E.J.M.P. and in the appeals lodged by his attorneys. It stressed that the alleged victim was charged and convicted by competent members of the judiciary and that his allegations with regard to breaches of judicial guarantees were dismissed by different courts of the P. legal system, including the Supreme Court of Justice and the Constitutional Court. L., the S. pointed out that on January 5, 2000, the alleged victim was granted conditional parole, which he has regularly complied with.

3. A. examining the position of the parties in the light of the requirements of admissibility set forth in Articles 46 and 47 of the Convention, the Commission concluded that it is competent to hear the petition and that it is admissible for the alleged violation of the rights enshrined in Articles 7, 11, 8, and 25 of the American Convention, in relation to Articles 1.1 and 2 of the same instrument. The Commission decided to notify the parties of the present Admissibility R., make it public and include it in its Annual R..

II. PROCEEDINGS BEFORE THE COMMISSION

4. The petition was received on November 10, 1998, and registered under number P 1064-98. The petitioner presented additional briefs on April 19, 1999, and April 4, 2006. On August 6, 2008, the relevant parts of these documents were sent to the S., setting a time limit of two months to present a response in conformity with the IACHR Rules of Procedures.

5. On O. 17, 2008, the S. presented its response which was sent to the petitioner on O. 27 of the same year. The petitioner submitted additional briefs on December 16, 2008, August 27, 2009, and on February 4 and April 8, 2010. T.S. in turn sent additional briefs on July 7, November 2, and December 22, 2009.

III. THE PARTIES' POSITIONS

Preliminary considerations

6. D. the proceedings of the present complaint, the petitioner and the S. described criminal trials against Mr. Esteban Juan Martínez Pérez, carried out in the light of a legislative framework on terrorism adopted in 1992 and in force until January 2003. B. summarizing the parties’ positions, the IACHR deems it is necessary to refer to the above-mentioned regulatory framework in which the alleged facts would have occurred.

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

7. 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 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.

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,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

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;⁸ and they only indicated minimum prison terms, without setting maximum penalties.⁹

11. 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 O. 31, 1994.¹²

1. Position of the petitioner

12. According to the allegations, in O. 1994, a person relying on the Repentance Law accused Mr. E.J.M.P. to be the leader of an insurgent group called "P. Communist Party – Red Peru". On the basis of this statement, the alleged victim was arrested on O. 24, 1994, while he was driving an owned-taxi in the city of Lima. It is alleged that he was taken to the cells of the DINCOTE, where he underwent several interrogations, and that police officers fabricated statements and forged his signature, all with the complicity of a member of the Public Prosecutor's Office and a lawyer appointed by the court. Applicant claims that in November 1994 he was presented to the P. television and written media, wearing a striped suit and branded as a terrorist.

13. According to the information submitted, on November 9, 1994, the 14th Special Criminal Court for Terrorism Cases initiated an investigation for the commission of the crime of terrorism, laid down in Law No. 25475. The petitioner emphasized that the Public Prosecutor's indictment reproduced the detention report and search records allegedly fabricated by members of the DINCOTE. He argued that this evidence could not be challenged during the preliminary stage of the investigation.

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