Report No. 77 (2010) IACHR. Petition No. 12.154 (Perú)

• Petition Number: 12.154
• Report Number: 77
• Respondent State: Perú
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Luis Alberto Vega Paquillo

9

REPORT No. 77/10

PETITION 12.154

ADMISSIBILITY

LUIS ALBERTO VEGA PAQUILLO

PERU

July 12, 2010

I. SUMMARY

1. On November 9, 1998, the Inter-American Commission on Human Rights (hereinafter "the Inter-American Commission", "the Commission", or "the IACHR") received a petition presented in his own name by Luis Alberto Vega Paquillo (hereinafter "the alleged victim" or "the petitioner")¹ alleging the violation by the Republic of Peru (hereinafter "Peru", "the State" or "the State of Peru") of the rights enshrined in Articles 1(1), 2, 5, 7, 9, 10, 8, and 25 of the American Convention on Human Rights (hereinafter "the American Convention" or "the Convention"), and Articles 2, 8, and 10 of the Inter-American Convention to Prevent and Punish Torture. The petitioner alleged that he was arrested and tried under decree laws relating to the crimes of terrorism and high treason enacted as from May 1992. He stated that these decrees, as well as the ensuing criminal proceedings, are in breach of dispositions of the Convention. He claimed to have been kept incommunicado and in solitary confinement for long periods and subjected to inhuman conditions of imprisonment. The petitioner stated that after undergoing criminal proceedings in the military courts and four trials in the ordinary courts, he was finally sentenced to twenty years imprisonment in November 2009.

2. The State alleged that after the military jurisdiction refrained from pursuing the charge of high treason, the alleged victim was tried in the ordinary courts for the crime of terrorism. It alleged that between January and February 2003, the Executive adopted a new legislative framework in this area, within the standards of the Convention. It submitted that the criminal trial undertaken from the beginning of 2003 was conducted with the guarantees of due process and with ample access to the means of redress laid down in domestic law. Lastly, the State argued that the petitioner has failed to provide credible evidence on the acts of torture and other injuries to his personal integrity which allegedly occurred while he was in the custody of the members of the Navy and National Police.

3. After examining the position of the parties in the light of the requirements of admissibility set out in Articles 46 and 47 of the Convention, the Commission concluded that it is competent to hear the petition and that it is admissible regarding the alleged violation of the rights enshrined in Articles 5, 7, 9, 8, and 25 of the American Convention, in relation to Articles 1(1) and 2 of the same instrument; and in Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture. The Commission decided to notify the present Admissibility Report to the parties, to publish it and include it in its Annual Report.

II. PROCEEDINGS BEFORE THE COMMISSION

4. On November 9, 1998, the initial petition was received and assigned No. 12.154. On May 26, 1999, the petition was sent to the State, with a 90 day time limit to present its response in conformity with the IACHR's Rules then in force. On September 24, 1999, the State submitted its response which was sent to the petitioner on November 1^st of the same year.

5. On February 5, 2010, the IACHR requested up-to-date information from the petitioner, indicating that if no submissions were received it would consider archiving the petition in accordance with Article 48(1)(b) of the American Convention. On April 8, 2010, the petitioner submitted its response which was sent to the State on April 13 of the same year. The State submitted observations on May 17, 2010 and the petitioner submitted an additional brief on May 21, 2010.

III. POSITIONS OF THE PARTIES

Preliminary considerations

6. Throughout the processing of the current petition, the State and the applicant described a first series of trials conducted during the 1990s and a second set following the voiding of the earlier trials. The former 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 high treason. Before setting out the positions of the parties, the IACHR deems it to be appropriate addressing the two legal frameworks within which the incidents described by the parties took place.

Antiterrorist legislation in force from May 1992 to January 2003

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 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.

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,² holding closed hearings, solitary confinement during the first year of prison terms,³ and summary deadlines for presenting charges and issuing judgments in the case of the crime of treason against the fatherland.⁴ In addition, these decrees denied suspects the assistance of a legal representative prior to their first statement to an agent of the Public Prosecution Service⁵ and restricted the attorney’s participation in the criminal proceedings, disallowed the recusal of judges or other judicial officers,⁶ established concealed identities for judges and prosecutors (“faceless courts”),⁷ prevented the summoning, as witnesses, of state agents who had participated in preparing the police arrest report.⁸

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;⁹ and they only indicated minimum prison terms, without setting maximum penalties.¹⁰

11. On May 12, 1992, the Executive Branch of Government 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.¹¹ By means of Supreme Decree No. 015-93-JUS of May 8, 1993, the Executive Branch 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.¹² The Repentance Law expired on October 31, 1994.¹³

Antiterrorist 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 Fujimori administration were ruled unconstitutional by the Constitutional Court.¹⁴ That decision ruled Decree Law 25659 unconstitutional and ordered accusations for the crime of treason against the fatherland as defined therein to be tried as terrorism,...