Peru: State Dept- Section 1 d-g

Chris, London 100423.2040 at compuserve.com
Thu Apr 4 23:43:15 MST 1996


    d.   Arbitrary Arrest, Detention, or Exile

 The Constitution, Criminal Code, and antiterrorist legislation delineate
the arrest and detention process.  However, a number of constitutional
protections are suspended in emergency zones.  For example, security
forces do not need an arrest warrant; they may legally hold
incommunicado those detained for treason or terrorism and deny them
access to an attorney during the interrogation period, except when
giving formal statements.
 In areas not subject to a state of emergency, the law requires a
judicial warrant for arrest, unless a perpetrator is caught in the act.
In addition, the Organic Law of the National Police is contrary to the
Constitution.  It permits detention of an individual for any
investigation.  Authorities must arraign persons arrested within 24
hours (a law they frequently violate according to informed observers),
except in cases of terrorism, drug trafficking, or espionage, for which
the limit is 15 to 30 days.  If the military is the detaining authority,
it must turn over detainees to the civilian police within 24 hours (or
as soon as practicable in remote areas).  The military regularly
disregarded this law.
 The Public Ministry continued to inaugurate branch offices of the
National Registry of Detainees throughout Peru.  The registry, first
opened in February 1994, records the names of those detained for
terrorism and treason by the police and military (in emergency zones).
However, relatives and human rights groups frequently complain that
registry information is incomplete and that the police and the military
have not been providing information to the registry in a timely manner.
 A 1993 modification to antiterrorism legislation authorized first-
instance and superior court judges to order the unconditional release of
terrorism defendants if there is insufficient evidence to bring a case
against them.  However, in practice, judges have rarely applied this
law; rather, persons accused of terrorism sometimes must wait until
their cases have been reviewed and dismissed by the Supreme Court before
they are freed, a process that often lasts more than a year.  Another
1993 modification to the antiterrorist laws restored a detainee's right
to a prompt judicial determination of the legality of the detention
("habeas corpus").  In practice, however, this has proven to be
ineffective.  According to human rights attorneys, judges have denied
most requests for such hearings.
 New problems emerged in cases where those who were declared innocent of
terrorism several years earlier were ordered rearrested due to problems
with the judicial case record.  This usually occurred when a case file
included several individuals.  For example, nine persons, including six
University of San Marcos law students, were acquitted of terrorism in
1993, and two others in the same file, graphic editor Pedro Valdez
Bernales and law student Filomeno Encarnacion Nieto, were found guilty
and sentenced to 20 years in prison.  When the Supreme Court reviewed
the case in late 1994, mistakes were found in the case record and the
case was sent back to the superior court.  As a result, arrest warrants
were issued for all the individuals in the case file, including those
found not guilty 2 years earlier.  Carlos Isla, the only one still in
Peru, was rearrested on May 14.  The others had fled the country.  On
June 2, the superior court found all of those in the case file who were
alive not guilty, including Pedro Valdez, who had served 3 years in
prison.  Filomeno Encarnacion had died on April 24 from tuberculosis,
which he had contracted in prison; he was also suffering from AIDS.  In
its June 2 decision, the Court ruled that since Encarnacion was not
present it would reserve judgment until it had proof of his death.
 According to INPE statistics, as of June, 76 percent of the country's
prison population--almost 16,000 of the almost 21,000 prisoners--
consisted of accused persons awaiting trial.  The average delay between
arrest and trial in civilian cases as well as on criminal or terrorism
charges was between 26 and 36 months.  However, those tried on treason
charges by military courts generally wait no longer than 40 days between
the time of detention and the beginning of the trial.
 The Constitution does not permit exile, and the Government did not
practice involuntary exile of its citizens.  General Rodolfo Robles, who
had been in voluntary exile in Argentina, returned to Peru in June after
the passage of the Amnesty Law which, in addition to granting amnesty to
human rights abusers, also forgave military officers for antigovernment
activities.  Others, such as former President Alan Garcia, apparently
fled from what appeared to be legitimate criminal charges.


    e.   Denial of Fair Public Trial

 Throughout Peruvian history, the judicial branch rarely has been fully
independent of the executive.  However, the 1993 Constitution contains a
number of provisions, including an improved system for naming judges,
that provides for a significantly more independent judiciary.  By
December 1994, a judicial honor tribunal had completed its review of the
Lima judiciary and prosecutors, having dismissed a large number of
provisional judges and prosecutors who were deemed unqualified.
 The 1993 Constitution also provided for several new judicial
institutions to help create a more effective and independent system of
justice:  an Office of the Defender of the People (a human rights
ombudsman); a Tribunal of Constitutional Guarantees (which would rule on
the constitutionality of legislation and government actions); the
National Judiciary Council (a permanent, independent entity in charge of
testing, naming, confirming, and periodically evaluating and
disciplining the country's judges and prosecutors); and a Judicial
Academy (to train judges and prosecutors).
 While the Congress did finally pass a law defining the duties of the
Defender of the People in early May, it was withdrawn due to objections
by some congressmen and President Fujimori that it gave the Defender too
much potential authority to investigate the military.  On July 13 the
Congress passed a revised law which eliminated mention of the armed
forces and laid out a procedure for confidential security-related
material to be passed to the Defender only if approved by the Ministers
of Defense or Interior, or by the Foreign Minister.  Although President
Fujimori signed this law, the Congress did not approve with the required
two-thirds vote either of the two candidates for Defender submitted to
it in mid-December.
 Efforts to name the members of the Tribunal of Constitutional Guarantees
stalled because members of the outgoing Congressional Constitutional
Committee could not agree on its candidates.  The new Congress has not
yet decided on these nominations either; instead, it has created a
commission and charged it with naming both the members of the Tribunal
of Constitutional Guarantees and the Defender.
 In office since January, the National Judiciary Council is an autonomous
body made up of seven members elected by such institutions as the
Supreme Court judges, the Supreme Court prosecutors, the country's bar
associations, and deans of public and private law schools.  The Council
appointed two highly respected new Supreme Court prosecutors in
September, and began work on evaluating candidates to fill some 1,500
judicial vacancies around the country currently held by provisional
officers.
 The Peruvian system of justice is generally based on the Napoleonic
Code.  Judicial proceedings comprise three stages.
 The first is before an examining judge; the second is conducted by a
superior court which tries and sentences the defendant; and the third is
before an appeals court.  A Public Ministry prosecutor investigates
arrests and criminal complaints and then submits an opinion to a first-
instance judge, who decides whether to indict.  Following study of the
case, the judge renders a verdict, which is then reviewed by a superior
court prosecutor.  The superior court prosecutor then submits an
advisory opinion to a superior court judge, who holds a trial.
Virtually all civilian court convictions are appealed to the Supreme
Court.
 Defendants have the right to be present at their trial, although there
were instances of trials in absentia of fugitives (however, a 1993
modification to antiterrorism laws eliminated convictions in absentia).
Although there were trials in absentia, they did not lead to
convictions, but to acquittals or judgments held in reserve until the
defendant was in custody.  Defendants have the right to counsel, but the
Government often does not provide indigents with qualified attorneys.
 Proceedings in military courts which hear terrorism and treason cases do
not meet internationally accepted standards for due process.  Military
trials are closed to the public and are carried out in secrecy.  Defense
attorneys do not have access to evidence, nor can they interview police
or military witnesses (to protect their identities) prior to or during
the trial.  Many military judges are active duty line officers with no
legal background.  Military tribunals in theory must pass judgment
within 10 days.  A case may be appealed to the War Council, which has 10
days to make a decision.  A final appeal to the Supreme Council of
Military Justice must be acted on within 5 days.  However, this calendar
is subject to delays.  Human rights groups charge that military judges
have sentenced some defendants before their lawyers were even notified
that the trial had begun.
 According to Supreme Council of Military Justice statistics, between
1992 and August 1995, faceless military tribunals tried 1,031 cases of
treason.  In those cases in which a verdict was reached, these tribunals
sentenced 267 individuals to life sentences, 217 persons to 30 years or
less, 179 cases were sent to civilian court terrorism trials, and 24
persons were absolved of all charges.  In a public statement on August
11, President of the Supreme Council of Military Justice Guido Guevara
Guerra stated that the military justice system was willing to review any
case of a conviction for treason in which procedural errors could be
proved.
 The Government did not abolish trials of terrorism cases on October 15
by anonymous superior court tribunals, as it had originally announced.
Human rights groups are concerned about cases sent by the military
justice system to the civilian courts even when there is no evidence to
prove the defendant guilty of treason or terrorism, since a terrorism
trial must begin all over again.  For example, Jesus Chacaltana, a
medical doctor detained in January, was found innocent of treason by a
faceless military tribunal in April.  The Supreme Council of Military
Justice, however, ruled in September that he must still be tried for
terrorism by a civilian court even though there was no evidence
connecting him to terrorist organizations.
 In December the Congress passed the Criminal Procedures Code
legislation.  This legislation will institute new accusatorial,
investigative, and trial procedures.  Informed observers claimed that
the Government postponed passage of the new Code because the National
Police oppose provisions that would grant more investigative authority
to prosecutors; because the armed forces oppose a provision that would
allow prosecution of military personnel in civilian court for crimes
such as murder that do not come under the Military Code of Justice; and
because the Public Ministry was not prepared in terms of budget or
personnel to put the new Code into practice.
 There were no reports of political prisoners.  Members of Sendero
Luminoso and those detained on charges of terrorism--
however arbitrary in some instances--are not considered political
prisoners.


    f.   Arbitrary Interference with Privacy, Family, Home, or
Correspondence

 The Constitution requires security forces to have a judicial warrant to
enter a private dwelling, but this requirement is suspended in the
emergency zones, and security forces in those areas routinely conduct
searches without a warrant.  There were frequent credible reports of
illegal telephone monitoring.
 A number of rural communities--with arms, training, and encouragement
>from the army--have organized self-defense forces, or rondas, to protect
themselves against terrorist and bandit incursions.  These have had a
noticeable impact on curbing Sendero's activity in certain areas of the
country.  In some parts of Peru, rondas have existed for centuries as a
form of social organization to protect communities from invaders and
rustlers.  However, military authorities organized many of the newer
rondas and sometimes coerced peasants into participating.
 As a regular practice and to a far greater degree, Sendero has forced
peasants to join its military ranks, often for extended periods, and to
participate in terrorist attacks and executions.


    g.   Use of Excessive Force and Violations of Humanitarian Law in
Internal Conflicts

 With the internal conflict winding down, reports of use of excessive
force by the military have declined significantly from previous years.
However, there were reports of excessive use of force by the military in
counterinsurgency operations against terrorists in Ucayali, San Martin,
and Huanuco departments.  During operations in San Martin and Huanuco
departments, reports continued of arbitrary detentions by the military
in communities where Sendero Luminoso had entered and terrorized
residents.
 During the January-February border conflict with Ecuador, several
citizens were killed or injured by mines planted along the border in the
densely populated coastal areas during the war.  Soldiers also suffered
many casualties from unmarked and unmapped mining in the upper Cenepa
Valley.
 Although both the army and Sendero Luminoso committed serious human
rights abuses in Peru's internal conflict, the latter was responsible
for many more heinous acts.  Sendero frequently used arbitrary violence
against civilians and nonmilitary targets.  It continued to detonate
powerful bombs in public places, indiscriminately killing and injuring
bystanders, and persisted in its practice of entering villages and
killing residents at random.  Many of the victims were unarmed women and
children.  Sendero Luminoso and MRTA were considered responsible for 232
killings, including 7 deaths from bomb attacks which also injured 44
people.  In armed confrontations, Sendero never took prisoners or
attended to the wounded; its normal aim was to kill as many people as
possible.  Sendero also practiced forced military conscription of
children; one of those arrested for planting a small explosive device in
Lima was only 15 years old.
 Among the other high-profile Sendero attacks was a car bomb explosion on
May 24 in front of a hotel in the Miraflores section of Lima, which
killed five civilians.  On July 1, a Sendero car bomb exploded in front
of the home of congressional Vice President Victor Joy Way, causing
severe damage and killing two police officers.  Although Sendero planted
explosive devices near several embassies in Lima in March, no injuries
were sustained.  A gunfight between security forces and MRTA terrorists
in Lima on the evening of November 30 resulted in the death of one
member of the security forces and three MRTA terrorists.




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