CONSIDERATION
OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE
CONVENTION
Initial reports of States parties due in 1989
Addendum
PERU*
[22 February 1994]
* The present report replaces the initial report transmitted by
the Government of Peru on 9 November 1992 and reproduced in document
CAT/C/7/Add.15.
Annexes*
* Available for consultation in the files of the Centre for Human
Rights.
A. Legislation and documents relating to article 10 of the Convention
Political Constitution of Peru (1)
Legislation
relating to the Penal Code, Code of Execution of
Punishments and Code
of Military Justice (2)
Decree-Law No.
25499 (4)
Decree-Law No. 25564 (5)
Decree-Law No. 25659
(6)
Decree-Law No. 25708
(8)
Decree-Law No. 25880
(10)
Decree-Law No.
26220 (11)
Decree-Law No. 26248 (12)
Legislative Decree
No. 665 (13)
Ministerial Decision No. 1302-DE/SG (14)
Legislative Decision No. 26236 (15)
Supreme Decree No. 064-91-DE/SG (16)
Directive No. 023 (17)
Memorandum No. 2586-EMFFAA-DDHH (18)
Memorandum No. 3539-EMFFAA-DDHH (19)
Multiple Memorandum No. 0774-EMFFAA-DDHH (20)
Letter of Understanding (21)
Act No. 25211 (22)
Multiple Memorandum No. 460-C-3/.05.01 (23)
Directive No. 004-SG-MD.M (24)
Multiple Memorandum No. 726-C-4/A.05.02 (25)
Instruction and Training Note No. 002-C-2/A.05.01 (26)
Directive No. 16-EM-FFAA/DDHH (27)
Ministerial Decision No. 029-91-IN-GIGN (28)
Ministerial Decision No. 668-A-91-IN/DM (29)
Ministerial Decision No. 396-92-IN/DM (30)
Pamphlet, "¿Sabes que es ser Policía?" (31)
Ministry of the Interior Compendium on Human Rights (32)
Ten Commandments of the Forces of Law and Order (33)
B. Thematic analysis
Report No. 013-VII-RPNP-EMR-ORP-DH of 9 September 1992 (1)
Report No. 002-94-IGPNP-SG-UAI (2)
Report No. 147-93-EMG/DIPANDH (3)
Report No. 41-12-RPNP/DPY (4)
Report No. 36-93-EMG/DIPANDH (5)
Report No. 002-94-IGPNP-SG-UAI (6)
Report No. 36-93-DGPNP/EMG-DIPANDH of 1 March 1993 (7)
Report No. 178-JECOTE-CPNP-WRLA of 29 September 1992 (8)
Memorandum No. 1408-DGMD-M of 16 March 1993 (9)
Report No. 03-9-RPNP-RND, of 6 December 1993 (10)
Report No. 2630-DIVICOTE-3-DINCOTE (11)
Statement by María Elena Loayza Tamayo (12)
Memorandum No. 129-93-DGPNP-CEOPOL (13)
Introduction
1. The Government of Peru transmitted its initial report to the
Committee against Torture together with a note to the Committee
from Mr. Julio Fernando Mazuelos Cuello, Chairman of the Multisectoral
Working Group responsible for preparing the report. The note reads
as follows:
"The Multisectoral
Working Group established by Supreme Decision No. 454-93-JUS
and entrusted with the task of preparing and defending the
report of the Government of Peru on the new legal order in
relation to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment submits herewith
the report of Peru to the United Nations Committee against
Torture.
"The Working
Group was comprised of Mr. Julio Fernando Mazuelos Cuello,
representative of the Ministry of Justice and Chairman of
the Group; Mr. David Málaga Ego-Aguirre, representative of
the Ministry of Foreign Affairs; Mr. Pablo Sánchez Velarde,
representative of the Office of the Public Prosecutor; Mr.
Mariano García Godos, Ambassador, representative of the Ministry
of the Interior; and Major Manuel Ubillus Tolentino of the
Peruvian Army.
"With this
document Peru reaffirms its political will to make a genuine
contribution to the international community's struggle to
eliminate torture and other cruel, inhuman or degrading treatment
or punishment, as stipulated in the Convention; this political
will is amply reflected in the new 1993 Political Constitution
of the State.
"In the preparation
of this report, the Manual on Human Rights Reporting was taken
as a guide. [...]
"The country's
efforts to meet the standards set forth in the Convention
take a comprehensive approach and include participation by
the sectors concerned with the problem of torture. As part
of this approach, the Working Group thought it advisable to
ask non-governmental organizations for their views on the
implementation of the Convention in our country. For that
purpose it has called upon the services of Reverend Father
Hubert Lanssiers, the official representative of the Government
of Peru for the dialogue with the National Coordinator of
Human Rights.
"The Working
Group has also suggested that the governmental authorities
should establish a multisectoral working group to prepare
a special act for the punishment of the offence of torture.
Similarly, the sectors involved have been informed of charges
of acts of torture made by NGOs, through the above-mentioned
official representative, so that the appropriate investigations
may be conducted.
"Finally,
the Multisectoral Working Group wishes to express its gratitude
to Mr. César San Martín Castro for his unstinting advice in
the preparation of the final text of this report."
I. GENERAL INFORMATION ON THE LEGISLATION AGAINST TORTURE
2. Torture is explicitly prohibited under the Peruvian legal system.
Article 2 (1) of the Constitution recognizes the right to physical
and moral integrity of the person; article 2 (24) (h) specifies
that no one may be the victim of moral, psychological or physical
violence or subjected to inhuman or humiliating treatment. Anyone
may request an immediate medical examination of such a victim.
Statements obtained by violence are null and void; persons using
violence are criminally liable. The Code of Criminal Procedure
also states that evidence obtained in violation of the Constitution
and legislation is null and void (art. 195), and the Penal Code
lays down punishment for acts that impair the physical and psychological
integrity of the person and for acts committed in abuse of an
official position.
3. Peru is a party to numerous international instruments for the
protection of human rights. The Constitution in no way qualifies
this commitment, and indeed states that one of the duties of the
State is the promotion and defence of human rights. It should
be noted that Peru is a party to the American Convention on Human
Rights and that on the basis of that regional instrument and its
participation in the Organization of American States it has also
signed the Inter-American Convention to Prevent and Punish Torture.
4. The provisions of the Convention, like those of any international
instrument, are part of the national legislation, inasmuch as
they have been approved and ratified by the President of the Republic.
Accordingly, they may be invoked before the judiciary, the Office
of the Public Prosecutor, the Ombudsman and the other branches
of the Executive.
5. The remedies available as regards torture are criminal proceedings
and the disciplinary and investigatory systems of the Ministries
of the Interior and Defence.
6. The Office of the Public Prosecutor is responsible for criminal
proceedings and may be approached by an injured party or anyone
who has knowledge of the commission of any of the acts covered
in article 1 of the Convention. Article 103 of the Code of Penal
Procedure stipulates that non-governmental organizations whose
purpose is to defend human rights have the legal capacity to lodge
complaints and participate in proceedings relating to the above-mentioned
cases.
7. The judiciary, for its part, is responsible for trying and
judging these offences. The military courts take over the case
when the offender is a member of the military or police, provided
that the injured party is a member of the armed forces and that
the acts in question may be classified as abuse of authority.
In cases of conflict of jurisdiction, the Supreme Court of Justice
makes the final decision.
8. Under the system of administrative discipline, members of the
military who commit offences that affect military honour, decorum
and/or duties, are required to appear before an investigatory
council, which after an investigation procedure may impose punishments
of varying degrees of severity, including permanent dismissal
from the armed forces. Even when the offence
does not involve abuse of military authority, the acts committed
lead to an administrative procedure involving a disciplinary penalty,
independently of the judicial proceedings.
9. With respect to the Peruvian National Police, the Code of Professional
Ethics, adopted by Supreme Decision No. 0140-89-IN/DM of 30 June
1989, stipulates that the police must deal with all persons, including
offenders against the law, with due diligence and consideration,
with care and without violence. To that end it establishes a court
of honour, which is a temporary court of an honorary nature responsible
for hearing cases involving violations of the Code submitted to
it, to the extent that the acts in question do not represent a
disciplinary offence.
10. The regulations of the disciplinary system of the Peruvian
National Police, adopted by Supreme Decree No. 0026-89-IN of 1
September 1989, stipulate that ill-treatment of detainees by word
or deed is an abuse of authority, whether committed in the performance
of official duties or not. According to the seriousness of the
offence, penalties range from verbal warning to retirement as
a disciplinary measure, independently of the corresponding criminal
and civil liability. The penalties are imposed by the various
authorities of the National Police and may be submitted to arbitration
by the immediate hierarchical superior and by the investigatory
council.
11. Article 49 of the Police Force Organization Act (Decree-Law
No. 371) states that offences committed by members of the police
in the performance of or in connection with their duties shall
be investigated by their respective commands and reported to the
corresponding court, civil or military, as appropriate. The investigatory
councils are responsible for investigating offences committed
by members of the police, in order to determine the administrative
responsibility involved.
12. The Act relating to the Professional Status of Members of
the Peruvian National Police (Decree-Law No. 745) established
the Office for the Supervision of Ethical and Disciplinary Matters,
to which the investigatory councils report.
13. Although the legislation is very broad as regards the punishment
of torture, since the Office of the Public Prosecutor is obliged
and empowered, with no limitations whatsoever, to receive any
kind of complaint relating to torture, as are the special courts
and administrative bodies of the Ministries of Defence and the
Interior and the armed forces and the National Police, for budgetary
reasons there have been no rehabilitation programmes to date for
the victims of torture or for the victims of other offences such
as rape or abduction.
14. Peruvian legislation prohibits torture and classifies acts
relating to torture as crimes. It must be acknowledged, however,
that torture has not been completely eliminated, since despite
the desire at the highest levels of government to put an end to
it, agents of the State still resort to this practice. The factors
influencing the continuing occurrence of torture in the country
have to do with Peruvian culture, the state of subversive violence
the country is experiencing and shortcomings in the application
of the law as it relates to the prevention and punishment of torture.
As everyone is aware, the European legal system at one point in
its history accepted torture and confessions obtained under torture
as a legitimate instrument for the establishment of the truth
and the application of the law. Peru, as an heir to that tradition,
also made use of such practices, which did not immediately cease
to exist when subsequently banned from the legal system. Without
any doubt the weakness of Peruvian institutions and the lack of
an educational and training programme, especially for law-enforcement
officials, were responsible for the fact that social practice
did not completely take on the new values of a system that respected
the principle of the dignity of the individual. Furthermore, the
violence unleashed by terrorists, whose victims included members
of the armed forces and police force, made it extremely difficult
to control the behaviour of military and police personnel. The
size of the national territory and the lack of infrastructure
for the legal monitoring agencies (Office of the Public Prosecutor
and the judiciary) and for the investigatory organs of the armed
forces and the National Police themselves make it difficult to
implement a programme of activities for eliminating the practice
of torture and, where necessary, punishing those responsible in
such a way as to make examples of them. Despite this, the above-mentioned
bodies and agencies are carrying out their work in defence of
human rights to the extent possible. This is combined with an
aggressive policy regarding training and raising awareness of
individual rights and the publication of internal documents on
the way in which the police and military should proceed when dealing
with a person involved in the commission of an offence.
15. The Working Group responsible for preparing Peru's report
on the Convention against Torture thought it desirable to seek
the views and comments of civilian society on the implementation
of the Convention in the country. To that end, it was agreed to
maintain a dialogue with the National Coordinating Body for Human
Rights, Reverend Father Hubert Lanssiers acting for the Working
Group as the government representative for the dialogue.
16. The Asociación Pro Derechos Humanos (APRODEH) recognized that
the counter-subversive strategy had had obvious success. It had
been possible to break up the national leadership of the Sendero
Luminoso Communist Party by arresting its head, Abimael Guzmán.
As regards the practice of torture, on the other hand, it argued
that more needed to be done to implement the Convention against
Torture in the country, as there was a range of difficulties involved
in monitoring human rights violations that might be committed
by members of the armed forces and the National Police against
persons in detention.
17. The National Coordinating Body for Human Rights stated that
in its view the Peruvian State was not meeting expectations in
the protection of human rights, despite the progress achieved;
it nevertheless acknowledged that there had been some improvement
in the country in that respect.
18. The National Coordinating Body also emphasized that one of
the problems still affecting the situation in Peru was the question
of impunity for acts of torture. However, it acknowledged the
progress made by the Peruvian Government towards eliminating this
practice, and especially, towards punishing those responsible.
19. The Working Group also received from Reverend Father Hubert
Lanssiers complaints of alleged human rights violations, especially
cases of torture, which were brought to the notice of the authorities
concerned in order that the appropriate investigatory measures
might be taken.
II. INFORMATION
CONCERNING EACH OF THE ARTICLES IN PART I OF THE CONVENTION
Article 2
20. The national legal system sanctions legislative measures to
prevent acts of torture. The new Constitution, in its provisions
on the fundamental rights of the human person, stipulates in article
2 (1) that everyone has the right to life, an identity, moral,
psychological and physical integrity and free development and
wellbeing; thus it may generally be stated that the human person
is the subject of fundamental rights intended to protect him within
the social system.
21. Regarding guarantees of personal freedom and security, and
in direct reference to the elimination of acts of torture by the
monitoring agencies, article 2 (24) (h) of the new Constitution
stipulates: "No one shall be subjected to moral, psychological
or physical violence, or to torture or to inhuman or humiliating
treatment or punishment. Anyone may request an immediate medical
examination of an injured person or a person unable to appeal
to an authority themselves. Statements obtained through violence
shall be null and void. Anyone who uses violence shall be held
liable."
22. Regarding the prohibition of the practice of torture, it should
be noted that the above-mentioned text from the 1993 Constitution
represents progress over the 1979 Constitution and provides more
guarantees than the old article 234, since it explicitly includes
the protection of people who are not in a position to deal directly
with an authority, allowing the complaint of torture to be delegated
to another person; it also explicitly invalidates statements obtained
through violence, thus combating unlawfulness brought about by
acts of torture against detainees or prisoners and above all ensuring
that statements so obtained cannot be used against them. In addition,
there is an explicit provision to the effect that any official
who practises torture in the performance of his duties shall be
criminally liable.
23. Peruvian prison legislation also contains a prohibition of
torture, inasmuch as the Code of Execution of Punishments, Legislative
Decree No. 654, lays down in article III of the Preliminary Title
that the execution of a penalty and the imprisonment of defendants
shall not be accompanied by torture or inhuman or degrading treatment
or any other act or procedure which impairs the dignity of the
prisoner. Thus the objectives of re-educating and socially rehabilitating
a prisoner must be achieved with due respect for his physical,
moral and psychological integrity and for the fundamental rights
of a person deprived of liberty. If any violation of the provisions
laid down for the benefit of prisoners occurs, it is open to the
prisoner to complain to the prison governor, under article 14
of the Code of Execution of Punishments, and, if necessary, he
may have recourse to the Office of the Public Prosecutor in order
to lodge his complaint.
24. Article 4 of Decree-Law No. 26102, the Code on Children and
Adolescents, stipulates that every child or adolescent is entitled
to have his personal integrity respected. He may not be subjected
to torture or to cruel or degrading treatment. Forced labour,
economic exploitation, child prostitution and the sale or traffic
of children and adolescents are considered to be slavery-like
practices. The foregoing meets one of the requirements of
article 2 of the Convention, i.e. that the State party shall take
legislative measures to prevent acts of torture in any territory
under its jurisdiction (Convention, art. 2 (l)).
25. Since the prohibition of torture has been given constitutional
status, this practice is absolutely prohibited and there is no
possibility of invoking an emergency situation or exceptional
circumstances such as a state of war or threat of war, internal
political instability or any other type of emergency as a justification
of torture. This meets one of the objectives of article 2 of the
Convention, i.e. that no exceptional measures may be invoked as
a justification of torture (Convention, art. 2).
26. There is also no possibility under Peruvian legislation for
any situation or circumstance to be used to legitimize torture
in our legal system on the grounds of obedience to orders from
a superior. This applies with regard to the grounds for justification
laid down in the criminal legislation, and specifically the due
obedience provision contained in article 20, paragraph 9, of the
Penal Code. That ground for justification states that anyone acting
in accordance with a compulsory order issued by a competent authority
in the exercise of his functions is exempt from liability, but
under the Peruvian legal system only orders that are in conformity
with the law require "due obedience". Therefore, there
is no possibility that an order to practise acts of torture or
inflict injuries on a person may give protection on the ground
of due obedience, since the practice of torture is prohibited
under the Constitution (Constitution, art. 2 (24) (h)) and is
therefore against the law; furthermore, the criminal legislation
lays down punishment for the offence of injury in article 121
of the Criminal Code. Such orders would therefore be unlawful
and ultra vires for a public authority.
27. In this way the national legislation meets another of the
objectives laid down in article 2 (3) of the Convention, since
an order from a superior officer or a public authority may not
be invoked as a justification of torture.
Article 3
28. Although it is true that internal law does not expressly provide
for the inadmissibility of the expulsion, return or extradition
of a person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to
torture, generally speaking any possibility that this might occur
is avoided, because people are only handed over to the country
pursuing them in the following exceptional cases.
29. Article 36 of the new Constitution recognizes the institution
of political asylum and accepts the classification of refugee
given by the Government granting asylum; it is therefore possible
to avail oneself of that institution in Peru. In addition, if
a political refugee is expelled from the country, he is not handed
over to the country whose Government is pursuing him.
30. The legislation on extradition provides sufficient guarantees,
as both article 37 (2) of the Political Constitution and article
7 of Act No. 24710 prohibit the extradition of a person if it
is considered to have been requested in order to persecute or
punish him on grounds of religion, nationality, opinion or race.
Article 37 (3) of the Constitution prohibits the extradition of
persons being prosecuted for political offences or related acts.
31. Under the Peruvian legal system, passive extradition is not
warranted if the offence is purely military, anti-religious, political,
or press- or opinion-related. The fact that the victim of the
punishable act in question has political duties, does not in itself
justify the description of the offence as political; nor does
the fact that the perpetrator has political duties make the act
political (Act No. 24710, art. 6 (6)).
32. In cases of passive extradition our legislation (Act No. 24710,
art. 23) provides for a series of guarantees to be met by the
applicant State before the person is handed over: political, military
or religious reasons cannot be used to aggravate the penalty;
the time that has elapsed between the imprisonment of the person
being extradited and the extradition decision shall count in his
favour; the person shall not be handed over to a third State requesting
him; the death penalty shall not be applied; and the person extradited
shall not be detained in prison or tried for any crime other than
the one for which the extradition was requested. Similarly, extradition
in the national law is a procedure exceptionally recognized on
a reciprocal basis within a context of respect for human rights
and with the guarantees mentioned above.
33. Regarding active extradition, the recently-enacted Supreme
Decree No. 044-93-JUS contains rules governing the behaviour of
the judiciary and the Government. The following are worthy of
mention:
(a) An application for the active extradition of a person may
be filed by the Office of the Public Prosecutor or the plaintiff
or claimant for criminal indemnification with the court hearing
the criminal proceedings. The criminal judge or higher criminal
division of the court will decide whether or not the application
is admissible;
(b) After the relevant legal proceedings, the extradition file
is referred to the Criminal Division of the Supreme Court of the
Republic, which immediately refers it to the Senior Government
Procurator for Criminal Matters for an illustrative opinion. Once
the extradition file has been returned, the Criminal Division
of the Supreme Court takes a decision on the application;
(c) Once the Criminal Division of the Supreme Court has granted
the application, it is studied by a commission made up of two
representatives of the Ministry of Justice and two representatives
of the Ministry of Foreign Affairs, who submit a report to the
Ministry of Justice; the Minister of Justice will in turn present
the application for active extradition to the Council of Ministers,
and the Council of Ministers will ultimately decide whether the
application is to be accepted or rejected;
(d) An extradition application accepted by the Government may
be revoked at any time before the country of asylum has made a
final decision on its merits, in so far as there may be an error
relating to the rules of internal or extradition law or the evidence
supporting the charge. The decision to revoke will be taken at
the request of the Criminal Division of the Supreme Court of Justice
or at the request of the Commission;
(e) As a means of contesting the application for extradition the
subject of the procedure has the possibility of challenging the
request in the courts.
34. When a Commission is established to study the extradition
application, it will be able to determine whether or not the application
is admissible by evaluating whether the person would be subject
to political reprisals or would be in danger of being subjected
to torture if extradited.
35. The foregoing indicates that the national legislation meets
the objectives of article 3 of the Convention.
Article 4
36. As
for the acceptance of the definition of torture in article 1 of
the Convention under internal law, especially the criminal law,
it should be noted that although there is an explicit acceptance
of the definition in the Constitution in article 2 (24) (h), our
substantive criminal legislation adopts the procedure of concurrence
of offences to punish this practice. The concurrence formula combines
the offence of injury laid down in article 121 of the Criminal
Code with the offence of abuse of authority included in article
376 of the Code. The two provisions read as follows:
"Article 121.
Anyone who causes serious harm to the body or health of another
shall be liable to deprivation of liberty for not less than
three and not more than eight years.
"The following
are considered to be serious injury:
1. Injury placing
the victim's life in immediate danger.
2. Injury mutilating
a limb or important bodily organ or making it unfit to perform
its function, or leaving a person unable to work, or suffering
from a permanent psychological disability or disorder, or
permanently and seriously disfigured.
3. Injury inflicting
any other serious harm to the physical integrity or physical
or mental health of a person requiring 30 or more days of
care or rest on doctor's orders.
"When the
victim dies as a result of the injury and the perpetrator
could have foreseen this result, the sentence shall be not
less than 5 and not more than 10 years".
"Article 376.
Any public official who, abusing his authority, commits or
orders the commission of any arbitrary act whatsoever against
another shall be liable to deprivation of liberty for not
more than two years".
37. The
concurrence of offences formula established by the Penal Code
for punishing acts defined as torture by article 1 of the Convention
entails application of the sentence for the more serious offence,
for example, in the case in question, the maximum penalty for
the offence of injury (10 years). Furthermore in accordance with
article 1 of Decree-Law No. 25662 of 7 August 1992, the maximum
penalty is to be doubled, for a total of 20 years. Thus it will
be seen that the penalty set for acts defined as torture by article
1 of the Convention is proportional to the serious harm they cause
the victim and takes into account the impairment of juridical
assets, such as the "physical or psychological integrity
of the individual" and the "system of constitutional
and legal guarantees for citizens in their dealings with the authorities".
38. As
regards incomplete forms of torture or similar acts, especially
attempts to commit it, the general section of the Penal Code contains
the relevant rules for punishing them. Article 16 of the Penal
Code specifies that attempted acts consist of "the perpetrator's
beginning to carry out an offence which he has decided to commit,
without completing it". Therefore, acts which imply a beginning
of the conduct described in articles 121 and 376 of the Penal
Code but which do not complete it are liable to criminal penalties.
The sentences imposed, however, will be lower than those provided
for the acts when completed, in so far as the attempted act results
in a lesser loss of value, i.e. less of an impairment of the juridical
assets in question. Our criminal legislation does not contain
an exact and predetermined punishment for attempted offences;
the Peruvian legislator has chosen a flexible approach, which
leaves a reasonable reduction of the penalty to the judge's discretion.
39. With
regard to punishing forms of complicity or participation in the
acts specified in article 1 of the Convention, Peruvian legislation
covers commission, instigation and complicity, in articles 23,
24 and 25 of the Penal Code respectively. It thus punishes both
those who use others to commit the acts described in articles
121 and 376 of the Penal Code, through what is known as "indirect
commission", and those who instigate the commission of such
acts by another person or provide the help necessary for their
commission.
40. As
for an order to commit acts of torture given by a person in authority,
article 376 of the Penal Code punishes not only a person who abuses
his powers and commits an arbitrary act, but also a person who
orders such an act; accordingly, in view of our concurrence of
offences formula for punishing torture and in view of the fact
that our legislation accepts the institution of indirect commission,
an official who orders a person to be tortured, even if he is
not the one inflicting the injury, is liable to criminal penalties.
An official
who gives an order to torture a person is committing the offences
of injury and abuse of authority covered in articles 121 and 376
of the Penal Code.
41. Finally,
it should be pointed out that the Code of Military Justice contains
specific provisions enabling military courts to punish the acts
covered in article 1 of the Convention. Paragraphs 1 and 9 of
article 180 respectively stipulate that imposing torture or penalties
prohibited by law constitutes the offence of abuse of authority
and that persons become guilty of that offence when, in the exercise
of their duties or on the orders of a superior, they use or caused
to be used against any person, with no legitimate reason, unnecessary
violence in performing their tasks. In this way the military court
system also provides for punishment of the acts described in article
1 of the Convention, there being no possible grounds for exonerating
anyone acting on the orders of a superior.
42. Thus
our system of criminal law meets the requirements of article 4
of the Convention.
Article 5
43. The
scope of Peruvian jurisdiction is laid down in article 54 of the
Political Constitution of 1993, which states that the State shall
exercise sovereignty and jurisdiction both over its land territory
and over its territorial waters and airspace.
44. On
this basis, our legal system has adopted a series of principles
delimiting the area of application of the criminal law, as follows:
(a)
Principle of territoriality, article 1 of the Penal Code,
according to which Peruvian criminal law shall apply to anyone
committing a punishable act in the territory of the Republic,
subject to the exceptions laid down in international law. Thus
any of the acts set forth in article 1 of the Convention carries
a criminal penalty in so far as it has been committed within the
territory of Peru. This also applies to acts committed in public
Peruvian vessels or aircraft, wherever they are located, or in
private Peruvian vessels or aircraft on the high seas or in airspace
over which no State exercises sovereignty;
(b)
Principle of defence, article 2 of the Penal Code, according
to which Peruvian criminal legislation applies to any offence
committed abroad, inter alia:
(i)
When the perpetrator is a public official or servant acting in
the course of his duties;
(ii)
When the offence is perpetrated against or by a Peruvian and is
classified as extraditable under Peruvian criminal law, provided
that it is also punishable in the State in which it was committed
and the perpetrator enters the territory of the Republic in some
way.
45. Therefore,
the acts described in article 1 of the Convention may be prosecuted
when the alleged offender or victim of the offence is a Peruvian
national. However, Peruvian legislation does lay down some exceptions
to the principle of defence, out of a concern to provide safeguards,
when the offence is perpetrated against or by a Peruvian. These
exceptions are contained in article 4 of the Penal Code, as follows:
when criminal proceedings have been extinguished in accordance
with one or the other body of legislation, in the case of political
offences or related acts, and when the accused has been acquitted
abroad or the convicted person has completed his sentence or when
the sentence is time-barred or remitted. It can therefore be seen
that our domestic legislation fully meets the objectives of article
5 (1) of the Convention.
46. In
addition, article 3 of the Penal Code generally meets the requirement
contained in article 5 (2) of the Convention, inasmuch as Peruvian
criminal legislation is also applicable when extradition is requested
but the perpetrator is not handed over to the competent authority
of a foreign State. In this respect, anyone who carries out any
of the acts described in article 1 of the Convention may be subject
to the Peruvian system of justice.
47. As
for article 5 (3) of the Convention, it should be noted that the
Peruvian legal system recognizes ordinary courts, military courts
and arbitral courts, as stipulated in article 139 (1) of the Political
Constitution of the State. It thus embodies the principle of unity
and exclusivity of the courts; there are no judicial proceedings
by assignment or delegation of powers, nor is there any independent
court.
48. The
text of the Convention is applicable in both the ordinary and
military courts, since our internal legislation makes no distinctions
in that respect, and in addition, treaties in force concluded
by the State become part of national law in accordance with article
55 of the new Constitution. Similarly, the Fourth Final Provision
of the Constitution stipulates: "Rules relating to the rights
and freedoms recognized by the Constitution shall be interpreted
in accordance with the Universal Declaration of Human Rights and
with the international treaties and agreements on human rights
ratified by Peru".
49. Similarly,
the Code of Military Justice, the legal framework for military
criminal jurisdiction, explicitly covers the acts described in
article 1 of the Convention. Accordingly, internal law does not
exclude any criminal jurisdiction from the application of the
Convention, and in this way, virtually fulfils the requirement
of article 5 (3) of the Convention.
Article 6
50. In
accordance with article 6 of the Convention, Peruvian legislation
on extradition provides for the person who is being extradited
to be taken into custody. Article 20 of Act No. 24710, the Extradition
Act, stipulates, "In emergency cases, the person being extradited
may be taken into custody, upon a simple request made by any means,
including telegraph, telephone or radio, on the basis of an arrest
warrant, judicial decision or an escape attempt by the accused
person, with an indication of the offence committed and agreement
by the applicant State to submit a formal application within 30
days from the date of receipt of the request". In this way,
the possibility is provided, in general terms and for all offences,
including those covered by article 1 of the Convention, of taking
a person into custody in order to extradite him subsequently to
the State that has requested him, in emergency cases and on the
basis of a commitment to complete the appropriate procedure within
a 30-day period.
51. As
a safeguard, if the formal application for extradition has not
been duly prepared and submitted within the above-mentioned period,
the deprivation of liberty will not continue and the person whose
extradition is sought will be unconditionally released, the applicant
State being responsible for the person being taken into custody
(Act No. 24710, arts. 21 and 28). Similarly, article 31 of the
Act stipulates that once the person has been taken into custody
by the local office of the International Criminal Police Organization
- Interpol (ICPO-Interpol), a statement must be taken from him
and he must be placed at the disposal of the criminal judge within
24 hours, whatever the nature of the charge. In any event a detainee
is entitled in such circumstances to apply for the remedy of habeas
corpus.
52. The
authority responsible for applying the various aspects of article
6 of the Convention is the sitting criminal judge. The criminal
judge shall take the person's statement with the assistance of
a lawyer of his choice or a court-appointed lawyer, and the person
being extradited may submit evidence on his own behalf to show
that the application is inadmissible in form or substance or to
prove his innocence or the existence of extenuating circumstances
or grounds for exemption from criminal liability (Act No. 24710,
art. 32). The criminal judge shall summon the person being extradited,
his lawyer and a representative of the Office of the Public Prosecutor
to a public hearing to be held within a period of no more than
15 days. He shall also summon the embassy of the applicant State
to send a lawyer to represent it; both parties may submit evidence,
arguments and information through their lawyers. Once the hearing
has been completed, the criminal judge shall declare the extradition
admissible or inadmissible within a period of three days. The
Supreme Court of the Republic shall rule on whether or not the
application is to be granted, and it is for the Government, in
the final instance, to decide that the extradition shall take
place (Act No. 24710, arts. 34, 35 and 36, and Political Constitution,
art. 37).
53. With
regard to the guarantees laid down in article 6 (3) of the Convention,
article 2 (24) (g) of the Constitution of 1993 stipulates that
no one may be held incommunicado except when that is essential
for clearing up a case, and in the manner and for the period laid
down by the law. Act No. 24710 does not empower any authority
to hold detainees incommunicado as part of an extradition procedure;
accordingly, there is no obstacle whatsoever to their contacting
the representative of the State of which they are a national or
the State in which they habitually reside.
54. From
all the foregoing it can be seen that the Peruvian State effectively
protects the rights and complies with the obligations set forth
in article 6 of the Convention.
Article 7
55. Article
3 of the Peruvian Penal Code establishes the principle of representative
justice, by which Peruvian criminal law is applied whenever an
extradition requested by a foreign State is not admissible. Under
this provision the Peruvian courts may try persons whose extradition
has been refused, in which case they apply Peruvian criminal law.
The purpose of this provision is to avert impunity by assuming
the obligation to prosecute and punish persons who commit offences
abroad.
56. Under
article 8 of the Extradition Act, if Peru refuses an extradition,
it may try the accused, in which case it will request the evidence
against him from the applicant State. Both provisions apply to
all offences, and thus encompass conduct classified by the Convention
as torture, which in Peruvian legislation comes under a number
of categories. Moreover, in such cases the Peruvian courts will
confine themselves to applying Peruvian law without any form of
discrimination or exception, in other words, they will deal with
the offence in question as if it had been committed on Peruvian
territory. Similarly, no exceptions whatsoever are made as regards
the evidence or procedural requirements; consequently, the evidentiary
and juridical assessment of the act, as well as the relevant procedural
requirements, are governed by one and the same legal order.
57. In
addition, the Constitution, the Code of Penal Procedure, the Organization
Act of the Office of the Public Prosecutor and the Habeas Corpus
and Amparo Act ensure due process of law and make provision
to safeguard the rights of persons facing trial in general, who
obviously include persons accused of acts classified as torture
by the Convention.
58. The
system of legal safeguards for persons facing trial includes as
a primary institutional safeguard the appointment of an independent,
objective and impartial judge who is required to explain his decisions
and justify them by reference to the law. The accused is entitled
to be given a public hearing, not to be convicted in his absence,
not to have the criminal law applied by analogy, not to be deprived
of the right to defend himself, to be informed of the grounds
or reasons for his detention and to benefit from the most favourable
legislation should there be a doubt or conflict between criminal
laws.
59. The
Office of the Public Prosecutor is required to ensure the independence
of the courts and the proper administration of justice. The Organization
Act of the Office of the Public Prosecutor requires it to monitor
the activity of the police and the lawfulness of their investigations
and to ensure that the accused appoints a defence counsel he can
trust.
60. The
fundamental principles of the Code of Penal Procedure are, in
addition to those contained in the Constitution, the requirement
that the judge should ensure equality before the law, free and
expeditious criminal justice, the presumption of innocence, prohibition
of double jeopardy, placing of the burden of proof on the Office
of the Public Prosecutor and compensation for judicial errors
and arbitrary detention.
61. In
the light of the above, it may be asserted that Peruvian legislation
is in conformity with the requirements of article 7 of the Convention.
Article 8
62. Article
37 of the Constitution stipulates that extradition is subject
to the existence of the law, of treaties and of the principle
of reciprocity. Article 2 of Act No. 24710 reiterates these principles,
while under article 3 reciprocity depends on respect for human
rights and is subject to the limitations laid down by articles
6 and 7. The general requirement for extradition to be admissible
is that the offence, regardless of its nature, must carry a penalty
of not less than one year's deprivation of liberty. Consequently,
conduct which the Convention classifies as torture automatically
constitutes an extraditable offence.
63. Peru
has entered into multilateral extradition treaties at the inter-American
level, as well as seven bilateral treaties. None of them make
any exception restricting the extradition of persons guilty of
acts classified by the Convention as torture. Since the Convention
came into force, Peru has entered into no extradition treaties
that conflict with the provisions of the Convention, nor has it
requested the extradition of any person charged with acts classified
by the Convention as torture or received any request for extradition
on the same grounds.
Article 9
64. The
question of mutual international judicial assistance is of the
utmost importance, not just with regard to crimes involving torture,
but with regard to crimes in general, whether they are covered
by a convention or not; accordingly, Peru promotes the provision
of such assistance by signing and ratifying the appropriate international
instruments. Peru is in the process of signing four bilateral
agreements on mutual judicial assistance, with Great Britain (covering
the crime of drug trafficking), Italy, Chile and Poland. Discussions
with the first three countries have reached an advanced stage,
while a first draft agreement has been exchanged with Poland.
In addition, negotiations are under way with the three countries
just mentioned regarding the signing of treaties on the transfer
of convicts. In addition, treaties on extradition are under discussion
with Italy and Poland. Peru is in the process of acceding to the
Inter-American Convention on Mutual Judicial Assistance. This
agreement is binding upon all the member countries of OAS.
Article 10
65. Article
14 of the Constitution makes the teaching of the Constitution
and of human rights mandatory throughout the educational process,
both civilian and military. Teaching is provided at all levels
in accordance with the principles of the Constitution.
66. The
Ministry of Defence has adopted a range of instructions and directives
to achieve this end, and in particular to prevent torture. They
include the following:
(a)
Legislative Decree No. 665, which authorizes procurators to enter
police stations and military establishments to check the situation
of detainees. Ministerial Decision No. 1302-DE/SG, dated 11 November
1991, stipulates that duty officers in military establishments
are required to admit and attend to them directly, providing them
with all the facilities they need to discharge their duties; it
also requires the Military Political Command of the zone in question
to order any further measures required;
(b)
On 11 September 1991 the Chairman of the Armed Forces Joint Command
authorized delegates of the International Committee of the Red
Cross to visit all military installations engaged in counter-subversive
operations in order to perform their humanitarian mission;
(c)
Supreme Decree No. 064-91-DE/SG, dated 8 November 1991, approved
Directive No. 023-MD/SGMD, entitled "Rules and procedures
that must be observed in order to facilitate the conduct of operations
in areas where a state of emergency has been declared, for the
purpose of ensuring the observance and defence of human rights";
(d)
A Presidential Directive on the observance of human rights, approved
by the Council of Ministers on 9 September 1991, which sets out
presidential policy with regard to national pacification on the
basis of respect for human rights;
(e)
Memorandum No. 2586-EMFA/DDHH of 13 September 1993, issued by
the Chief of the General Staff of the Armed Forces to all counter-subversive
fronts and security zones, reiterating the need for unqualified
respect for human rights;
(f)
Memorandum No. 3539-EMFA-DDHH of 2 December 1993, issued by the
Chairman of the Armed Forces Joint Command, drawing attention
to the provisions regarding the treatment and registration of
detainees;
(g)
Memorandum No. 0774-EMFFAA-DDHH of 16 March 1993, issued by the
Chairman of the Armed Forces Joint Command, stipulating that the
armed forces will not permit any violations of human rights and
issuing instructions for such acts to be reported and/or punished;
(h)
Memorandum No. 460-C-3/a.05.01 of 11 April 1991, issued by the
Chief of the General Staff of the Army, ordering in compliance
with Act No. 25211 of 16 May 1990 that all military training centres
(colleges and units) should provide teaching on the Constitution,
human rights and national defence;
(i)
Directive No. 004-SGMD-M of March 1992, setting out provisions
to standardize human rights training and education in armed forces
institutions;
(j)
Multiple memorandum No. 726-C-4/a.05.02 of 12 June 1991, issued
by the Chief of the Army General Staff, whereby all military training
centres received the human rights master curriculum to be followed
at each level of education;
(k)
Training and instruction note No. 002-C-2/a.05.01 of July 1991,
containing provisions for reorganizing programmes to facilitate
the provision of instruction in counter-subversive warfare and
the observance of human rights;
(l)
Directive No. 016-EMFFAA-DDHH of July 1993, setting out provisions
regarding the planning, preparation and conduct of a short human
rights course for military and police personnel;
(m)
An offprint containing the human rights course taught throughout
Peru to all the forces of law and order engaged in anti-terrorist
operations;
(n)
"Decálogo de las Fuerzas del Orden" (The Ten
Commandments of the Forces of Law and Order) published by the
Armed Forces Joint Command and issued to all military and police
personnel engaged in anti-terrorist operations.
67. As
part of its policy of disseminating the basic principles that
will promote unqualified respect for human rights in the interests
of national pacification and in accordance with the relevant directives,
the Peruvian National Police has incorporated into the curricula
of the various centres comprising the police education system
a number of lectures and courses designed to provide comprehensive
knowledge of human rights theory and practice, which is subsequently
to be reflected in the police's operational activity. In addition,
since 1991 the aim of the Ministry of the Interior in
respect
of human rights has been to step up action to foster the promotion
and protection of human rights throughout Peru in the various
departments under its authority.
68. In
response to the Government's concern for human rights, a number
of bodies have been organized within the Ministry of the Interior
to constitute a system of human rights protection. This has made
it possible to reduce the number of complaints of human rights
violations. Among the measures adopted, the following are worthy
of note:
(a)
Ministerial Decision No. 0629-91-IN/GI of 31 July 1991, establishing
human rights offices as integral departments of prefectures, sub-prefectures
and governors' and deputy governors' offices;
(b)
Ministerial Decision No. 0668-A-91-IN-DM of 15 August 1991, establishing
the Committee for the Defence of Human Rights within the Ministry
of the Interior;
(c)
Legislative Decree No. 744 of 8 November 1991, whereby the structure
of the Peruvian National Police, including the organizational
structure of its general staff, was brought into line with the
Directorate for National Pacification and Human Rights Protection;
(d)
Ministerial Decision No. 0396-92-IN/DM of 20 April 1992, approving
the organizational and functional regulations of the human rights
system of the Ministry of the Interior;
(e)
Vice-Ministerial Decision No. 008-92-IN-VM of 1 November 1992,
approving the organizational and functional regulations of the
National Commission for Human Rights of the Ministry of the Interior;
(f)
Ministerial Decision No. 1068-92-IN-DM of 30 November 1992, approving
Directive No. 001-92-IN-CNDDHH/SP, of 19 November 1992, on "Rules
of procedure for dealing with complaints of alleged human rights
violations";
(g)
Directive No. 114-91-DGPNP/EGM-OA-3, which stipulates rules and
procedures to be observed by officers of the Peruvian National
Police in the performance of their duties, guaranteeing faithful
compliance with constitutional and other provisions regarding
unqualified respect for human rights;
(h)
Directive No. 014-92-DGPNP/EGM-DIPANDH, which lays down rules
and procedures for registering, handling and disseminating information
relating to persons detained at premises of the Peruvian National
Police;
(i)
Directional Decision No. 3977-91-DGPNP/EMG of 8 August 1991, approving
the human rights booklet intended for the personnel of the Peruvian
National Police;
(j)
A brochure entitled "¿Sabes qué es ser Policía?"
("Do you know what it means to be a policeman?"), produced
by the Social Communication Office of the Ministry of the Interior,
which emphasizes the qualities that any good policeman ought to
have, and the Ten Commandments of the National Police, which emphasize
respect for the dignity and freedoms of the individual;
(k)
A human rights compendium edited by the Social Communication Office
of the Ministry of the Interior and intended for the political
authorities, which contains basic notions relating to human rights,
together with the legislation which underpins the Constitution
and protects the human person in accordance with the Universal
Declaration of Human Rights;
(l)
In 1993 the Office of the Public Prosecutor participated in a
short human rights course organized by the Ministry of Defence,
which was given to military and police personnel at the main headquarters
of the military-political commands and military zones (13).
Article 11
69. Specific
regulations relating to police questioning are contained in Directorial
Decision No. 1694-AD-SG of 8 November 1988. The regulations, entitled
"Manual of Operational Procedures for Criminal Investigations",
provide in section 10, "Questioning and interview",
a reminder of the constitutional provisions that prohibit violations
of a person's integrity and declares statements obtained through
force to be invalid. The regulations contain a particular recommendation
that policemen should protect the physical integrity of detainees.
The techniques recommended for efficient interrogation do not
include torture.
70. The
Act on the Status of the Personnel of the Peruvian National Police
and the Disciplinary Regulations lay down internal guidelines
to ensure that the police do not exceed their authority by ill-treating
detainees or suspects. In addition, the new Code of Penal Procedure
stipulates that the Office of the Public Prosecutor is responsible
for directing investigations into crimes and that consequently
during their investigations the police are functionally subordinate
to the Procurator and may only carry out investigations as provided
for by article 106 of the Code. The police may only take statements
from the alleged culprits or participants in the crime if the
Procurator has failed to appear within 24 hours after the complaint
was lodged, or if the persons in question are in serious danger
(Code of Penal Procedure, art. 106, para. 12).
71. The
Organization Act of the Office of the Public Prosecutor authorizes
the provincial procurator to visit penal establishments and places
of pre-trial detention in order to hear complaints and pleas from
convicted prisoners and prisoners awaiting trial regarding their
judicial situation and constitutional rights. He is required to
make a record of his visit and submit it, together with the relevant
report, to the senior government procurator, without prejudice
to the adoption of any legal measures required in conformity with
his role of defending legality and human rights (art. 95, para.
8).
72. Prison
officials are not authorized to interrogate detainees. As has
already been mentioned, the Code of Execution of Punishments prohibits
any act that could be classified by the Convention as torture.
If a prison official commits such acts, he will be brought before
the ordinary courts, without prejudice to any disciplinary measures
prescribed by the general legislation on the civil service, Decree
Law No. 276, which in serious cases may require dismissal.
Article 12
73. In
accordance with article 1 of the Convention and with what has
already been said on article 4, the offence of torture is prosecutable
either pursuant to a complaint from a private individual or by
the Office of the Public Prosecutor acting ex officio.
In accordance with Peruvian procedural provisions, a summary preliminary
investigation is carried out by the Office of the Public Prosecutor,
in whom the public right of action in criminal cases is vested.
Accordingly, the provincial criminal procurator may initiate proceedings,
if necessary with police assistance, order a forensic examination
to ascertain the psychological or physical harm done to the victim,
take statements from the parties concerned and from the suspects,
and lay a charge before the criminal judge if the legal requirements
are met: committal of an offence, identification of the perpetrator
and the offences not being time-barred.
74. These
provisions do not prevent the court from assuming jurisdiction
over the matter at the stage of the preliminary investigation.
Legislation to this end has been adopted in respect of the offences
of terrorism, drug trafficking and spying. Article 109, paragraph
2, of the new Code of Penal Procedure stipulates that the criminal
judge may "immediately order a medical examination of the
detainee, within the required time-limit, provided it has not
been ordered by the procurator, without prejudice to authorizing
at any time his examination by his own doctor. The detainee has
the right to be examined at his own request, at the request of
his lawyer or any of his relatives, by a forensic or private physician
without any restriction by the police."
Article
13
75. As
torture is an offence which is prosecutable ex officio,
the victim, or any other person may lodge a complaint with the
Office of the Public Prosecutor in which he specifies the facts
and provides the minimum information required for a preliminary
investigation to be carried out, if appropriate, or for a formal
charge to be brought before the court, if the offence is confirmed
and the perpetrator identified.
76. As
has already been mentioned, the new 1993 Constitution, article
2, paragraph 24 (h), stipulates that any statements obtained by
force are invalid and adds that anyone who employs violence for
that purpose is liable to punishment. In addition, the Constitution
allows "anyone to request an immediate medical examination
of the victim or of a person unable to appeal to the authorities
himself". Thus the law provides ample scope for investigating
this type of criminal act.
77. The
preliminary police procedure is the same as that described in
the previous commentary and is based on the provisions of article
159, paragraph 4, of the Constitution and articles 1 and 9 of
the Organization Act of the Office of the Public Prosecutor. To
these may be added the provisions of article 105 of the new Code
of Penal Procedure, under which "As soon as the police authorities
are informed of the commission of a punishable act liable to prosecution
through public right of criminal action, they shall inform the
provincial procurator. The Office of the Public Prosecutor shall
guarantee the right of the detainee to a defence and take any
measures required to elucidate the facts promptly". In addition,
article 91 of the Code of Penal Procedure determines the procedural
aims of the judicial investigation: "The procedural phase
of the investigation is intended to bring together the evidence
necessary to enable the procurator to decide whether or not to
file charges. Its purpose is to determine whether the conduct
in question constitutes an offence, to ascertain the circumstances
or motives for the act, the identity of its perpetrator or accessory
and of the victim, and whether any injury was caused."
78. As
regards the protection which must be provided for plaintiffs and
witnesses, article 10 of the new Code of Penal Procedure stipulates
that in all cases such protection is the responsibility of the
specialized police: "The police, by means of specialized
units, shall provide protection for witnesses and evidence, serve
notice on victims, witnesses and experts, whose places of abode
shall be kept secret if necessary ...".
Article 14
79. The
right to fair compensation for victims of torture and of any other
offence determined by Peruvian criminal law is regulated by the
provisions of articles 92 to 101 of the Penal Code. Accordingly,
compensation may include the expenditure necessary to restore
the victim's physical or mental health, or such compensation as
is due to his relatives if he dies.
80. For
further details regarding article 14 of the Convention, reference
may be made to the information provided in the section on the
remedies available to an individual to defend his fundamental
rights and on systems of compensation and rehabilitation in the
core document submitted by Peru.
Article 15
81. As
has already been mentioned in previous paragraphs, statements
obtained by use of violence are invalid, under article 2, paragraph
24 (h) of the Constitution. Accordingly, in regular proceedings
the judicial authorities do not accept such statements in evidence.
Moreover, if the use of violence to obtain them is ascertained,
public right of criminal action will automatically be exercised
against the authority responsible for the punishable conduct.
It should also be stressed that in accordance with the new Code
of Penal Procedure, the gathering of evidence is subject to the
provisions of the Constitution and of the conventions and treaties
adopted and ratified by Peru.
82. An
attempt is thus made to establish the truth through the use of
admissible evidence obtained by lawful means and brought forward
at the trial in accordance with the law, as required by articles
190 to 195 of the Code of Penal Procedure.
Article 16
83. Any
other violation of the physical or mental integrity of persons
which does not constitute torture in accordance with article 1
of the Convention is dealt with under Peruvian law as an ordinary
offence and is liable to a criminal penalty.
84. Peruvian
legislation expects high moral standards of those in public office
and in particular classifies as an aggravating circumstance -punishable
by a severe penalty - the fact that the person committing an ordinary
crime is a member or former member of the National Police. In
this connection, article 1 of Decree Law No. 25662 stipulates
that:
"Any member
of the Peruvian National Police, whether on active duty or
suspended for disciplinary reasons, who commits punishable
acts classified as ordinary offences shall be liable to twice
the penalty laid down by the Penal Code or special legislation.
"Retired members
of the Peruvian National Police who commit punishable acts
classified as ordinary offences shall incur the maximum penalty
increased by 50 per cent".
Appendix
THEMATIC ANALYSIS OF TORTURE
I. CASES
OF ALLEGED ILL-TREATMENT AND TORTURE BY PERSONNEL OF THE PERUVIAN
NATIONAL POLICE (PNP)
A. Case:
Salomé Adauto, Juan Arnaldo
1. Information
received through the Special Rapporteur
"...
was arrested in Huancayo, Junín, on 24 April 1991 by members of
the police and taken to the 9 de diciembre police station, where
he remained until his release on 10 June 1991. During his detention
he was reportedly severely beaten, suffocated, suspended in the
air and deprived of food" (see doc. E/CN.4/1994/31, para.
437).
2. Information
provided by the National Police (PNP)
In memorandum
No. 38-94-EMG-DIPANDH of 18 January 1994 the Director for National
Pacification and the Protection of Human Rights of the General
Staff of the National Police provided the following information:
As regards the
alleged disappearance of Juan Arnoldo Salomé Adauto, VIII-RPNP
(responsible for policing in Junín) has reported that he was
neither questioned nor detained by PNP personnel from this
police district, as is confirmed by report No. 013-VIII-RPNP-EMR-ORPDH
of 9 September 1992, annexed hereto (Annex B, No. 1).
B. Case:
Salas Córdova, Antártico Daniel
1. Information
received though the Special Rapporteur
"...
was arrested in the district of San Martín, Lima, on 27 April
1992 by members of the National Police. He was taken to a police
station, where he died a few hours later." Although the police
asserted that he died from a heart attack, the autopsy report
certified that his death was attributable to suffocation as a
result of physical violence. In addition, it mentioned bruising
on his face, scalp and upper and lower limbs (see doc. E/CN.4/1994/31,
para. 440).
2. Information
provided by the National Police
In respect
of this case, the Inspector-General of the National Police transmitted
memorandum No. 165-94-IGPNP-C of 18 January 1994, to the Director-General
of the National Police, providing him with the following information
in report No. 002-94-IGPNP-SG-UAI (Annex B, No. 2):
On 22 September
1992, by memorandum No. 4887-92-IGPNP-C of 21 September 1992,
report No. 179-92-IGPNP-O1-E7 of 14 September 1992 was sent
to the Directorate-General of the National Police, with details
of the administrative disciplinary investigations undertaken
to determine the responsibility of the author of statement
No. 180-IC-H-DDCV of
12 May 1992, in connection
with the death of the detainee Antártico Daniel Salas Córdova
on 27 April 1992 at San Martín de Porres police station.
Further to this,
on 20 December 1993, police report No. 405-93-DI-E5 of 18
November 1993 was sent by memorandum No. 4400-93-IGPNP-C,
with the results of the investigations to determine the possible
responsibility of National Police Capitain Estevan Castillo
Farfan (deceased) in the death of the detainee Antártico Daniel
Salas Córdova on 27 April 1992.
By decree
No. 1061-93-DGPNP-EMP-AS1 of 31 December 1993, the Directorate-General
of the National Police submitted the findings of the Inspectorate-General
to the Board of Investigation into Senior Officers, so that it
could consider them and give a decision.
As can
be seen, administrative disciplinary investigations are still
under way within the National Police to determine clearly whether
any police officers were responsible for this person's death.
C. Case:
Huatay Ruiz, Martha
Complaint
No. :
Place
: District : Yanamayo rehabilitation centre
Province
: Puno
Department
: Puno
Region
: XII-RPNP
Date
:
Victims
: A female terrorist held at Yanamayo rehabilitation centre, Puno
Alleged
Perpetrators : PNP personnel
Grounds
: Alleged torture of the detainee Martha Huatay Ruiz.
Background:
A Labour member of the United Kingdom Parliament, Peter Kilfoyle,
has written to the Peruvian Ministry of Foreign Affairs requesting
information on the detainee Martha Huatay Ruiz following allegations
that she has been tortured.
Investigations
carried out: The letter from Peter Kilfoyle, the Labour Member
of Parliament, was sent, by memorandum No. 039-93-IN-CNDDHH/SP
of 8 February 1993 to the DIRGEN-PNP.
Report
No. 147-93-EMG/DIPANDH of 18 June 1993 (Annex B, No. 3) was submitted
by memorandum No. 161-93-EMG/DIPANDH of 21 June 1993. In point
3 the report stated that by memorandum No. 032-XII-RPNP/Sec of
7 June 1993 XII-RPNP had submitted report No. 041-XII-RPNP/DPY
(Annex B, No. 4) drawn up by the office of the Governor of the
penal establishment in Yanamayo, stating that the duty physician,
PNP Major Angel Cárdenas Alcazar, had given the terrorist detainee
Martha Huatay Ruiz a medical examination on 8 May 1993; the ectoscopic
examination proved negative, since "no recent lesions were
detected", thereby excluding the possibility that the detainee
had been or was being tortured.
Report
No. 298-93-EMG/DIPANDH was transmitted by memorandum No. 585-93-EMG/DIPANDH
of 30 November 1993, drawing attention in point 7 to the fact
that report No. 147-93-EMG/DIPANDH of 18 June 1993, had already
been transmitted.
Reply
to the Ministry of Foreign Affairs
Copies
of report No. 147-93-EMG/DIPANDH of 18 June 1993 and report No.
041-XII-RPNP/DPY drawn up by the office of the Governor of the
Yanamayo prison were transmitted by memorandum No. 272-93-IN-CNDDHH/SP
of 25 June 1993.
D. Arrest
of peasants in San Ignacio Cajamarca province
1. List
of persons arrested
Vásquez
Vásquez, Wigberto
Alvarado
Campos, Plácido
Morales
Labán, Víctor
Velásquez
Flores, Crisanto
Granda
Rodríguez, Guillermo
Oyola
Cornejo, Guillermo
García
Huamán, Javier
García
Huamán, Benjamín
Cruz
Bautista, Daniel
Huamán
Huamán, Samuel
2. Information
received through the Special Rapporteur
"Wigberto
Vásquez Vásquez, 31, a teacher and President of the Committee
for the Defence of the Interests of the People of San Ignacio;
Plácido Alvarado Campos, 58, President of the Provincial Federation
of Rural and Urban Brigades; Víctor Morales Labán, 40, President
of the United Federation of Peasants and Brigades of San Ignacio
(FUCASI); Crisanto Velásquez Flores, 40, Director of FUCASI; Guillermo
Granda Rodríguez, 32, President of the Committee of Agrarian Producers
of San Ignacio; Guillermo Oyola Cornejo, 48, secretary of the
Provincial Federation of Rural and Urban Brigades of San Ignacio;
Javier García Huamán, 34, peasant; Benjamín García Huamán, 33,
peasant; Daniel Cruz Bautista, 34, peasant; and Samuel Huamán
Huamán, 53, peasant. According to the information received, these
10 members of the Committee for the Defence of the Forests of
San Ignacio, province of San Ignacio, department of Cajamarca,
were arrested on 27 June 1992 by members of the police and subjected
to such forms of torture as beatings, suspension or immersion
of the head in water."
Pursuant
to an application for habeas corpus filed by their relatives,
Judge Emiliano Pérez Acuña attempted to visit the detainees together
with two doctors. However, the police denied them access to the
place of detention.
3. Information
provided by the National Police
By memorandum
No. 585-93-EMG/DIPANDH of 30 November 1993, the Director of National
Pacification and the Protection of Human Rights of the General
Staff of the Peruvian National Police submitted report No. 298-93-EMG/DIPANDH,
dated 30 November 1993, which states as follows:
"8. With regard
to the 'San Ignacio' incident, which took place on 27 June
1992 in Cajamarca, this department has submitted report No.
36-93-EMG/DIPANDH (Annex B, No. 5), which concludes that during
the process of investigation PNP Major César Coquis Coz used
neither violence nor his firearm against the detainees or
against Dr. Emiliano Pérez Acuña, the examining magistrate,
and that the rule of law and observance of human rights were
ensured by the presence of the representative of the Office
of the Public Prosecutor."
In connection
with this case, the Inspector-General of the PNP has sent to the
Director-General of the PNP, by memorandum No. 165-94-IGPNP-C
of 18 January 1994, report No. 002-94-IGPNP-SG-UAI (Annex B, No.
6), with the following information:
On 29 April 1993,
by memorandum No. 1977-93-IGPNP-C, dated 29 April 1993, report
No. 114-IGPNP-DI-E2 of 28 April 1993 was transmitted to DIRGEN-PNP,
setting out the results of the administrative disciplinary
investigations into alleged irregularities connected with
the detention of individuals during police investigations
into the attack on 26 June 1992 on the INCAFOR SA camp in
the province of San Ignacio Cajamarca.
4. Additional
information relating to the San Ignacio Cajamarca case from the
data bank of the National Commission for Human Rights of the Ministry
of the Interior
Complaint
No. :
Place
: District : San Ignacio
Province
: San Ignacio
Department
: Cajamarca
Region
: II-RPNP
Date
: 27 June 1992
Victims
: Persons detained in Picsi-Chiclavo prison
Vásquez
Vásquez, Wigberto
Velásquez
Flores, Crisanto
Alvarado
Campos, Plácido
Morales
Labán, Víctor
Granda
Rodríguez, Guillermo
Oyola
Cornejo, Guillermo
García
Huamán, Javier
García
Huamán, Benjamín
Cruz
Bautista, Daniel
Huamán
Huamán, Samuel
Under
warrant of arrest
Bure
Camacho, Manuel
Calderón
Bartolini, Olga
Olava
Monteza, Juana
Delgado
Montenegro, Félix
Alleged
perpetrators : Criminal complaint for abuse of authority and arbitrary
detention against the following:
Dr.
Macartur Suxe Hernández, Provincial Procurator of San Ignacio;
Dr.
José Rivadeneyra Efio, Deputy Procurator of Jaén;
Personnel of the
National Police from the provincial headquarters of San Ignacio-Cajamarca;
PNP Major César
Augusto Coquis Coz;
PNP Constable
Luis Alberto Terry Díaz;
Grounds:
Alleged arbitrary detention of the individuals referred to above;
complaint lodged by the Coordinator-General of the Asociación
Pro Derechos Humanos (APRODEH) with the Office of the Attorney-General.
Background:
By memorandum No. 2515-92MP-FN of 14 August 1992, addressed to
the Minister of the Interior, the Attorney-General of the Nation
notified the
complaint
lodged by the Coordinator-General of Asociación Pro Derechos Humanos
on behalf of the victims, enclosing a copy of the complaint and
other documents and requesting reports on the matter.
A letter
from Americas Watch dated 10 December 1992 was sent by fax to
the President of the Republic expressing the organization's concern
about the situation of the persons in question.
A copy
of memorandum No. 043-CTE-93 from the Ecuadorian Workers' Confederation,
reporting the detention of 10 leaders of the Committee for the
Defence of the Forests of San Ignacio was transmitted to the Minister
of the Interior by memorandum No. 364-93-MP-FN of 11 February
1993 from the Office of the Attorney-General of the Nation.
Investigations
carried out: a photocopy of memorandum No. 2515-92-MP-FN and of
the complaint filed by the Coordinator-General of APRODEH on behalf
of the victims was sent to DIRGEN by memorandum No. 070-92-IN-CN-DDHH/SP
of 27 August 1992.
A copy
of the letter from Americas Watch transmitted by fax on 10 December
1992 was sent by SP to DIRGEN-PNP by memorandum No. 005-93-IN-CNDDHH/SP
of 6 January 1993.
A copy
of memorandum No. 364-93-MP-FN together with memorandum No. 043-OCT-93
was sent to DIRGEN-PNP by memorandum No. 069-93-IN-CN-DDHH/SP
of 18 February 1993.
By memorandum
No. 46-93-DGPNP/EMG-DIPANDH of 11 March 1993, a reply was sent
by DIPANDH to memorandum No. 070-92-IN-CN-DDHH/SP, of 27 August
1992, transmitting report No. 36-93-DGPNP/EMG-DIPANDH of 1 March
1993 together with report No. 05-SR-PNPL-S3 of 2 October 1993,
(Annex B, No. 7), with the following conclusions:
That
Vásquez Vásquez, Wigberto; Velásquez Flores, Crisanto; Alvarado
Campos, Plácido; Morales Labán, Víctor; Granda Rodríguez, Guillermo;
Oyola Cornejo, Guillermo; and García Huamán, Javier, were arrested
by the National Police on the grounds that they were involved
in a presumed act of terrorism (an attack on the firm INCAFOR
S.A.); the examining magistrate and provincial procurator of San
Ignacio were informed of their arrest and incommunicado detention.
Consequently, the complaint lodged by the representative of the
Asociación Pro Derechos Humanos is legally unfounded, as it is
based on information provided by Dr. Emiliano Pérez Acuña, former
examining magistrate of San Ignacio (removed from office by the
Supreme Court of Peru), against whom Major César Coquis Coz of
the National Police has filed criminal charges for the offences
of terrorism and perversion of the course of justice, lodged by
II-RPNP with the Supreme Court of Peru.
Report
No. 298-93-EMG/DIPANDH, enclosing a copy of report No. 36-93-DGPNP/EMG-DIPANDH
of 1 March 1993, was transmitted by memorandum No. 585-93-EMG/DIPANDH
of 30 November 1993.
E. Further
information relating to the Chilcahuayco and Vilcashuamán cases
from the data bank of the National Commission for Human Rights
of the Ministry of the Interior
1. Information
received through the Special Rapporteur
"In
territories under a state of emergency, on the other hand, rape
was perpetrated within the framework of the armed conflict, in
rural areas, without prior detention and seemed to be used as
a form of intimidation or punishment against civilian groups suspected
of collaboration with insurgent groups. Incidents of this type
were reported to have occurred, for example, at Chilcahuayco and
Vilcashuamán, Ayacucho, in September 1990 and at San Pedro de
Cachi, Ayacucho, in July 1991" (see doc. E/CN.4/1994/31,
para. 432).
2. Information
provided by the National Police
Chilcahuayco
case
On 23
September 1991, PNP-PT Commander Elmo Vigo Bergente, of the PNP-PT
Departmental Headquarters in Ayacucho, sent by fax information
note No. 017-DECOTE-JDP.PT.A, dated 18 October 1990, and report
No. 058-DECOTE-JDP-PT-A, dated 21 March 1991. The documents contained,
inter alia, the following information:
That on 18 October
1990, at Chilcahuayco, in San Pedro de Cachi district, Huamanga
province, two mass graves were discovered, one of which was
empty while the other contained 17 corpses; the discovery
was made by members of the PNP-PT, an examining magistrate
and the provincial procurator. Jhonny José Zapata Acuna, alias
"Centurión" a sergeant in the Peruvian army was
accused of the murders.
Florentino
Mendoza (21)
Marcelino
Córdova Rodríguez (17)
Augusto
Palomino Calle (25)
María
Palomino Calle (14)
Juanito
Ocuno Saune (14)
Victoria
Espinoza Ccuno (30)
Sonia
Santiago Llactahuamán (14)
Bernardino
Melgar Quispe (15)
Emilio
Lobatón Palomino (60)
Demetrio
Pinto Tello (50)
Evaristo
Juamancusi Córdova (45)
Dina
Albujar Llactahuamán (13)
Julia
Mendoza Gómez (20)
Gabriel
Palomino Huayhua (26)
Delia
Melgar Quispe
Irene
Melgar Quispe
No. 3 court of
investigation in Huamanga-Ayacucho initiated investigatory
proceedings under file No. 07-91 against Jhonny José Zapata
Acuna for offences against life, physical integrity and health
(aggravated homicide) and against property (theft).
Vilcashuamán
case:
The
Chief of the General Staff of the Peruvian National Police transmitted
to the Vice-Minister of the Interior, by memorandum No. 093-3-DGPNP/EMG-DIPANDH
of 20 April 1993, report No. 64-93-DGPNP/EMG-DIPANDH concerning
the alleged violation of the human rights of Bernabé Baldeón García,
Jesús Baldeón Zapata and Santos Baldeón Palacios.
On this
matter, the headquarters of the IX-SRPNP-Ayacucho drew up report
No. 178-JECOTE-CNPN-WRLA of 29 September 1992 (Annex B, No. 8),
which concluded that after investigation it had been determined
that the persons referred to above were neither taken in for questioning
nor arrested by PNP personnel, but were taken in by a patrol of
the Peruvian army from Accomarca Base on 25 September 1991.
The
Secretary-General of the Ministry of Defence sent the Vice-Minister
of the Interior information on this case by memorandum No. 1408-SGMD-M
of 16 March 1993, together with a reference sheet (Annex B, No.
9). The following extracts from this document are particularly
noteworthy:
"Circumstances.
(a) An army unit from Accomarca allegedly entered the village
of Vilcashuamán, where it is reported to have detained a number
of the inhabitants, among whom were Bernabé Baldeón García,
Santos Baldeón Palacios and Jesús Baldeón Zapata. (b) It is
reported that all of these persons were tortured and that
Bernabé Baldeón García died as a result."
"Investigations
carried out. (a) The investigations have determined that between
23 and 27 September 1990 No. 34 BCS carried out operation
'Pompeyo' involving military personnel from Accomarca BCS.
In the course of the operation some 30 persons were arrested
in the village of Paccha Huallhua and later released for lack
of evidence that they were involved in subversive activities.
During this operation one of the villagers named Barnabé Baldeón
García died; according to the medical report his death was
caused by a heart attack. (b) Santos Baldeón Palacios and
Jesús Baldeón Zapata, who were arrested together with Bernabé
Baldeón García were released in perfect health and were in
no way ill-treated. (c) There is no documentary evidence to
support the allegation by these individuals that they were
tortured. Consequently, the investigations carried out have
clearly determined that no members of the army were involved
in the reported crimes ...".
II. INDIVIDUAL
CASES OF RAPE COMMITTED BY MEMBERS OF THE NATIONAL POLICE (PNP)
A. Case:
Coqchi Calle, Pilar
1. Information
received through the Special Rapporteur
"...
this nursing student was arrested on 23 January 1990 in Huamanga,
Ayacucho, on accusation of activities connected with the Sendero
Luminoso in the district of Belén. While in detention she was
allegedly raped several times and was subjected to other forms
of torture such as beating, suffocation and hanging. Although
she submitted a complaint to the government procurator, no charges
were filed against any members of the police, for lack of evidence"
(see doc. E/CN.4/1994/31, para. 433 (a)).
2. Information
provided by the National Police
In memorandum
No. 38-94-EMG-DIPANDH of 18 January 1994, the Director for National
Pacification and Defence of Human Rights of the General Staff
of the Peruvian National Police gave the following information:
"With reference
to the arrest of Pilar Coqchi Calle, alias Marlene, IX-RPNP
states that this person is held at Huamancaca prison, Huancayo,
serving a sentence for the crime of terrorism. She is accused
of being a political leader of the PCP-SL Area Committee of
Huamanga-Ayacucho, according to report No. 003-IX-RPNP-RND
of 6 December 1993 (Annex B, No. 10).
B. Case:
Loayza Tamayo, María Elena
1. Information
received through the Special Rapporteur
"...
38 years old, professor at the University of San Martín de Porres,
was arrested on 6 February 1993 in Lima by members of the National
Directorate against Terrorism (DINCOTE) on suspicion of maintaining
links with members of the Sendero Luminoso. She was kept incommunicado
from 6 to 15 February, during which time she was reportedly tortured
in order to obtain her confession by being beaten and kicked,
mainly in the head and thorax, submerged in water to simulate
drowning and raped several times. The report of the forensic physician
on a medical examination made around 15 February did not mention
signs of torture. However, another woman detained at the same
time in the premises of DINCOTE, María de la Cruz Pari, was also
allegedly raped and is now pregnant" (see doc. E/CN.4/1994/31,
para. 433 (d)).
2. Information
provided by the National Police
By memorandum
No. 10361-DINCOTE-Sc of 8 November 1993, the Director of DINCOTE
of the Peruvian National Police, transmitted to the National Human
Rights Commission of the Ministry of the Interior report No. 4390-DIVICOTE-3-DINCOTE
of 4 November 1993, which states the following:
"II. Action
required. A. In accordance with report No. 2630-DIVICOTE-3-DINCOTE,
concerning the detention of the terrorist María Elena Loayza
Tamayo, following an exhaustive police investigation it was
established that along with other terrorists she had committed
the crime of treason (DL.25659). Additional statement of evidence
No. 049-DIVICOTE-3-DINCOTE was drawn up on 25 February 1993
and submitted to the competent legal authority; no human rights
violations were committed when the investigation was carried
out in the presence of the representative of the Office of
the Public Prosecutor, with the formalities and guarantees
established by law."
A statement
by María Elena Loayza Tamayo (Annex B, No. 11), taken on 15 February
1993, was attached to report No. 2630-DIVICOTE-3-DINCOTE, with
her replies to a 33-question interrogation, from which it may
be seen that in none of her replies does she mention having been
the victim of any kind of torture, still less of rape. For greater
credibility, the statement was made in the presence of her defence
counsel, Dr. Carolina M. Loayza Tamayo (the detainee's sister),
identified by card No. 9219 from the College of Lawyers of Lima,
and of the Special Military Procurator, identified by code No.
1000-2700; along with the detainee and the investigator, they
signed the document in question. It may be mentioned that in question
No. 33 the detainee was asked "if you have anything further
to add to your statement. She said ...". At no time during
her reply did she say that she had been subjected to any act of
rape or violation of her rights, as may be seen from a perusal
of the document.
The
same police document (report No. 2630-DIVICOTE-3-DINCOTE), also
states the following, in section II "Action required. G.
Taking into consideration the circumstances and the complex nature
of the investigations in respect of the detention of María Elena
Loayza Tamayo, alias 'Rita', and other PCP-SL terrorists, it was
decided to keep the detainees incommunicado for the maximum length
of time permitted by law (10 days), with the knowledge of the
Office of the Public Prosecutor and the examining magistrate respectively,
in accordance with Decree-Law 25475, article 12 (d), of 6 May
1992" (annex B, No. 12).
From
the above it may be concluded that the detainee Loayza Tamayo
was kept incommunicado with legal authority and with the knowledge
of the competent authorities, in accordance with the above-mentioned
Decree-Law.
3. Additional
information on the case of María Elena Loayza Tamayo from the
data bank of the National Human Rights Commission of the Ministry
of the Interior
Complaint
No. : 11,154 CIDH
Place
: District : Los Olivos
Province
: Lima
Department
: Lima
Region
: VII-RPNP
Date
: 6 February 1993
Injured
party : María Elena Loayza Tamayo, university professor at
the
Private University of San Martín de Porras
Alleged
perpetrators : DINCOTE personnel
Motive:
The injured party states that during her detention from 6 to 27
February 1993 at DINCOTE, she underwent torture (immersion in
the sea in a jute sack) and was subjected to sexual acts by members
of the police. This could not be confirmed, since the forensic
medical examination was carried out prior to 15 February 1993
and not attended by her counsel, which means that no record of
the acts to which she was subjected appears in the medical certificate.
Background:
Fax No. 158-DGAES-DDHH of 2 June 1993, transmitting a communication
by the CIDH concerning the alleged violation of the human rights
of the complainant.
Fax
No. 175-DGAES-DDHH of 30 June 1993 from the Ministry of Foreign
Affairs transmitting additional information concerning the alleged
violation of the human rights of the complainant.
Unnumbered
letter from the College of Lawyers of Lima, signed by the Dean,
Mr. Jorge Avendaño V., to the effect that, with reference to report
No. 2630-DIVICOTE-DINCOTE of 30 June 1993, signed by PNP Colonel
José Espinoza Fernandez and submitted by the Peruvian Government
to the CIDH, Dr. Carolina Loayza Tamayo states that the terms
used in paragraph (h) of the report violate her constitutional
rights and the laws of the Republic and therefore requests that
investigatory proceedings should be initiated against the above-mentioned
PNP Colonel and Captain José Espinoza Fernandez.
Measures
taken: Memorandum No. 255-93-IN-CNDDHH/SP of 10 June 1993 transmitting
to the Director-General of the Peruvian National Police a copy
of fax No. 158-DGAES-DDHH.
Memorandum
No. 281-93-IN-CNDDHH/SP of 7 July 1993 transmitting to the Director-General
a copy of fax No. 175-DGAES-DDHH.
Memorandum
No. 210-93-DGPNP/EMG-DIPANDH of 14 July 1993, transmitting report
No. 176-93-EMG-DIPANDH of 13 July 1993, paragraph 2 of which states
that from report No. 2630-DIVICOTE of 30 June 1993 it emerges
that on 6 February 1993 DINCOTE personnel took María Elena Loayza
Tamayo for questioning from her home in calle Mitobamba Mz. D-3.
L-18 Urb. Los Naranjos, Distrito de los Olivos, Lima, since the
building was known to house many terrorists clandestinely, as
was confirmed by statements by captured terrorists such as Vilma
Cuevas Antaurco alias Mónica, Nataly Salas Morales, alias Cristina,
and Angélica Torres Garcia, alias Malena or Mirtha. Given these
circumstances and the fact that her direct participation in numerous
terrorist attacks and raids had been established, proceedings
were initiated against her in statement of evidence No. 049-DIVICOTE-DINCOTE
of 25 February 1993; she was charged before the Special Standing
Naval Court, which sentenced her to 30 years' imprisonment.
Memorandum
No. 466-93-IN-CNDDHH/SP of 18 October 1993 transmits to the Director-General
of the PNP a copy of an unnumbered letter of 22 September 1993
from the College of Lawyers of Lima, containing a protest by Dr.
Carolina Loayza Tamayo against the terms used in paragraph (h)
of report No. 2630-DIVICOTE-DINCOTE of 30 June 1993.
Memorandum
No. 10361-DINCOTE-Sc of 8 November 1993 transmits report No. 4390-DIVICOTE-3-DINCOTE
of 4 November 1993 with the conclusion that where paragraph (h)
of report No. 2630-DIVICOTE-DINCOTE of 30 June 1993 is concerned,
no reference was made to Dr. Carolina Loayza Tamayo, nor was it
asserted that she belonged to the Association of Democratic Lawyers,
nor was the right of defence enshrined in the Constitution restricted
nor any attempt made to restrict it.
Reply
to the Ministry of Foreign Affairs: memorandum No. 307-93-IN-CNDDHH/SP
of 16 July 1993 transmits to the Ministry of Foreign Affairs a
copy of report No. 176-93-EMG-DIPANDH of 13 July 1993 and report
No. 2630-DIVICOTE-3-DINCOTE of 30 June 1993.
C. Case:
De la Cruz Pari, María
1. Information
received through the Special Rapporteur
"However,
another woman who was detained at the same time (detention of
María Elena Loayza Tamayo) at the DINCOTE premises, María de la
Cruz Pari, was allegedly also raped and is now pregnant."
2. Information
provided by the National Police
In memorandum
No. 129-93-DGPNP-CEOPOL of 28 October 1993 (Annex B, No. 13),
the Director-General of the Peruvian National Police stated the
following:
With
reference to the alleged rape of María de la Cruz Pari by members
of PNP-DINCOTE, the PNP General Inspectorate, in report No. 268-93-IGPNP-DIE1,
States that when she was arrested on 6 January 1993 she was approximately
one month and two weeks pregnant, according to forensic examination
No. 28149-HCL of 19 July 1993 and echographic diagnosis No. 3243
by the IPSS (Guillermo Almenara Irigoyen Hospital) of 12 August
1993; it is impossible that she was raped, since she did not complain
of being subjected to any such experience during the investigation
process of 6 to 26 January 1993, when she received visits from
members of the International Committee of the Peruvian Red Cross,
the duty provincial procurator, the military procurator, her defence
counsel and relatives, including her mother, Julia Pari Taype,
with whom she had two personal interviews, and also because of
forensic examination No. 1233-L of 11 January 1993, made three
days after the alleged rape and physical ill-treatment; in addition
to the interview which the forensic physician had with her, the
result of the expert report states that there were no vaginal
irritations, bruises, abrasions and/or erythema between the legs,
thighs, ankles, wrists, feet and hands, which, given the violence
with which she was allegedly held down by various members of the
police to facilitate commission of the act by one of them, should
have existed and been easy to see; lastly, it is neither logical
nor consistent that she should have submitted her complaint to
COFADER on 30 April 1993, 3 months and 24 days after being arrested.
III.
CASES OF ALLEGED ILL-TREATMENT AND TORTURE BY MEMBERS OF THE PERUVIAN
ARMED FORCES
A. Case:
Quispe Pérez, Higinio
1. Information
received through the Special Rapporteur
It is
reported that on 12 April 1991, Higinio Quispe Pérez and Eleuterio
Inga were arrested by soldiers and taken to the military base
at Chaquicocha, where they were allegedly beaten; next day they
were transferred to the Chupaca base in the district of the same
name in the Province of Huancayo, Department of Junín, where together
with Héctor Méndez Córdoba, they were reported to have been severely
beaten, with hoods over their heads and their hands tied behind
their backs (see doc. E/CN.4/1994/31, para. 434).
2. Information
provided by the Ministry of Defence
The
allegations have been shown to be inaccurate by the alleged injured
parties themselves.
There
is no evident or official fact relating to the complaint which
can be taken into account in assessing it.
An investigation
was ordered by the Command of the Central National Security Sub-Zone
with headquarters in Huancayo to verify the truth of the complaint
and initiate proceedings against and/or punish those responsible
as the case might be.
As a
result of the investigations the alleged injured parties were
located. They declared in the presence of Mrs. Ana María Palomino
Martín of the Legal Sector of the Archbishopric of Huancayo that
on the date in question they were captured by two hooded men,
taken elsewhere, beaten and released the following day; they did
not say that they were military personnel and have not brought
any complaints against members of the Peruvian army.
E. Case:
Enriquez Vargas, Senobio
1. Information
received through the Special Rapporteur
It is
reported that Senobio Enriquez Vargas was arrested on 24 January
1992 at Manta, Huancavelica, by members of the army and was reported
to have been beaten and cut in the arm and chest (see doc. E/CN.4/1994/31,
para. 436).
2. Information
provided by the Ministry of Defence
It has
still not been possible to prove whether or not the facts reported
are true.
There
are no collateral or evident facts which could be used to assess
the complaint.
The
Command of the National Security Sub-Zone in question has been
ordered to carry out an immediate investigation so as to enable
the validity of the complaint to be determined as soon as possible;
this will enable those responsible to be identified and steps
to be taken to impose punishments and/or bring criminal charges
in accordance with the law.
C. Case:
Salomé Adauto, Juan Arnaldo
1. Information
received through the Special Rapporteur
Mr.
Juan Arnaldo Salomé Aduato is reported to have been arrested in
the city of Huancayo, Department of Junín, on 24 April 1991 by
members of the police and taken to the "9 de diciembre"
military barracks in Huancayo; he remained there until 10 June
1991, when he was released after having been beaten, suffocated,
suspended in the air and deprived of food (see doc. E/CN.4/1994/31,
para. 437).
2. Information
provided by the Ministry of Defence
The
facts reported have not been confirmed by the complainant.
It is
important to note that the alleged injured party made use of various
press media in order to publicize his complaint.
The
Office of the Public Prosecutor has taken part in the investigations.
In view of the publicity given the case, the Frente Mantaro Command,
which has its headquarters in the City of Huancayo, initiated
an investigation, which determined that the facts reported were
not in accordance with the truth and issued an official communiqué
denying the report.
Mr.
Salomé Adauto was examined by the Office of Forensic Medicine
in Huancayo (medical certificate No. 273-91); the results can
be found in the file in the Office of the Public Prosecutor.
No responsibility
has been established, since the truth of the complaint has not
been determined.
The
pre-trial investigation is in the hands of the Office of the Public
Prosecutor; the administrative disciplinary investigation concluded
that the events reported had not taken place.
D. Case:
Flores Rojas, José Natividad
1. Information
received through the Special Rapporteur
It is
reported that Mr. José Natividad Flores Rojas was arrested on
23 July 1992 by members of the army in Bagua, Department of Amazonas,
and taken to the military barracks of the Fifth Forest Infantry
Division, where he remained for 13 days and was allegedly beaten,
subjected to electric shocks and suspended for long periods (see
doc. E/CN.4/1994/31, para. 438).
2. Information
provided by the Ministry of Defence
It has
been determined that the facts are not accurate.
It is
important to point out that Mr. José Natividad Flores Rojas, according
to the results of recent investigations, made contact with terrorists
operating in the Bagua area, and this was why he was taken in
by the forces of law and order. He had, moreover, been expelled
from the Peasant Brigades at an earlier date.
The
Office of the Public Prosecutor was involved in the capture of
Mr. Flores Rojas, in strict compliance with the regulations in
force and in order to guarantee his safety. The Office also carried
out investigations into the form and circumstances of his detention,
given the outstanding complaint of ill-treatment. The army command
also carried out an investigation, which concluded that the complaint
was untrue.
The
forensic medical certificates (No. 315-H5RB-92) from the medical
examinations of the complainant establish that he did not undergo
any physical ill-treatment.
Since
the truth of the facts cannot be proved, no responsibility can
be attributed.
E. Case:
Calipuy Valverde, Alberto, and Yauri Ramos, Rosenda
1. Information
received through the Special Rapporteur
Both
these persons were arrested by military personnel in May 1993
in the district of Anamarca, province of Santiago de Chuco, department
of La Libertad; shortly after, they were found dead (see doc.
E/CN.4/1994/31, para. 444).
2. Information
provided by the Ministry of Defence
The
events reported are borne out by the investigation carried out.
The
press covered the facts extensively.
At the
present time the Standing Military Court of the First Military
Judicial Zone has initiated criminal proceedings against the persons
responsible.
The
Army Investigations Department undertook the relevant administrative
investigation.
The
victims were in fact killed in the circumstances described in
the complaint.
Those
responsible have been identified as Army Major José Gustavo Mayor
Vásquez, Warrant Officer (Second Class) Nilde Pajares Abanto,
Sergeant (Second Class) Eduardo Rodríguez Madero, and Private
Julio Alcántara Moreno of the Thirty-second Infantry Division.
The
Army Investigations Department in charge of the administrative
investigation decided that criminal charges should be brought
against those responsible and placed the matter before the Investigation
Council.
The
Investigation Council decided as a disciplinary measure to retire
Major José Gustavo Mayor Vásquez and Warrant Officer (Second Class)
Nilde Pajares Abanto.
The
Standing Military Court of the First Military Judicial Zone initiated
proceedings against the persons responsible for these events,
charging them with crimes against life, physical integrity and
health and against property.
The
criminal proceedings are in progress, and both Major José Gustavo
Mayor Vásquez, and Warrant Officer (Second Class) Nilde Pajares
Abanto are detained by order of the Military Court of Trujillo
in charge of the investigation.
According
to military criminal regulations, the compensation due will be
established in the sentence.
F. Case:
Gonzales Tuanama, Marcos
1. Information
received through the Special Rapporteur
It is
reported that Marcos Gonzales Tuanama was arrested on 29 April
1992 by a military patrol of the Mariscal Cáceres Base, Department
of San Martín, and that during interrogation he was beaten and
subjected to electric shocks (see doc. E/CN.4/1994/31, para. 446).
2. Information
provided by the Ministry of Defence
It has
not been possible to determine whether the events reported are
true.
Mr.
Marcos Gonzales Tuanama was placed at the disposition of the National
Police on 15 May 1992 on allegations of being a terrorist and
not possessing documents.
The
investigation of the complaint of ill-treatment was submitted
to the Office of the Public Prosecutor, but was not formalized,
and when the above-mentioned person was summoned to give evidence
he did not appear, so that the matter is still pending.
G. Case:
Zárate Rotta, Marco, Aguilar del Alcazar, Enrique, and Cáceres
Haro, César
1. Information
received through the Special Rapporteur
It is
alleged that Lieutenant-Colonels Marco Antonio Zárate Rotta and
Enrique Aguilar del Alcazar, Major César Cáceres Haro and Major
(r) Salvador Carmona Bernasconi, arrested following their involvement
in an attempted coup d'état in November 1992, were subjected
to torture during their detention, such as beating, electric shocks
and being suspended (see doc. E/CN.4/1994/31, para. 443).
2. Information
provided by the Ministry of Defence
It has
been proved that the allegations were untrue.
It should
be borne in mind that these complaints were widely publicized,
even giving rise to presidential intervention, as a result of
which they were disproved in detail.
The
Office of the Public Prosecutor was the first to intervene through
the thirty-fourth Provincial Criminal Procurator's Office of Lima,
which decided on 18 December 1992 that there were no grounds for
bringing a criminal charge against persons responsible for offences
against freedom or crimes against life, physical integrity and
health; the case was filed. A complaint against this decision
was made before the Tenth Higher Criminal Procurator's Office
of Lima, which confirmed all the details of the decision.
The
military legal authorities then requested an intervention by the
experts of the Criminology Division, who gave forensic expert
opinions (ectoscopic examinations), together with certificates
from the Institute of Forensic Medicine, specifying that all the
persons concerned were clinically in good health and showed no
trace of ill-treatment and/or physical torture requiring medical
attention or involving incapacity to work.
These
facts resulted in the issue by the Supreme Court of Military Justice
of communiqué 006-92 of 18 December 1992. Having taken over the
case, the Court confirmed that no physical abuse had taken place.
The
medical examinations gave no results corroborating the report;
on the contrary, they gave the lie to the entire complaint.