339. The Committee began its
consideration of the third periodic report of Peru (CCPR/C/83/Add.1 and
HRI/CORE/1/Add.43/Rev.1) at its 1519th to 1521st meetings (fifty-seventh
session), on 18 and 19 July 1996, at which it dealt with urgent issues
relating to the implementation of articles 2, 4, 6, 7, 9, 10, 14 and 27
of the Covenant. Further consideration of the report was adjourned to
the fifty-eighth session of the Committee. In the light of the examination
of the first part of the report and the comments made by its members,
the Committee, at its 1528th meeting, on 25 July 1996, adopted the following
preliminary comments and recommendations.
1. Introduction
340. The Committee welcomes
the third periodic report submitted by the State party and welcomes the
delegation's willingness to engage in a dialogue with the Committee. The
Committee regrets, however, that although the report and the additional
written and oral information provided by the delegation of Peru in answer
to the questions raised by the Committee provided information on general
legislative norms in Peru, it largely failed to deal with the actual state
of implementation of the Covenant in practice and the difficulties encountered
in the course of implementation. The Committee appreciated the presence
of a high-level delegation which provided helpful information to the Committee
in response to some of its questions and thus allowed it to obtain a somewhat
clearer view of the overall human rights situation in the State party.
2. Factors and difficulties affecting the implementation
of the Covenant
341. The Committee is aware
that Peru has been plagued by terrorist activities, internal disorder
and violence. The Committee affirms the right and duty of the State party
to take firm measures to protect its population against terror. However,
many of the measures adopted by the Government have frustrated implementation
of the rights protected under the Covenant.
3. Positive aspects
342. The Committee notes that
there seems to be a trend towards reducing the level of violence within
the country, a significant diminution of the number of reported disappearances
and the return of internally displaced persons to their residence. The
Committee expresses the hope that that trend will lead to the full restoration
of the rule of law and a return to normalcy in the political and social
life of the nation. In this connection, it welcomes recent laws modifying
the anti-terrorist laws to permit, inter alia, representation by
human rights lawyers of multiple defendants suspected of terrorism and
drug trafficking and cross-examination by lawyers of police and security
personnel. The Committee also welcomes the decree modifying Decree Law
25,475, by which an accused person whose acquittal has been annulled by
the Supreme Court, and so has to be retried, is no longer required automatically
to be detained; the courts can place on him an obligation to appear for
his new trial.
343. The Committee notes with
satisfaction the establishment of the Office of the Public Ombudsman and
the National Registry of Detainees. In this regard, it notes the delegation's
statement that the Office of the Public Ombudsman, though not yet fully
functional, is already receiving and investigating complaints of human
rights violations. It notes with satisfaction that, following the adoption
of the 1993 Constitution, the members of the Constitutional Court have
been appointed and the Court is now in position to exercise its functions.
344. The Committee further
welcomes the adoption of Decree Law 26,447, which as of April 1995 raised
the age of criminal responsibility from 15 to 18 years of age, as well
as of Decree Law 25,398, which repealed the repentance law, and Decree
Law 26,248, which restored habeas corpus.
345. With respect to article
27 of the Covenant, the Committee welcomes action taken to protect the
rights of indigenous communities, including efforts to provide education
in national and native languages, promote economic development and establish
other mechanisms for their protection.
4. Principal subjects of concern
346. The Committee deplores
the fact that its suggestions and recommendations contained in the concluding
comments adopted at the end of the consideration of Peru's second periodic
report and supplementary reports (CCPR/C/79/Add.8) have not been implemented.
347. The Committee is deeply
concerned that the amnesty granted by Decree Law 26,479 on 14 June 1995
absolves from criminal responsibility and, as a consequence, from all
forms of accountability, all military, police and civilian agents of the
State who are accused, investigated, charged, processed or convicted for
common and military crimes for acts occasioned by the "war against
terrorism" from May 1980 until June 1995. It also makes it practically
impossible for victims of human rights violations to institute successful
legal action for compensation. Such an amnesty prevents appropriate investigation
and punishment of perpetrators of past human rights violations, undermines
efforts to establish respect for human rights, contributes to an atmosphere
of impunity among perpetrators of human rights violations and constitutes
a very serious impediment to efforts undertaken to consolidate democracy
and promote respect for human rights and is thus in violation of article
2 of the Covenant. In this connection, the Committee reiterates its view,
as expressed in its general comment No. 20 (44), that that type of amnesty
is incompatible with the duty of States to investigate human rights violations,
to guarantee freedom from such acts within their jurisdiction and to ensure
that they do not occur in the future.
348. In addition, the Committee
expresses serious concern in relation to the adoption of Decree Law 26,492
and Decree Law 26,6181, which purport to divest individuals of the right
to have the legality of the Amnesty Law reviewed in courts. With regard
to article 1 of that law, declaring that it does not undermine the international
human rights obligations of the State, the Committee stresses that domestic
legislation cannot modify a State party's international obligations under
the Covenant.
349. The Committee notes with
concern that provisions of article 4 of the Covenant have often been disregarded
during the reporting period in that rights which are allowed to be derogated
from only in time of an officially proclaimed state of emergency have
been, and still are, restricted without the conditions of derogation being
met.
350. The Committee expresses
its deepest concern about Decree Law 25,475 and Decree Law 25,659, which
seriously impair the protection of the rights contained in the Covenant
for persons accused of terrorism and contradicts in many respects the
provisions of article 14 of the Covenant. Decree Law 25,475 contains a
very broad definition of terrorism under which innocent persons have been
and remain detained. It establishes a system of trial by "faceless
judges", in which the defendants do not know who the judges are who
are trying them and are denied public trials, and which places serious
impediments, in law and in fact, to the possibility for defendants to
prepare their defence and communicate with their lawyers. Under Decree
Law 25,659, cases of treason are tried by military courts, regardless
of whether the defendant is a civilian or a member of the military or
security forces. In this connection, the Committee expresses its deep
concern that persons accused of treason are being tried by the same military
force that detained and charged them, that the members of the military
courts are active duty officers, that most of them have not received any
legal training and that there is no provision for sentences to be reviewed
by a higher tribunal. Those shortcomings raise serious doubts about the
independence and impartiality of the judges of military courts. The Committee
emphasizes that trials of non-military persons should be conducted in
civilian courts before an independent and impartial judiciary.
351. While taking note of
bills aiming at granting pardon to some categories of persons convicted
of terrorism and treason, the Committee is concerned at the absence of
systematic review of the convictions pronounced as a result of trials
before the military courts which have not met the requirement of a fair
trial as specified in article 14 of the Covenant.
352. The Committee notes with
concern that judges retire at the end of seven years and require recertification
for reappointment, a practice which tends to affect the independence of
the judiciary by denying security of tenure.
353. The Committee notes with
deep concern the extension of the death penalty in the 1993 Constitution
to a wider range of activities than in the 1979 Constitution. The Committee
recalls its general comment No. 6 (16), on article 6 of the Covenant,
in which it indicated that States are obliged to abolish the death penalty
for other than the most serious crimes. Extension of the scope of application
of the death penalty raises questions as to compatibility with article
6.
354. The Committee expresses
its deepest concern with respect to the cases of disappearances, summary
executions, torture, ill-treatment and arbitrary arrest and detention
by members of the army and security forces and the Government's failure
to investigate fully those cases, to prosecute alleged offences, to punish
those found guilty and to provide compensation to the victims and their
families. The Committee is particularly concerned at the failure to resolve
the high number of cases of past disappearances.
355. The Committee is deeply
concerned by persistent reports of torture or cruel, inhuman or degrading
treatment of persons detained under suspicion of involvement in terrorist
activities or other criminal activities. It regrets the failure of the
State party to provide the Committee with detailed information on the
measures adopted to prevent torture and cruel, degrading or inhuman treatment
and to punish those responsible. It draws attention to the legislation
which permits incommunicado detention in certain cases. In this connection,
the Committee reiterates its view, as expressed in its general comment
No. 20 (44), on article 7 of the Covenant, that incommunicado detention
is conducive to torture and that, consequently, the practice should be
avoided.
356. The Committee notes with
concern that provisions in article 2, paragraph 24 (f), of the Constitution,
which permit preventive detention for up to 15 days in cases of terrorism,
espionage and illicit drug-trafficking, as well as Decree Law 25,475,
which authorizes extension of preventive detention in certain cases for
up to 15 days, raise serious issues with regard to article 9 of the Covenant.
357. The Committee takes note
of Decree Law 25,499 of 1992, according to which repentance of one's association
with a terrorist organization and information concerning such organizations
or which lead to the identification of other persons involved can lead
to a reduction in sentence. The Committee is concerned that the law may
have been used by individuals to denounce innocent persons in order to
avoid prison sentences or to reduce their length, a concern that is supported
by the fact that there are at least seven draft proposals - one of them
from the Defensor Público and another from the Ministry of Justice - and
a Decree Law 26,329 attempting to solve the problem of innocent people
being prosecuted or having been convicted under the anti-terrorist laws.
5. Suggestions and recommendations
358. The Committee recommends
that necessary steps be taken to restore the authority of the judiciary
and give effect to the right to effective remedy under article 2 of the
Covenant and thus overcome the prevailing atmosphere of impunity. In view
of the fact that the Committee considers that the amnesty laws violate
the Covenant, it recommends that the Government of Peru review and repeal
those laws to the extent of such violations. In particular, it urges the
Government to remedy the unacceptable consequences of those laws by, inter
alia, establishing an effective system of compensation for the victims
of human rights violations and taking the necessary steps to ensure that
the perpetrators of those violations do not continue to hold government
positions.
359. The Committee urges the
State party to take immediate measures to release innocent prisoners and
provide them with compensation and to systematically revise, on a non-discretionary
basis, convictions handed down by the military tribunals in treason and
terrorism cases, particularly convictions based on lack of identification
documents or on evidence obtained in the application of the repentance
law. The same applies to detainees awaiting trial.
360. The Committee urges the
State party to take effective measures to investigate allegations of summary
executions, disappearances, torture and ill-treatment, and arbitrary arrest
and detention, to bring the perpetrators to justice, to punish them and
to compensate victims. If allegations of such crimes have been made against
members of the security forces, whether military or civilian, the investigations
should be carried out by an impartial body that does not belong to the
organization of the security forces themselves. Persons convicted of such
crimes should be dismissed and, pending the outcome of the investigation,
be suspended from office.
361. Urgent measures should
be taken to strictly limit incommunicado detention. Provisions should
be made in the Penal Code to criminalize acts that are committed for the
purpose of inflicting pain, without prejudice as to whether those acts
result in permanent injury.
362. The duration of preventive
detention should be reasonable and any arrested person should be brought
promptly before a judge.
363. The Committee particularly
urges that the system of "faceless judges" be abolished and
that public trials for all defendants, including those charged with terrorist-related
activities, be reinstated immediately. The Government of Peru should ensure
that all trials are conducted with full respect for the safeguards of
fair trial provided by article 14 of the Covenant, including in particular
the right to communicate with counsel and the right to have time and facilities
to prepare the defence and the right to have the conviction reviewed.
364. In addition, the Committee
recommends that the requirement for judges to be recertified be reviewed
and replaced by a system of secure tenure and independent judicial supervision.
During the reform process being undertaken in the judicial order, the
Committee recommends that every effort be made to ensure the independence
and impartiality of the judiciary.