34
interests of a foreign power.” The crime of treason “is a special crime
in the sense that it can only be committed by a particular category of
persons […] in other words, it is a classification reserved for nationals
of the country;”
d)
the crime of treason to which Decree-Law No. 25,659 refers bears no
relation to the crime of treason as defined in the Peruvian Code of
Military Justice. The former is not about conduct that stricto sensu
constitutes acts of treason; instead, its purpose is to suppress
terrorism, under a false nomen iuris. The crime classified in the Code
of Military Justice is a breach of the allegiance that nationals owe to
their own country;
e)
Decree Law No. 25,659
could be viewed as a “fraudulent circumvention of the applicable law” that
flouts or evades the normal sphere of application of the crime of treason and
applies it instead to persons like aliens from whom one cannot require
allegiance and loyalty to the country because they are not bound by law to owe
allegiance to the Peruvian Nation.
98.
f)
The State is thus expanding the “application of extraordinary military
rules applicable only in times of war against an enemy State, in order
to prosecute and punish aliens who, moreover, are not subject to
military court jurisdiction for crimes of this type;” and
g)
Under Article 27 of the Convention, Article 20 cannot be suspended;
hence, the State’s failure to observe Article 20 is unjustified.
The State’s arguments:
a)
Peru has “sovereign authority to investigate, prosecute and convict all
those who commit criminal acts within its territory, especially if such
acts constitute crimes of lese humanité,” as in the case of crimes of
aggravated terrorism. For over ten years, those types of crimes have
caused terrible loss of life and have inflicted enormous property
damage;
b)
terrorist acts such as those committed by the MRTA “to which the
Chilean nationals belong” have placed the country’s internal order and
security in grave peril. Under Decree-Law 25,418, which established
the National Emergency and Reconstruction Government, Peru had to
adopt Decree-Law No. 25,475, establishing penalties for terrorist
crimes and the procedures to be followed when investigating,
examining and trying such crimes, and Decree-Law No. 25,659, which
regulates the crime of treason;
c)
the State cannot be accused of a “fraudulent circumvention of the law”
for having expanded the application of the provisions of the Code of
Military Justice to prosecution of civilians since,
[a]s is readily apparent, Decree-Law No. 25,659 [...] was never intended to
arbitrarily impose upon aliens an artificial bond of allegiance and loyalty to Peru
[…]. In that law, the State classified the crime of “aggravated terrorism,” giving