18
85.
At the public hearing (supra 48), the Court heard testimony from the
following witnesses offered by the Commission. Their testimony is summarized in
the paragraphs that follow:
a.
Testimony of Gloria Cano, defense counsel for Mr. Astorga Valdez
Treason should apply only to nationals and those under the protection of
Peruvian law.
She felt intimidated as Mr. Astorga Valdez’ attorney,
particularly because of the way she was treated as she was being taken to the
Las Palmas Base on the day her client was brought before the “faceless”
military judge for the preliminary hearing in the criminal trial. At that
preliminary hearing, her client, who was in a hood and restraints for security
reasons, managed to tell her only that he had not been represented by
counsel during the investigation by the National Counter-Terrorism Bureau
(hereinafter “DINCOTE”). By the time she was able to confer with the alleged
victim, the lower court’s ruling had already been delivered. At the preliminary
hearing, she was not informed of the charges against her client and was not
shown the case file, leaving her with no means to put on a defense.
Despite repeated requests, she did not have access to the case file –which
consisted of some one thousand pages- until the day before the lower-court
ruling was read. Once she was given access to the case file, she was allowed
to consult it for only about an hour, together with the attorneys representing
the other defendants in the case. She had to prepare and argue her case
before the Military Judge of Inquiry that same day, only one day before that
judge would read the finding of the court of first instance. Given all this, she
felt that the judge never took her defense arguments into account.
In summary proceedings in military courts that prosecute crimes of this type,
the defense attorney is not given sufficient time to review the evidence and
examine the charges, either before or after the preliminary hearing, and is
not permitted to cross-examine the witnesses or any DINCOTE officers who
took part in the investigation, and therefore has no opportunity to present
evidence for the defense. In Mr. Astorga’s case, after the military courts of
first and second instance had granted his attorney’s motion to dismiss for lack
of jurisdiction, a motion from the other co-defendants to have the lower
courts’ decision nullified on the basis of procedural error, and then the
introduction of the testimony of a new witness for the prosecution, resulted in
Mr. Astorga’s conviction and a sentence of life imprisonment. The defense
attorney was never given a copy of that witness’ statement. She filed for a
writ of habeas corpus and a motion for review of the judgment, but both
were denied.
Once the high court had entered a judgment of conviction and the motion
filed with the Supreme Court of Military Justice seeking review had been
denied, the defendant was held incommunicado for one year in the Yanamayo
Prison. In that first year, no visitation was allowed; thereafter the family was
permitted to visit him for one hour each week. The witness’ visits with Mr.
Astorga as his defense counsel were subject to certain restrictions. Her
performance as Mr. Astorga’s defense attorney was not effective, owing to the
difficulties described here. Nevertheless, she stayed with the case in order
not to leave Mr. Astorga without benefit of defense counsel. Attorneys who