PARTIALLY CURRING AND PARTIALLY DISSENTING
OPINION OF JUDGE VIDAL-RAMIREZ
My partially concurring and partially dissenting vote on this case was for the reasons
I explained during the course of the deliberations, which were basically the following:
1.
Peru signed the Convention on July 27, 1977, when the Military Government
was in the process of preparing the ground for the return of democratic government
and had convened the Constitutional Assembly that would eventually pass the 1979
Constitution. In the sixteenth final provision, that Constitution declared that Peru
ratified the Convention and accepted the jurisdiction of the Commission and the
Court. Peru officially deposited its instrument of ratification on July 28, 1978. On
January 21, 1981, once the Government and Congress elected in 1980 had taken
office, Peru filed the instrument acknowledging the binding jurisdiction of the
Commission and of the Court, without reservation.
2.
The first acts of terrorist violence occurred during the Military Government’s
final months, by which time elections had already been called for the restoration of
democratic government. The Sendero Luminoso in the Andean region and the Tupac
Amaru Revolutionary Movement [Movimiento Revolucionario Tupac Amaru (MRTA)]
in the lowlands made incursions into Lima and other populated areas, where they
began to stage dynamite attacks, assaults, kidnappings and other criminal acts.
The Government reacted to the terrorist violence by ordering states of emergency
that had to be repeatedly extended, in accordance with Article 27 of the Convention
and the 1979 Constitution (Article 231).
3.
The terrorist violence took a terrible toll on life in Peru and prompted
enactment of laws classifying terrorism as a crime and establishing increasingly more
severe penalties. These laws invested the police with the kind of authority and
power that made them more effective in the war on terrorism and enabled them to
bring terrorists to trial, where they cases were heard in the civil courts by civilian
judges.
4.
By 1990 terrorism had made significant headway and inflicted
considerable damage. It had ravaged the countryside and had infiltrated the cities.
Lima, in particular, was in a state of emergency.
The Government had to combat the terrorist violence using a strategy whose legal
underpinning was a very stringent and intimidating system of laws that, although
intended to protect citizens and institutions, could clash with the Convention by
curtailing some of the rights and guarantees recognized therein.
5.
For reasons of internal politics, on April 5, 1992, the President of the
Republic dissolved Congress and proceeded to call elections for a Constitutional
Convention that would give Peru a new constitution. In this way, the Executive
Power was called upon to legislate by way of decree-laws.
On May 7, 1992, Decree-Law No. 25,475 was put into effect and established a new
legal description of the crime of terrorism and related crimes; the penalties for those
crimes, one of which was life imprisonment; rules to govern investigations of
terrorist activities, which put such investigations in the hands of the National Police;