24.
The State noted that “the Peruvian legislative reform does not allow a trial that
violates the principle n[e] bis in idem, for the crimes of terrorism and treason, as defined in
the Decree Laws [25475 and 25659].” It added that “in accordance with the domestic
judicial bodies (the Judiciary Branch and Constitutional Court), [the] domestic legislation is
in conformance with [the] Convention.”
25.
Similarly, Mrs. Loayza Tamayo accepted that which was noted by the State regarding
the adaption of domestic law to the principle of n[e] bis in idem.
26.
The Commission “acknowledge[d] that measures were adopted aimed at satisfying
compliance with [this obligation].” However, “considering that today [...] it has a number of
petitions and cases pending which allege violations of the American Convention as a result
of the application of [said] Decrees [...] even with the modifications to which the State
alludes, it [said] it will continue with the analysis and monitoring of this obligation in the
performance of its powers under the Convention.”
27.
In this regard, the Court notes that the only information submitted by the State on
the adaption of the domestic legislation to the American Convention refers to the inability to
violate the principle ne bis in idem, with particular emphasis on that noted by the
Constitutional Court of Peru in a judgment issued on January 3, 2003. However, in the
exercise of its contentious jurisdiction and in terms of monitoring compliance in relation to
other Peruvian cases involving the obligation to adapt the same legislation, the Court is
aware of legislation that has been issued after the Constitutional Court of Peru of January 3,
2003, as well as this judgment of August 9, 2006, wherein it declared unfounded the claim
of unconstitutionality of the new legislation. These elements allow the Court a general
assessment of some of the measures taken by the State to comply with the provisions of
the Judgment.
28.
The Court emphasizes four key issues concerning the adaption of domestic law
regarding the violations found in this case: i) the codification of the crimes of treason and
terrorism, ii) the right to a competent tribunal, iii) the right to defense, and iv) the
detention conditions.
29.
Regarding the issues of criminal codification, in the Judgment on the merits of this
case, the Court ruled on the broadness of the elements of the crime under which the victim
was prosecuted and the ambiguity in the wording of them, especially in regard to treason.
As such, the Court observes that the judgment rendered by the Constitutional Court of Peru
in 2003 declared the unconstitutionality of Articles 1 and 2 of Decree Law No. 25659, in
relation to Articles 3, 4, 5, 6,9 and 7 thereof, relating to the offense of treason. Indeed, the
Constitutional Court noted that “all the factual circumstances described in the elements of
[this] crime [...] are similar to the pre-existing codifications of terrorism[, generating]
9
In relation to Article 6.º of Decree Law N.º 25659, related to habeas corpus actions, the TC declared
unconstitutional the phrase, “or treason,” and as such, that provision shall read as follows: "The action of habeas
corpus is appropriate in the circumstances envisaged in Article 12 of Law No. 23506, to the benefit of the detainees
involved or accused of crimes of terrorism, and the following rules of procedure must be observed: (case file of
Monitoring of Compliance with Judgment, tome V, folio 1865).
9