20 With regard to imprisonment conditions, the regime established in Decree Laws Nos. 25,475 and 25,744 was enforced. Subsequently, on June 25, 1997, Supreme Decree No. 005-97-JUS was issued, adopting the “Regulation of the Daily Regime and Progressivism of the Treatment of Prisoners Processed and/or Sentenced for the Crime of Terrorism and/or Treason. Article 1 of this norm excluded from its applicability leaders and rebel leaders recruited “on military bases, for reasons of national security”; Decree Law No. 25,475 continued in force for the latter. This norm was complemented by Ministerial Resolution 182-97-JUS of August 21, 1997, and modified by Supreme Decrees 008-97-JUS of August 20, 1997, and 003-99-JUS of February 18, 1999. The Ombudsman’s office had always had reservations about the anti-terrorist legislation. At the substantive level, the reservations related to the principle of legality established in Article 2, paragraph 24(d), of the Peruvian Constitution and Article 9 of the American Convention, “specifically with regard to the requirement for certainty or specificity in the definition of crimes.” This was because the definitions of terrorism (Decree Law No. 25,475) and treason (Decree Law No. 25,659) had similar elements which created uncertainty as to the applicable classification. The recourse to ambiguous and general terms and concepts was used intensively in the definition of crimes; this increased the margin of discretion of the Police, the Attorney General’s office and the judges when classifying a crime. At the procedural level, the reservations were based on the undue expansion of the powers of the National Police. The functional juridical management of the investigation of crimes of terrorism was handed over to this institution, when, according to Article 159, paragraph 4, of the Peruvian Constitution, it corresponded to the Attorney General’s office (Ministerio Público). There were also reservations about detention on suspicion, which violated Article 2, paragraph 24(f) of the said Constitution (detention in flagrante delicto and with a judge’s written, justified decision) and Article 7(2) of the American Convention. Solitary confinement in exceptional cases also violated the right to defense, because no visits were allowed, including meetings with a defense lawyer. The obligation establishing that the judge would issue an order for detention within 24 hours, once the order to open the preliminary investigation had been issued, was contrary to the right to presumption of innocence; as was the prohibition to offer as a witness anyone who, owing to their functions, had taken part in the elaboration of the police investigation report, and the prohibition to grant any type of liberty, with the exception of unconditional discharge. Similarly, the time frame established for the criminal proceeding was contrary to due process. A preliminary investigation should last a maximum of 30 days and, exceptionally, 20 days more. Then, the prosecutor should formulate the charges within 3 days, and the trial should take 15 days. These times were reduced by up to two-thirds in the case of trials for crimes defined as treason. This type of structure violated the principle of “equal protection,” limiting the defendant’s possibility of defending himself.

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