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In the case of prison conditions, there were reservations about the rigid and
vertical nature of the system and its harshness; also about the limited space
accorded to the prisoners, the maximum restriction of their activities, the
isolation from all social contact, even with their next of kin, during the first
two stages of the regime, and the restriction of access to information in the
mass media, all of which violated the punishment’s aim of social rehabilitation
established in Article 139, paragraph 22, of the Constitution, and in Article
5(6) of the Convention. The same reservation is true with regard to the
extended duration of the punishments, the prohibition to receive prison
benefits (such as reduction of the sentence through work and education,
partial liberty, probation, and conjugal visits), and the deficient prison
services.
Subjecting prisoners being processed to the regime established for those
convicted violated the principle of presumption of innocence.
Similarly, isolation in a cell, the aspects of maximum security,
incommunicado, life imprisonment, and the limitation of the right to receive
visits, violate the principle of the humane nature of the punishment.
Since it began functioning, the Ombudsman’s office had recommended to the
corresponding State instances that the anti-terrorist legislation should be
reviewed in order to adapt it to the requirements of the Constitution and
international treaties.
Some partial modifications took place during Mr. Fujimori’s regime. Law No.
26,671 of October 12, 1996, revoked the figure of “faceless” prosecutors and
judges as of October 15, 1997. Law No. 26,248 of October 25, 1993, revoked
the prohibition for lawyers to take part in more than one proceeding
simultaneously, at the national level.
Law No. 26,447 of April 21, 1995, revoked restricting the lawyer’s
intervention until after the police report. Law No. 26,248 of November 25,
1993, annulled the provision making it obligatory to decide prior questions,
pre-judicial issues and objections in the principal case records and at the time
of the sentence.
Law No. 26,248 revoked Decree Law No. 25,728, which allowed a person to
be convicted in absentia, and also the provision of Decree Law No. 25,659
that limited the possibility of filing a writ of habeas corpus. Law No. 27,079 of
March 29, 1999, made it possible to change the detention order for that of
conditional appearance in the case of the “arrepentidos” [repentant terrorism
or treason convicts].
Decision 674-99-INPE of the National Penitentiary Institute, adopting
Directive 001/99-INPE-OGT-OTE, which contained the “norms for the
admission of books, journals and/or newspapers into the penitentiary
establishments of the Republic,” granted the right of access to information of
a scientific, cultural, artistic and humanistic nature, for rehabilitation
purposes.
These modifications resulted from the growing reservations of national and
international human rights organizations. Also, the Government was obliged
to introduce modifications, owing to evidence of problems of effectiveness; for