67
e)
Article 4 of Decree Law No. 25,475, which defines the crime of
collaboration with terrorism, “in addition to reiterating the elements of Article
2 of that decree, with a systematic interpretation since they deal with the
same legal structure, shares the serious defects that the Inter-American
Court has indicated concerning the definition of the crime of terrorism, owing
to its theoretical and ambiguous nature, and the failure to specify the conduct
of the perpetrator in the definition”;
f)
Based on the principle of “the special nature of dealing with the issue
of terrorism, Article [4 of Decree Law No. 25,475] excludes and disregards
basic categories of general criminal law, such as that of complicity, described
in Article 25, paragraph 2, of the Peruvian Penal Code, and this adversely and
seriously affects the situation of those put on trial, as regards the level of
responsibility and the penalty”;
g)
When deciding the appeal for annulment filed by the alleged victim’s
defense lawyer against the judgment of June 20, 2001, the Transitory
Criminal Chamber of the Supreme Court of Justice of Peru stated, concerning
how Lori Berenson’s conduct adjusted to the crime of collaboration that she
was charged with, which is established in Article 4 of Decree Law No. 25,475,
that “the defendant should have been charged with being a secondary
accomplice or accessory based on the second paragraph of Article 25 of the
Penal Code”;
h)
The legal consideration of the Transitory Criminal Chamber of the
Supreme Court of Justice of Peru “reflects the vagueness and ambiguity in the
definition of collaboration with terrorism described in Article 4 of Decree Law
25,475.” “It is Peru’s maximum court of justice itself that adjusts [Lori]
Berenson’s behavior to complicity, which is a mechanism expanding the
category, and not to an autonomous conduct as [...] the State attempts to
demonstrate”; and
i)
Since the principle of legality was not respected in the military and civil
proceedings, this “impaired the right [of the alleged victim] to know what
crime she was tried and sentenced for, and which jurisdiction should have
heard her case.”
Arguments of the representatives of the alleged victim
111. Regarding Article 9 of the Convention, the representatives of the alleged
victim argued that:
a)
The purpose of the decree laws was to justify “the extreme State
policies of arrest, detention, physical abuse, and prison sentences for
individuals charged with acts of terrorism by the Peruvian National Police or
by the Armed Forces”;
b)
Article 2 of Decree Law No. 25,475, which defines the crime of
“terrorism” is “utterly vague and ambiguous”;
c)
Decree Laws Nos. 25,475 and 25,659 were “interrelated”; their
provisions were “in keeping” with each other;
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