12.
Furthermore, with regard to the guarantee of a natural judge and the use of the
military jurisdiction to try civilians, the Constitutional Court considered that Article 4 of
Decree Law No. 25.659 concerning treason was unconstitutional and emphasized the
enactment “of Law No. 26.671 [which] tacitly annulled, both Article 15 [of Decree Law
No. 25.475] and all those provisions that, connectedly, prevented the accused from
knowing the identity of those who intervene in his trial.” 8 Upon adopting this decision,
this Constitutional Tribunal made express reference to that provided by the InterAmerican Court in this case. 9
13.
Moreover, regarding the impossibility of filing an action of amparo to safeguard
personal liberty, or to contest the legality or the arbitrariness of the victims’ detention
(Article 6 of Decree Law No. 25.659), and heading to other specific topics on the right to
defense, the Court notes that Article 6 of Decree Law No. 25.659 was amended by
Decree Law No. 26.248, approved on November 25, 1993, permitting, in principle, the
filing of applications for amparo in favor of those accused of crimes of terrorism or
treason. 10 Regarding the impossibility of appointing a lawyer until testimony is taken,
established in Article 12, subparagraph (f), of Decree Law No. 25.475, the Court refers
to the judgment of the Constitutional Court which considered that “that this contested
provision could not be declared unconstitutional, because it had been tacitly derogated
by Article 2 of Law No. 26.447.” 11
14.
In addition, the judgment on the merits in this case deliberated on the detention
conditions for serving the sentence, in application of Article 20 of Decree Law No.
25.475, which allowed the victims to be kept in a very small cell, without ventilation or
natural light, with half an hour of sun each day, with continuous isolation in their cells,
and with an extremely restricted visiting regime.12 In this regard, the judgment of the
Peruvian Constitutional Court established that said article established an unreasonable
and disproportionate measure, constituting cruel and inhumane treatment, which
violated the Peruvian Constitution and the American Convention.13
15.
Furthermore, the Court stresses that that which was expressed in the judgment in
this case regarding the prohibition to recuse the judges, was followed up on in the
Constitutional Court’s judgment in the paragraph where it declared that “by establishing
an absolute prohibition to recuse the judges and auxiliaries of justice intervening in a
same reasons, the clause ‘against the security of (...) any other goods or service’ must be interpreted in the
sense that it refers only to goods and services that possess specific penal protection in the different types of
crimes against public security, established in Title XII of the Second Tome of the Penal Code.” Cf. Judgment of
the Constitutional Court of Peru, supra note 5, paras. 72 and 73.
8
Cf. Judgment of the Constitutional Court of Peru, supra note 5, paras. 109 to 111.
9
Cf. Judgment of the Constitutional Court of Peru, supra note 5, paras. 98 to 109.
10
Cf. Judgment of the Constitutional Court of Peru, supra note 5, para. 90.
11
Cf. Judgment of the Constitutional Court of Peru, supra note 5, para. 123.
12
Cf. Case of Castillo Petruzzi et al. V. Peru. Merits, Reparations and Costs. Judgment of May 30, 1999.
Series C No. 52, paras. 197 and 198.
13
Cf. Judgment of the Constitutional Court of Peru, supra note 5, para. 223. Furthermore, the Court
underscores that, as part of the judgment in the case of Lori Berenson, it acknowledged as a proved fact that,
“on January 18, 2001, Supreme Decree No. 003-2001-JUS was issued [which] indicated as rights of the
‘inmate’: to receive direct visit from family members and friends at the indicated times for up to eight hours a
day; to meet and communicate in private with her defense counsel for up to six hours a day; to carry out any
permitted activity in her cell, passageways or in the yard, at the times established for this, and to carry out
individual or group activities ‘compatible with the environment’ of the establishment where she is.” Case of Lori
Berenson Mejía V. Peru. Merits, Reparations and Costs. Judgment of November 25, 2004. Series C No. 119,
para. 88.6.
5