9
with terrorists, for which a maximum penalty of 20 years’ imprisonment was
set. The penalties for the crimes of terrorism were extremely severe.
Decree Law No. 25,475 of May 6, 1992, came into being as a result of the
closing of Congress by the then President Alberto Fujimori on May 5, 1992. In
those circumstances, the President of the Republic adopted numerous decree
laws as a way of legislating matters of national importance. The said decree
law establishes the following categories of terrorism: terrorism, aggravated
terrorism, collaboration in acts of terrorism, membership in terrorist
organizations, instigation of terrorist acts, and repetition of terrorist acts.
There was little difference between the basic crime of terrorism defined in
Article 2 of Decree Law No. 25,475 and the crime defined in the 1991 Penal
Code, because it continued to be an open category with various alternative
behaviors. Moreover, it described acts such as collaboration as an
independent crime, when it could be considered complicity, which distorted
the latter’s raison d'être.
The differences between the 1991 Penal Code and Decree Law No. 25,475
included an increase in the system of penalties, because life imprisonment
was even established for the crime of aggravated terrorism; also, new
criminal categories were established, such as instigation of terrorist acts,
justification of terrorism, obstruction of justice by the crime of terrorism, and
repetition of terrorist acts. The principal characteristic of the new legislation
was “the possibility that it could be used as an instrument for punishing
behaviors that were indeed crimes, and also for over-criminalizing acts that,
from a rational point of view, should not determine that a legal right had been
affected”; in other words, “it opened the door to the possibility that any
behavior the authoritarian regime did not like c[ould] be included as a
terrorist act.
Furthermore, Decree Law No. 25,475 contained new procedural norms and
rules for the execution of punishments. Among the former (procedural), it is
worth underscoring the following: the absolute incommunicado of the
defendant during the preliminary investigation stage, the intervention of the
lawyer after the defendant had made his first statement, exclusion of any
kind of liberty (except unconditional), the appointment of judges ad hoc,
private hearings during the oral judgment, the appointment of “faceless”
judges, the inadmissibility of objections to the judges, and the appointment of
judges with competence at the national level. The latter (execution of
punishments), included the exclusion of prison benefits, and solitary
confinement for the person convicted.
Decree Law No. 25,475 attempted to establish a “harsh system with the
exclusive intention of ending terrorism, but which [...] also included obvious
excess [which] violate[d] human rights.”
In the context of an action on unconstitutionality filed against Decree Laws
No. 25,475, 25,659, 25,708, 25,880 and 25,744, the Constitutional Court of
Peru delivered a judgment on January 3, 2003, in which it referred to the
anti-terrorist legislation and made some relevant declarations.