82
e) In the first proceedings conducted against him, Urcesino Ramírez-Rojas was
sentenced to twenty five years’ imprisonment for the “crimes of aggravated
terrorism, committed in his capacity as chief, leader, or head, and extortionate
abduction,” as defined in Article 320(1) and 320(5) of the Criminal Code of 1991,
following a series of criminal acts that occurred in 1987, 1988, 1989, 1990, and
between May and August 1991;
f) The simultaneous application of the provisions related to aggravated
terrorism as contained in Article 320 and those related to membership in and
affiliation with a terrorist organization as provided in Article 322 of the Peruvian
Criminal Code, “constitutes a seeming concurrence of criminal definitions which
are mutually exclusive by reason of specificity; therefore, only one of them is to
be applied; otherwise, the non bis in idem principle would be violated, as well as
the nullum crimen nulla poena sine lege praevia principle enshrined in Article 9 of
the Convention;”
g) In the first proceedings conducted against him, Wilson García-Asto was
convicted by a judgment entered on April 18, 1996 by the Special Criminal
Chamber for Terrorism of the Superior Court of Justice of Lima (Sala Penal
Especial de Terrorismo de la Corte Superior de Lima), which was composed of
“faceless” judges, of the crime of collaboration with terrorism, as defined in
Article 4 of Decree-Law No. 25.475, and of the crime of terrorist membership in
and affiliation with a terrorist organiztion as defined in Article 5 thereof, which are
incompatible;” and
h) New proceedings were instituted against Wilson García-Asto for the crime of
affiliation with a terrorist organization as established in Article 5 of Decree-Law
No. 25.475.
Arguments of the representatives
177. In relation to Article 9 of the Convention, the representatives pointed out that
they endorsed the arguments included in the Commission’s application and added that:
a)
Article 320 of the Criminal Code of 1991 established “a gradation of
sentences in relation to the conduct described in Article 319 thereof, that is, it
w[ould] be necessary to apply the basic definition, which [...] violates the
international standards of the nullum crimen nulla poena sine lege praevia
principle;”
b)
Article 2 of Decree-Law 25.475 “includes an open-ended definition of the
crime of terrorism;”
c)
“[I]n formulating the definitions contained in [Article 5 of Decree-Law
No. 25.475], it was intended to go beyond the perpetration of concrete criminal
acts, without emphasizing their commission. Hence, this legal provision
establishes a substantial change from a criminal system based on the crime
committed, which punishes the individuals’ illegal conduct, to a system based
on the perpetrator.” The “expansion of substantive criminal law [...], was also
reflected in the definition of the so-called acts of collaboration with terrorism”
included in Article 4 of Decree-Law No. 25.475;
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents