14
38.
Likewise, the Tribunal verifies that although the record of the second process
makes reference to other norms applicable to the case (Criminal Codes of 1924 and
1991), besides the Decree Law No. 25475, no judicial instance in the internal level
makes a clear and detailed listing of the facts attributed to Mrs. De La Cruz Flores
between 1988 and 1992, the specific dates in which the acts would have occurred, nor
the corresponding link between this facts and the applicable descriptions of the crime. 16
39.
In this regard, the Court notes that the three criminal definitions mentioned,
derive in legal consequences with different range of penalties:
Article 288-C of the Criminal Code of 1924.- “Those that are members of an organization
integrated by two or more persons that meet or associate to instigate, plan, facilitate, organize,
diffuse, or commit, mediate or immediate acts of terrorism, established in the Articles of this
Title, shall be punished, for the mere fact of grouping or associating, as well as for being
members of the organization, with a sentence of prison of no less than ten years and not more
than fifteen years.”17
Article 322 of the Criminal Code of 1991.- “Those that are part of an organization integrated by
two or more persons to instigate, plan, facilitate, organize, diffuse, or commit, mediate or
immediate acts of terrorism, established in this Chapter, shall be punished, for the mere fact of
grouping or associating, with a sentence of prison of no less than ten years and not more than
twenty years”.18
Article 5 of the Decree Law No. 25475.- “Those that are part of a terrorist association, for the
mere fact of belonging to it, shall be punished, with a sentence of prison of no less than twenty
years and later disqualification for the term established in the sentence.”19
40.
Regarding this particular, the Tribunal considers that the referred lack of
determination regarding the attributed facts, and the norm applied to each of them has
direct implications in the sentence imposed of the victim. Thus, the Final Judgment of
November 23, 2009, raised to 20 years the sentence of imprisonment of the victim,
although at least one of the cited norms, namely, Article 288-C of the Criminal Code of
1924, established the imposition of a sentence not longer than 15 years. Therefore, the
Peruvian authorities, applied the less favorable criminal norm to Mrs. De La Cruz Flores,
with the aggravation that for the definition of the crime finally imposed, namely, Article 5
of the Decree Law No. 25475, there is not clear correspondence with any specific fact,
attributable to the victim, after the its entry in effect, in May 1992.
41.
However, even under the assumption that a fact has been attributed to the victim
that was committed after the entry in effect of the Decree Law No. 25475, this Tribunal
notes that, taking into account the principle of application of the most favorable law in
the time, the sentence imposed on the victim shall have been the minor among the
criminal norms that succeeded regulating the crime of affiliation to a terrorist
organization, this is, the aforementioned Article 288-C of the Criminal Code of 1924.
16
As has been mentioned (supra Considering 21), the judgment of the Supreme Court of November 23,
2009 has six declarations against Mrs. De La Cruz Flores. In relation to the dates on which the facts that are
imputed to the victim occur, this Tribunal specifies the following: from the three declaration of Elisa Mabel
Mantilla Moreno, the first of which, on September 7, 1995, is the same that this Tribunal analyzed in its
Judgment on Merits (paragraphs 106 and 107), to declare the violation of the principle of ex post facto laws,
given that the first sentence was based only upon said declaration. In the declarations of September 11 and
22, 1995, the witness Mantilla Moreno did not specify the dates regarding the facts that concerned Mrs. De La
Cruz Flores (pages 747 to 749, Folder IV, supervision of compliance of Judgment). For its part, the declaration
made on August 17, 1993 by the key witness A2230000001 neither specified the dates of the facts that are
attributed to Mrs. De La Cruz (page 722, Folder IV, supervision of compliance of Judgment). In relation to the
declarations of Jacqueline Aroni Apcho that cite the Supreme Court, the declaration of September 11, 1995
indicates that “until the year 1992,” Mrs. De La Cruz Flores had had an “ACTIVIST level” (page 673, Folder VI,
supervision of compliance of Judgment) and in the declaration of September 27, 1995, she signaled that she
had been known “in the year 1989” as an activist. (page 691, Folder VI, supervision of compliance of
Judgment).
17
Article 288-C of the Penal Code of 1924, introduced by Law 24651 and modified by Law 24953.
18
Article 322 of the Penal Code of 1991 (Legislative Decree 635).
19
Article 5 of Decree Law No. 25475.