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cells was an unreasonable and disproportionate measure, which constituted
cruel and inhuman treatment, and violated Article 2(1) of the Peruvian
Constitution and Article 5(1), 5(2) and 5(6) of the American Convention. The
same was true of the requirement to maintain prisoners in one-person cells
throughout their confinement.
Legislative Decree No. 927 was issued in response to the Constitutional
Court’s reservations in this area. It gave those imprisoned for terrorism
access to prison benefits, authorizing reduction of the length of the sentence,
although with different requirements from other crimes. However, this norm
did not make it possible to grant the benefit of partial liberty.
Supreme Decree 015-2003 of September 23, 2003, which adopted the
regulations for the Code on Execution of Sentences, regulated detention
conditions, and prisoners’ rights and duties, and established an “ordinary
closed regime, with identical characteristics to those of the said Supreme
Decree No. 003-2001-JUS”.
With regard to the current penitentiary situation of prisoners for the crime of
terrorism, they have been placed in different national prisons, generally in
separate blocks from those destined to prisoners for other crimes. They are
usually placed on the basis of their links to the Sendero Luminoso (Shining
Path) and Túpac Amaru movements or their separation from these
organizations (so-called “desvinculados” [disconnected] or independent
individuals). The conditions of detention and access to the different prison
services are similar to those of the rest of the prison population. The
shortcomings that subsist respond to the critical situation of the Peruvian
penitentiary system in general.
The prison administrators may determine a special regime for certain
prisoners (Supreme Decree 006-2001-JUS), applicable to any prisoner,
irrespective of his crime.
The Constitutional Court’s judgment may be considered a step towards
adapting anti-terrorist legislation to the Constitution and the American
Convention. This judgment is binding for all the public powers, particularly the
Legislature and the Judiciary as regards interpretation (Article 35 of the basic
law of the Constitutional Court, Act 23,435). Hence, this is a legislative reform
relating to the adaptation of anti-terrorist provisions to Peruvian constitutional
norms and the American Convention.
An example of this is that the
jurisdictional body guarantees the right to a defense, the adversarial principle
and equal protection of law, and to summon officials who took part in
preparing the police investigation report as witnesses in the oral hearing.
Nevertheless, the fact that debatable aspects or aspects that can be improved
subsist, should not permit it to be said that, today, the Peruvian State is
unwilling to comply with its international human rights obligations.
B) TESTIMONIAL EVIDENCE