31
Article 2 of Decree-Law No. 25.475. Article 6 of Decree-Law No. 25.659 established the
inadmissibility of writs of habeas corpus for the crimes of terrorism and high treason.
Said provision was amended by Decree-Law No. 26.248 enacted on November 25,
1993, which reestablished the admissibility of writs of habeas corpus, providing in its
paragraph 4 that “writs of Habeas Corpus shall [n]ot be admissible where based on the
same facts or grounds, the subject matter of pending legal proceedings or proceedings
which have already been adjudicated.”
97(3) The proceedings brought for crimes of terrorism, pursuant to Decree-Law No.
25.475, had the following characteristics, among others: the possibility that detainees
be held incommunicado for up to the maximum periods provided by law, the restricted
participation of the defense counsel before the detainee have given his statement, the
inadmissibility of the release on bail of the accused during pre-trial investigation
proceedings, the prohibition to offer as witnesses those persons who, by reason of
their duties, took part in the police investigation, the Superior Prosecutor’s obligation
to bring charges “under responsibility,” the trial of the case at closed hearings, the
non-admissibility of challenges to the judges and judicial officers hearing the case, the
participation of “faceless” judges and prosecutors, and the continuous solitary
confinement of detainees during the first year of the prison sentences imposed.
97(4) Decree-Law No. 24.475 was amended by provisions which were subsequent to
those referred to above, particularly by Law. No. 26.671, enacted on October 12,
1996, which provides the “Date as from which trial of crimes of terrorism as provided
by Decree-law No. 25.475 shall be heard by competent judges under the legislation in
force.” Law No. 26.671 established that as from October 15, 1997 the provisions which
did not allow knowing the identity of the judicial officers hearing the case would be
invalid.
97(5) As a result of a constitutional motion submitted by Marcelino Tineo-Silva and
over five thousand citizens, on January 3, 2003 the Constitutional Court of Peru
rendered judgment ruling on the constitutionality and unconstitutionality of various
provisions, among which were Decree-Laws Nos. 25.475 (crime of terrorism) and
25.659 (crime of high treason), and related provisions thereto.19
97(6) Said judgment was rendered by the Constitutional Court of Peru in the exercise
of its powers as the supreme body empowered to interpret the Constitution and,
therefore, it “endowed said provision with a different content, in line with the
constitutional principles violated,” in relation to the acts, means, and results referred
to in Article 2 of Decree-Law No. 25.475, which describes the crime of terrorism. The
Constitutional Court argued that the interpretative nature of said judgment aimed at
“restricting the scope of the criminal legal description” provided in Article 2 of DecreeLaw No. 25.475, without such interpretation resulting in the creation of further legal
provisions. Furthermore, the Constitutional Court argued that, pursuant to the
19
Cf. Judgment rendered by the Constitutional Court of Peru on January 3, 2003, wherein it ruled on a
motion of constitutionality submitted by Marcelino Tineo-Silva and over 5,000 citizens, case file No. 0102002-AI/TC Lima (case file of appendixes to the application, appendix 51, pages 374 to 443).
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