20
With regard to imprisonment conditions, the regime established in Decree
Laws Nos. 25,475 and 25,744 was enforced. Subsequently, on June 25, 1997,
Supreme Decree No. 005-97-JUS was issued, adopting the “Regulation of the
Daily Regime and Progressivism of the Treatment of Prisoners Processed
and/or Sentenced for the Crime of Terrorism and/or Treason. Article 1 of this
norm excluded from its applicability leaders and rebel leaders recruited “on
military bases, for reasons of national security”; Decree Law No. 25,475
continued in force for the latter. This norm was complemented by Ministerial
Resolution 182-97-JUS of August 21, 1997, and modified by Supreme
Decrees 008-97-JUS of August 20, 1997, and 003-99-JUS of February 18,
1999.
The Ombudsman’s office had always had reservations about the anti-terrorist
legislation. At the substantive level, the reservations related to the principle
of legality established in Article 2, paragraph 24(d), of the Peruvian
Constitution and Article 9 of the American Convention, “specifically with
regard to the requirement for certainty or specificity in the definition of
crimes.” This was because the definitions of terrorism (Decree Law No.
25,475) and treason (Decree Law No. 25,659) had similar elements which
created uncertainty as to the applicable classification. The recourse to
ambiguous and general terms and concepts was used intensively in the
definition of crimes; this increased the margin of discretion of the Police, the
Attorney General’s office and the judges when classifying a crime.
At the procedural level, the reservations were based on the undue expansion
of the powers of the National Police. The functional juridical management of
the investigation of crimes of terrorism was handed over to this institution,
when, according to Article 159, paragraph 4, of the Peruvian Constitution, it
corresponded to the Attorney General’s office (Ministerio Público). There were
also reservations about detention on suspicion, which violated Article 2,
paragraph 24(f) of the said Constitution (detention in flagrante delicto and
with a judge’s written, justified decision) and Article 7(2) of the American
Convention. Solitary confinement in exceptional cases also violated the right
to defense, because no visits were allowed, including meetings with a defense
lawyer.
The obligation establishing that the judge would issue an order for detention
within 24 hours, once the order to open the preliminary investigation had
been issued, was contrary to the right to presumption of innocence; as was
the prohibition to offer as a witness anyone who, owing to their functions, had
taken part in the elaboration of the police investigation report, and the
prohibition to grant any type of liberty, with the exception of unconditional
discharge.
Similarly, the time frame established for the criminal proceeding was contrary
to due process. A preliminary investigation should last a maximum of 30 days
and, exceptionally, 20 days more. Then, the prosecutor should formulate the
charges within 3 days, and the trial should take 15 days. These times were
reduced by up to two-thirds in the case of trials for crimes defined as treason.
This type of structure violated the principle of “equal protection,” limiting the
defendant’s possibility of defending himself.