68
d)
The crime of collaboration established in Article 4 of Decree Law No.
25,475 “is not an autonomous crime,” it is an “accessory category” of the
crime of terrorism established in Article 2 of this decree law; therefore, it is
also defective, because it violates the principle of legality;
e)
Article 4 of Decree Law No. 25,475 “depends on Article 2 [of the same
Decree Law] for the definition of what constitutes an act of terrorism and for
a determination of whether the acts of collaboration were with elements or
groups involved in terrorist activities.” Article 4 “does not contain any
definition of terrorism or terrorist groups”;
f)
The classification of the crime of collaboration was introduced into
Peruvian legislation in “1987 with Act 24,651”;
g)
This crime should be understood as a “type of complicity.” In its
judgment of February 13, 2002, the Transitory Criminal Chamber of the
Supreme Court of Justice of Peru, when referring to the judgment of June 20,
2001, described the defendant “as a secondary or subsidiary accomplice”
without “shared functional control of the act”; and
h)
Peruvian legislation violates the principle of proportionality, by
establishing the same minimum and maximum penalty for the crime of
collaboration with terrorism as that applicable for terrorism. This excess
penalization is retained in Legislative Decree No. 921.
Arguments of the State
112.
With regard to Article 9 of the Convention, the State argued that:
a)
Anti-terrorist legislation included four crimes: (i) “aggravated
terrorism”; (ii) “terrorist attacks”; (iii) “terrorist association,” and (iv)
“terrorist collaboration.” These crimes “are autonomous, even though they
share common elements”;
b)
The problems of “ambiguity or lack of precision […] refer (i) to the
absence of clear differences between crimes of aggravated terrorism and
crimes of violence, and (ii) to the open structure of crimes of violence.”
Crimes of terrorist association and terrorist collaboration “do not admit to this
type of criticism”;
c)
“The crime of terrorist collaboration constitutes a distinct and
autonomous type of crimes of violence”; it has a “specific” criminal
classification and “its penalization is different from the penalization of the
crime of terrorist violence”;
d)
The defects that the Inter-American Court has identified in the general
legislation on terrorism, and in the provisions on jurisdictions, cannot
necessarily be transferred to the crime of terrorist collaboration, “which, even
though it is penalized in the same body of laws, has distinct characteristics
that make it necessary to differentiate it”;
e)
“[T]he compatibility of the crime of terrorist collaboration with the
rights embodied in the [American] Convention cannot be established without
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