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in the criminal case brought against a number of terrorist criminals. The IACHR observes that under Article 4, the
following are acts of collaboration that carry a penalty of imprisonment for up to 20 years:
Anyone who voluntarily obtains, seeks, gathers, or facilitates any type of good or means or performs any
acts of collaboration of any kind that aid and abet the commission of the crimes covered under
this decree law or the accomplishment of a terrorist group’s ends shall face imprisonment for no
less than twenty years.
The following are acts of collaboration:
(a)
providing documents and information concerning persons and assets, installations, public and
private buildings and anything else that specifically aids or facilitates the activities of terrorist
elements or groups.
(b)
turning over or using any type of housing or other means capable of hiding or being used to store
weapons, explosives, propaganda, food supplies, medications or other property belonging to
terrorist groups or their victims.
(c)
Knowingly transporting members of terrorist groups or persons associated with their criminal
activities, and providing any type of assistance to help them escape.
(d)
Organizing indoctrination or training courses or centers for indoctrination and training of terrorist
groups that operate under any cover;
(e)
The manufacture, acquisition, possession, theft, storage and provision of arms, ammunition,
explosives, asphyxiating, toxic or flammable substances or any other item or substance that can
cause death or injury. The possession or concealment of arms, ammunition, or explosives
belonging to the Peruvian Armed Forces or National Police shall constitute an aggravating
circumstance.
(f)
Any form of economic activity, assistance or mediation done of one’s own free will, for the
purpose of financing the activities of terrorist elements or groups.
236.
First, the Commission observes that Article 4 of Decree Law No. 25,475 describes numerous and
varied criminal behaviors that constitute the crime of collaboration with terrorism. Nevertheless, in his decision
the Provincial Prosecutor failed to specify which of these behaviors the alleged victim committed that qualified him
to be deemed responsible for the crime.
237.
The Commission notes that Article 4 of Decree Law No. 25475 does not list practicing or
undertaking the legal defense of alleged criminal terrorists as a crime of collaboration. Furthermore, under Article
27(2) of the American Convention, the right of defense is not subject to derogation in emergency situations;
hence, practicing or undertaking the legal defense of an alleged terrorist cannot be made a punishable criminal
offense.
The concept of due process of law expressed in Article 8 of the Convention should be understood as
applicable, in the main, to all the judicial guarantees referred to in the American Convention, even during a
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suspension governed by Article 27 of the Convention.
238.
Peru’s 1993 Constitution, which is pre-eminent over any other Peruvian domestic law, provides
in its Article 2(18) that every person has the right to keep private his political, philosophical, religious or any other
convictions and to maintain professional confidentiality. Article 141 of the Code of Criminal Procedure states that
“the following shall not be forced to make statements: 1) clerics, attorneys, physicians, notaries and obstetricians,
regarding the secrets that have been disclosed to them in the practice of their profession.”
239.
In its Second Report on the Situation of Human Rights in Peru (2000), the Commission pointed
out that “the legal defense of individuals accused of having supported the armed dissident groups can in
no case be considered by the authorities as an offense, but as part of a process provided for in the
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Judicial guarantees in states of emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), Advisory Opinion OC9/87 of October 6, 1987. Series A No. 9, paragraph 29.