53
88.
The Court observes that Article 4 of Decree Law No. 25,475, under which Mrs.
De La Cruz Flores was convicted, defines acts of collaboration with terrorism as a
crime and not membership in an organization that may be considered a terrorist
group, nor does it establish the obligation to report possible terrorist acts.
Membership in a terrorist organization is defined as a crime in Article 5 of Decree
Law No. 25,475, and the reporting obligation is established in Article 407 of the 1991
Penal Code. The Court will refer to the issue of the reporting obligation below (infra
paras. 96 and ff.). However, membership in an organization and failure to report are
the specific elements that the domestic court considers have given rise to the
criminal liability of the alleged victim in the judgment of November 21, 1996. These
behaviors are not included in Article 4 of Decree Law No. 25,475, which is the only
substantive article on which the judgment against Mrs. De La Cruz Flores was based.
b)
Failure to specify which of the acts defined in article 4 of Decree Law No.
25,475 included Mrs. De La Cruz Flores’ behavior
89.
Article 4 of Decree Law No. 25,475 describes numerous different criminal
behaviors that constitute the crime of collaboration with terrorism. The domestic
tribunal failed to specify in its judgment which of these behaviors had been
committed by the alleged victim to make her guilty of the crime.
c)
Penalization of medical activities
90.
On September 16, 1995, during the trial against the alleged victim, the Lima
Fourteenth Criminal Court issued an order to open the pre-trial investigation against
María Teresa De La Cruz Flores and others, because they “were members of the
Peruvian Communist Party (Sendero Luminoso), and had provided medical care,
treatment and operations, and supplied medication and medical equipment for the
treatment of terrorist criminals[;] acts [which] constitute the crime established and
penalized in article 4 of [D]ecree [L]aw [No.] 25,475.”
91.
On April 1, 1996, the Prosecutor of the Lima Fourteenth Provincial
Prosecutor’s office indicated in his report (supra para. 73(22)) that María Teresa De
La Cruz Flores had “used her professional activities in the field of medicine [… and]
that her actions were designed to save rights [...] such as life.”
92.
On June 7, 1996, the Lima Superior Prosecutor issued his report (supra para.
73(23)), in which he indicated, with regard to María Teresa de La Cruz Flores, that
“her participation had consisted in providing medical care to militants.”
93.
In relation to María Teresa De la Cruz Flores, the judgment of November 21,
1996 (supra para. 73(27)), considered that:
[the case file] describes the documentation found in 1992 on Víctor Zavala Castaño,
Francisco Morales Zapata, Eduviges Crisóstomo Huayanay, Felipe Crisóstomo Huayanay,
Rosa Esther Malo Vilca and Miriam Rosa Juárez Cruzatt, which implicates the defendant,
and in which she appears under the alias “Elíana”; one of these documents refers not
only to meetings with the defendant, but also, examines her doctrinal and ideological
evolution within the organization, there are descriptions of talks that she has given, as a
physician; that she has taken part in an operation as the assistant surgeon, and of
problems within the health sector, all of which has been corroborated [...] by the
defendant, Elisa Mabel Mantilla Moreno, who, in the presence of the Prosecutor states
that, on one occasion, she met with María Teresa De la Cruz on the orders of her
‘handler,’ to coordinate several matters; […] the same defendant […] accuses her of
being one of the supportive elements responsible for providing treatment and
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