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The Constitutional Court of Peru (Tribunal Constitucional del Perú) passed judgment
on January 3, 2003, making reference to Decree-Law No. 25.475 and declaring
unconstitutional only some Articles thereof. Concerning Article 2 of the above
Decree-Law, which was not declared unconstitutional, it is not possible that a
criminal text written with such faulty language —in an attempt to comprise as
many conducts as possible— may be considered a rule “which allow[s] citizens to
know the content of said prohibition, so that they can distinguish that which is
forbidden from that which is permitted.”
Paragraph 78 bis of the Judgment “does not amend the vices of the criminal
description under review, for if consideration is given to the concurrence of the
three objective elements, i.e. the possible “modalities” of the crime […], in addition
to the intent, the dilemma still remains whether such description relates to a
plurality of acts or to a s[ingle] action the actual result of which —or the motive or
purpose thereof— is ancillary to the intent.”
In some paragraphs of its Judgment, the Constitutional Court reinterprets the
prohibition of “offering the testimony of [those who] made the police report,” and
does not hold it unconstitutional. As for this, the appropriate course of action would
be to eliminate “a device which is faulty from its roots” and “to promote its
replacement with rules explicitly describing what is required by democratic
substantive and procedural criminal law.”
In turn, Legislative Decrees against Terrorism Nos. 921 through 927, of January
and February 2003, enacted pursuant to the judgment of the Constitutional Court
of January 3, 2003, have not overcome the material objections made to antiterrorist legislation. The new Legislative Decrees have only set “maximum
penalties” and empowered the National Chamber for Terrorism (Sala Nacional de
Terrorismo) to review certain decisions founded on Article 2 of the above DecreeLaw No. 25.475.
3. Carlos Martín Rivera-Paz, attorney-at-law
The anti-terrorist legal framework of Peru has existed since the early ’80s, as part
of the Criminal Code in force since 1924, and in April 1991, the crime of terrorism
and other criminal descriptions punishing terrorism-related criminal acts were
included. The legislation was radically reformed as from the coup d’état of 1992,
when a new antiterrorist framework was set up, which was mainly characterized as
emergency criminal legislation. This was a new system to the extent that it
regulated the preliminary investigation into the terrorist event, provided for a new
description of the crime and of various acts related to terrorism, laid down new
criminal proceedings for cases of terrorism, and regulated penitentiary matters.
Other modifications were brought about with time, among which the most
important ones were adopted in 1993 and 1994, when the system introduced the
possibility to grant unconditional release to the accused in the preliminary stage of
judicial proceedings (which was virtually prohibited before then); allowed filing
protective remedies such as writs of habeas corpus (which was also prohibited
before then in cases of terrorism); prohibited the public presentation of detainees
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