11
1924 Penal Code, including those relating to the organ responsible for
conducting
the
investigation,
the
possibility
of
the
defendant’s
incommunicado, and the applicable penalties.
Despite its “democratic criminal dogma,” the 1991 Penal Code does not make
a break with the emergency criminal legislation on terrorism. It also retains
the broad definition of acts of collaboration and restricts the procedural
benefits and those related to the execution of the sentence in drug-trafficking
and terrorism cases.
In April 1992, then President Fujimori carried out a coup d’état and claimed
that he was “bringing peace to the country within a legal framework which
ensured that terrorists received drastic penalties.” Without any parliamentary
control, with the support of the Judiciary, and with propaganda in the media,
“Fujimori and his team carried the arbitrariness of the counterterrorism norms
to extremes.” Two Decree Laws were issued in these circumstances: No.
25,475 of May 1992, establishing the penalty and the procedures for
investigations, pre-trial proceedings, and trials for the crime of terrorism,
which is still in force, and No. 25,659 of August 1992, which established the
terrorist form of the crime of treason.
Decree Law No. 25,475 “violates the principle of criminal legality, because it
fails to comply with the requirements of specificity and certainty,” without
which it is impossible to extend guarantees and security to the individual that
he will not be tried or convicted for an ambiguous or badly defined behavior.
Article 2 of this Decree Law defines the crime of terrorism, describes it
without much precision, establishes numerous punishable behaviors, without
according them any type of size or quality, and refers to the execution of acts
against a diversity of protected legal interests. In addition, the description of
the means by which the act is executed is also ambiguous, and the
consequences are also very vague. “The possibility of being accused of the
crime of terrorism, which entailed at least 20 years’ imprisonment, created a
real risk for the safety of any individual.” Herein lies the importance of
modifying the Peruvian anti-terrorist legislation.
The same criticisms can be made about Article 4 of Decree Law No. 25,475,
which defines collaboration with terrorism and employs an even greater
“looseness” in the terms used, than the definition in force until then. The
imprisonment penalty is the same for perpetration of the crime and for
collaboration. Acts of collaboration are considered to be “such a wide range of
behavior, that” even actions which have justified reasons allowed by law
could be unduly considered acts of collaboration with terrorism.
Furthermore, Decree Law No. 25,475 does not guarantee due process of law,
because the police are entrusted with investigating the crime and the
participation of the Attorney General’s office is limited. “The intervention of
the defendant’s defense lawyer” is also limited and “during the pre-trial
investigation any type of liberty is prohibited, except unconditional
discharge[,] and the police who participate in preparing the police deposition
are not allowed to appear as witnesses.”