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the civil courts in the Judiciary, by establishing the annulment of the
judgment in the oral trial and the possibility of declaring that the Superior
Criminal Prosecutor’s charge was unsubstantiated. The same decree allowed
the prosecutor’s charge to be contested, and virtually annulled. It also
established that the trial should be held in the ordinary jurisdiction,
substituting the procedural rules of Decree Law No. 25,475 by those of the
Peruvian ordinary criminal proceedings.
The legislative decrees of February 2003 established a period of 60 days for
the National Terrorism Chamber to declare the annulment of both the oral
trials in treason cases and the cases tried under Decree Law No. 25,475.
Once the judgment in the trial had been annulled, and the failure to
substantiate the Superior Criminal Prosecutor’s charge had been declared, the
files would be forwarded immediately to the Superior Criminal Prosecutor so
that he could re-formulate the charge. The new trial would begin when the
annulment had been declared.
Trials are now public in Peru, it is possible to question the witnesses, whether
they are individuals who have witnessed terrorist acts or police agents who
have taken part in preparing the police depositions. It is also possible to
question the “arrepentidos”, and to know their identities.
As for an evaluation of the actions of the National Terrorism Chamber, and
the number of people absolved, who had previously been convicted of
terrorism or treason, it can be observed that the way the Chamber assesses
the evidence is different from the way it was assessed in the judgments
handed down by the “faceless” judges or the military judges.
Many people have appealed their prison sentences in new trials; however, the
National Terrorism Chamber has annulled very few of them.
Pursuant to Legislative Decree No. 926, recent trials are based on the police
depositions. Previously, it was not possible to contest the content of the police
deposition and the alleged evidence that the police had gathered or
established during the preliminary investigation. In the new trials, this can be
contested during the pre-trial investigation and the oral proceeding.
According to Legislative Decree No. 926, trials must be public; otherwise, the
proceeding is null.
The legal grounds for the imprisonment of those prosecuted after the
annulments under Legislative Decree No. 926, is an extremely controversial
issue. The Constitutional Court issued a ruling to the effect that the prison
sentences should be established in light, not of the terrorism legislation, but
of the criminal procedural legislation, specifically Article 135 of the Code of
Criminal Procedure, on the measures and the circumstances in which a judge
can hand down a prison sentence, combined with Legislative Decree No. 926,
which determines that the annulment of the proceedings, the sentences, the
trials and the charges does not produce the release of the defendants. The
maximum period of detention, according to the Code of Criminal Procedure is
36 months, calculated from the start of the new trial. Consequently, the time
spent in prison under the previous proceeding is disregarded.