Human Rights Brief
A Legal Resource for the International Human Rights CommunitySummer 1994
Report Exposes Problems within Peru's Judicial System
by Antonio Maldonado
Diego Rodriguez*
The last issue of The Human Rights Brief reported on the appointment of WCL's International Legal Studies Director, Professor Robert K. Goldman, to a commission of international lawyers charged with evaluating the Peruvian judiciary in the wake of the April 5, 1992 auto-golpe by Peru's president Alberto Fujimori.
The commission, created by an agreement between the United States and Peru, was established to evaluate measures and procedures affecting judicial independence and defendants' due process rights within the framework of Peru's judicial system. In addition, the commission was to examine Peru's draft constitution in order to determine whether these issues were adequately addressed.
According to the commission's comprehensive report, released at a March 31, 1994 press conference at The American University, the Peruvian judicial system's treatment of terrorism and treason cases is "seriously flawed and is at odds in many key respects with Peru's international legal obligations."
In evaluating Peru's judicial independence and due process guarantees, said Professor Goldman, "we have not held the government of Peru to `idealized' standards or to our own notions or predilections concerning the proper administration of justice." According to Goldman, the commission assessed Peru's judicial independence and due process guarantees with obligations mandated by treaties freely ratified by Peru, as well as with standards set forth in various resolutions and declarations adopted or recognized by international bodies, such as the United Nations and the Organization of American States.
In its assessment, the commission recognized the government's right to react forcefully against violence and terrorism by opposition groups, such as Shining Path (Sendero Luminoso), in a form "consistent with the rule of law," said Professor Goldman. But the report noted that Peru was obligated to act within the confines of international law, stating that the government does not have "unlimited license in the methods it chooses to quell dissident groups and maintain pubic order."
The report criticized President Fujimori's "reorganization of the judicial power," concluding that it ceded to the executive a "virtual unchecked exercise of the prerogatives of nominating, confirming, promoting and removing judicial personnel." It noted that following the transfer of power, a substantial number of Supreme Court justices, judges and prosecutors were dismissed, amounting to a "wholesale purge of judicial personnel involved in every aspect of the administration of justice."
The report also expressed concern about the fairness of using anonymous judges in terrorism cases, stating that the anonymity deprived defendants of the right to know whether the judge possessed adequate legal training and experience. It also asserted that anonymity in the judiciary violated defendants' right to be tried by an impartial court as defendants could not exercise the right of recusal against judges thought to be biased or partial. The commission recommended that Peru repeal those laws that prevent defendants and their defense counsels from identifying judges and prosecutors, and those which limit defendants' right to be presumed innocent until proven guilty.
The commission further found that the language of Peru's anti-terrorism laws were too broad and permitted law enforcement officials to regard almost any violent act as a crime of terrorism. It also concluded that the definition of the crime of treason was similarly overbroad, involving virtually identical conduct to that proscribed by anti-terrorism laws. Unlike terrorism cases, though, the report pointed out that treason cases are tried by military tribunals applying "extremely summary procedures."
The commission recommended the reform of Peru's legislation pertaining to treason and terrorism. Specifically, it concluded that the definition of the crime of terrorism should be re-drafted in language that clearly and precisely defines the unlawful conduct, and that the Peruvian government repeal laws that allow military courts to try civilians for the crime of treason. The commission additionally recommended that current treason cases be transferred to civilian courts and that the Supreme Court review military convictions of civilians charged with treason.
The commission also suggested that Peru reappeal laws that permit authorities to: hold persons incommunicado, arbitrarily transfer persons held in custody, restrict individuals' right to defense counsel of their choosing from the moment of arrest or detention, and restrict the right of free and private communications with defense counsel, or which in any way limit defendants' right to examine and confront witnesses and introduce and challenge evidence during trial.
The commission's review of Peru's new constitution focused on provisions that affected the independence of the judiciary. The report expressed particular concern over the transfer of cases premised on treason or terrorism from civil courts to military tribunals, and the authorization of the death sentence for persons convicted of these crimes. The commission concluded that these provisions violate the American Convention on Human Rights, which forbids the extension of the death penalty to crimes that were not punishable by death at the time of a state's ratification of the Convention.
"The government of Peru has taken some isolated positive measures up to this date," said Professor Goldman, "but it cannot be said that there is an improvement in the Peruvian administration of justice, according to the findings and recommendations of the commission." Goldman further noted that, "we hope that the Peruvian government, as part of its ongoing program of judicial reform, will implement the suggestions contained in our report on which it has not yet acted."
* Antonio Maldonado is a Peruvian attorney currently pursuing his LL.M. in International Legal Studies at WCL. Diego Rodriguez is a Columbian attorney who recently completed the International Legal Studies Program at WCL and is currently interning at the International Human Rights Law Group.
The proper citation for this article in the Human Rights Brief Volume 1, Number 2, beginning at page 1 is: 1 No. 2 Hum. Rts. Brief 1 (1994).
