Peru Human Rights Practices, 1995
U.S. Department of State
Respect for human rights
- Section 1 Respect for the Integrity of the Person, Including Freedom from:
- a. Political and Other Extrajudicial Killings
- b. Disappearance
- c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
- d. Arbitrary Arrest, Detention, or Exile
- e. Denial of Fair Public Trial
- f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
- g. Use of Excessive Force and Violations of Humanitarian Law in Internal Conflicts
- Section 2 Respect for Civil Liberties, Including:
- Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
- Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
- Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
- Section 6 Worker Rights
Peru is a multiparty republic with a dominant executive branch headed by President Alberto Fujimori. Fujimori was reelected to a second 5-year term in free and fair elections on April 9 under provisions of a new Constitution enacted in 1993. The President's party also won control of the new Congress and holds 67 of its 120 seats.
The police and military share security duties. Since 1980 much of their effort has been directed against Sendero Luminoso and other terrorist groups. These groups have now declined as a major internal threat, and terrorist attacks took place with less frequency than in previous years. Although members of the security forces committed human rights abuses, levels were lower than in previous years. The Sendero Luminoso and other terrorists were responsible for numerous killings.
Peru's economy is rapidly changing its emphasis from heavy regulation to an extreme market orientation. Government controls on capital flows, prices, and trade have been eliminated. The Government has privatized most state enterprises, and those remaining are scheduled to be sold by the end of 1996. The current gross domestic product is estimated at $32.5 billion. Major exports include minerals (principally copper), fishmeal, and textiles. Illegal exports of processed coca are thought to have earned about $600-$800 million in past years. As in 1994, Peru was projected to report a favorable balance of payments in 1995 due to continued large capital inflows of direct and portfolio investments despite the growing trade deficit. Unemployment is around 9 percent, but more than half of the economically active population work in the informal sector of the economy, which largely operates beyond government supervision and taxation. The percentage of the population officially defined as poor declined from over 50 percent to about 45 percent. Roughly half of the poor live in extreme poverty.
As government counterinsurgency policies became increasingly effective and the threat from Sendero Luminoso declined, the human rights situation continued to improve. There was a marked decrease in the number of extrajudicial killings and disappearances attributable to the security forces. Despite this improvement, lack of accountability and due process, prolonged detention, trial delays, and torture remained problems; emergency zone status--which provides for the suspension of certain constitutional guarantees in areas of high terrorist activity-- remained in effect in Lima and several other provinces, affecting 44 percent of Peru's 23.5 million people. Congressional passage of the Amnesty Law on June 14 absolved those in the security forces who committed human rights abuses while combating terrorism from May 1980 to June 1995. The summary manner in which this and other laws were passed, without full notice and debate in the country's unicameral Parliament, revived concerns about an authoritarian approach to governance. In October a Supreme Court tribunal upheld the constitutionality of the Amnesty Law in the 1991 Barrios Altos massacre case.
The Government continued to detain up to 600 persons on terrorism charges based on unsubstantiated accusations by terrorists who repented before November 1, 1994; many of these detainees have already been held for years with their cases unresolved. Nongovernmental human rights organizations represent approximately 700 individuals believed to have been wrongfully charged with terrorism and treason. Civilian terrorism trials by "faceless" judges were due to end on October 15, but Congress passed new legislation in early October extending their use for 1 more year. The Government continued efforts to improve prison conditions, but these remain inadequate. The Congress passed a law in July defining the duties of the constitutionally mandated "Defender of the People" (a human rights ombudsman). However, it has not yet named someone to the position. Violence against women and children and discrimination against minorities and the disabled are problems.
Sendero Luminoso and members of the Tupac Amaru Revolutionary Movement (MRTA) were responsible for 232 killings, including 7 deaths from car bomb attacks.
Respect for human rights
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killings
Since 1980 Peru has suffered a bloody guerrilla war waged by the terrorist groups Sendero Luminoso and the Tupac Amaru Revolutionary Movement (MRTA). Sendero activity decreased dramatically in 1995 and security forces continue to arrest the remaining Sendero terrorists.
Statistics compiled by the National Coordinating Committee for Human Rights (Coordinadora), an umbrella group of forty nongovernmental human rights organizations, showed that the security forces were responsible for one extrajudicial killing. This figure is much smaller than the 39 killings reported for 1994 and substantially smaller than the number of killings which took place at the height of the insurgency in 1992, when the Coordinadora estimated that the security forces were responsible for 114 extrajudicial killings.
Joel Huaman Garcia, age 19, was detained by police in Cerro de Pasco on May 26 and died in custody the following day. An autopsy showed that Huaman had died from torture and beatings.
Police officers Edson Condor Arredondo, Rolando Huere Ore, and Wilson Torralva Davila face criminal charges for Huaman's killing. In Ucayali department, in the only death the Coordinadora considered extrajudicial (others were due to torture and beatings), 16-year-old Indalecio Pomatanta Albarcan died on April 6 as a result of burns after naval personnel tried to arrest him at home on April 2. Navy personnel acknowledged abandoning Pomatanta after the burning incident. They claimed that Pomatanta as well as one of their own men suffered burns after accidentally being drenched by fuel near an open fire. A group of soldiers beat to death 21-year-old Wilder Alex Osorio in May in Pasco department. In September Jose Eugenio Chamaya Rumacharis died in police custody after they subjected him to water torture in a Lima police station. The Public Ministry is investigating the actions of two police officers in the Chamaya case.
The passage of the Amnesty Law on June 14 created considerable concern over military and police impunity for past abuses. This law, which granted amnesty from prosecution to those who committed human rights abuses during the war on terrorism from May 1980 to June 1995, as well as to those who participated in the November 1992 coup attempt, was presented and passed by the Congress in one night with no time provided for national debate. The law also cleared the records of security force personnel who had already been convicted of human rights abuses, including the eight military perpetrators of the 1992 La Cantuta massacre, who were sentenced in 1994 but released by military authorities a few days after the Amnesty Law's passage. In addition, 10 police officers were granted amnesty on June 16 for their role in the 1986 Lurigancho prison massacre, in which some 200 prisoners died. Relatives of the La Cantuta massacre victims announced in late October that the military had agreed to pay them over 1 million dollars as an indemnity in accordance with a decree issued by the military court which sentenced the perpetrators of the massacre.
First-instance Judge Antonia Saquicuray ruled on June 16 that the Amnesty Law did not apply to the 1991 Barrios Altos massacre case, in which military personnel killed 15 people including an 8-year-old child. She also disallowed an effort by lawyers for the accused to have a civilian investigation of the case dropped. After a superior court overturned her ruling, relatives of the massacre victims appealed the superior court decision to the Supreme Court, which in a divided decision in October upheld the constitutionality of the Amnesty Law. In response to Saquicuray's ruling, the Congress passed a controversial law on June 28 which stated that the judiciary had no right to review the constitutionality of the Amnesty Law.
In two cases a civilian superior court denied requests by military and police officers for amnesty, ruling that their crimes were not committed in the course of antiterrorist activities. On August 14, a superior court in Puno decided that the Amnesty Law did not apply to four military officers convicted in civilian courts of the assault and armed robbery of civilians near Juli and Ayaviri in December 1992. In September a superior court in Callao ruled that the Amnesty Law did not apply to the five police officers charged in the 1991 killings of university student Carlos Rodriguez Pighi and brothers Emilio and Rafael Gomez Paquillauri. Three of the police officers were sentenced to 15 to 18 years in 1994; the other two were never arrested and are believed to have fled the country.
The Congress never concluded its investigation of the extrajudicial killings which occurred in 1994 in Huanuco as a result of the army's "Operation Aries." The Public Ministry's investigation into these killings was effectively closed when Congress passed the Amnesty Law.
In February then Justice Minister Fernando Vega stated to the United Nations Human Rights Commission that during the previous 7 years, 108 officers and 453 noncommissioned officers had been punished for committing human rights abuses. Of these, Vega said that 28 officers and 151 noncommissioned officers were given prison sentences.
In the few areas of Peru where it continues to operate, Sendero Luminoso continues to assassinate civilians who oppose it.
The Coordinadora is investigating whether 4 more disappearances occured in Huanuco department, in addition to the 10 cases of disappearance it recorded during the year. Either number represents a vast improvement over the mid- and late-1980's and early 1990's, at the height of the Sendero Luminoso insurgency, when the military and police caused hundreds of persons to disappear. The use since 1992 of military courts to try those accused of terrorism has resulted in a high conviction rate and has contributed to a significant decrease in disappearances and extrajudicial killings. Of the nine disappearance cases, seven occurred in Ucayali department and two in Lima department, both emergency zones where the insurgents have been most active. In addition, a few disappearances from previous years came to light in 1995.
The seven disappearances in Ucayali department involved persons detained by naval personnel in front of witnesses. For example, Marcial Hernandez Melgarejo was detained together with Wilder Ahuanari Canayo on February 13 in Caserio Raya Rio Aguaytia. While Ahuanari was later released, Hernandez has not been seen or heard from since his detention. Despite the credibility of these disappearance reports, navy authorities in Ucayali assert that they know of no instance during 1995 in which navy personnel have been responsible in any manner for the disappearance of any citizen.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the Constitution prohibits torture and inhuman or humiliating treatment, torture and brutal treatment of detainees are common. Eyewitnesses and human rights monitors reported that government security forces still routinely tortured suspected subversives at military and police detention centers.
Torture most often takes place in the period immediately following detention. The law permits police to hold terrorism suspects incommunicado for 15 days, and for another 15-day period in cases of treason. Human rights groups report that the incidence of torture is high during this time, partly because detainees are not allowed access to family or an attorney except when giving sworn statements to the public prosecutor.
Besides beatings, common methods of torture included electric shock, water torture, asphyxiation, and the hanging of detainees by a rope attached to their hands tied behind the back. Common forms of psychological torture included sleep deprivation and death threats against both detainees and their families. Interrogators frequently blindfold their victims during torture to prevent them from later identifying their abusers.
Credible sources reported that torture by security forces in emergency zones is still common. In Ucayali department, Tomas Flores Huanio was allegedly beaten and tortured for several days after being detained on April 19 for possession of cocaine base at the naval base in Contamana, before being taken to a hospital on April 23. The following day Flores was taken to a civilian jail despite still suffering from injuries related to torture. Navy personnel assert, however, that Flores was not tortured, but had injured himself by banging his head on an object in his detention cell.
Reports of police and military rape of female detainees occurred, and cases from previous years continued to come to light. While the number of those raped by security personnel during the past year is difficult to determine, credible reports indicate the total number of female detainees raped during the past few years to be in the hundreds. According to CEAPAZ, a nongovernmental human rights organization, in one 1993 prison rape in La Merced, a pregnant 15-year-old detainee, who had unwittingly married an MRTA terrorist, was infected with AIDS by a member of the security forces. Despite the April antiterrorism legislation which required that an adolescent be transferred to a juvenile detention facility, the victim remained detained as an adult terrorist in Huamancacca prison in Huancayo department until her release in September. She received no medical attention for her AIDS condition while she was in prison, and those responsible for her rape have not been punished. After being absolved of terrorism charges and released in October from Picsi prison in Chiclayo, environmentalist Maria Elena Faronda claimed that two female detainees in Picsi prison had been raped by security force personnel during the past year.
Many victims of Sendero Luminoso terrorism also showed signs of torture. Credible accounts indicate that Sendero tortured people to death by slitting throats, strangulation, stoning, and burning. Mutilation of the body was common.
Conditions for many prisoners continued to be inadequate, even though the Government continues to make a costly and extensive effort to improve existing penal facilities, construct new penitentiaries, and ameliorate the physical conditions of detention. The renovation of Castro Castro Prison in Lima and Yanamayo Prison in Puno department in 1994 helped alleviate severe overcrowding in the prison system and improved the physical conditions in which many inmates lived. Nonetheless, prisoners in many facilities continued to experience unsanitary conditions, poor nutrition and health care, and occasionally harsh treatment by both prison staff and fellow inmates. Picsi prison near Chiclayo, for example, holds twice the number of inmates for which it was designed and still has no running water. Illegal drugs are in abundance, and tuberculosis and AIDS are reportedly at near-epidemic proportions in Lima's Lurigancho prison, the country's largest, containing just over 24 percent of the male prison population. The police chief at Lurigancho prison announced publicly in December that there were 7 prisoners with AIDS and 37 with tuberculosis receiving daily medical attention. He admitted that some of the prisoners had contracted their illness while in prison. Detainees held temporarily in windowless cells in Lima's Palace of Justice are not allowed outside for exercise and fresh air and are taken to the bathroom only once a day. Basic food, health care, and basic bedding are often not provided by the prison authorities.
Corruption continued to be a problem among prison staff, who were implicated in offenses such as sexual blackmail, selling narcotics and weapons, and arranging escapes. Twenty-six employees of the National Penitentiary Institute (INPE) were fired in October because they helped three criminals escape from Callao Prison on September 6. In addition, four INPE employees were dismissed in October for using undue violence against a group of journalists who were covering the aftermath of the September 6 prison escape. Prisoners often have to bribe guards to get a mattress and report that guards subject inmates to beatings, torture, and degrading treatment. In some prisons mothers who are detained for terrorism, many of them later found innocent by the courts after years of detention, are allowed to see their children and new-born infants only once every 3 months for only half an hour.
The authorities continued to permit International Committee of the Red Cross (ICRC) representatives to visit detainees in any place of detention, including prisons, jails, police stations, and military bases. The Government provided the ICRC with regular access to Ecuadorian soldiers detained by the Peruvian military during and after the January-February border conflict, and the ICRC facilitated prisoner transfers between Peru and Ecuador in March, June, and August.
d. Arbitrary Arrest, Detention, or Exile
The Constitution, Criminal Code, and antiterrorist legislation delineate the arrest and detention process. However, a number of constitutional protections are suspended in emergency zones. For example, security forces do not need an arrest warrant; they may legally hold incommunicado those detained for treason or terrorism and deny them access to an attorney during the interrogation period, except when giving formal statements.
In areas not subject to a state of emergency, the law requires a judicial warrant for arrest, unless a perpetrator is caught in the act. In addition, the Organic Law of the National Police is contrary to the Constitution. It permits detention of an individual for any investigation. Authorities must arraign persons arrested within 24 hours (a law they frequently violate according to informed observers), except in cases of terrorism, drug trafficking, or espionage, for which the limit is 15 to 30 days. If the military is the detaining authority, it must turn over detainees to the civilian police within 24 hours (or as soon as practicable in remote areas). The military regularly disregarded this law.
The Public Ministry continued to inaugurate branch offices of the National Registry of Detainees throughout Peru. The registry, first opened in February 1994, records the names of those detained for terrorism and treason by the police and military (in emergency zones). However, relatives and human rights groups frequently complain that registry information is incomplete and that the police and the military have not been providing information to the registry in a timely manner.
A 1993 modification to antiterrorism legislation authorized first- instance and superior court judges to order the unconditional release of terrorism defendants if there is insufficient evidence to bring a case against them. However, in practice, judges have rarely applied this law; rather, persons accused of terrorism sometimes must wait until their cases have been reviewed and dismissed by the Supreme Court before they are freed, a process that often lasts more than a year. Another 1993 modification to the antiterrorist laws restored a detainee's right to a prompt judicial determination of the legality of the detention ("habeas corpus"). In practice, however, this has proven to be ineffective. According to human rights attorneys, judges have denied most requests for such hearings.
New problems emerged in cases where those who were declared innocent of terrorism several years earlier were ordered rearrested due to problems with the judicial case record. This usually occurred when a case file included several individuals. For example, nine persons, including six University of San Marcos law students, were acquitted of terrorism in 1993, and two others in the same file, graphic editor Pedro Valdez Bernales and law student Filomeno Encarnacion Nieto, were found guilty and sentenced to 20 years in prison. When the Supreme Court reviewed the case in late 1994, mistakes were found in the case record and the case was sent back to the superior court. As a result, arrest warrants were issued for all the individuals in the case file, including those found not guilty 2 years earlier. Carlos Isla, the only one still in Peru, was rearrested on May 14. The others had fled the country. On June 2, the superior court found all of those in the case file who were alive not guilty, including Pedro Valdez, who had served 3 years in prison. Filomeno Encarnacion had died on April 24 from tuberculosis, which he had contracted in prison; he was also suffering from AIDS. In its June 2 decision, the Court ruled that since Encarnacion was not present it would reserve judgment until it had proof of his death.
According to INPE statistics, as of June, 76 percent of the country's prison population--almost 16,000 of the almost 21,000 prisoners-- consisted of accused persons awaiting trial. The average delay between arrest and trial in civilian cases as well as on criminal or terrorism charges was between 26 and 36 months. However, those tried on treason charges by military courts generally wait no longer than 40 days between the time of detention and the beginning of the trial.
The Constitution does not permit exile, and the Government did not practice involuntary exile of its citizens. General Rodolfo Robles, who had been in voluntary exile in Argentina, returned to Peru in June after the passage of the Amnesty Law which, in addition to granting amnesty to human rights abusers, also forgave military officers for antigovernment activities. Others, such as former President Alan Garcia, apparently fled from what appeared to be legitimate criminal charges.
e. Denial of Fair Public Trial
Throughout Peruvian history, the judicial branch rarely has been fully independent of the executive. However, the 1993 Constitution contains a number of provisions, including an improved system for naming judges, that provides for a significantly more independent judiciary. By December 1994, a judicial honor tribunal had completed its review of the Lima judiciary and prosecutors, having dismissed a large number of provisional judges and prosecutors who were deemed unqualified.
The 1993 Constitution also provided for several new judicial institutions to help create a more effective and independent system of justice: an Office of the Defender of the People (a human rights ombudsman); a Tribunal of Constitutional Guarantees (which would rule on the constitutionality of legislation and government actions); the National Judiciary Council (a permanent, independent entity in charge of testing, naming, confirming, and periodically evaluating and disciplining the country's judges and prosecutors); and a Judicial Academy (to train judges and prosecutors).
While the Congress did finally pass a law defining the duties of the Defender of the People in early May, it was withdrawn due to objections by some congressmen and President Fujimori that it gave the Defender too much potential authority to investigate the military. On July 13 the Congress passed a revised law which eliminated mention of the armed forces and laid out a procedure for confidential security-related material to be passed to the Defender only if approved by the Ministers of Defense or Interior, or by the Foreign Minister. Although President Fujimori signed this law, the Congress did not approve with the required two-thirds vote either of the two candidates for Defender submitted to it in mid-December.
Efforts to name the members of the Tribunal of Constitutional Guarantees stalled because members of the outgoing Congressional Constitutional Committee could not agree on its candidates. The new Congress has not yet decided on these nominations either; instead, it has created a commission and charged it with naming both the members of the Tribunal of Constitutional Guarantees and the Defender.
In office since January, the National Judiciary Council is an autonomous body made up of seven members elected by such institutions as the Supreme Court judges, the Supreme Court prosecutors, the country's bar associations, and deans of public and private law schools. The Council appointed two highly respected new Supreme Court prosecutors in September, and began work on evaluating candidates to fill some 1,500 judicial vacancies around the country currently held by provisional officers.
The Peruvian system of justice is generally based on the Napoleonic Code. Judicial proceedings comprise three stages.
The first is before an examining judge; the second is conducted by a superior court which tries and sentences the defendant; and the third is before an appeals court. A Public Ministry prosecutor investigates arrests and criminal complaints and then submits an opinion to a first- instance judge, who decides whether to indict. Following study of the case, the judge renders a verdict, which is then reviewed by a superior court prosecutor. The superior court prosecutor then submits an advisory opinion to a superior court judge, who holds a trial. Virtually all civilian court convictions are appealed to the Supreme Court.
Defendants have the right to be present at their trial, although there were instances of trials in absentia of fugitives (however, a 1993 modification to antiterrorism laws eliminated convictions in absentia). Although there were trials in absentia, they did not lead to convictions, but to acquittals or judgments held in reserve until the defendant was in custody. Defendants have the right to counsel, but the Government often does not provide indigents with qualified attorneys.
Proceedings in military courts which hear terrorism and treason cases do not meet internationally accepted standards for due process. Military trials are closed to the public and are carried out in secrecy. Defense attorneys do not have access to evidence, nor can they interview police or military witnesses (to protect their identities) prior to or during the trial. Many military judges are active duty line officers with no legal background. Military tribunals in theory must pass judgment within 10 days. A case may be appealed to the War Council, which has 10 days to make a decision. A final appeal to the Supreme Council of Military Justice must be acted on within 5 days. However, this calendar is subject to delays. Human rights groups charge that military judges have sentenced some defendants before their lawyers were even notified that the trial had begun.
According to Supreme Council of Military Justice statistics, between 1992 and August 1995, faceless military tribunals tried 1,031 cases of treason. In those cases in which a verdict was reached, these tribunals sentenced 267 individuals to life sentences, 217 persons to 30 years or less, 179 cases were sent to civilian court terrorism trials, and 24 persons were absolved of all charges. In a public statement on August 11, President of the Supreme Council of Military Justice Guido Guevara Guerra stated that the military justice system was willing to review any case of a conviction for treason in which procedural errors could be proved.
The Government did not abolish trials of terrorism cases on October 15 by anonymous superior court tribunals, as it had originally announced. Human rights groups are concerned about cases sent by the military justice system to the civilian courts even when there is no evidence to prove the defendant guilty of treason or terrorism, since a terrorism trial must begin all over again. For example, Jesus Chacaltana, a medical doctor detained in January, was found innocent of treason by a faceless military tribunal in April. The Supreme Council of Military Justice, however, ruled in September that he must still be tried for terrorism by a civilian court even though there was no evidence connecting him to terrorist organizations.
In December the Congress passed the Criminal Procedures Code legislation. This legislation will institute new accusatorial, investigative, and trial procedures. Informed observers claimed that the Government postponed passage of the new Code because the National Police oppose provisions that would grant more investigative authority to prosecutors; because the armed forces oppose a provision that would allow prosecution of military personnel in civilian court for crimes such as murder that do not come under the Military Code of Justice; and because the Public Ministry was not prepared in terms of budget or personnel to put the new Code into practice.
There were no reports of political prisoners. Members of Sendero Luminoso and those detained on charges of terrorism-- however arbitrary in some instances--are not considered political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution requires security forces to have a judicial warrant to enter a private dwelling, but this requirement is suspended in the emergency zones, and security forces in those areas routinely conduct searches without a warrant. There were frequent credible reports of illegal telephone monitoring.
A number of rural communities--with arms, training, and encouragement from the army--have organized self-defense forces, or rondas, to protect themselves against terrorist and bandit incursions. These have had a noticeable impact on curbing Sendero's activity in certain areas of the country. In some parts of Peru, rondas have existed for centuries as a form of social organization to protect communities from invaders and rustlers. However, military authorities organized many of the newer rondas and sometimes coerced peasants into participating.
As a regular practice and to a far greater degree, Sendero has forced peasants to join its military ranks, often for extended periods, and to participate in terrorist attacks and executions.
g. Use of Excessive Force and Violations of Humanitarian Law in Internal Conflicts
With the internal conflict winding down, reports of use of excessive force by the military have declined significantly from previous years. However, there were reports of excessive use of force by the military in counterinsurgency operations against terrorists in Ucayali, San Martin, and Huanuco departments. During operations in San Martin and Huanuco departments, reports continued of arbitrary detentions by the military in communities where Sendero Luminoso had entered and terrorized residents.
During the January-February border conflict with Ecuador, several citizens were killed or injured by mines planted along the border in the densely populated coastal areas during the war. Soldiers also suffered many casualties from unmarked and unmapped mining in the upper Cenepa Valley.
Although both the army and Sendero Luminoso committed serious human rights abuses in Peru's internal conflict, the latter was responsible for many more heinous acts. Sendero frequently used arbitrary violence against civilians and nonmilitary targets. It continued to detonate powerful bombs in public places, indiscriminately killing and injuring bystanders, and persisted in its practice of entering villages and killing residents at random. Many of the victims were unarmed women and children. Sendero Luminoso and MRTA were considered responsible for 232 killings, including 7 deaths from bomb attacks which also injured 44 people. In armed confrontations, Sendero never took prisoners or attended to the wounded; its normal aim was to kill as many people as possible. Sendero also practiced forced military conscription of children; one of those arrested for planting a small explosive device in Lima was only 15 years old.
Among the other high-profile Sendero attacks was a car bomb explosion on May 24 in front of a hotel in the Miraflores section of Lima, which killed five civilians. On July 1, a Sendero car bomb exploded in front of the home of congressional Vice President Victor Joy Way, causing severe damage and killing two police officers. Although Sendero planted explosive devices near several embassies in Lima in March, no injuries were sustained. A gunfight between security forces and MRTA terrorists in Lima on the evening of November 30 resulted in the death of one member of the security forces and three MRTA terrorists.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and of the press. The Government generally respected these provisions, although the Government uses its economic power in the form of newspaper advertising purchases to influence the press and is selective in allowing access to government newsmakers, events, and information in order to exert some control over the views expressed.
The media represent a wide spectrum of information and opinion, with 22 daily newspapers, 10 television stations, 3 cable systems, and 120 radio stations in Lima alone. The media regularly criticize the Government and its policies, although that criticism has noticeably lessened in the last 3 years. The Government owns a daily newspaper, a television network, and two radio stations, none of which are especially influential.
Opposition political parties have access to the media. Television stations, although generally progovernment, provide regular access to opposition figures on a variety of news and public affairs programs. The print press is divided between popular, largely apolitical tabloids and more comprehensive editorial-bearing papers which at times articulate positions in opposition to the Government's policies.
The enactment of Decree Law 26470 in June effectively eliminated the applicability to the media of the 1993 Constitution's "habeas data" provision. This measure had given any citizen a legal right and mechanism to demand "rectification" for articles or reports he or she considered libelous. Many journalists viewed this provision as a potential tool to censor and harass the press. As a result of these concerns, the Congress had voted overwhelmingly in August 1994 to remove from the Constitution the portion of the "habeas data" clause related to the press. This action was praised by local journalists, as well by the Inter-American Press Society (SIP) which called the vote "an important step towards full observance of press freedom." Since the changes affected the Constitution, the measure did not become law until Congress approved it a second time in a separate legislative session and the President signed the measure.
During the January-February border conflict with Ecuador, journalists complained about government restrictions. The Peruvian military rarely allowed journalists access to the combat zone and reportedly destroyed videotapes produced by journalists in the war zone. Nevertheless, critics of government performance during the conflict enjoyed full access to the press which regularly reported their views.
Three retired military officers, General Carlos Mauricio, General Walter Ledesma, and Navy Captain Luis Mellet, were charged with "disloyalty" and "insulting the nation" and detained in April and May for publicly criticizing the military's handling of the war with Ecuador. Ledesma and Mellet were released after serving brief sentences; but Mauricio, whose charges related to the release of classified information, was sentenced to 14 months in prison. Mauricio was released as a result of the June 14 Amnesty Law, which also forgave retired military officers who had publicly criticized the military's handling of the border conflict. Several journalists were arrested by local authorities throughout the year in the course of their work. La Republica journalist Clemente Quinto Panez was jailed for 2 days in La Oroya after uncovering and reporting the involvement of state mining company officials in a series of robberies there. Yashin Salas, also of La Republica, was arrested by Yurimaguas police while photographing a pickup truck loaded with supplies for cocaine processing. Luis Laos Fascioli of El Comercio was detained by customs agents who, in full view of a local magistrate in Bujama, twice tried to seize the reporter's camera.
Two of the best known cases of imprisoned journalists are those of Jesus Alfonso Castiglione and Javier Tuanama Valera. Castiglione, the former director of Radio Amistad in Huacho, was sentenced to 20 years in prison for terrorism despite a lack of evidence and pleas by international human rights organizations. Tuanama, the former managing editor of the Tarapoto daily Hechos has been detained for 5 years on various terrorism charges, despite twice being acquitted, once on a charge that he took part in a terrorist act committed after the date of his detention in 1990.
The Government exercised substantial influence over the media through the placement of advertisements. Some media owners claimed that the Government also encourages private advertisers to boycott opposition publications and uses tax investigations to harass them. Many media owners are involved in other economic activities that require government licensing or involve bidding on government contracts. Opposition media access to government information has been restricted. Government press offices have refused to send news releases and other information to some magazines and often limited opposition media access to official transportation when the President visited remote parts of Peru or traveled abroad.
b. Freedom of Peaceful Assembly and Association
The Constitution expressly provides for the right of peaceful assembly and association, and authorities normally respect them in practice, except in areas under a state of emergency (where the right of assembly is suspended). Public meetings in plazas or streets require advance permission, which may be denied only for reasons of public safety or health. Municipal authorities usually approved permits for demonstrations in Lima and nonemergency zones.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government respects this provision in practice. The Constitution recognizes Roman Catholicism "as an important element in the historical, cultural, and moral development of the nation" but also establishes the separation of church and State. Conversion to other religions is respected, and missionaries are allowed to enter and proselytize.
Sendero Luminoso rejects religion and continues to threaten and intimidate religious workers. Members of the Mormon Church, in particular, continued to receive threats and were victims of extortion by Sendero.
d. Freedom of Movement Within the Country
The Constitution provides for the right of free movement, and there are no political or legal constraints on foreign travel or emigration. However, the authorities can restrict people with pending criminal and, in some cases, civil charges from leaving the country. Freedom of movement is suspended in the emergency zones but is generally permitted under the army's supervision. Nonetheless, the authorities may detain travelers in an emergency zone at any time. Passengers on public transportation are controlled at check points throughout the country.
The Constitution prohibits the revocation of citizenship; repatriates (both voluntary and involuntary) are not treated any differently from other citizens. Peru has provisions for granting asylum and refugee status, although the procedures have been used by only a few in recent years, principally Cubans. Refugees are not forced to return to countries in which they fear persecution.
Sendero still occasionally tries to interrupt free movement within the country. However, in 1995 a weakened Sendero did not conduct any "armed strikes." During such operations civilians are typically told to stay home or risk reprisals.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
The Constitution provides for the right of citizens to make and amend the laws and replace the officials that govern them, and citizens exercise this right in practice. The law bars only groups that advocate violent overthrow of the Government from participating in the political process. Voting by secret ballot is mandatory for all citizens between the ages of 18 and 70; however, prisoners and members of the armed forces and the police are ineligible to vote. Legal opposition parties represent a wide variety of opinion and ideology.
Running for a second term under provisions of the 1993 Constitution, President Fujimori was reelected to a 5-year term on April 9 with 65 percent of the vote over 12 other candidates. Voters also selected 120 members of the unicameral Congress. Fujimori's Cambio 90/Nueva Mayoria party won 67 seats in the new Congress. Twelve opposition parties won the remaining 53 seats.
There was tampering with ballots just prior to the election in Huanuco and several other provincial towns. However, quick action by the Organization of American States (OAS) election monitors and judicial and electoral authorities prevented such tampering from affecting the vote. The OAS election observer mission and a respected nonpartisan observer group, Transparencia, concluded that the elections were fair. Concerns were raised, however, about the large number of congressional list tabulation forms that were declared invalid because they were not filled out properly by election workers.
Women and minorities participate fully in government and politics. There are 11 female members of Congress; President Fujimori's July inauguration highlighted the swearing-in of the Congress's first female president. The Congress's three-person preparatory committee was composed entirely of women for the first time in Peruvian history. In addition, 2 of the 14 Cabinet Ministers and several vice ministers are women, as are the Attorney General and a Supreme Court Justice.
Asians hold leadership positions in government; President Fujimori is from an Asian ethnic minority. There are several indigenous congressmen, and a recent vice president was a Quechua speaker. There are some indigenous prosecutors, and one of the presidential candidates was a Quechua speaker from Ancash. However, it is rare for indigenous people, who represent 30 percent of the population, to reach the highest leadership levels in either the public or private sectors. Until recently discrimination has often led to exclusion of members of these groups from leadership positions in government and business. Members of the black minority have no leadership role in government, and there are no black members of Congress.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The Government allowed numerous nongovernmental organizations (NGO's) dedicated to monitoring and advancing human rights to operate freely, although government officials continued to criticize them. The military often restricted the ability of local and international human rights workers to investigate human rights abuses; the Government usually ignored human rights groups' requests for information and prohibited many human rights monitors--except the ICRC--from visiting some prisons. Verbal attacks by the Government against both domestic and international human rights monitors reflected its continuing suspicion of international NGO's in particular for bringing human rights abuses to public attention. Legitimate fears of physical attack by Sendero severely limited the ability of human rights monitors to carry out their work.
Most Peruvian human rights NGO's are independent and generally objective in their views. Several private human rights groups joined in 1985 to form an umbrella organization known as the National Coordinating Committee for Human Rights, or Coordinadora. The Coordinadora maintains a policy of not mixing politics with human rights (its individual members may do so, but not in the Coordinadora's name), and its members are recognized as thorough and impartial observers. The Coordinadora had no dialog with the Government during the past year except on the issue of Peruvians detained in Ecuador during the 1995 border war. The dialog between the Coordinadora and the Government stalled in 1994 as a result of Congress's action in the La Cantuta case.
Human rights groups repeatedly denounced Sendero Luminoso as the greatest violator of human rights in Peru, while simultaneously documenting the many violations by the security forces. Documentary evidence indicates that Coordinadora members have been balanced in their denunciations of abuses by both sides. Nevertheless President Fujimori and other government officials continued to accuse human rights groups of defending terrorism and criticizing only government abuses. Amnesty International added to the debate when it referred in its 1994 report on Peru (released in mid-1995) to Peruvian terrorists as "political prisoners." President Fujimori denounced Amnesty International for this on July 10.
On July 10, the offices of the Human Rights Commission (COMISEDH), a member of the Coordinadora, were broken into, and files relating to those believed to be falsely accused of terrorism and to human rights abuses committed by security forces were rifled. Attorney Tito Guido Gallegos Gallegos of Juli, in Puno department, received a letter in July from a group calling itself the "Patriotic Military Front," which threatened to kill him if he did not stop opposing the amnesty of military officers. A human rights attorney involved in the Barrios Altos case received an anonymous telephonic death threat in July related to her involvement in that case.
On November 16 a funeral wreath was delivered to the offices of the pro- human rights association APRODEH. Attached to the wreath was a list of 10 individuals, including human rights activists, members of Congress, and relatives of La Cantuta massacre victims. Their names were listed under the words "in memorium," and after the names was written "in remembrance by the Colina community." Shortly afterwards, the Defense
Minister announced the retirement of military personnel convicted in the La Cantuta massacre who had received amnesty in June.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution provides for equal rights for all citizens and specifically prohibits discrimination based on ethnic origin, race, gender, language, religion, opinion, or economic condition. Nevertheless, discrimination against women, the disabled, and minorities continued. Even so, women have emerged as a key force on the Peruvian political scene. Discrimination based on sexual orientation is frequent.
Violence against women, including rape and spousal abuse, is a chronic problem, according to local women's groups and law enforcement offices. On average there were over 300 complaints of violence against women per month, according to these sources. In the last 10 years, there were over 60,000 reported cases of violence against women nationwide; many additional cases, however, go unreported. While there are no reliable statistics, groups which work with victims believe spousal abuse and rape to be at a very high level. Victims frequently are reluctant to come forward, and women's groups complain of police indifference and the pervasive assumption that if a women was raped she probably enticed the man.
There are special police stations in Lima and other major cities where policewomen deal directly with abused women. They report a rising number of complaints of domestic violence. In addition, women's groups have established legal aid and health centers for women. Judicial authorities take legal action against perpetrators of domestic violence. However, one of the reasons that special women's police stations were established was that regular policemen often do not take seriously accusations by women against their husbands. Although the Government has passed strong legislation against domestic violence, it is not always implemented at lower levels, especially outside the major cities.
The Constitution grants women equality, and laws on marriage, divorce, and property rights do not discriminate against women. Nevertheless, tradition often impedes access by women to leadership roles in major social and business institutions.
Sexual harassment in the workplace continues to be a common problem. One study by a women's rights organization showed that 62 percent of working women knew of cases of sexual harassment in the workplace.
The Government made efforts to address children's human rights and welfare; however, much work still needs to be done. President Fujimori frequently has emphasized the need to improve education at all levels, but the Government does not have sufficient funds for public schools. Millions of children continue to suffer from malnutrition and live in extreme poverty.
The issue of children serving in the military was highlighted by the death of a 14-year-old soldier from a gangrene infection during the January-February border conflict with Ecuador. The military denied that it recruited 14-year-olds and claimed that the child had volunteered at the start of the border conflict. Nevertheless, the child's relatives in Lima publicly asserted that he had been forced into military service. There were also reports of other soldiers as young as 15 being injured during the conflict. It is unclear how many soldiers under the age of 18 serve in the military.
In Lima there are thousands of orphaned, homeless, and abandoned children, and many of them are forced to work in the informal economy to support themselves. One study indicated that more than 200,000 children under the age of 16 were working in order to survive. Violence against children is a serious problem. According to some estimates, approximately half of all rapes are perpetrated against minors. The 1995 suicide of a couple infected with AIDS, who had four young children, focused public attention on the growing need for homes for those orphaned as a result of AIDS-related deaths.
New legislation in April discontinued the practice of adult terrorism trials for those under age 18 and ordered that underage prisoners be moved to juvenile detention facilities. However, cases continued to come to light of persons under 18 who are held in adult prisons.
People With Disabilities
Although the Constitution states that disabled persons "have the right to respect of their dignity and to a regime of protection, attention, readaptation, and security," the Government has few resources available for assisting the disabled or preventing discrimination against them. Little legislation and few accommodations exist for people with disabilities, such as wheelchair ramps on streets and in buildings, or laws mandating access for them, although in any case, few among the physically disabled have wheel chairs. The number of those disabled is believed to be very high as a result of the years of violence during the Sendero and MRTA insurgencies. Disabled persons face discrimination when seeking employment and many are reduced to begging in the streets. The publicity surrounding the success of Peru's team at the 1995 International Special Olympics focused public attention on the problems of Peru's disabled.
The 1993 Constitution prohibits discrimination based on race and guarantees the right of all citizens to speak their native language. Nevertheless, Peru's large indigenous population faces pervasive discrimination and social prejudice. Because of geographic isolation, government centralization, lack of organization, and social marginalization, indigenous people in general are unable to participate in decisions affecting their lands, cultures, traditions, and the allocation of natural resources. In jungle areas, colonists, coca growers, guerrillas, and business interests steadily encroach on native lands, many seeking to exploit natural resources. The largest indigenous groups are those speaking Quechua and Aymara, which are recognized as official languages. However, there are dozens of smaller native language groups. Indigenous people lack access to public services in many inland areas while business investment is concentrated on the coast.
As a result of the January-February border war with Ecuador, public attention was focused on the 45,000 Aguaruna-Huambisa people who inhabit areas near the Upper Cenepa Valley where fighting took place. A number of Aguaruna-Huambisa villages were evacuated during the fighting and several hundred Aguaruna-Huambisa tribesmen participated in the conflict as guides and couriers. There were reports that some Aguaruna-Huambisa community members were pressed into service. Aguaruna-Huambisa leaders have complained about the lack of consultation by the Government on matters affecting their welfare, including land tenure, and poor living conditions.
Sendero Luminoso has been the most egregious violator of indigenous rights. At the end of 1994, between 8,000 and 10,000 Ashaninkas in the central jungle area remained displaced and as many as 3,000 were in areas under Sendero control. During that year, 1,500 displaced Ashaninkas were resettled in stable communities. During 1995 displaced groups of Ashaninkas continued to be reincorporated into such communities.
Peru's population includes several small racial minorities, the largest of which are blacks of African descent and Asians. Blacks, who tend to be concentrated along the coast, face particularly pervasive discrimination and social prejudice and are among the poorest groups in Peru. They are excluded from leadership roles in government, military, and business institutions. Both the navy and the air force reportedly have unwritten policies that exclude blacks from the officer corps.
According to Peru's two black human rights groups, police routinely detain persons of African descent on suspicion of committing crimes for no other reason than the color of their skin, and police rarely act on complaints of crimes against blacks. The Government has taken no action to remedy these problems.
Although Peru's Asian population has traditionally been subjected to discrimination, this has changed during the past decade as Peru has looked toward Asia as a growth model and as the Asian community has achieved financial success. Apart from President Fujimori, who is of Japanese descent, many other Asians now hold prominent leadership positions in business and government.
Section 6 Worker Rights
a. The Right of Association
It is estimated that only 5 percent of the total work force of 8.5 million belong to organized labor unions. More than half of all workers are in the informal sector of the economy. Workers do not need prior authorization to form a trade union, nor, by law, can employment be conditioned on union membership or nonmembership. Existing unions represent a cross-section of political opinion. Although some unions have been traditionally associated with political groups, the law prohibits unions from engaging in explicitly political, religious, or profit-making activities. There are no restrictions on membership in international bodies. Several major labor unions and confederations are affiliates of international labor groups, including the International Labor Organization (ILO) and the International Confederation of Free Trade Unions. The several union leaders who ran unsuccessfully for Congress in 1995 all did so as individuals, without union sponsorship.
In June Congress approved a new Employment Law, which all of the main union confederations publicly criticized for violating the rights of unions including freedom to bargain collectively and the right to work. Unions also complained that the new law eliminates the compulsory reinstatement of dismissed workers when it is proven that they were unjustly dismissed. At present such workers only have the right to a year's pay as indemnification. In September the head of the Coordinating Union Board, which is composed of the three main union confederations, complained publicly that the new Employment Law had led to the dismissal of approximately 3,000 workers since it was enacted. The Coordinating Union Board filed a complaint with the ILO regarding the new law.
This new law, which treats both men and women equally, superseded earlier legislation which had provided special working conditions for women. Among the benefits women workers lost were the guarantee of an hour each day for breastfeeding of children up to 1 year of age, and the requirement that employers with more than 25 female employees provide a nursery. In practice, the new Labor Code has had a negative impact on the right of association by making it easier for companies to fire workers involved in union activities.
b. The Right to Organize and Bargain Collectively
The 1993 Constitution recognizes the right of public and private workers to organize and bargain collectively. However, these rights must be exercised in harmony with broader social objectives. Labor regulations promulgated prior to the 1993 approval of the new Constitution provide that workers can form unions based on profession, employment, or geographic location. The regulations exclude temporary, probationary, apprentice, or management employees from union membership. They require a minimum of 100 members to form trade unions by branch of activity, occupation, or for various occupations; and a minimum of 20 workers to form a union within a company. They also limit the number of union officials, the amount of time they may devote to union business on company time, and require them to be active members of the union. No legal provisions require employers who commit antiunion discrimination to reinstate workers fired for union activities.
Labor regulations set the number of union representatives who can participate in collective bargaining negotiations (a minimum of 3, a maximum of 12) and establish the negotiating timetable. The management negotiating team cannot exceed the size of the workers' team; both sides may have attorneys and professional experts in attendance as advisers. A majority of all workers in a company, whether union members or not, must approve a strike by a secret ballot. A second vote must be taken upon petition of 20 percent or more of the workers. The labor movement criticized provisions of the new Labor Code which facilitate an employer's ability to dismiss employees as impeding workers' right to bargain collectively. However, there are apparently no restrictions that would prohibit unions from negotiating a higher standard than the base line of protection provided for workers by the law. To become an official collective bargaining representative, a union must represent 20 workers.
Labor regulations also permit companies unilaterally to propose temporary changes of work schedules, conditions, and wages and to suspend for up to 90 days collective bargaining agreements if obliged to do so by an unexpected event or economic conditions, provided they give 15 days' notice to employees. If workers dispute the proposed changes, the Labor Ministry must resolve the dispute based upon criteria of "reasonableness" and "economic necessity." In such cases employers must authorize vacation time and in general adopt measures that avoid aggravating the employment situation.
A conciliation and arbitration system resolves disputes, but union officials complain that their proportionate share of the cost of arbitration can exceed their resources. (In the past, business and government entities had covered these costs.) Union officials also state that increasing numbers of companies utilize a policy of hiring workers on temporary, personal services contracts to prevent union affiliation. The new law restricts such hiring to 20 percent of the company's workforce. Regulations on this point are still being formulated by the Labor Ministry. This is a continuing subject of contention between organized labor and employers and is one of the concerns that labor continues to raise in international forums. Employers deny the accusation of antiunion bias and assert that labor stability provisions of the law have made long-term commitments to workers too expensive.
Special regulations permitting greater flexibility in application of the Labor Code in export and duty free zones provide for the use of temporary labor as needed, flexibility in labor contracts, and a wage system based upon supply and demand. As a result, workers in duty free zones are unable to unionize. Duty free zone employers do not engage in illegal activities to prevent unionization.
c. Prohibition of Forced or Compulsory Labor
The Constitution prohibits forced or compulsory labor, as well as imprisonment for debt. However, there are periodic reports of the practice of forced labor in remote Andean mountain and Amazonian jungle regions of the country. In response to a complaint filed with the ILO, the Government in 1994 acknowledged the existence of such practices and asserted it had taken measures to end abuses. However, reports of forced labor, including that of children in gold mines in the remote Madre de Dios department, continued to emerge. Forced labor is not a problem in urban areas.
d. Minimum Age for Employment of Children
Education through primary school is compulsory and free. A high percentage of school-age children nevertheless work rather than attend daytime classes, with only a small number of such children attending classes at night. Given Peru's widespread poverty, children work in the informal economy without government supervision of wages or conditions from a very early age to help support their families. A recent Government labor study found that 8 percent of the workforce was between the ages of 6 and 14. The Government's National Institute of Family Welfare cooperates with the United Nations Children's Fund and the Inter-American Development Bank to assist and rescue street children and other child laborers.
The minimum legal age for employment is 16. The new Labor Code raised the age from 21 to 25 years for the special youth labor provisions, which allow employers to pay lower salaries as part of a program to provide new workers with specialized training. The new Labor Code also increased the period of apprenticeship from 18 to 36 months. In addition, workers covered by these provisions now may make up 30 percent (increased from 15 percent) of a company's work force.
Child labor is heavily used in the agricultural sector and in informal gold mining, but not in other major export industries, such as petroleum and fisheries. Recent studies by NGO's found that approximately 4,500 workers younger than 18 years of age work in harsh conditions in the informal Madre de Dios gold mines. Many of these workers are under the age of 15, and some are as young as 11. These child laborers were recruited from their families through a system known as "enganche" in Puno, Juliaca, Sicuani, Abancay, and Cuzco, through which they are provided free transportation to the mine and reportedly agree to work for at least 90 days before being paid. The Government has not exercised control over these employment agencies, and employers do not comply with labor code provisions relating to juveniles. Children who work in the informal gold mines lack proper medical care, must work long hours, and are often subjected to beatings, mistreatment, and rape. There are also reports of these mine workers not being paid.
e. Acceptable Conditions of Work
The Constitution provides that the State promote social and economic progress and occupational education. It states that workers should receive a "just and sufficient" wage, to be determined by the Government in consultation with labor and business representatives and "adequate protection against arbitrary dismissal." The current minimum wage is about $57 (S/130) per month and is generally considered inadequate to support a worker and family. A considerable portion, half according to some estimates, of the country's work force make only the minimum wage.
The Constitution also provides for a 48-hour workweek, a weekly day of rest, and yearly vacation. It prohibits discrimination in the workplace. While occupational health and safety standards exist, the Government lacks the resources to monitor or enforce compliance. Employers and workers generally agree upon compensation for industrial accidents on an individual basis. The Government introduced reforms in 1993 eliminating the need to prove culpability in order to obtain worker's compensation for injuries. There are no provisions for workers to remove themselves from dangerous work situations without jeopardy to continued employment.