The breakdown of democracy in Peru
A Briefing on Perugiven by Susanna Villarán representative of the National Coordinator on Human Rights (CNDHH) in Peru on 6 April 1999
UN Commission on Human Rights, Geneva
55th Session, 22 March to 30 April 1999
Sponsored by CNDHH, the International Commission of Jurists and Pax Romana ICMICA
Peru is no longer the country that has the greatest number of disappeared people in the world as it was during 1989, 1990 and 1991. Peru is no longer at war as it was for 13 years, from 1980 until 1993. Peru is no longer living in fear of the crimes of Shining Path and the army as it was in the recent past. The majority of the territory now enjoys peace.
However, we need to ask if the human rights situation has improved?
The hard legacy of our internal war
a) We still have around 500,000 internally displaced people. Only 35% returned to their communities in the rural areas of the Andean Region.
b) Nothing has been done in relation to the 5,000 or more people that were disappeared by the Army during the period of political violence, between 1983 and 1996.
c) We are still dealing with exceptional anti-terrorist laws that allowed military courts to judge civilians, with unfairness, lack of openness, and shortcomings in the due process of law. This was commented upon by Mr. Param Cumaraswamy, the UN Human Rights Commission Special Rapporteur on the Independence of Judges and Lawyers in introduction to his report about Peru in April 1998. Although the faceless military and civilian courts were abolished in 1997, after five years of hard work. Proceedings in terrorism cases in the civilian courts and particularly in treason cases in the military courts do not meet internationally accepted standards of due process.
- The definition of terrorism and treason is broad and imprecise,
- Legislation gives the police extensive powers of arrest and detention. The period of detention before presenting a person before a judge can be from 24 hours to 15 days or even 30,
- The court proceedings are summary and secret,
- The punishments are severe, ranging from five years to life imprisonment, and so on.
d) As a consequence of the application of anti-terrorist legislation, hundreds of innocent people were unjustly accused of being terrorists. In 1997, reacting to criticism from the international and national human rights organisations, and from the Inter American human rights system, Congress passed a law creating an Ad-Hoc Commission in order to review the cases of these persons and to propose them to the President for his pardon or clemency. The Commission is composed of the Ombudsman, the Minister of Justice and a representative of President Fujimori, the catholic priest, Hubert Lanssiers. After a year and a half, 448 people were released from high security prisons in Peru and more than 500 are still waiting for their freedom. In the last months we perceived lack of political will from the President Fujimori to pardon the innocents who are still in prison. Some of them have been in prison for more than 5 years.
e) In 1995 the Congress (in which the majority are members of the governing party) passed an Amnesty Law (Law No. 26479) for those criminals, members of the security forces who were the subject of complaints, investigation, indictment, trial or conviction for both military and common crimes committed «under circumstances resulting as a consequence of the fight against terrorism» during 13 years of internal conflict. The law forbids judges even to investigate the facts and also forbid them to apply international human rights law in those cases.
In July 1996 the Human Rights Committee expressed its deep concern about this Law: «Such amnesty prevents appropriate investigation and punishment of perpetrators of human rights violations, undermines efforts to establish respect for human rights, contributes to an atmosphere of impunity...and constitutes a very serious impediment to efforts undertaken to consolidate democracy». The Committee expressed also that this type of amnesty «is incompatible with de duty of States to investigate human rights violations, to guarantee freedom from such acts within their jurisdiction and to ensure that they do no occur in the future».
The breakdown of democracy
a) The Army
The way in which Peru was «pacified» sheds some light on the human rights situation. There were no peace agreements between the Peruvian State and subversive groups as was the case in Guatemala and El Salvador. It was a different situation from what is going on in Colombia today. The leaders of Shining Path and Tupac Amaru were detained and they are in prison (at least the majority of them). Even the peasants organisations («Comités de Autodefensa» were a key element in the defeat of SL, the Army appears as the victor of the conflict and as such asked for their reward. The power of the Army comes from an idea that the President and the Army have spread that they are the «saviours» of the country and that its power is indispensable in confronting the risk of a return to the bloody past.
Compared with other Latin American countries, Peru experiences the worst level of subordination of the Army to civilian authorities, as well the level of their commitment to democracy does not exist in fact:
- Control of 20% of the population in the «Emergency zones», even the political violence no longer exists in the majority of these territories. A number of constitutional protections are suspended in the emergency zones: for example, security forces do not need an arrest warrant in order to detain a suspect.
- Military Courts that exceed its competence, judging civilians not only for terrorism but recently for robberies and kidnappings.
- A Secret Service with increasing power with no institutional control. (paramilitary groups, phone tapping of many political leaders from the opposition, journalists, business executives, etc.
- Militarization of the Police
- Harassment of independent media and journalist. Exploitation of a T.V. channel (Ivcher)
- Tortures and abuses during the Obligatory Military Service
b) The Judiciary
After the 1992 coup d'état in Peru the judges were dismissed. A Reform of the judiciary is still going on but, after 7 years, approximately 75% of judges are serving on a temporary basis, including 19 of the 33 judges of the Supreme Court. Since these judges lack tenure, they are much more susceptible to outside pressures.
So, the past general inefficiency, corruption and manipulation of the Judiciary remains, and worst than that, it is even more subject to the influence of the Executive branch.
The polls indicate that only 18% of the Peruvian public trust in the judiciary and in Lima, 48% agreed with «lynching» as a way to achieve justice.
In 1993 the government appointed the Executive Commission of the Judicial branch and the Executive Commission for the Public Ministry for a 5-year period. The ostensible mission of both was to carry out judicial reform. However, in reality, this commissions serves as the executive instrument of control over the judicial system.
The World Bank refused last year to lend the financial support for judiciary reform, previously agreed, because of lack of accountability and the intervention of the Executive branch in the Judiciary decisions.
Although we have a recent law against torture and other crimes against humanity (1997), torture remains as a systematic practice of the police and the army. In June, the United Nations Committee Against Torture called on the government to re-establish the rule of law by restoring to the judiciary its independent character and to adopt measures guaranteeing compensation to the victims of torture. IDL reported that the United Nations Committee Against Torture had received 617 complaints of torture allegedly committed between 1993 and 1997.
d) Prison conditions
Prison conditions continued to be extremely harsh due to high security special conditions, low budgets, severe overcrowding, and poor nutrition and health care. Out of 26,837 people in prison until November 1998, 75% had not been sentenced. Extremely harsh conditions exist in some high security prisons as in Challapalca, located at an altitude of about 14,000 feet.
The Ombudsman Office published a report on prison conditions that highlighted many serious shortcomings, indicating, amongst other criticisms, that the operating philosophy in the prison system is one of punishment rather than rehabilitation. Only 33% of prisoners do some form of work, and only 28% participate in some kind of educational activity.
e) Freedom of speech and of the Press
Even though the Constitution provides for freedom of speech and of the press, in practice, the government limits these freedoms. There is self-censorship in order to avoid provoking government retribution. In 1997 loss by television owner Baruch Ivcher of his station and other cases in which the government accused investigative journalist of treason demonstrate the limits of press freedom.
f) Political rights and the electoral system
Re-election of Fujimori for a third term represented a serious deterioration in the electoral system. The Constitution of 1993 permits one re-election. The majority in the Congress passed a law interpreting the Constitution allowing another period for president Fujimori. Three members of the Constitutional Tribunal were dismissed by the Congress simply because they opposed the re-election of Fujimori. Their case is before the Interamerican Commission of Human Rights.
The Congress changed the rule of elections of the members of the Electoral Tribunal. As many 1.4 million signatures were gathered in a petition for a referendum on whether or not there should be a law permitting Fujimori to run for a third consecutive term. The National Board of Elections changed the rules, and in August 1998, the referendum was effectively squashed by the congress.
g) International monitoring
In 1998 the UN Working Group on Arbitrary Detention, The Inter American Commission on Human Rights and the UN Committee Against Torture, all made fact-finding visits to Peru. Also, non-governmental organisations, such as FIDH, the Pen International, and Amnesty and Human Rights Watch have special monitors for Peru. In recent years, various mechanisms of the United Nations - the Special Rapporteur on Independence of Judges and Lawyers, the Special Rapporteur on Extra Judicial, Arbitrary and Summary Executions, the Special Rapporteur on Torture - have highlighted the violations of international human rights norms.
Has the human rights situation improved? To some extent yes, we have no more extra-judicial executions or disappearances as a result of the decrease of political violence, although the Shining Path committed several killings last year.
Since 1996 we have the Ombudsman Office, but, Peruvian citizens still live in an atmosphere of complete impunity, institutions have been demolished and the citizens are, more than ever, helpless and unprotected.
Geneva, 6 April 1999