BEFORE THE INTER-AMERICAN COURT OF HUMAN RIGHTS
The undersigned organizations are directly involved in defending human rights. Almost all of them have years of experience in this field. Most have been involved mainly with defending human rights in the member countries of the Organization of American States and the states that have ratified the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man.
1. This instrument is being presented due to concern over the inadequate consideration that has been given to the protecting of human rights in the adoption and enforcement of statutes, procedures, rules, and related laws that regulate conduct commonly designated as "terrorist" by states' criminal justice systems. Experience shows that such laws often enter into force in times of public unrest, fear, and political opportunism that overwhelm the commitment to protect fundamental rights, and even celebrate the violation of such rights.
Since the terrorist attacks of September 11, 2001 on the World Trade Center in New York and the Pentagon in Washington, D.C., and the "War on Terrorism" proclaimed by the Government of the United States, the U.S. Government has not only adopted and enforced radical laws and procedures, it has also pressured other OAS member states, especially Colombia, to adopt similar legislation as part of this "global war on terrorism." These events and responses pose a grave threat to human rights.
Far from being necessary for public security, the protection of life and property, or the defense of the state, such anti-terrorist laws have often encouraged indiscriminate violence against the state and the people. Those who believe that respect for rights is essential must face the threat that such anti-terrorist laws pose to the rule of law, individual freedom, democratic institutions, and human rights. Nowadays, one of the greatest threats to human rights is to be found in the excesses of governments as they wage the war on terrorism.
2. The four "anti-terrorist" decree-laws promulgated by the former Peruvian President Alberto Fujimori in 1992, after suspending Peru's constitutional Congress and declaring a state of emergency, represent the most extreme case of usurpation of power and violation of the American Convention on Human Rights by an OAS member state in the last 12 years. There were major assaults by the military and police actions against the people of Peru, summary executions, "disappearances," torture, and illegal arrests and detentions. The military and civilian criminal justice system prosecuted and physically abused thousands of individuals in Peru, violating due process rights in trials before courts that lacked jurisdiction and were neither independent or impartial. The courts accepted false and fraudulent testimony that was obtained under coercion and that was not reliable, and imposed sentences that were not proportional to the accusations or evidence presented. The conditions in the prisons were cruel, inhuman, and degrading.
Thousands of individuals are still in prison in Peru for sentences imposed under those circumstances.
3. After years of efforts by the OAS, human rights organizations, and others since former President Fujimori fled Peru, refusing to face criminal charges, in January 2003 Peru took a few steps to amend the 1992 anti-terrorist laws. On January 3, 2003, in the case of Marcelino Tineo Silva and more than 5,000 citizens, Case No. 010-2002-AI/TC, the Constitutional Court of Peru recognized the unconstitutionality of Decree-Law 25,659 of 1992, on treason. This was four years after the Inter-American Court held that Decree-Law 25,659 violated the American Convention on Human Rights in the Loayza Tamayo case (Reparations, Judgment of November 25, 1998, Series C No. 42).
The Constitutional Court of Peru, in the same proceedings, upheld the constitutionality of Decree-Law 25,475, even though the prior decisions of the Inter-American Court ruled that Decree-Law 25,475 violates the American Convention on Human Rights. See the Loayza Tamayo case, supra, and the Castillo Petruzzi case, Judgment of May 30, 1999, Series C No. 52.
Peru is actively considering amending the three decree-laws of 1992 that the Constitutional Court decision of January 3, 2003 held constitutional, or adopting new laws to replace them. In view of the January 3, 2003 Constitutional Court decision, it is unlikely that any new law adopted at this time will be in conformity with the requirements of the American Convention on Human Rights, or that the prisoners convicted thus far under the 1992 decree-laws can be re-tried under the new amended laws without violating Article 9 of the American Convention on Human Rights, which prohibits ex post facto laws.
In the Lori Berenson case, considered here, another new trial would also violate Article 8(4) of the American Convention on Human Rights, which prohibits a new trial on the same facts after acquittal by a non-appealable judgment. See Loayza Tamayo, supra.
It is essential that Peru admit that Decree-Law 25,475 continues to be in violation of the American Convention on Human Rights, as the Inter-American Court has previously held. Peru must refrain from holding any new trials under Decree-Law 25,475, and it should take action to protect the prisoners convicted under this decree from further illegal imprisonment on the basis of such convictions.
4. The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have previously analyzed in detail the "anti-terrorist" decree-laws of 1992 issued by Fujimori, and have published unanimous decisions holding that they violate the American Convention on Human Rights. The Constitutional Court of Peru, flatly contrary to the prior decisions of the Inter-American Court in the Loayza Tamayo case, supra, and in the Castillo Petruzzi case, supra, has ratified the three decree-laws under which thousands of prisoners have been convicted. Those prisoners convicted under Decree-Law 25,659 could now be re-tried under these three illegal decree-laws. The officials of the Government of Peru have repeatedly proclaimed their support for the decision of the Constitutional Court of January 3, 2003, the legality of Decree-Law 25,475, their intent to re-try the persons convicted thus far under Decree-Law 25,659 when necessary to keep them in prison, and their decision that no terrorist will be released.
It is therefore urgent that the Inter-American Court confirm its previous decisions in relation to Decree-Law 25,475 to inform the government and people of Peru that Decree-Law 25,475 violates the American Convention on Human Rights. Otherwise, the government and people of Peru will suffer irreparable harm, as will the prisoners held after conviction and sentencing under Decree-Law 25,475. The prisoners will continue to be held under these illegal judgments and sentences, and a large number of prisoners convicted under Decree-Law 25,659 will be judged once again under Decree-Law 25,475, on the assumption that Decree-Law 25,475 does not violate the American Convention on Human Rights, unless the Inter-American Court swiftly affirms that Decree-Law 25,475 violates the American Convention on Human Rights. The delay will create enormous difficulties for the Peruvian courts, will enrage the Peruvian people, will result in major tensions in the relationship between Peru and the OAS and its Inter-American Commission on Human Rights and Inter-American Court of Human Rights, and will result in stepped up the violations of the rights of the prisoners affected.
5. The Lori Berenson case is the only case before the Inter-American Court, or likely to be before it, for the next several years, in which the Court can once again inform Peru that both Decree-Laws 25,475 and 25,659 violate the American Convention on Human Rights, despite the opinions of the Constitutional Court of Peru and the statements made by Peruvian government officials. The Lori Berenson case can be decided by means of legal instruments, and, if necessary, oral presentations, without hearings for testimony or to receive further evidence, or other delays.
6. We, the undersigned human rights organizations, do not believe it is necessary to cite additional legal authorities for this case because it is controlled by the principle of stare decisis. The April 2002 decision and the Application of July 2002 by the Inter-American Commission on Human Rights, both unanimous, fully analyze and determine correctly the violations of the American Convention on Human Rights by Decree-Law 25,475. The undersigned adopt the principles and arguments of the Inter-American Commission on Human Rights in this case, as an expression of their points of view in the matter.
7. A timely decision in the Lori Berenson case will be a powerful reminder, in this critical time, that human rights must be defended as governments endeavor to prevent and control terrorism, to safeguard the rule of law, which protects individual liberty and democratic institutions. It will also help as a reminder and to strengthen the belief that the best way to protect peace and people is a firm commitment to and the effective enforcement of the rights of all. A decision as soon as possible - before a potentially large number of trials are carried out under Decree-Law 25,475, or before a statute is passed that indicates its defects or that it is ex post facto - is imperative, in order to keep to a minimum the inherent conflicts between the Inter-American Court of Human Rights, which is determined to enforce the American Convention on Human Rights, and a state determined to imprison individuals and re-try individuals under laws that violate the American Convention on Human Rights. Years of delay, with thousands of prisoners illegally detained and large numbers of new trials held under an illegal decree-law, will cause great harm to Peru and its relations with the Organization of American States and its Inter-American Court of Human Rights and Inter-American Commission on Human Rights.
8. The undersigned are involved on a day-to-day basis in the defense of human rights in general, and specifically of prisoners in the members states of the OAS. There have been extensive violations of the rights of prisoners convicted under the anti-terrorist decree-laws, protected by the American Convention on Human Rights, including imputing false and excessive charges, the use of false and fraudulent testimony, and testimony obtained under coercion and that is unreliable, as well as violations of due process. There is evidence that the reforms to the Peruvian judiciary, its personnel, its laws, and its procedures, have been inadequate, and that the courts are still not competent, independent, and impartial, beyond any doubt, that the conditions in the prisons often continue to be cruel, inhuman, and degrading, and that thousands of prisoners have spent many years in prison serving excessive and disproportionate sentences, in conditions that have had a severely detrimental impact on their health. For these reasons, the undersigned respectfully request that the Inter-American Court take the measures necessary to ensure the prompt review of the status of each prisoner convicted under the 1992 decree-laws during the Fujimori administration, and to ensure the release of each prisoner whose continued confinement or second trial would violate the American Convention on Human Rights.
9. In support of this instrument, the undersigned commit our best efforts to preventing human rights violations that stem from excessive zeal in the adoption and enforcement of anti-terrorist laws and the lack of protection for prisoners whose rights are violated by such abuses.
List of Endorsements for the Amicus Curiae Brief Presented to the Inter-American Court of Human Rights
Lawyer who presented the Amicus Curiae ("Friend of the Court") Brief:
Dr. Gil Barragán Romero
- Professor of Constitutional Rights, University of Guayaquil,1963-1967
- Professor of Political Science, the Catholic University of Guayaquil 1963-1973
- Vice-president (and then President), Comission of Jurists Rewriting the Constitution of the Republic of Ecuador, 1966
- Minister of Social Welfare and Labor, the Republic of Ecuador, 1968-1969
- Vice-president de la National House of Representatives, the Republic of Ecuador, 1980
- Judge, the Supreme Court of Justice, the Republic of Ecuador, 1984-1988
- President of the Tribunal of Constitutional Guarantees, the Republic of Ecuador, 1988 - 1990
- President of the "Blue Ribbon" Commission for Reforming the Constitution of the Republic of Ecuador, 1994
Organizations and Individuals Endorsing the Amicus Curiae Brief:
- Adolfo Pérez Esquivel - Premio Nóbel de la Paz - Servicio de Paz y Justicia Latinoamérica
- Gustavo Cabrera-SERPAJ-Servicio de Paz y Justicia - Latinoamérica
- Elisie Monje- CEDHU-Comisión Ecuménica de Derechos Humanos-Ecuador
- Jhonny Jiménez-SERPAJ -Servicio de Paz y Justicia-Ecuador
- Patricio Benalcázar-INREDH-Fundación Regional de Asesoría en Derechos Humanos-Ecuador
- Alexis Ponce-APDH-Asamblea Permanente de Derechos Humanos-Ecuador
- Patricio Pazmiño-CDES-Centro de Derechos Económicos y Sociales
- Juan de Dios Parra-ALDHU-Asociación Latinoamericana de Derechos Humanos
- Obispo Samuel Ruiz Garcia- Secretariado Internacional de Solidaridad- Mexico
- Camilo Castellanos-ILSA- Instituto Latinoamericano de Servicios Legales Alternativos-Colombia
- Rigoberta Menchú-Premio Nóbel de la Paz-Guatemala
- Alfredo Ruiz-RED DE APOYO-Venezuela
- Fidel Narváez-PIDHDD-Plataforma Interamericana de Derechos Humanos, Democracia y Desarrollo Capítulo-Ecuador
- Luis Puig-PIT CNT-Plenario Intersindical de Trabajadores-Convención Nacional de Trabajadores-Uruguay
- Aldo Martín-SERSOC-Servicio de Rehabilitación Social-Uruguay
- Hebe de Bonafini-Asociación Madres de la Plaza de Mayo-Argentina
- Sandra Morán-Sector Mujeres-Guatemala
- Pierre Toussaint Roy-PIDHDD-Plataforma Interamericana de Derechos Humanos, Democracia y Desarrollo-Regional
- Alirio Uribe-COLECTIVO DE ABOGADOS "JOSÉ ALVEAR RESTREPO"-Colombia
- María Canil-CONAVIGUA-Guatemala
- Fernando López-Director de Area Legal-CALDH-CENTRO DE ACCIÓN LEGAL EN DERECHOS HUMANOS-Guatemala
- Eduardo Galeano-Escritor-Uruguay
- Waldo Albarracín-Asamblea Permanente de Derechos Humanos de Bolivia-Bolivia
- Orlando Blanco-Coordinador-Coordinadora Nacional de Derechos Humanos-CONADHEGUA-Guatemala
- Otto Villanueva-Presidente de la Junta Directiva-Asociación de Familiares de Detenidos- Desaparecidos de Guatemala -FAMDEGUA-Guatemala
- Víctor Espinoza-CODEPU-Corporación de Promoción y Defensa de los Derechos del Pueblo-Chile
- Maria Julia Hernandez-Tutela Legal del Arzobispado-El Salvador
- Mario Polanco- Grupo de Apoyo Mutuo-Guatemala
- Gloria Guzmán-Asociación de Mujeres por la Dignidad y la Vida-DIGNAS-El Salvador
- Reverendo Medardo E. Gómez-Obispo-Sínodo Luterano Salvadoreño-Iglesia Luterana de El Salvador-El Salvador
- Carlos Correa-PROVEA-Venezuela
- Margarita Peralta de Gropper-Madres de la Plaza de Mayo-Línea Fundadora-Argentina
- Benjamín Cuellar-Instituto de Derechos Humanos de la Universidad de Centro América-El Salvador
- Vilma Núñez de Escorcia-Centro Nicaragüense de Derechos Humanos - CENIDH-Nicaragua
- Miguel Angel Albizures-Alianza Contra la Impunidad-Guatemala
- Blase Bonpane-Office of the Americas - OOA-United States
- Sister Dianna Ortiz-Torture Abolition and Survivors Support Coalition International-TASSC-United States
- Heidi Boghosian-National Lawyers Guild-United States
- Rev. Roy Bougeois-School of Americas Watch - SOA-United States
- David Robinson-Pax Christi USA-United States
- Grahame Russell-Rights Action-Canada
- Silvia Aguilera-Comisión Mexicana de Defensa y Promoción de los Derechos Humanos-México
- Juan Carlos Capurro-Presidente-Comite de Accion Juridica de Argentina-Argentina
- Tito Augusto Gaitán-Asociación para la Promoción Social Alternativa-Colombia
- Jorge Rojas R.-Consultoría para los Derechos Humanos y el Desplazamiento-Colombia
- Jahel Quiroga Carrillo-Corporación para la Defensa y Promoción de los Derechos Humanos-Colombia
- Luis Alfonso Ruiz Alegría-Humanidad Vigente -- Corporación Jurídica-Colombia
- Elva Greta Minaya Calle-Ex Magistrado del Poder Judicial-Perú