News from Lori's Parents

15 December 2004

In this update:

Reflections on Inter-American Court Decision

The Surprise and the Shock

Nearly two weeks have elapsed since the morning of December 2, 2004 when we learned through the press that the Inter-American Court of Human Rights incomprehensibly reversed the unanimous decision of the Inter-American Commission on Human Rights which, on April 3, 2002, had declared that Lori's civilian trial was riddled with violations of due process, that her rights under the American Convention on Human Rights needed to be completely restored, that she receive moral, psychological and financial indemnification for her wrongful suffering, and that Peru must bring its antiquated, draconian anti-terrorism laws into compliance with international standards.

This surprising Inter-American Court decision came as a shock to us and also as a shock to the Peruvian people. Monroy Galvez, the ad hoc judge who represented Peru in the Inter- American Court's closed-door deliberations and vote, stated in a Peruvian newspaper interview that on November 10 he received the more than 100-page "working draft document" of the Inter-American Court preliminary decision that he was to bring to the session in Costa Rica and it was very favorable to Lori - it had called for her release.

The Peruvian "Lobby" Factor - Complaints, Protests and Threats

Starting on November 10, and for two solid weeks, comment after comment in the Peruvian media alerted the public to this anticipated favorable verdict, causing an array of politicians from all political persuasions to rally together against Lori and against an imaginary threat of terrorism. After the politicians took their turn against Lori and against an Inter-American Court that they said was too lenient on leftists and too weak on terrorism, high officials in the Peruvian government, including the foreign minister, declared that Peru would not obey any decision favorable to Lori and would consider leaving the jurisdiction of the Inter-American Court. The prime minister concurred, as did the interior minister and defense minister. The justice minister told the Inter-American Court that it must show respect for the rights and tranquility of the Peruvian people over that of Lori Berenson when it makes its decision and the president of Peru's Congress wrote to the Inter-American Court emphasizing that Lori should not be freed. Several members of Peru's Congress signed a letter to the Inter-American Court urging it rule against Lori and even the respected members of the Peruvian Truth and Reconciliation Commission sent the Inter-American Court an Amicus Curiae incomprehensibly opining that Lori should not be freed and Peru not be forced to give her another trial. This same Peruvian Commission had, by the way, in its August 30, 2003 official report, stated that the Fujimori anti-terrorism laws are wrong and must be brought into compliance with international standards. These were the laws under which Lori was twice tried. This Commission further opined that the revised laws of January - March 2003, while a major improvement, did not yet go far enough and was still in need of compliance with the American Convention on Human Rights.

Through the middle to latter part of November, the politicians and the press repeatedly frightened the public, saying that a favorable ruling for Lori would result in changes in the Peruvian justice system that would then enable the freedom of hundreds of dangerous terrorists. Letters to that effect were also sent to the Inter-American Court.

Although the Peruvian government has denied applying pressure on the Inter-American Court and has declared the decision was fair and impartial, these two solid weeks of Peruvian "lobbying" through complaints, protests and threats to the Inter-American Court system surely had an impact.

Why the Change in Opinion? Is the Inter-American Court Process Flawed?

We recall that the Inter-American Court originally held public hearings on May 7. At that time the Inter-American Commission argued strongly that both Lori's military and her later civilian trial denied her the right to a fair trial guaranteed under the American Convention on Human Rights. Lori's lawyers presented support for the Inter-American Commission's conclusions. The main points referred to the tainted evidence used in both trials, the Peruvian laws which do not adequately define terrorism and therefore anything can a posteriori be called collaboration with terrorism, and details of the way in which her civilian trial was conducted - the lack of presumption of innocence, the bias of the chief judge, the failure of the Peruvian court to allow Lori's defense attorney proper access to records or time to be with her, and the failure of the Peruvian court to properly document its conclusions. The Peruvian lawyers countered some of these arguments but basically tried to convince the Inter-American Court how serious Peru was about bringing its previously condemned laws into line with international standards. At the end of those hearings, it was clear to us, as it was to Lori's lawyers and the legal team from the Inter-American Commission, that the arguments against the Peruvian justice system and the draconian Fujimori-promulgated anti-terrorism laws should win out and we were very hopeful that finally justice would be served in Lori's case.

However, the hearings held on November 24 and 25 were closed to the public and no lawyers from Lori's legal team, the Inter-American Commission, or the Peruvian government were permitted. Nevertheless, the Peruvian ad hoc judge was able to argue, as he said in his newspaper interview, point-by-point, two full days for his government's position without anyone able to provide countering viewpoints from the Inter-American Commission or from Lori's legal representatives. This, in our minds, is comparable to allowing the defense lawyer - that is only the defense lawyer -- to sit and vote with the jury during deliberations in a U.S. court. The result of this flawed process was that the intended decision was reversed in favor of Peru.

Dissenting Opinions and Confusing Decisions

Although the Inter-American Court's decision ordered Peru to compensate Lori for her illegal military trial and the inhumane and degrading treatment she received during her incarceration at the infamous Yanamayo Prison by removing a $30,000 fine levied against her when she was convicted in her civilian trial, it nevertheless declared that her civilian trial did not violate her rights. The vote was 6 to 1. A strongly dissenting opinion was given by Chilean Judge Medina Quiroga, writer of the original working draft calling for Lori's freedom. She said that Peru's laws so badly violated the American Convention on Human Rights that the only fair remedy was Lori's immediate liberation. She argued that the Inter-American Court should not permit tainted evidence and that Peru must adequately define terrorism before it could convict Lori for collaboration with terrorism.

The Inter-American Court also unanimously ordered that Peru must bring its anti-terrorism laws in compliance with the American Convention on Human Rights. This particular decision is very confusing. In the body of the report the court applauds the changes Peru made in its laws between January and March 2003 and yet in the summary it orders Peru to change its laws. If Peru's laws are still not acceptable, how then could the Inter-American Court rule against Lori if the laws under which she was tried did not meet the standards of the American Convention on Human Rights?

There may have been very good reasons for the judges to change their minds based on their closed-door deliberations in Costa Rica on November 24 and 25. We don't know. But it appears to us that in an effort to support the changes in post-Fujimori Peru and preserve tranquility among the Peruvian population who has in the past been traumatized by "terrorists," the Inter-American Court chose to sacrifice Lori. Justice and integrity were ignored -- pressure politics won the day. Unfortunately, this leaves little hope for individuals looking to this Inter-American Court to protect their rights.

- Rhoda and Mark Berenson