Berenson judge says his removal weakens Peru case

Reuters -- 19 July 2002

by Jude Webber

LIMA, Peru - The ousted judge who convicted American Lori Berenson of rebel collaboration at a retrial said on Friday his removal will hurt Peru's bid to have the verdict upheld by the region's top human rights court.

Marcos Ibazeta, who had been head of Peru's special anti-terrorism court, was not ratified in his post this week in a shake-up of the judiciary conducted by the National Council of the Magistrature, the judiciary's regulatory body.

That decision came the day after Peru said it would take the Berenson case to the Inter-American Court of Human Rights in Costa Rica after watchdog the Inter-American Commission on Human Rights recommended her 2001 retrial be declared invalid.

"Definitively, if they haven't ratified the prosecutor, or me or another judge who took part in Berenson's trial ... then this is giving support to Ms Berenson's defense that ... the trial was not impartial," Ibazeta told reporters.

"This harms Peru's interests," he added.

The New Yorker, now serving a 20-year term for helping the Tupac Amaru Revolutionary Movement plot an attack on Congress, says she is innocent. Tupac Amaru was one of two rebel groups whose wars in the 1980s and 1990s cost 30,000 lives.

Berenson, 32, says Ibazeta had links with former spy chief Vladimiro Montesinos, accused of subverting the judiciary for political ends during ex-President Alberto Fujimori's decade in power. She says her retrial was unfair from start to finish.

Berenson was retried in a civilian court after her initial life sentence as a Tupac Amaru leader, handed down by a hooded military judge in 1996, was overturned in 2000.

The magistrates' council has not explained its decision but Ibazeta told reporters he believed it was because he had links with an executive commission of the judiciary created under Fujimori. He denies being a Fujimori or Montesinos ally.

Peru's decision to pursue the case in Costa Rica came after the Washington-based Inter-American Commission challenged Peru's verdict, saying it used crime definitions from Fujimori's draconian anti-terrorism legislation that it found "per se violated human rights," lawyers said. It recommended Peru pay Berenson damages.


Peru insists the televised retrial was fair, but Ibazeta said it shot itself in the foot by firing three key trial figures while at the same time insisting it had been above board.

"With what moral authority is the Peruvian state going to defend this trial as transparent, clean, impartial?," he said.

The case is due to go to Costa Rica on Monday. The court, whose rulings are binding on members, of which Peru is one, is expected to take up to two years. It has already ordered others convicted as rebels under Fujimori to be freed or retried.

Ibazeta said the government had been unwilling to tackle much-needed reform of the anti-terror laws for fear of courting unpopularity since the scars of the rebel years are still raw.

But he said there could now be a slew of legal challenges.

Those convicted could either appeal to the Inter-American Commission -- Ibazeta said a deadline to present cases within six months of a final verdict did not count if due process violations were alleged -- or present habeas corpus motions.

Habeas corpus -- a writ ordering someone brought before a court to ascertain if his or her detention is lawful -- was being used in Peru as a mechanism to annul verdicts, he said.

He said 1,800 people were tried by "faceless" judges in civil courts and 700 by "faceless" judges in military courts, and so far three had been freed after habeas corpus motions.

Maritza Garrido, in whose house the leader of the Shining Path rebel group was captured in 1992, has recently presented a habeas corpus against her treason conviction. Many Peruvians fear that if she and others like her succeed, even rebel leaders could eventually walk free.