Despite repeal of anti-terror laws, Berenson must wait for justice

Digital Freedom Network -- 10 January 2003

by Shravanti Reddy

The January 3 decision by the Peruvian Constitutional Court to declare four anti-terrorist decrees unconstitutional has still left many anti-terror laws on the books, thereby making it unlikely to lead to the release of Lori Berenson.

Lori Berenson is a 33-year-old US citizen serving a sentence in Perú under the anti-terror laws.

A series of anti-terror laws were passed in 1992 under former president Alberto Fujimori to quell Peruvian rebel activity in the country and have been the subject of ongoing controversy since their inception, as they allow secret military trials that lack due process. Due process refers to judicial proceedings that are established to safeguard the legal rights of individuals to ensure a free and fair trial.

The impetus for the passing of these laws was the fighting between rebels and state forces that led to approximately 30,000 deaths and 7,000 disappearances between 1980 and the late 1990s, including many civilians.

The trials included the use of hooded judges in an effort to protect magistrates from reprisals by members of rebel groups for issuing guilty verdicts. Some 700 people convicted and sentenced during these trials were later found to be innocent. Others were given harsh sentences for petty crimes.

Although the move shows a new desire by the Peruvian Court to adopt international human rights standards based on recommendations from both the UN Commission on Human Rights and the regional Inter-American Commission on Human Rights, Mark Berenson claimed that these reforms hardly scratch the surface.

Father of Lori Berenson and Director of the Committee to Free Lori Berenson, Berenson believes that the recent repeal did not go far enough.

"Perú's Constitutional Court offered only a grossly inadequate first start to correcting the horrendous human rights violations inherent in the anti-terrorism laws that have been internationally condemned," explained Berenson in an interview with the Digital Freedom Network. "Although it struck down the secret military tribunals for civilians, almost all the old abuses remain thereby accomplishing the same ends through the civilian court system."

Current president Toledo is claiming that Perú is now in full compliance with international human rights standards. "This is completely false," proclaimed Berenson.

The repeal

Approximately 2,500 prisoners currently in Peruvian jail were convicted under the anti-terror laws.

The court ruling was brought about partly by a 5,000-strong petition calling for the laws to be revised, as well as a reaction to recommendations from the UN Commission on Human Rights and the Inter-American Commission on Human Rights to respect international and regional human rights standards.

Part of the Organization of the Americas (OAS), the Inter-American Commission hears individual complaints and generates reports regarding the application of the American Convention on Human Rights by member states. It also has the power to refer cases to the Inter-American Court.

Among the now defunct laws is one that allowed rebels to be tried for acts of treason, something that former president Fujimori continues to defend. However, the president of the Constitutional Court Alva Orlandini clearly stated that such a policy was unhealthy. "You don't fight terrorism with state terrorism," said Orlandini.

The court also declared life sentences as excessive punishment for rebels convicted as terrorists, and therefore unconstitutional. It has instructed Congress to revise the law to allow for prisoners convicted in the military courts to petition for a retrial. Those who are found innocent would be released, while those found guilty would be able to receive a significant decrease in their life sentence.

"This could mean that other prisoners would be retried and fair judges under fair laws could decide innocence or guilt," admitted Berenson. "However, Lori's case is unique in that she is the only current prisoner [who has] already been acquitted by the military court [and] who has been unlawfully tried a second time (in the civilian courts) for the same cause."

"A third trial for Lori would seriously compound the violations of the most fundamental protections of a fair trial--due process of law, double jeopardy, and ex post facto application of law," he explained.

Lori Berenson was arrested in 1996 on accusations that she was a leader of the Tupac Amaru Revolutionary Movement (MRTA), a Peruvian rebel group.

Allegedly involved in plotting and providing arms for an MRTA attack on the Peruvian Congress earlier that year, she was sentenced to life on charges of treason in a secret military tribunal that was later determined by both the UN Human Rights Commission and the Inter-American Commission on Human Rights to be in violation of basic human rights such as a trial by due process. Berenson's trial involved hooded judges and lacked the right to cross-examination and a jury.

While the verdict in her military trial was overturned in 2000, her case was remanded to a civilian court where a retrial subsequently found her guilty of the lesser charge of collaboration with a sentence of 20 years.

Lori Berenson has maintained that she is innocent of all charges and is seeking redress from the Inter-American Court of Human Rights where her case is currently pending.

Fear of renewed rebel activity

While the anti-terror laws were largely condemned by human rights groups worldwide, they received support from the Peruvian population as an effective way to end rebel attacks on civilians and fighting between rebel groups and state forces that also resulted in a large number of civilian deaths.

"We have set our justice system right," said Peruvian president Alejandro Toledo in a Reuters News Service report, adding that they "will not cede an inch to terrorism, drug trafficking, or to those who trample human rights."

Such statements are an attempt to quell fears among the population who fear renewed rebel activity in light of the revisions to anti-terror laws.

Many Peruvians fear that the repeal of these laws may lead to the immediate or eventual release of convicted rebel leaders, such as Abimael Guzman of the Shining Path, who will revert to their violent activities.

While Guzman has claimed that he has given up violence and plans to work through the Shining Path's political wing, the Peruvian Communist Party, if released, other jailed members were clear that they would resume violence if released.

Last March the Shining Path renewed activities in parts of Perú, ensuring that Toledo will face opposition over any suspected leniency for rebels leaders.

In fact, some have criticized the court for repealing the laws without first waiting for new anti-terror laws in line with human rights standards to be created.

Orlandini has also tried to reassure people by stressing that the evidence collected during the secret trials would still be admissible in a retrial and that any new legislation will be carefully drawn to ensure that no loopholes exist.

"The Constitiutional Court's ruling does not open the doors and windows of prisons," said Toledo according to Reuters. "We will do everything possible to make sure that terrorists are not put back on the streets."

Petition at the Inter-American Court

For now, Berenson is placing his faith in regional mechanisms.

"Lori's case will be resolved by the Inter-American Court of Human Rights that will not only restore Lori's rights, but also result in forcing Perú to abolish the remaining antiterrorism laws," proclaimed Berenson.

Her family must wait for a verdict as the Inter-American Court will hear the cases put forward by the Inter-American Commission and the Peruvian government against it. The Inter-American Commission has previously declared "that the violations of the human rights of Ms. Berenson in the military trial were not cured with the second [civilian] trial" and that "her conviction in the second trial is so unsupported by the facts that it constitutes a violation of the right to a fair trial."

"We are confident the Court will decide in her favor and we hope this will be done quickly," he said. However, he admitted that "the process is often long and there is no definitive time schedule."

He can take heart in the fact that the Court has made a favorable decision in a similar case. A teacher jailed in 1993 for confessing to being a rebel while under torture took her case to the court. In 1997, she was released from jail following a ruling of the Inter-American Court.

"We believe that Lori will be released when the Inter-American Court, based on precedence, rules on the illegality of her civilian trial," surmised Berenson.

Berenson also places hope in the fact that governments that support the principles of freedom, democracy and justice will refuse to engage in friendly relations with Perú until it repeals all of the anti-terror laws that violate human rights standards.

Last March, President Bush raised the issue of Berenson's case with Toledo for the second time. "Our government should express outrage over such wrongful treatment of a United States citizen and argue for her release," concluded Berenson.

Lori Berenson remains hopeful that a decision in her case will ultimately force the Peruvian government to overturn the remaining anti-terrorism laws that continue to be in violation of international human rights standards.