REDRESS appreciates the efforts made by the Peruvian government to comply with its obligation under the Convention to present its Third Periodic Report which was due in 1997. REDRESS notes that this constitutes a considerable effort on the part of Peru particularly after having appeared before the Committee presenting its Second Periodic report less than two years ago.
REDRESS submits the following points for consideration by the Committee.
1. Peru has failed to address the concerns and recommendations raised by the Committee during consideration of Peru¦s Second Periodic Report.
Contrary to the Guidelines given by the Committee, the Government of Peru has failed to focus on issues of concern raised by the Committee following its previous consideration of Peru (which was in May 1998), and to address how it has implemented the Committee¦s recommendations. At its twentieth session, the Committee adopted General Guidelines regarding the form and content of periodic reports. According to these Guidelines, periodic reports should be presented in three parts. Part III is: ¡information on measures taken by the State party to comply with the conclusions and recommendations addressed to it by the Committee at the end of its consideration of the State party¡s initial and periodic reports¡.
2. A primary Subject of Concern was the frequent allegations of torture in Peru: prison conditions are an important factor in this regard.
Despite the fact that the Peruvian Government persistently indicates that torture is an isolated phenomena in Peru, the large number of cases and accounts given by witness and survivors of torture in Peru who testify that this is not the reality. One of REDRESS¡ major concerns is that torture is integral to the prison regime that is applied to those accused and condemned under anti- terrorist legislation.
Torture in Peru may not only take place during the initial period of detention. The prison system designed for those accused of and condemned for terrorism, in force since May 1992, violates Article 1 of the Convention. The lack of effective safeguards to protect prisoners from torture and inhuman and degrading treatment raises serious concern.
In its present report the Peruvian government acknowledges that acts such as isolation and holding incommunicado without access to legal aid or contact with family or friends constitutes torture (See paragraph 9 of Peruvian Third Period Report). However incommunicado measures are integral to the prison regime applied to those accused and condemned for terrorism.
The case of the prisoner Abimael Guzman who has remained incommunicado for over 5 years is an example of the seriousness of the situation. Dr Guzman was last seen by his attorney on the occasion of making oral defence before the military tribunal on October 11, 1992. Since then he entered the isolation period of his imprisonment and has no contact with the outside world with no visits from family members, doctors or lawyers. The prison conditions applied to Dr Guzman has been described as follows:
On April 3, 1993 Dr Guzman was transferred to a newly built prison designed to create a sense of total isolation and deprivation. The design of the cells, built completely underground, ensures the contact, even visual, between prisoners and the outside world (including the guards) is reduced to an absolute minimum. The cells have no ventilation and no electricity or water. Because the prison is situated near the mouth of the Rimac River it may periodically flood. In short the prison facility was designed to bring about a «certain and slow» death, as stated by Mr. Fujimori in April, 1993 in the Argentinean press and transmitted on Channel 13 on Lima television. Mr Fujimori has described the prison where Dr. Guzman is held as a «tomb for the living».
Every request by Dr Guzman Lawyers attempting to visit him has been denied. Consequently Guzman’s present condition to date is unknown.
Those convicted of terrorism or treason are, under decree Laws 25.475 and 25.659, held in complete isolation for the first year of their imprisonment with no visits even from family members, and no time outside the cell whatsoever. After the first year the regime may be changed to one where they are restricted to their cells 23 hours a day with severe restrictions on food, water, and medical care.
The prison conditions for those accused of terrorism have been described as follows:
Here in the capital, in the jails of Puno (border with Bolivia) among others and specifically in the ghastly concentration camp of Cantogrande, we have been kept on total isolation for more than 100 days. We are held under inhuman conditions in jail cells measuring less than six by eight ft., three prisoners per cell, but only two single beds made of concrete, the toilets broken, and yet we must relieve ourselves in our cells, water faucets not working, in total darkness around the clock, deliberately placed together with prisoners with contagious diseases such as TB, suffering constant harassment, and subjected to barbaric methods of interrogation, including torture in a special cell «el hueco» («the hole»). Our meagre ration of food consists of sugar with water, a daily slice of bread, and a disgusting brew which they call soup. We receive no soap, nothing for our personal hygiene. To spend our time we improvise some crafts using bones or seeds, which are then frequently stolen by the guards. We are forbidden to have reading or writing material, we try to write on scraps of paper, bricks and plastic. Not content with the degree of our suffering, the guards frequently take away our blankets.
To make sure there is no doubt that the criminal regime is engaged in a wilful effort to commit genocide against the prisoners, the prison guards such as Major Sosa and LT Loayza tell us openly: «you don’t deserve to live», «you should be grateful that you only have TB and are not dead¡. ¡This is the best way to kill you without the need of bullets».
Equally in another case relating to the 1992 massacre of prisoners accused of belonging to Shining Path in the Prison of Canto Grande and to the subsequent prison conditions in Santa Monica in Lima, prison conditions have been described as close to those existent in a «concentration camp». Based on the overwhelming evidence, the Inter-American Commission on Human Rights in 1992 referred to the prison conditions afforded those accused and condemned of terrorism as «negative» and «representing an imminent danger to the prisoner’s integrity». The Commission concluded that this «serious situation» taking place in the Prisons of Castro Castro, Santa Monica and Yanamayo in Puno merited an urgent request for provisional measures to protect the integrity of the prisoners.
While these cases remain pending in the Inter-American Commission on Human Rights, the situation remains very much the same. The vulnerability in which these sort of measures places those accused and condemned for terrorism is further exacerbated by the fact that while prior to conviction access to lawyers is severely restricted, following conviction, defendants are denied all access to a lawyer.
3. Domestic legislation in clear violation of the Convention, such as the Amnesties laws, remain in place, with the effect that Peru has failed to provide effective legislation for the prevention of torture in accordance with Article 4.
During its examination of the Peruvian Second Periodic Report, the Committee noted that whereas in the 1979 Peruvian Constitution, Article 101 provided that in case of conflict between international treaties and domestic law, the international treaty prevailed, the new Constitution of 1993 repealed the «principle of hierarchy» placing human rights treaties at the highest level of the domestic legal order in the Peruvian legal system. In particular, the Peruvian Government’s persistent refusal to repeal its 1995 Amnesty laws – on the basis of their legality under domestic law – was seen as contrary to its obligations under the Convention against Torture. With respect to the Amnesty laws the Committee stated the following: «If no possibility for investigation exists, how can victims be compensated?».
The Committee equally stressed that amnesties of the type, reach and range of the ones passed in the case of Peru are in breach of articles 2, 4 and 12 of the Convention. The Special Rapporteur heading the examination of the Peruvian Report summarised the Committee’s Concern in this respect as follows: «Peru has failed to pass effective legislation for the prevention of torture in accordance with Article 4 which is an article against impunity.»
In its Third Periodic Report the Peruvian Government fails to address this subject of concern raised by the Committee during its previous consideration.
4. Peru has failed to demonstrate that it has complied with the Recommendations made by the Committee following consideration of Peru¡s Second Periodic Report.
In its Recommendations dated 21 May 1999, the Committee focused on the following:
a) Reiteration of recommendations made during consideration of Peru¡s initial report ¡designed to establish a State genuinely founded upon the rule of law¡.
If, as the Government of Peru asserts, the need for emergency measures to combat terrorist violence is «now already in the past» (para 23), why then does Peru maintain anti-terrorism legislation and other measures which contravene fair trial rights and create a climate in which torture can occur, including:
The continued use of military courts to bring to trial those accused of terrorism A legal framework which allows the police to keep suspects in pre-charge detention for up to 15 days in cases of terrorism, which can be extended by a further 15 days in cases of treason Lack of effective steps to combat impunity for torture.
b) Repeal laws which may undermine the independence of the judiciary.
The Committee outlined a number of specific Concerns in this area, mentioning four laws passed between 1995 and 1998. Many of the same concerns had been raised by the UN Special Rapporteur on the Independence of Judges and Lawyers. However Peru¡s Third Periodic Report fails to respond to any of these concerns.
c) Measures to ensure victims receive redress, compensation and rehabilitation in all circumstances.
Peru has still not taken measures to ensure that victims receive appropriate reparation for acts of torture committed by its agents. In particular:
Victims are only able to pursue claims for compensation against individual officials found to have committed acts of torture, and not against the State itself. This will often leave victims without effective reparation.
Peru announced its withdrawal from the jurisdiction of the Inter- American Court of Human Rights, thereby depriving victims of a remedy where violations of the American Convention on Human Rights are alleged.
Peru has refused to provide reparation even when ordered to do so by an international court.For instance, Peru has failed to implement reparation judgments of the Inter-American Court of Human Rights. In the case of Neira Alegria the Inter-American Court ordered, as a form of moral reparation, that the Government of Peru do all in its power to locate and identify the remains of the victims and deliver them to their next of kin. The Government of Peru has still not complied with this order. In the case of Castillo Paez, after finding that the Peruvian Government was responsible for the arbitrary detention of Ernest Castillo Paez, that it had violated his right to personal integrity or freedom from torture and had violated his right to life in breach of the Inter-American Convention on Human Rights, by a decision of 27th November of 1998 it specified the reparation that the Peruvian Government owed the Castillo family. Such reparation included compensation and the obligation to investigate and prosecute those who committed the crime. The 3rd of June 1999 was the deadline imposed by the Court, but the Peruvian Government did not comply with it. A further additional term then was given which lapsed on the 12th July 1999. To date the Government has not fulfill this obligation to provide reparation.
In its Report, Peru fails to provide any specific examples of victims of torture who have received reparation.
5. In view of Peru¡s continued failure to take effective measures to comply with the Convention, REDRESS urges the Committee to clearly delineate the duties of the Peruvian Government, and to consider what further steps it could take to urge Peru to take the necessary measures to improve the relevant systems so as to effectively prevent, punish and provide reparation for torture.
1 Communication In the Matter of Guzman v. Peru, January 10, 1998. Submitted to the United Nations Working Group on Arbitrary Detention.
2 Case 11.015 (Peru) before the Inter-American Commission of Human Rights.
3 See Case 11.769 (Peru) before the Inter-American Commission of Human Rigths.
4 Letter of the Commission to the Inter-American Court of Human Rights requesting Provisional measures. 25 November 1992.
5 Decision of 19th September 1996
6 Decision of 3rd November 1997
Fernando Yovera
