Communication In The Matter of Prisoners in Peru:

Violations Which Constitute Arbitrary Detention Of All Prisoners Convicted Under the Anti-Terrorism Laws

Submitted to the United Nations Working Group On Arbitrary Detention

by Leonard I. Weinglass, Esq. and Professor Peter Erlinder

January 10, 1998

INDEX:

Introduction

 We, the undersigned, are the international attorneys for Dr. Abimael Guzman Reynoso, who has been imprisoned in Peru since September 1992.

We first became concerned with the plight of prisoners prosecuted and imprisoned under the anti-terrorism laws in Peru when the Peruvian government announced the capture of Abimael Guzman and presented the world with the spectacle of Dr. Guzman displayed to the press in a cage, dressed in a striped prison uniform. Since then we have actively worked in his defense together with his attorneys in Peru and with other lawyers and human rights activists around the world. In the course of this work in defense of Dr. Guzman over more than five years, we have jointly and individually traveled to Peru on several international legal missions in attempts to visit and to provide representation to Dr. Guzman, and we have appeared on behalf of Dr. Guzman and other political prisoners who have petitioned the Inter-American Commission on Human Rights.

From September 30 through October 9, 1992, we traveled to Peru on a legal delegation with other lawyers and concerned individuals. We were in contact with Dr. Alfredo Crespo, the attorney for Dr. Abimael Guzman, and were present in the country during the time of Dr. Guzman's trial and sentencing. After Dr. Crespo, we authored the first report that identified the human rights violations committed in the case of Dr. Guzman. Professor Erlinder traveled to Peru on two subsequent delegations, November 23-30, 1993, and again July 16-24, 1995. During both visits, Professor Erlinder filed formal requests to meet with Dr. Guzman and was denied access to his client.

Based on this work and investigation, it is our contention that Dr. Guzman's arrest, trial, sentence, and the conditions of his incarceration have set new legal precedents in Peru which violate international standards and law and which now govern the treatment of all the political prisoners currently being held in Peruvian prisons. Much documentation exists from respected international human rights organizations about the broadscale violations going on in the Peruvian judiciary process. The trial and imprisonment of Dr. Abimael Guzman and of the majority of prisoners convicted under the anti-terrorism decrees constitute clear cases of arbitrary detention.

We respectfully urge the U.N. Working Group on Arbitrary Detention to investigate the nature and condition of the trials and continued, unreviewable incarceration of Dr. Abimael Guzman and of all the prisoners being held under the anti-terrorism decrees.

In the accompanying petition on behalf of Dr. Abimael Guzman we document the conditions of his arrest, trial and imprisonment which we believe constitute arbitrary detention. In the present brief we make the argument that the practices of the Peruvian government, in place since 1992 when President Fujimori abolished Peru's Constitution, passed the anti-terrorism decrees and established the system of "faceless" courts and military tribunals, constitute across-the-board violations of international standards and amount to arbitrary detention of thousands of prisoners currently being held in prisons around the country.

The Anti-Terrorism Laws Have Produced Arbitrary Detention on a Massive Scale

On April 5, 1992, President Alberto Fujimori closed Congress, abolished Peru's Constitution, and placed the judiciary under executive control, dismissing numerous judges and replacing them with people who directly answer to the executive and who maintain their posts on a provisional basis subject to recall by the executive at any time. During this same overhaul of the judiciary, President Fujimori established the system of "faceless courts" which make secret the identities of the judges and prosecutors and eliminate the possibility of any accountability of the judiciary before the public.

In June 1992 Decree Law 25.475 (the anti-terrorist law) was enacted and in August 1992 Decree Law 25.659 (the treason law) was enacted. These laws (augmented and/or modified by further decrees issued since) became and are at present the basic laws establishing and regulating the procedure by which the police and courts handle all terrorism-related cases. The enactment of these laws, with their overly broad and vague definitions of terrorism and treason, and the procedures they define for trying those charged under these laws, set the stage for thousands of people to face arbitrary detention at the hands of the government over the last five years. In essence the courts and prisons have been used by the government as a means to combat and attempt to defeat its domestic political opposition, under the justification that once someone has been charged or convicted as a "terrorist" any denial of basic human rights becomes acceptable.

The detention and trial procedures prescribed by these laws violate numerous international standards and the principles set forth by the Working Group with regard to arbitrary detention. Human Rights Watch/Americas writes:

"Since 1992, faceless courts have amassed a breath-taking record of human rights violations. To enumerate the particulars is to descend into a citizen's nightmare, where no rule is inviolable, nor right guaranteed, no precedent honored. In Peru, the arbitrary permeates every stage of the judicial process: from arrest to charge, investigation, trial, sentencing and appeal." The following provisions and practice of these laws are in direct violation of international standards:

1.) Definition of Terrorism

 Arbitrariness begins with the definition of terrorism, as stated in Decree Law 25.475: "...provoking, creating or maintaining anxiety, alarm and fear in the public or a sector thereof, making attempts against the life, body, health, freedom and safety of the individual or against property, against the security of public buildings, modes and channels of communication and transportation of any kind, electric towers and power lines, engine facilities or any other good or service by using arms, explosive materials or devices or any other means capable of inflicting damage or seriously disrupting the public tranquility or adversely affecting international relations or the security of society and the State." Article 7 of the same law extends the charge of terrorism to "apology for terrorism" for favoring or excusing terrorism by "whatever means." These definitions provide for prosecution based on advocacy of certain ideas or for leadership in, membership in, even support for organizations deemed by the government to be "terrorist." The minimum punishment for any of these offenses is twenty years imprisonment. "The Peruvian legal system already denies all basic rights to the accused; the mere possession of a leaflet or book deemed 'subversive' entitles detainees to a charge of 'apology for terrorism,' with a minimum sentence of twelve years. Teachers and students are being detained and disappeared for political activism, and sometimes even for political thought." Doctors are being convicted on the charge of 'voluntary collaboration with terrorism' and sentenced to 20 years imprisonment for the 'crime' of treating patients who come to their hospitals, if the authorities suspect those patients to be guerrillas." These policies and practices are in violation of Articles 9 and 19 of the Universal Declaration of Human Rights (UDHR) which provide for protection against arbitrary arrest and provide for freedom of thought and expression, and also violate Article 9 and Article 18 of the International Covenant on Civil and Political Rights (ICCPR).

2.) Pre-Trial Conditions of Detention, Interrogation, and Torture

 Under Decree Law 25.475 the investigation of terrorism and related matters is the duty of the National Police of Peru. Investigations are performed by the Direccion Nacional Contra el Terrorism ("DINCOTE"), a para-military anti-terrorist branch of the police; DINCOTE makes the critical determination whether a prisoner will be tried for terrorism by a civilian court or for treason by a military court. The DINCOTE is also authorized to carry out the detention and investigation of persons suspected of treason, under Decree Law 25.744.

Under Decree Law 25.475 an individual charged with terrorism may be held incommunicado by police for interrogation for fifteen days before being presented to a judge. This is in violation of Principle 11 of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment ("Body of Principles") which provides for detainees to be given an opportunity to be heard promptly brought before a judicial authority.

Police have unlimited powers to interrogate suspects during this period of detention. Decree Law 25.649 allowed individuals charged with treason to be held for thirty days incommunicado. Although the 1993 Constitution later specified that persons suspected of terrorism or treason can be held incommunicado for a maximum of ten days, even the adjusted provision provides ample opportunity for police to carry out torture against suspects in detention. In the case of Dr. Martha Huatay, founder of the Association of Democratic Lawyers, who was arrested in 1992, she was tortured so badly that her attorney Dr. Jorge Cartagena reported that when she was brought to trial she was unable to speak. The International Red Cross also examined her and found that she had a fractured skull and brain lesions. Numerous other cases of torture have been reported. An official of the Information Office of the United Nations at Geneva, Ricardo Gil Lavedra, has declared that Peru's anti-terrorist legislation "does not help eliminate torture, but contributes to its practice. Reports by various non-governmental organizations, including Amnesty International, and of special rapporteurs, have concluded that in Peru there exists a massive practice of torture and an absolute impunity for its perpetrators." The practice of torture against detainees is in clear violation of Article 5 of the UDHR and Article 7 of the International Covenant on Civil and Political Rights (ICCPR). The Code of Conduct for Law Enforcement Officials, as adopted in 1979, further states that "(no law enforcement official) may invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment."

It has been routine practice to parade individuals charged with terrorism before the media dressed in striped prison suits to humiliate the accused and make them appear as convicts. In the case of Dr. Guzman, before trial the defendant was presented to the media in a striped suit and confined in a cage. This practice violates the guarantee that a person shall be presumed innocent until proven guilty set forth in Article 11 of the UDHR and Article 14 (2) of the ICCPR.

3.) The "Faceless Courts" System in the Civilian Courts

Under Decree Law 25.475 an individual charged with terrorism is given a secret trial in the civilian courts before a panel of hooded judges and a hooded prosecutor whose identities are kept hidden throughout the proceedings. Often the judge and prosecutor sit behind one way glass with microphones to hear the case with the defendant unable to face the judge.

Judges on these "faceless" tribunals hold their seats on a provisional basis and are subject to recall by the executive any time a decision unfavorable to the government is handed down. The August 15, 1997 San Francisco Chronicle reports the case of Judge Greta Minaya who released a suspect charged with terrorism, Carmen Caceres, finding no evidence Caceres was a terrorist. As a result of this action Judge Minaya is now herself being investigated by the government for terrorism and, if formally charged, could face a possible sentence of life in prison. Under this kind of pressure from the executive -- when a verdict of not guilty is grounds for investigation and possible arrest -- it is difficult for a judge to conduct a fair trial.

The conduct of these secret trials before a judiciary which is not accountable to the public and yet is subject to the control of the executive branch violates Article 10 of the UDHR as well as numerous provisions of Article 14 of the ICCPR: the right of the accused to legal assistance of his or her own choosing, to examine witnesses and to present witnesses, and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

4.) Definition of Treason

Decree Law 25.659 defines the crime of treason as the commission of acts specified in Article 2 of Decree Law 25.475 by means of: a) Car bombs or similar explosive devices, weapons of war or similar arms that kill people, do them physical or mental injury or damage public or private property, or any other means that could seriously endanger the population;

b) Storing or unlawfully possessing explosive materials, ammonium nitrate or its ingredients, or voluntarily supplying ingredients or materials that can be used to manufacture explosives that will be used in the commission of the acts cited in subparagraphs a) and b) of the crime of terrorism.

Article 2 also states that an act of treason is committed by virtue of a person's status within a terrorist organization or by providing assistance to such organization if: a) S/he is one of the leaders of a terrorist organization or group or has any other position of responsibility within a terrorist organization or group; or

b) S/he is a member of an armed group, gang, or firing squad, or has a similar position within a terrorist organization which includes being in charge of killing people; or

c) S/he gives data, reports, plans, projects or any other kind of documentation that can help terrorists or which facilitates the entrance of terrorists in buildings which s/he manages, or s/he is part of the security personnel, if this is done in order to generate the kind of damages described in Article 1 of Decree Law 25659.

Article 3 specifies that the penalty for treason is life imprisonment.

5.) The "Faceless Courts" System in the Military Courts

 Under Decree Law 25.659 defendants charged with treason are tried before a military tribunal by a panel of active-duty military officers. This law is in blatant violation of Article 10 of the UDHR and Article 14 of the ICCPR which entitle defendants to be tried before an "independent and impartial tribunal." Dr. Alfredo Crespo, attorney for Dr. Abimael Guzman, wrote: "That Article 282 of the Political Constitution of Peru which is still in force, has clearly established that the Military Court and the Military Justice Code cannot be applied to civilians, which is the status of my client Dr. Abimael Guzman Reynoso, except in cases of treason to the fatherland in time of foreign war, which is not the case in the present situation of internal warfare which exists in Peru.

"It is a legal principle dating back to Roman law that 'no one can be judge and litigant at the same time.'"

This same violation occurs against all civilians who are tried before military tribunals. In the words of the Commission of International Jurists: "Military justice becomes a derivative of the policies inspired by the military command."

In discussing the problem of civilians being tried by military tribunals Amnesty International wrote:

"Firstly, military judges lack competence because they are not known to receive formal and accredited legal training which allows them to hear civilian criminal cases. Secondly, in cases where the military try civilians for terrorism-related offenses, the military lack impartiality because they inevitably become both accuser and judge. Thirdly, military judges lack independence because they are part of the military chain-of-command structure, and therefore remain subject to the orders of their superiors."

6.) Denial of the Right of Access to Legal Assistance

 Once in custody a suspect is not granted free and unlimited access to a defense attorney of his or her choosing in order to prepare his or her defense. This policy is in violation of Principle 18 of the "Body of Principles" and also violates Article 8 of the American Convention on Human Rights (ACHR) and Article 14 (3) of the ICCPR. In the case of Dr. Abimael Guzman, Dr. Alfredo Crespo was denied access to his client on several occasions; Dr. Crespo appealed to the Attorney General for Peru, who denied his request, and then to the President of the Supreme Court, where he was also denied access. Although Dr. Crespo was eventually allowed to interview Dr. Guzman, the interview was only permitted for fifteen minutes and was conducted under the surveillance of police agents, and the plaintiff alleged that the police used secret microphones to listen in on the meeting. This is routine practice for those charged with treason and terrorism, which is made worse by the harassment faced by the attorneys willing to take the terrorism and treason cases (detailed below). Although since repealed in November 1993, at the time of the trial of Abimael Guzman and others, a provision of the anti-terrorism decrees restricted attorneys from defending more than one defendant charged with terrorism or treason at a time.

The ability of a defendant to prepare and present a defense is severely restricted by the rules of the "faceless courts." Attorneys must petition to have access to the government's case file and in many cases no response is ever made to these petitions. In the case of Dr. Abimael Guzman, Dr. Alfredo Crespo was given just twelve hours to examine eight volumes of evidentiary files. Excessively rapid hearings are held, sometimes with less than twenty-four hours notice to the attorney to appear in prison court in a remote location requiring hours of travel to reach. This restriction of the defendant's ability to prepare his or her defense and to communicate with counsel violates the ICCPR Article 14 (3b).

Defendants are not allowed to question their accusers which violates ICCPR Art. 14 (3e). Police witnesses are not present at the proceedings. The Lawyers Committee for Human Rights wrote, "Since in the vast majority of terrorism cases the only prosecution witnesses are police agents, the practical result is that the defendant will have no opportunity to question any witnesses, unidentified or otherwise." In numerous cases, the main evidence against the accused is based on testimony of so-called repentant terrorists (arrepentidos) who had turned themselves in under the May 1992 Repentance Law to receive immunity from prosecution or reduction in sentence in exchange for their giving incriminating testimony against others.

"...Uncorroborated statements have been used to implicate individuals despite obvious errors or inconsistencies. Since the defense cannot know the identity of the arrepentido or question him or her directly, or often even read the testimony, such evidence is by its nature deeply flawed." Even where the investigating Judge has determined that there is insufficient evidence to support a charge of terrorism or treason, defendants are routinely detained for up to a year or more without a meaningful opportunity for conditional release. In the case of treason trials before the military courts all cases are summary, meaning that the verdicts are based solely on findings of police reports without any further investigation and must be issued within 10 days of formal charge.

All of these rules and practices severely inhibit due process and are thus in violation of Article 14 of the International Covenant on Civil and Political Rights and Article 8 of the American Convention on Human Rights.

7.) Denial of the Right to Appeal

The appeals process offers little relief. Those convicted of treason by a military tribunal have only three days to submit an appeal, are prevented from appealing to civilian courts, and are prohibited from appealing any sentence less than thirty years. Civilian cases may be appealed before a special Antiterrorist Criminal Chamber, but 80% of these appeals have been denied. Even for those who eventually gain an acquittal, the average time spent in prison is 28 months. The severe limitations in the appeals process violate Article 14 (5) of the ICCPR and Article 8 of the ACHR.

The System of "Faceless Courts"

 All of the above-cited practices, including the use of "faceless" judges, have been vigorously denounced by numerous international human rights bodies. In its July 1996 report, the United Nations Human Rights Committee stated that it "particularly urges that the system of 'faceless judges' be abolished and that public trials for all defendants, including those charged with terrorist-related activities, be reinstated immediately." Similarly the report of the UN Special Rapporteur on the independence of judges and lawyers recommended that the faceless tribunals "be abolished forthwith," and that "civilians should no longer be tried before the military courts." The Inter-American Commission on Human Rights decried as "particularly disturbing" the system of faceless courts in its 1993 "Report on the Situation of Human Rights in Peru." The Commission of International Jurists also called for ending the use of faceless courts and military trials for civilians.

In the face of these widespread protests by international human rights advocates, on October 15, 1997, the Peruvian government finally backed off of this discredited practice and declined to request a renewal from Congress of the use of the "faceless judges." Yet despite the current suspension of the "faceless judges," the unjust convictions of all who were tried by these courts have not been vacated. Thousands of prisoners convicted by these "faceless courts" over the last five years are still being arbitrarily detained in prisons throughout Peru.

Because of the abuses which have permeated the judicial process in Peru since April 1992, none of the prisoners still being held under Decree Laws 25.475 and 25.659 have received treatment which meets with the minimum requirements of decency according to international standards. The practices of the "faceless" courts and judges have in the cases of Dr. Guzman and hundreds of other defendants charged under the anti-terrorism Decree Laws severely violated Principles 1, 2, 3, 4, 5, 6, and 7 of the Basic Principles on the Independence of the Judiciary.

It is difficult to obtain accurate figures for the numbers of people who have been charged and convicted under the anti-terrorism laws:

In August 1995 the Peruvian Minister of Foreign Affairs, Francisco Tudela, informed the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, on Torture and on the Independence of Judges and Lawyers, as well as the Chairman of the UN Working Group on Enforced and Involuntary Disappearances, that at least 5,000 persons had been convicted and sentenced under the new legislation.

Similarly, Amnesty International reported, based on information received up through November 15, 1996, that "in the four-year period following the introduction of the new anti-terrorism laws in 1992, it is estimated that at least 5,000 persons have been sentenced to prison terms."

The Lawyers Committee for Human Rights cites a figure from La Republica (February 11, 1993) of only forty-nine convictions in 1993, yet the same source states that at that time there were 3000 "open cases" of suspects being held without having had recourse to a trial.

Whatever the exact numbers, it is clear that thousands of individuals have been charged under the terrorism and treason laws and are currently being arbitrarily detained in Peru's prisons which maintain notoriously harsh conditions.

Even more revealing than the numbers arrested are the figures for convictions. According to Human Rights Watch, of 243 tried for treason in 1994, only seven were found not guilty; this amounts to a conviction rate of 97 percent. In the rare cases when the military tribunal does find a defendant not guilty of treason, often the defendant, instead of being freed, is charged with terrorism and must face another trial before civilian courts. Human Rights Watch cites the case of Luis Alberto Cantoral Benavides, who was acquitted of treason by a military tribunal and then was retried and convicted before civilian faceless courts for a charge of terrorism on the basis of supposed "new evidence" presented by the prosecution. This violates the right not to be tried twice for the same offense which is guaranteed in Article 8(4) of ACHR and Article 14(7) of the ICCPR.

Most defendants charged with terrorism since the enactment of the current anti-terrorism legislation suffer prolonged pretrial detention in violation of the internationally recognized right to be tried without undue delay, as in Article 25 of the American Declaration and Article 9 of the Universal Declaration. Principle 38 of the Body of Principles stipulates that a person shall be entitled to a trial within a reasonable time or release pending trial. Most of these persons charged with terrorism since the anti-terrorism laws were enacted are still awaiting trial, some for over two years. According to Amnesty International the period of pre-trial imprisonment can even be extended to five years in terrorism cases "of a complicated nature" which are "especially difficult."

Conditions of Imprisonment

The greatest number of defendants facing terrorism charges are held in Lima's Miguel Castro Castro Prison, and second to that are those imprisoned at Lambayeque's Picsi Prison. Defendants accused of terrorism are also held in the Quencoro Prison in Cuzco, Yanamayo Prison in Puno, known for maintaining the severest conditions, Santa Monica Prison for Women in Lima, and Chorrillos Prison in Lima. Special underground isolation cells have been constructed at the Navy Base in Callao for those considered the leaders, including Dr. Abimael Guzman.

Prisoners held in all these prisons suffer severe restrictions on food, water, and medical care, are restricted to their cells 23 hours a day, and in some prisons, such as Yanamayo, prisoners lack any protection from year-round freezing weather conditions. These conditions to which prisoners are subjected are in clear violation of the prohibition against cruel, inhuman or degrading treatment or punishment in UDHR Article 5 and ICCPR article 10. These conditions fall consistently short of the principles outlined for the Standard Minimum Rules for the Treatment of Prisoners.

Visitation of defendants is severely restricted. The Decree Laws stipulate that for the first year after conviction a defendant will be allowed no visitation whatsoever even from family members. This rule is in clear violation of Principle 19 of the Body of Principles. After the first year passes, once a month visits are allowed by family members only for one half hour.

Even the Red Cross has been restricted from visiting prisoners charged or convicted of treason or terrorism. Associated Press reported on August 20, 1997 that since December 17, 1996 the Peruvian government had been preventing all visits by the Red Cross to these prisoners to inspect their living conditions, leaving the prisoners completely at the mercy of prison officials. This violates Principle 29 of the Body of Principles which provides for regular visits by qualified impartial persons.

While prior to conviction access to lawyers is severely restricted, following conviction, defendants are denied any access to a lawyer, which is in violation of Principle 18 of the Body of Principles. In the case of Dr. Abimael Guzman, as cited above, Dr. Alfredo Crespo was denied access to his client on numerous occasions prior to the trial. Dr. Guzman was found guilty of treason on October 7, 1992 and sentenced to life in prison. On October 24, 1992 Dr. Alfredo Crespo was notified by the Peruvian Supreme Military Council that he could no longer be Dr. Guzman's attorney. Dr. Crespo was subsequently arrested and convicted of treason and sentenced to a life term. Since that time, the Peruvian government has repeatedly denied access to Dr. Guzman by other lawyers who were forced to take over Dr. Crespo's responsibilities after he was imprisoned. On October 28, 1993 Professor Peter Erlinder traveled to Peru to see his client and was denied access. In March 1994 Dr. Carlos Gamero Quispe and Dr. Ernesto Messa Delgado, attorneys in Peru for Dr. Abimael Guzman, filed a petition of habeas corpus requesting access to their client. Petition was denied.

Harassment and Persecution of Lawyers

A major way in which obstacles are erected against the right to defense is through the harassment and persecution of lawyers who represent those charged with terrorism and treason. Particularly in trials before military tribunals, lawyers face harassment in the conduct of their defense work. Dr. Alfredo Crespo, attorney for Dr. Abimael Guzman reported being forced to wear a hood in transit to the special prison where the proceedings against Dr. Guzman were held. Dr. Crespo was allowed only fifteen minutes with his client and was not allowed to speak in defense of his client at the proceedings.

Attorney Anne-Marie Parodi who traveled to Peru on the Sept. 30 - Oct. 9, 1992 delegation reports:

"We met with several of our colleagues who defend political prisoners in Peru. They related to us the difficulties they were encountering; frequently they were not convoked for sessions; there were obstacles to seeing their clients, or to consulting their files....We also learned that their security was threatened; quite recently two lawyers had 'disappeared'; two others had been killed last May during the massacre of the forty political prisoners in the Canto Grande prison." Members of the Association of Democratic Lawyers (ADL) have been especially targeted for harassment and repression which impairs and prevents their activities in the service of their professional and ethical obligations. Registered with the Peruvian government in 1978, the ADL was formed to provide legal assistance to the poor. Numbering several hundred lawyers and legal associates in Lima by 1992, it was also the main lawyers' group in Peru which defended political prisoners, including most recently those accused under the anti-terrorism laws and other.

In January, 1993 Mr. Fujimori officially banned the ADL and announced on television that any ADL lawyers who continued to carry out activities on behalf of political prisoners would be arrested. In its report released in April 1993, America's Watch reported that at least nine ADL members, including its most prominent members, had been detained, and that several had been tried by military courts and condemned to life imprisonment. Subsequent arrests of ADL lawyers have been less publicized, but the pattern has continued. The Association of Democratic Lawyers reported in December 1992 that five defense lawyers had been arrested who practice law and defend individuals charged with terrorism in the Department of Lambayeque. All were charged with "apology for terrorism," held in prison and subjected to physical and psychological torture.

The most glaring cases are those of Dr. Alfredo Crespo Bragayrac and Dr. Jorge Cartagena Vargas, both of whom have been convicted of treason and sentenced to life in prison. On July 20, 1992, Dr. Cartagena was seriously injured in an assassination attempt. Dr. Crespo reported receiving death threats to himself and his family. On January 11, 1993, Drs. Cartagena and Crespo were arrested and accused of treason, based on allegations that they were members of the Communist Party of Peru. The case was based on an alleged hit list which was supposedly in Dr. Crespo's possession, but much evidence points to this "evidence" being a creation of agents of the Directorate of Intelligence of the Army and deliberately planted in the office of Dr. Crespo. Nevertheless Drs. Crespo and Cartagena were tried in secret military courts and within days after their arrest were sentenced to life in prison. The Lawyers Committee for Human Rights expressed

"its concern that two lawyers have been sentenced to life imprisonment, and that proof of their participation in acts constituting terrorism or treason has not been made public. The public disclosure of this proof is indispensable in these cases because both professionals were defending terrorists. If their convictions were in any way linked to their defense work, this would constitute a flagrant violation of the right of defense." In a video-taped interview given shortly after the arrest of Dr. Crespo, his wife stated: "I emphasize that my husband's arrest is a political matter. Ever since the Garcia government the lawyers have been persecuted. My husband noted several times that he was under surveillance ...
I also want to emphasize that he was arrested especially because he undertook the defense of Mr. Abimael Guzman ... My husband was arrested and sentenced to prison in less than a month. It was a trial where only one supposed witness was presented. I find it necessary to make this denunciation because currently all trials follow this pattern. None of the detainees have any right to defense. Many lawyers have been arrested in similar manner as my husband was simply because they have undertaken the defense of persons accused of terrorism." The practical effect of this harassment of the attorneys is to severely limit defendants' the right to counsel in violation of Principle 17 of the Body of Principles and Article 14 of ICCPR.

Peru's Responsibility

 Peru is bound by international agreements and treaties which guarantee the individual rights of defendants. Peru subscribes to the Universal Declaration of Human Rights, articles 10 and 11 of which enshrine the right to a fair trial. The Commission of International Jurists has stated: "By virtue of its being a member of the Organization of American States (OAS), Peru is also required to uphold the basic individual rights and guarantees proclaimed in the 1948 American Declaration of Rights and Duties of Man ("American Declaration"). The right to a fair trial is similarly guaranteed in Article XXVI of the American Declaration.

"In addition to these constitutive instruments and declarations, Peru has ratified the International Covenant on Civil and Political Rights ("International Covenant") and its Optional Protocol and the American Convention on Human Rights ("American Convention"). By so doing, Peru assumed a solemn duty toward other State Parties and particularly toward its own inhabitants to respect and to ensure the free exercise of rights guaranteed in both instruments. Article 105 of Peru's 1979 Constitution accords both treaties the rank of constitutional law."

Peru's practices under the anti-terrorism decrees are in direct violation of Articles 7, 9, 10, and 14 of the ICCPR and Article 8 of the ACHR.

By the standards established by the United Nations Working Group on Arbitrary Detention in Annex I of its January 21, 1992 Report, the practices carried out in the application of Decree Laws 25475 and 25659 constitute across-the-board practices of arbitrary detention. Specifically the practices in question are covered by the following points of Annex I: III. A. 5, 9, 11, 12, 14; C. 1. a, c, e; 2; 3.

Recommendations

We respectfully request that the UN Working Group on Arbitrary Detention make a thorough examination of the above outlined judicial practices of the government of Peru which have led to the arbitrary detention of several thousand individuals. The thousands of prisoners being starved and frozen to death and suffering all manner of inhuman conditions in the prisons have never been afforded due process and have never had an opportunity to defend themselves against their accusers.

We request that the UN Working Group recommend to the Government of Peru that it immediately:

  1. Declare all proceedings against prisoners carried out under the anti-terrorism Decree Laws, and all convictions carried out by the "faceless courts," unlawful under both international customary and conventional law which is lawfully binding upon Peru.

  2. Repeal Decree Laws 25.475 and 25.659; repeal Decree Law 25.708 and end the use of military tribunals in trials of civilians.

  3. Grant access to their clients to all attorneys of all persons who have been charged or convicted under the anti-terrorism Decree Laws.

  4. Desist from harassment of attorneys who defend prisoners accused under the anti-terrorism laws and permit them to provide representation and defense to their clients.

  5. Immediately and unconditionally release all attorneys imprisoned for carrying out their professional duties in representing those accused under the anti-terrorism laws.

  6. Grant free and regular access to lawyers, doctors, and family members of Dr. Abimael Guzman and to all prisoners convicted under the anti-terrorism laws.

Respectfully submitted,

(signed)

Leonard I. Weinglass, Esq.

(signed)

Professor Peter Erlinder

INDEX OF APPENDICES

A. Report of the Ad Hoc International Lawyers Delegation to Observe the Trial of Abimael Guzman, Lima, Peru, Sept. 30 - Oct. 9, 1992

B. "Peru: Two Faces of Justice," Human Rights Watch/Americas, July 1995, pp. 1-38

C. Report of the Commission of International Jurists on the Administration of Justice in Peru, November 30, 1993

D. "Fighting Terrorism with Human Rights Abuses: The Peru Experience," Committee on International Human Rights of the Association of the Bar of the City of New York, 1994

E. "Peru: Human Rights in a Time of Impunity," Amnesty International, May 16, 1996, pp. 8-12 and 21-22

F. Statement of Leonard I. Weinglass, Esq., International Attorney for Dr. Abimael Guzman, in support of the Sixth IEC Delegation's Efforts to Visit Dr. Abimael Guzman, July 1995

G. Emergency Bulletin #16, International Emergency Committee to Defend the Life of Abimael Guzman, November 30, 1992, p. 1

H. Prisonniers Politiques au Perou by Anne-Marie Blanchet-Parodi, December 1996

I. "Government Gets Tough on Peruvian Judge," San Francisco Chronicle (U.S.), August 15, 1997

J. Petition to the Instructing Judge of Lima on behalf of Dr. Abimael Guzman Reynoso, filed by Dr. Alfredo Crespo Braygarac on September 30, 1992 [with unofficial English translation]

[For this document see Communication in the Matter of Guzman v. Peru, submitted on behalf of Dr. Abimael Guzman to the United Nations Working Group on Arbitrary Detention, January 10, 1992, at APPENDIX A]

K. "Peru: Lawyers Committee Concerns Regarding Anti-Terrorism Courts and the Administration of Justice Since April 1992, Lawyers Committee for Human Rights, July 1993

L. Preliminary Statement of Mission to Peru of the Association of the Bar of the City of New York, 1994

M. "Peru: Presumption of Guilt," Human Rights Watch/Americas, August 1996, pp. 19-20

N. "Peru Nixes Red Cross Prison Visit," Associated Press news release, August 20, 1997

[For this document see Communication in the Matter of Guzman v. Peru, submitted on behalf of Dr. Abimael Guzman to the United Nations Working Group on Arbitrary Detention, January 10, 1992, at APPENDIX C]

O. Brief Amicus Commissae in Guzman v. Peru, Rights International, the Center for International Human Rights Law, Inc., before the Inter-American Commission on Human Rights

[For this document see Communication in the Matter of Guzman v. Peru, submitted on behalf of Dr. Abimael Guzman to the United Nations Working Group on Arbitrary Detention, January 10, 1992, at APPENDIX F]

P. Action of Constitutional Guarantee of Habeas Corpus, filed on behalf of Dr. Abimael Guzman by Dr. Carlos Gamero Quispe and Dr. Ernesto Messa Delgado before the President of the Criminal Branch of the Superior Court of Lima, March 15, 1994 [with unofficial English translation]

[For this document see Communication in the Matter of Guzman v. Peru, submitted on behalf of Dr. Abimael Guzman to the United Nations Working Group on Arbitrary Detention, January 10, 1992, at APPENDIX G]

Q. Emergency Bulletin #23, International Emergency Committee to Defend the Life of Abimael Guzman, January 23, 1993, p. 1

R. "Human Rights in Peru One Year After Fujimori Coup," Human Rights Watch/Americas, April 1993, pp. 28-29

S. "In Defense of Rights: Attacks on Lawyers and Judges in 1993," Lawyers Committee for Human Rights, 1994, pp. 170-176

T. Translation of a 1993 videotaped interview with the wife of Dr. Alfredo Crespo [in unofficial English translation]