COMMITTEE AGAINST TORTURE HEARS RESPONSE OF PERU

The Committee against Torture this afternoon heard the response of Peru to questions raised by Committee Experts on the fourth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Tuesday, 2 May, the delegation, which was led by Alejandro Tudela, Minister of Justice of Peru, said that all matters relating to human rights violations were within the jurisdiction of the Public Prosecutor's Office and not the military courts. There was a hierarchy in the Public Prosecutor's Office; it acted independently, but when a citizen did not agree with the judgment of the Public Prosecutor, that person could appeal to a higher body, which could overrule the previous judgment. The refusal of a prosecutor to prosecute would not result in res judicata, i.e., a person concerned could allege new elements, including new facts and new events to insist the investigation proceed.

The delegation said that the Government of Peru had been paying compensation amounts provided for by the Inter-American Court of Human Rights, including those awarded in torture cases such as those of Loayza and Cantoral Benavides. The right to reparation for human rights violations, including torture, was guaranteed by the General Law of Reparations, enacted on 29 July 2005, which authorized economic reparations for individuals whose human rights had been violated with respect to events that occurred during the period 1980 to 2000. By 2005, the amount of compensation that was provided by Peru for cases judged by the Inter-American Court of Human Rights had reached approximately $ 15 million.

The Committee will issue its conclusions and recommendations on the report of Peru towards the end of the session on Friday, 19 May 2006.

As one of the 141 States parties to the Convention, Peru is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10 a.m. on Thursday, 4 May, it is scheduled to take up the third periodic report of Guatemala (CAT/C/74/Add.1).

Response of Peru

ALEJANDRO TUDELA, Minister of Justice of Peru, responding to a series of questions raised by the Committee Experts on Tuesday, 2 May, said that progress had been made concerning the administration of justice in terms of the autonomy and independence of judges.

With regard to cases of torture in particular, Constitutional case law had clearly established that all matters relating to human rights violations were within the jurisdiction of the Public Prosecutor's Office and not the military courts. The Public Prosecutor's Office had full access to military and police offices. There was a hierarchy in the Public Prosecutor's Office, Mr. Tudela affirmed. The Office acted independently, but when a citizen did not agree with the judgment of the Public Prosecutor, that person could appeal to a higher body, which could overrule the previous judgment. The refusal of a prosecutor to prosecute would not result in res judicata, i.e., a person concerned could allege new elements, including new facts and new events to insist the investigation proceed.

The Prosecutor's Office currently had a database to support its work, which registered all complaints and accusations, but it was only available in the capital. It might be used to register complaints of torture in the future, Mr. Tudela said.

Continuing to respond to questions, another member of the delegation said that the State of Peru had been paying compensation amounts provided for by the Inter-American Court of Human Rights, including those awarded in torture cases such as those of Loayza and Cantoral Benavides. The right to reparation for human rights violations, including torture, was guaranteed by the General Law of Reparations, enacted on 29 July 2005, which authorized economic reparations for individuals whose human rights had been violated with respect to events that occurred during the period 1980 to 2000. By 2005, the amount of compensation that was provided by Peru for cases judged by the Inter-American Court of Human Rights had reached approximately $ 15 million, the delegation noted.

With regard to the issue of the declaration of a state of emergency, there were constitutional guarantees against abuse of that mechanism. To date, there were two emergency zones in effect because public order was being subverted by drug-related and terrorist-related groups. Those two sub regions were mountainous, jungle areas, with extensive territory and low population density. A challenge to a state of emergency could be challenged by popular action, but that had never been implemented, the delegation noted. The challenge had been made indirectly, through a habeas corpus approach, but those challenges had never been declared judicially valid.

The case of Lori Berenson had two specific stages. First, she had been sentenced by a military court, under extraordinary anti-terrorist legislation, by two "faceless" judges. That sentence had been cancelled. A second case was tried before a civil court and she was sentenced to imprisonment in Peru for collaboration to commit a terrorist act. An appeal was lodged to the Inter-American Court of Human Rights which declared the first trial null and void, but upheld the second judgment. The Inter-American Court then ordered that economic reparations be paid for the violation of Ms. Berenson's human rights, with regard to the first trial, and held that Peru should pay those damages, as well as Ms. Berenson's court costs for that trial. The State of Peru had paid those costs, the delegation confirmed.

Questions by Committee Experts

FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of Peru, thanked the delegation for the detailed answers to practically everything he had asked. He would like to ask some additional questions about what had been said.

First, he wanted to note that the Committee was not addressing torture as a crime against humanity, Mr. Mariño Menendez said. It belonged under that title, but it could also be a war crime. The concept of torture was autonomous here.

Mr. Mariño Menendez asked if it was only military prisons that were under military control in Peru? He would like that to be confirmed. He also wanted to know what legal aid was available to those who had been convicted and were in prison.

He thought that the access of the International Committee of the Red Cross (ICRC) to prisons in Peru had been suspended between 2003 and 2004, what was the reason for that, Mr. Mariño Menendez asked, noting that the ICRC had stated that those visits were now continuing.

With regards to complaints of forced sterilizations by indigenous women, he had heard the delegation’s assertions of the rules against such forced sterilizations but what concrete measures were being taken to investigate those complaints? Was it just a matter of formulating rules, Mr. Mariño Menendez wondered?

CLAUDIO GROSSMAN, the Committee Expert serving as Co-Rapporteur for the report of Peru, wondered if there was sufficient clarity, within Peru's specialized human rights legal system, for example, in cases of violations of international obligations? In that regard, were there any specific criteria to establish clearly which cases should be addressed by the specialized system?

What was the prison population in Peru? Did the delegation have information on the availability of legal aid lawyers, and if so how many were there? Was there a mechanism to show how many legal aid lawyers there were per prisoner, Mr. Grossman asked?

Noting that being held incommunicado was considered cruel, inhuman or degrading treatment, Mr. Grossman wondered if there were any such cases in Peru?

Other Experts then made further comments, in particular asking what criteria were taken into account for qualifying a judge in a country that wanted to see itself as having consolidated its human rights instruments.

Response by Delegation

Responding briefly, the delegation said that it would like to clarify the question with regard to the issue of whether there was a penitentiary system that was not under civil administration. There was such a detention centre, called CEREC, which was under military control. It was a development that had unfortunately occurred as a result of the internal violence that had taken place in Peru over the past 20 years. The leaders of Sendero Luminoso, or the Shining Path, as well as those of the Tupac Amaru, were some of those in the special centre, which was under the control of the Peruvian Navy. Once their trials were concluded, in accordance with the sentences handed down, those prisoners would probably be transferred to maximum security facilities.

That was an extraordinary situation, the delegation stressed, which had to do with the security situation involved. By their nature, the common prison facilities were not able to handle prisoners of this type. But, gradually, Peru was trying to integrate such cases into the regular prison system.

There were 35,000 detainees in the prisons of Peru, in about 85 or 86 prisons or jails all over the country, the delegation reported. There were no detainees that were kept in isolation or incommunicado.

The number of public defenders was insufficient, the delegation acknowledged. There were 537 public defenders for 35,000 detainees, so that meant 65 defenders per detainee.

The National Council of the Judiciary was not a regular judicial body, but, rather, was administrative in nature, the delegation said. It comprised representatives from the Supreme Court, representatives of the College of Lawyers, and representatives from the law faculties of Peruvian Universities. The Council carried out tests and evaluations for the selection of judges at all levels, as well as for prosecutors. It was also responsible for the confirmations or ratifications of those appointments. It also carried out assessments of the performance of judges. Although the resolutions and decisions of that body were final, they were not unappealable. They could be appealed if there was a serious violation of the right to due process in carrying out a decision, and that was available through the procedure of amparo.

Regarding the question about the interruption of visits by the ICRC to prisons, the delegation stressed that at no time was that the case. Not only did the Government of Peru have very friendly relations with the ICRC, they felt that their assistance was invaluable. What had happened was that one sector of the administration had published an ICRC report which was considered not to be in accordance with the headquarters agreement. There was a gap in the instrument. So, through the Ministry of Foreign Affairs, two agreements were reached. In the first, the ICRC had felt it was necessary to suspend visits until a second agreement was reached – the headquarters agreement that envisaged all the procedures for their visits and reports. The second agreement was reached and the visits resumed.

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