COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF PERU

The Committee against Torture this morning began its consideration of the fourth periodic report of Peru on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Alejandro Tudela, Minister of Justice of Peru, said that the Truth and Reconciliation Commission had been set up by President Alejandro Toledo Manrique to bring to light human rights violations, including torture, that had taken place in the previous decade. Peru had made progress, but more was needed. The First National Plan for Human Rights 2006-2010 would make it possible to consolidate and recreate the state institutional mechanisms with an emphasis on those that protected against torture and cruel, inhuman or degrading treatment.

Serving as Rapporteur for the report of Peru was Committee member Fernando Mariño Menendez, who said that he greatly appreciated the clarity and transparency of the report, and welcomed the fact that the delegation had accepted the complaints mechanism and its willingness to accept the Optional Protocol. He noted, however, that in the delegation's replies there were often gaps and hoped that more information would be provided in due course. There has been no information provided, as requested by the Committee, on compensation provided to victims of torture between 2000 and 2005, which should be disaggregated by gender.

Committee member Claudio Grossman, serving as Co-Rapporteur for the report of Peru, said that there was obviously a big difference in Peru now and previously when there were widespread violations of human rights. There had been a considerable change in values. He wondered if there were plans to strengthen training for members of the police and for the judiciary and the public prosecutors office on issues of torture? As had been brought up by Mr. Mariño Menendez, the 1998 law on torture had only led to four convictions. There seemed to him to be some impunity here.

Other Committee Experts raised questions on issues pertaining to, among other things, what was being done to create a judiciary branch in Peru that would be able to make judgments without hindrance or interference, and whether the amnesty laws had been abrogated, whether they were simply no longer applied, or if it was simply no longer in the interest of the judiciary to apply them.
The delegation will return to the Committee at 3 p.m. on Wednesday, 3 May to provide its response to the questions raised this morning.

Peru is among the 141 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

Also representing the delegation of Peru were Manuel Rodríguez-Cuadros, Permanent Representative of Peru to the United Nations Office at Geneva, José Burneo-Labrín, Executive Secretary of the National Council on Human Rights, Patricio Rubio, Legal Adviser to the General Directorate of Human Rights of the Ministry of the Foreign Relations, and members of the Permanent Mission of Peru in Geneva.

When the Committee reconvenes at 3 p.m., it will meet with the Special Rapporteur on Torture Manfred Nowak.

Report of Peru

The fourth periodic report of Peru (CAT/C/61/Add.2) says that thanks to its policy in favour of the promotion and protection of human rights, the situation currently facing the democratic constitutional Government is qualitatively different from the situation inherited a decade ago, as shown by the significant drop in the number of new complaints for alleged acts of torture or ill-treatment. Furthermore, the National Council of the Judiciary has become a bulwark of independence and autonomy in the exercise of its functions, being able to represent various institutions of civil society without interference from the political authorities. Incommunicado pre-trial detention of up to 15 days was declared unconstitutional by the Constitutional Court in its decision of 3 January 2003, and the Truth and Reconciliation Commission has expressed opposition to the use of military courts for trying civilians. Since February 2003 there have been no proceedings against civilians on charges of treason or aggravated terrorism conducted in military courts. The automatic penalty of at least one year of solitary confinement for anyone convicted of a terrorism offence was found by the Consitutional Court to have no legal justification and in a new law those convicted of a terrorism offence are entitled to receive a weekly visit by their closest relatives.

With regard to the Committee’s concern that there was an apparent lack of effective investigation and prosecution of those who were accused of having committed acts of torture, the report says the situation is now qualitatively different from that which prevailed until November 2000. Acts of torture that occurred at that time are now subject to criminal investigation or to judicial proceedings. The report also mentions steps taken to address concerns about the use of amnesty laws that preclude prosecution of alleged torturers. Since 1999, the establishment of states of exception in various geographical areas of the country has diminished. In addition, the Peruvian legal system is being realigned with the Constitution and the American Convention on Human Rights so that persons convicted of terrorism as leaders of subversive organizations have the opportunity to have their trials reviewed and they are subject to a prison regime which complies with the minimum protection standards recognized by international human rights law and international humanitarian law. The report concedes that Peru has no official figures regarding the number of cases of torture reported to the relevant authorities and that lawyers, out of ignorance, often report a breach of personal integrity as injuries or abuse of authority, without realizing that such treatment may constitute torture.

Presentation of Report of Peru

ALEJANDRO TUDELA, Minister of Justice of Peru, said that he would like to highlight that his presence in Geneva today was to express the highest possible commitment of the Government of Dr. Alejandro Toledo Manrique for the promotion, respect and protection of human rights. The lack of independence of the members of the judiciary, who did not have secure tenure, was the main mechanism that was used by those in power in the last decade in order to ensure impunity. There had been a substantive and quantitative change in that respect. Thanks to the creation of the National Council of the Judiciary, 90 per cent of the members were titular members and had established posts and this pluralistic system was now fully operational.

With regard to the application of amnesty laws in cases of grave violations of human rights law, the Committee had expressed its concern and made specific recommendations. The report summed up the results of investigations undertaken by Peru in that regard. Of greatest importance, not only for Peru but for the entire continent, Mr. Tudela said, was the ruling of 14 March 2000 of the Inter-American Court of Human Rights on the Barrios Altos case. That decision stated that the application of amnesty laws that prevented the prosecution and imposition of penalties in cases of grave human rights violations ran counter to the American Human Rights Convention. The Constitutional Court of Peru, in handing down a ruling in a case involving grave violations of human rights, had upheld that ruling.

Also pursuant to the ruling of the Inter-American Court of Human Rights, the Supreme Court of Peru had then set up a subsystem of justice concerning human rights violations. The Public Prosecutors Office also applied that system. A number of cases concerning disappearances have been brought to trial, such as the Barrios Altos case and the disappearances of the journalist Pedro Yauri, which had previously been suppressed owing to amnesty laws.

Mr. Tudela said that the Truth and Reconciliation Commission had been set up by President Toledo to bring to light human rights violations, including torture, that had taken place in the previous decade. The final report of the Commission had been handed in on 28 August 2003. The final report shed light on the period of armed violence that had been the most lengthy in the history of Peru. Tens of thousands of Peruvian men and women were victims; 75 per cent of them speakers of quechua or other native languages -- a population that made up only 16 per cent of the total national population. The report stated that paramilitary groups under the previous regime had been committing serious violations of human rights.

Peru had made progress, but more was needed. The First National Plan for Human Rights 2006-2010 would make it possible to consolidate and recreate the state institutional mechanisms with an emphasis on those that protected against torture and cruel, inhuman or degrading treatment.

Response by Delegation

MANUEL RODRÍGUEZ-CUADROS, Permanent Representative of Peru to the United Nations Office at Geneva, responding to a series of written questions prepared by the Committee in advance and sent to the State party beforehand, said that concerning the provision of additional information on the incorporation of the Rome Statute in the legal system, he affirmed that all of the terms of the Rome Statute were valid in Peru.

With regard to the provision of greater detail on the incidence of torture in Peru in the period from 2000 to 2005, Mr. Rodríguez-Cuadros said that he had a report to submit to the Committee, undertaken by the Human Rights Ombudsman on the subject, which covered the period from 1998 and 2004. On the basis of that report the Peruvian State and the Ombudsman's Office were carrying out follow-up activities.

The delegation said a question had been asked about what progress had been made in defining the characteristics of torture between 2000 and 2005. The executive had asked the judiciary to address the question of the status of complaints of victims of torture during that period. That information indicated that during the period alleged perpetrators of torture included members of the armed forces and the police force. In addition, the proceedings have been opened against so-called crimes of torture against peasant communities. Most of the victims were quechua speaking, as had also been indicated by the Truth and Reconciliation Commission. Most of the allegations, complaints and trials under way were trials of torture that took place between 1983 and 1995. Ninety-five per cent of the armed forces members who had committed those acts were coming up for retirement.

With regard to measures to ensure that the Convention was implemented consistently throughout the country, the delegation said that first, it was the Constitution that ensured the protection against torture. Next, article 321 of the Penal Code established torture as a crime and repeated literally the text of the United Nations Convention against Torture. Training programmes, undertaken by the Judges Academy, were a precondition for promotion, and were an element in the evaluation of judges and prosecutors, and included an intensive work unit on human rights, including the Convention. There was also an intensive training campaign for the national police force.

The Office of the Human Rights Ombudsman had as its mandate the protection of all human rights of the population in a quasi judicial manner. It could appeal to all the authorities in the county, including the military and the police, to interview them as required to provide information on allegations of human rights violations. It was also entitled to summon, under the law, any authority, including the military and the police, the delegation said. In the case of the police, an independent office of the Human Rights Ombudsman had been set up specifically for that sector.

Concerning allegations of torture in the army, in particular those performing military service, the delegation said more information would be provided in a report prepared by the Human Rights Ombudsman. In general, these concerned situations of degrading treatment, without reaching the level of torture.

With regard to the Committee's recommendation that Peru set up a national registry of complaints of torture, the delegation said that Peru had a system of complaints on matters of torture that was much more effective than the registry itself. They already had a Human Rights Ombudsman, which not only had its own registry but which was obliged to receive complaints and investigate them as part of its mandate. So there was a registry, but it was not State run. It was run by the Ombudsman, which conducted its own investigations, or proposed them, or transmitted them to the courts.

The delegation said that implementation of international treaties by national courts did not require a special law. The courts, since 2000, had begun to include the provisions of international treaties in their judgments as a justification for their decisions, including decisions handed down by the Inter-American Court of Human.

Regarding how Peru complied with the Convention in cases of expulsion, extradition or detention, the delegation said that in such cases, protection of the human rights of the persons concerned were always taken into account. Expulsion was only undertaken in three situations and there were mechanism to evaluate whether the person to be expelled would be at risk. In all cases, there had to be an evaluation of the person's situation in another country and a court ruling on the subject. If the Supreme Court said that the extradition could not go ahead, then the executive had to comply.

The delegation said that with regard to the prosecution of terrorist offences under military law, a new decision handed down had declared null and void all such decisions made under military law or judgments made by "faceless judges", that was, in cases where the judge was not present.

Forced sterilization of persons, in particular those living in rural areas who were quechua speaking, was a concern the Committee had previously expressed. The delegation stressed that the Peruvian Government was against any kind of forced sterilization as a form of birth control. Maternal and child health was applied by the Ministry of Health, which had held that it was prohibited to induce contraceptive measures by coercion, violence or manipulation. The Ministry of Health also had a policy in place to allow people to choose freely and to provide women with the necessary information to allow them to have a free choice in their pregnancies.

Concerning the involvement of non-governmental organizations (NGOs) in the drawing up of the country report, the delegation said NGOs were part of the National Human Rights Council within the Ministry of Justice and they had helped to draw up the present country report.

With regard to the ratification of the Optional Protocol to the Convention, the delegation said that it had been positively reviewed by all of the competent authorities in the executive branch and it was before Congress for ratification. The delegation hoped that it would be ratified as soon as possible.

Questions by Experts

FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of Peru, said that he greatly appreciated the clarity and transparency of the report, and welcomed the fact that the delegation had accepted the complaints mechanism and its willingness to accept the Optional Protocol.

Mr. Mariño Menendez noted that in the delegation's replies there were often gaps and he hoped that more information would be provided in due course. For example on the question of whether national courts could directly apply the provisions of international treaties, it would be helpful to have a clearer view. Also, how many prosecutors were assigned to look into human rights violations? Surely that information was available. More statistics should also be provided. There had been no information provided, as requested by the Committee, on compensation provided to victims of torture between 2000 and 2005, which should be disaggregated by gender.

On more technical issues, the delegation had asserted that the definition of torture in the current Penal Code literally reiterated the definition of torture in the present Convention, but he did not think that was the case. In the Convention it said suffering inflicted for any reason based on any type of discrimination, and he wondered whether the definition in the Penal Code covered that.

There continued to be complaints of torture and the Ombudsman had received 34 complaints according to the report. Since 1998 and up to now, although there had been many complaints of torture, whether by the police or the armed forces, there had only been six decisions by the Supreme Court on matters of torture. He wondered therefore if there had been decisions by lower courts on the matter.

Regarding the strengthening of the judiciary and the establishment of titular, stable judges, he would like to know the delegation's view on the confirmation of judges for a period of seven years. Seven years was actually a very short time, Mr. Mariño Menendez said. If someone thought that he would not be a judge three years from now, what effect would that have on his judgement? Also, was there some verification of a judge's level of knowledge or other tests?




Did provincial prosecutors have free access to military installations? Was such access difficult? Did the national police and the armed forces undertake their own investigations without the help of the public prosecutors office? What was the hierarchy among the specialized prosecutors, and what recourse was there if someone did not want to continue with a particular case. What body did they report to?

The delegation had said that since the Human Rights Ombudsman's office already had a registry, it was not necessary to have a separate torture registry. But with regard to detention, was each detention registered whenever it was undertaken, Mr. Mariño Menendez asked?

While the report stated that there were medical examinations for detainees, how was this carried out? Was it done every day for all detainees?

CLAUDIO GROSSMAN, the Committee Expert serving as Co-Rapporteur for the report of Peru, said that there was obviously a big difference in Peru now and previously when there were widespread violations of human rights. There had been a considerable change in values. Members of the delegation had been very willing to cooperate with the Committee. He noted that most members of the judiciary had titular posts and that the State had declared once again its approach to amnesty laws and its promotion of the Truth and Reconciliation Commission. It was important to hear from Peru that it was ready to be transparent and have an open and frank dialogue.

He wondered if there were plans to strengthen training for members of the police and for the judiciary and the public prosecutors office on issues of torture? Regarding the right to life and military service in Peru, 174 cases had been reported, a number of them cases in which people had died, and 118 of them acts of torture or other forms of cruel, inhuman or degrading treatment. Had they sought to add training programmes to avoid that kind of situation?

As had been brought up by Mr. Mariño Menendez, the 1998 law on torture had only led to four convictions. There seemed to him to be some impunity here.

Other Committee Experts made comments and raised a series of questions. An Expert said that he still did not understand what was being done to create a true judiciary branch in Peru that would be able to make judgments without hindrance or interference. Another Committee member asked whether there was a system of remedies against the decisions of the National Council. Regarding the amnesty law, the Expert was unclear whether it was abrogated, whether it simply no longer applied, or if it was that it was no longer in the interest of the judiciary to apply it. What was its actual status?

Other issues raised included specific measures that had been taken to monitor cases of sexual violence; how privacy was ensured to victims who wished to make complaints in the area of sexual violence; what was being done to identify members of the military who were known by code names in the field and whose identification had been requested by the judiciary from the military; allegations that military recruits were abused by officers and that those responsible were seldom held responsible, what preventive measures were being taken to ensure that casual abuse, such as hazing, was not carried out in the military; and what was the Government's position on the Inter-American Court's ruling on the case of Laurie Berenson, specifically, and what was the Government's position with regard to the decisions of the Inter-American Court, and were those decisions considered binding?

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